HomeMy WebLinkAboutAgreement to Enter Group Lease (Part 1)AMENDED AND RESTATED
AGREEMENT TO ENTER INTO GROUND LEASE
DATED AS OF FEBRUARY 1, 2010
(AMENDING AND RESTATING AGREEMENT
TO ENTER INTO GROUND LEASE
BETWEEN
THE CITY OF MIAMI, FLORIDA
AND
FLAGSTONE ISLAND GARDENS, LLC
DATED AS OF JANUARY 1, 2003)
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
5.4
ARTICLE 6
6.1
6.2
6.3
DEFINITIONS; INCORPORATION OF RECITALS, EXHIBITS
AND ATTACHMENTS; AND EFFECTIVE DATE 6
NATURE OF THIS AGREEMENT; GROUND LEASE
ATTACHED; NEW CONSTRUCTION SCHEDULE, OPTIONS TO
EXTEND, NEW PAYMENTS SCHEDULE,_ RELATED DEFAULTS
AND NOTES REGARDING CONDITIONS RELATED THERETO 6
Nature of this Agreement; Term 6
Ground Lease(s) 7
New Construction Schedule, New Payments Schedule, Options to Extend,
Related Defaults, and Notes Regarding Conditions Related Thereto............... 7
INSPECTION PERIOD... 8
Termination of Access and Indemnification Agreement............ 8
Inspections 8
Environmental Inspections 9
Indemnification 9
Insurance 10
AGREEMENT CONDITIONS AND DELIVERIES 10
Flagstone's Acknowledgments and Deliveries 10
Other Conditions and Deliveries 12
Outside Date 14
SECURITY DEPOSITS 15
Security for the Easements 15
Security Deposit for the Construction Rent/Base Rent 15
Deposits; Letters of Credit 16
Security for Hold Harmless and Indemnification and Security Provisions 16
EXECUTION AND DELIVERY OF GROUND LEASE(S) 17
Conditions Precedent to Execution and Delivery of Each of the Ground Leases 17
Special Additional Conditions Precedent with Respect to Component by
Component Development ... 23
Outside Dates . 24
ARTICLE 7 DEVELOPMENT OF PROJECT 24
7.1 Development Plans 24
7.2 Use and Ownership of Development Plans and Permits and Approvals in the
event of Termination 24
7.3 Platting and Other Development Matters 25
7.4 License(s)/Easements for Pre -Development Work 25
7.5 Indemnification and Waiver 26
7.6 Issuance to Flagstone of Marine Operating Permit for Existing Marina 27
7.7 Marina Approvals 28
7.8 Water and Sewer Agreement 31
ARTICLE 8 COORDINATION WITH CITY; APPROVAL PROCEDURES 31
8.1 Coordination with City 31
8.2 City Manager Approval Procedures 32
8.3 City Manager Approvals; Disclaimer 33
ARTICLE 9 DISCHARGE OF LIENS, JUDGMENTS, AND GARNISHMENTS 34
9.1 No Liens Judgments and Garnishments 34
9.2 Discharging Liens Judgment and Garnishments 34
9.3 Hold Harmless and Indemnification Agreement ... 35
ARTICLE 10 CONDEMNATION 35
10.1 Material Taking 35
10.2 Less than a Material Taking 35
10.3 Award 36
ARTICLE 11 DEFAULT AND REMEDIES; TERMINATIONS 36
11.1 Events of Flagstone's Default 36
11.2 Remedies for Flagstone's Default 37
11.3 City's Default 37
11.4 Terminations 38
ARTICLE 12 REPRESENTATIONS BY FLAGSTONE AND CITY; DEFENSE
AND RELEASE 38
12.1 Flagstone's Representations 38
12.2 City's Representations 39
12.3 Disclaimer of Representations by Flagstone 39
ARTICLE 13 MISCELLANEOUS 40
13.1 Assignment 40
13.2 Notices 41
13.3 Applicable Law 41
13.4 Severability 41
13.5 Waiver/Deferral 41
13.6 No Third -Party Beneficiary 41
13.7 Enforcement Costs 41
13.8 Entire Agreement 42
13.9 Headings 42
13.10 References 42
13.11 Brokers 42
13.12 No Partnership or Joint Venture 42
13.13 Counterparts 43
13.14. Jurisdiction and Venue .. 43
13.15 Waiver of Jury Trial ..... 43
13.16 No Conflicts of Interest . . 43
AMENDED AND RESTATED
AGREEMENT TO ENTER INTO GROUND LEASE
DATED AS OF FEBRUARY 1, 2010
OF
(AMENDING AND RESTATING 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
("C"), 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 electors of the
City of Miami regarding leasing the Property to Flagstone Island Gardens, LLC for the Project
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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. 10-0402, adopted September 23,
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
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:
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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 project 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, September 1, 2013, (b) for the Parking/Retail Components, September 1,
2016, (c) for any of the Hotel Components (if no option to extend the commencement of
construction is exercised), September 1, 2018, (d) for the Hotel Components (if the first five-year
option to extend the commencement of construction is exercised), September 1, 2023, and (e)
for the second Hotel Component (if the second five-year option to extend the commencement of
construction is exercised), September 1, 2028; Construction of any Major Project Component
must commence for that Component at the earlier of ninety (90) days after the applicable Lease
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Delivery Date and 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 August 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 August 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 August 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 as of February 1, 2010, 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 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.10-0402, 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).
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ARTICLE 3
INSPECTION PERIOD
3.1 Termination of Access and Indemnification Agreement. The parties hereby
acknowledge and agree that the certain Access and Indemnification Agreement entered into
between City and Flagstone was previously terminated in 2003 and is of no further force or
effect (except for any indemnification and confidentiality obligations which expressly survive
such termination).
3.2 Inspections.
3.2.1 Flagstone has performed, at Flagstone's sole cost and expense, all such
investigations and inspections as to the Property, the physical condition thereof, matters of
zoning, title, survey and all other matters with respect to the Property, including, without
limitation, environmental matters (collectively, the "Inspections"), which are in Flagstone's
judgment relevant to Flagstone's determination whether to lease the Property (subject to the
terms and conditions contained herein) or to terminate this Agreement. Prior to performing any
on -site Inspections, or which are necessary for Flagstone's lenders, Flagstone has previously
provided for such Inspections conducted before the Effective Date of this Agreement and shall
provide, if any further Inspections (including any related access agreements for Inspections to be
conducted by Flagstone's lenders) need to be provided or conducted after the Effective Date of
this Agreement) at least three (3) business days prior written notice to the Director of Real Estate
and Public Facilities, City of Miami, at 444 S.W. 2nd Avenue, 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 City Manager 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, 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 City Manager. The Inspections
conducted prior to the Effective Date of this Agreement were conducted and the future
Inspections conducted after the Effective Date of this Agreement shall be conducted in
accordance with all applicable laws utilizing licensed and insured professionals and Flagstone
did cause and shall cause, as the case may be, its inspectors to obtain, at Flagstone's sole cost
and expense, any and all licenses and permits required to conduct the Inspections, as applicable.
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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 City Manager, which
may be given or withheld in his or her sole and absolute discretion.
3.3.2 Flagstone did not, and shall not, perform any invasive environmental tests (such
as drilling or soil or groundwater testing) unless the City Manager has provided its prior written
consent thereto, which consent may be withheld in City's sole and absolute discretion.
Flagstone's request for any invasive environmental testing must be accompanied by the
inspection report (including all test results and analysis thereof) prepared by a reputable
environmental engineering company which recommends such additional testing and sets forth
the basis thereof and the protocol for testing in reasonable detail.
3.3.3 Flagstone agrees that in the event the need arises to notify, under applicable
laws, any federal, state or local public agencies of any conditions at the Property as a result of the
Environmental Inspections performed by Flagstone, its agents, employees, contractors and/or
other representatives, Flagstone shall notify the City Attorney only and such disclosures shall be
made directly by the City (if deemed necessary thereby), and not Flagstone, to any such public
agency.
3.4 Indemnification. Flagstone assumes all risks associated with the Inspections 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 feesand 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, 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 shall provide an updated Certificate of Insurance prior to the
execution of this Agreement, to be attached hereto as part of Composite Exhibit 3.5 and shall in
the future, prior to entering the Property and performing any Inspections, provide to City
evidence of insurance by Flagstone and its contractors, as applicable, as specified in Composite
Exhibit 3.5 attached hereto, insuring against any liability by any one or more of Flagstone and
its agents, employees, contractors or other representatives arising from, out of or in connection
with or otherwise relating to the entry by any one or more of Flagstone and its agents,
9
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 case of foreign investors who
do not have such Social Security Number or U.S. Federal Taxpayer Identification Number, any
similar identification number, if one exists, provided for in the country of their primary residence
or domicile) of all of the currently existing Investors in the Project other than those Investors: (a)
whose investments in the Project are made through an Existing Investment Fund; or () 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. The City
shall have the right, in its sole discretion, but not the obligation, upon the request of Flagstone, to
allow some other disqualified Disclosed Investor to have such voting control. During the term of
this Agreement, Flagstone shall cause its Financial Advisor to require each Disclosed Investor
(other than Flagstone or Mehmet Bayraktar) to complete the Investment Questionnaire. Based on
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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 City Manager 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 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
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obtain written approval of the City Manager to any application for a modification for the Major
Use Special Permit which shall include any applications for zoning changes or variances and/or
amendments to the Comprehensive Plan currently in effect for the City of Miami (collectively,
the "MUSP Application") prior to submission of the MUSP Application to any governmental
and/or quasi -governmental agency (it being understood that, notwithstanding anything contained
herein to the contrary the City Manager 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 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 City Manager 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 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 City Manager to any
application for a NOPC and for any continuation or modification requirements therefor
(collectively, "NOPC Application") prior to submission thereof to the City of Miami
Downtown Development Authority ("DDA"). No other development orders or amendments
thereto shall be applied for without the express prior written approval of the City Manager. 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 City Manager in
advance of the approval of the NOPC. The parties agree to use reasonable, good -faith efforts to
agree upon necessary modifications to the NOPC Application or any other required approvals or
continuations which result from any governmental or quasi -governmental process, provided that
in no event shall the City Manager 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.
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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
Restrictions.
Partial Modification of Restrictions; Amended Partial Modification of
(a) From and after the Original Effective Date, City used good faith
reasonable efforts(which shall in no event be deemed to have included any financial obligation
on the part of the City) and obtained from the Board of Trustees of the Internal Improvement
Trust Fund of the State of Florida (the "Board of Trustees") a "Partial Modification of
Restrictions" (the "Partial Modification of Restrictions") which modifies the restrictions set
forth within Deed No. 19447 from the Board of Trustees in favor of the City filed for record
April 11, 1949 in Deed Book 3130, Page 257 of the Public Records of Dade County, Florida
("Board of Trustees Deed") in order to permit the Project. City's efforts to obtain the Partial
Modification of Restrictions for the Project were not inconsistent with other actions and efforts
by the City in connection with the City's obtaining of other partial modifications of restrictions
from the Board of Trustees. Such Partial Modification of Restrictions was obtained by the City
March 2, 2005 and requires the State to approve the amended and restated form of Ground
Lease(s) attached to this Agreement.
(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 August 16, 2011, 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 September 15, 2011
pursuant to Resolution No.11-0337, the City Commission authorized the City to enter into the
Amended and Restated Partial Modification of Restrictions with the Board of Trustees in
accordance with the Amended Partial Modification of Restrictions, Deed 19447-F. The
Amended Partial Modification, dated September 15, 2011 is attached hereto as Exhibit 4.2.5.
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
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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 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 beyondAugust 31, 2028 for both (i) the date for entering into the
last Ground Lease(s) for the fmal 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 August 31, 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"). Prior to the execution and delivery of this
Agreement by City to Flagstone, Flagstone shall either (a) deliver the amount of Thirty -Five
Thousand and No/100 Dollars ($35,000.00) (the "Easement Deposit") to Escrow Agent or (b)
provide to City, at Flagstone's sole cost and expense, a Letter of Credit in the amount of Thirty -
Five Thousand and No/I00 ($35,000.00) (the "Easement Security LOC"). Notwithstanding the
foregoing, Flagstone shall be permitted to utilize any combination of cash or Letter of Credit so
long as the easement deposit equals Thirty -Five Thousand and No/100 Dollars ($35,000.00) in
the aggregate. The Easement 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 the Easements to be performed or observed
by Flagstone.
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5.2 Security Deposit for the Construction Rent/Base Rent. Prior to execution of the
Agreement to Enter, Flagstone shall either (a) deliver the amount equal to one year's
Construction Rent/Base Rent as defined in Section 5.2 to the Escrow Agent, or (b) provide to
City, at Flagstone's sole cost and expense, a Letter of Credit in the amount equal to one year's
Construction Rent/Base Rent as defined herein. Notwithstanding the foregoing, Flagstone shall
be permitted to utilize any combination of cash or Letter of Credit so long as the Security
Deposit for the Pre -Paid Construction Rent/Base Rent equals the amounts defined in the
aggregate. The Security Deposit for the Construction Rent/Base Rent, shall herein after be
referred to as the "Security Rent Deposit" and shall provide security for the faithful
performance by Flagstone of all rent payment provisions of this Agreement to be performed or
observed by Flagstone. During the periods outlined below, Flagstone shall deliver the Security
Rent Deposits as defined below:
Commencing
Annual Amount Required for Rent
Security Deposit
October 1, 2010
$300,000
October 1, 2011
$500,000
October 1, 2012
$750,000
October 1, 2013
$1,000,000
October 1, 2014
$1,000,000
October 1, 2015
$1,000,000
October 1, 2016
$1,500,000
October 1, 2017
$1,675,000
October 1, 2018
$2,000,000
Any LOC Deposit held by the Lessor or Cash Deposit held by Escrow Agent, as defined in this
Agreement as security under this Agreement to Enter into Ground Lease may be credited toward
the following year's Security Rent Deposit. The annual amount due on October 1, 2018 of
$2,000,000 shall remain in effect for the life of the Agreement to Enter and of the Ground
Lease(s), in accordance with the schedule listed in this Section 5.2. If an Event of Lessee's
Default for non-payment of rent occurs hereunder, Lessor may, at its option and without
prejudice to any other right or remedy that Lessor may have hereunder, apply or require
distribution of all or any portion of the Security Rent Deposit for the payment of any sum to
which Lessor may become entitled by reason of such Event of Lessee's Default, including,
without limitation, reasonable attorneys' fees and costs which Lessor may incur in connection
therewith. If Lessor so applies or requires the distribution to Lessor of all or any portion of the
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Security Rent Deposit, Lessee shall, within thirty (30) days after written demand therefor,
deposit cash with Lessor in an amount sufficient to restore any such deficiency or amend or
replace any LOC Deposit, whichever is applicable, to the full amount thereof, and Lessee's
failure to do so shall, at Lessor's option, constitute an Event of Lessee's Default hereunder. In
the event Lessor applies or requires distribution of all or any portion of an LOC Deposit where
no Event of Lessee's Default then existed, Lessor shall be deemed to have improperly requested
and received such application or distribution, and Lessee shall be entitled to recover from Lessor
the amount which was improperly requested and received, or to reduce the Rent Security Deposit
by an equivalent amount.
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.
5.4 Security for Hold Harmless and Indemnification and Security Provisions under
Attachment 3. Flagstone shall also comply with the provisions of Section IX of Attachment 3
hereto, and Section 9.3 of this Agreement regarding Security Deposit(s) required regarding any
lawsuits, pending against the City relating to any Lien(s) on the subject Property.
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 City Manager
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 by the City Manager 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
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Component being developed, and (c) the provisions of this Agreement that have not been
satisfied with respect to all Major Project Component(s) shall continue to survive until such time
as satisfied in order for Flagstone to enter into one or more Ground Leases for the development
of such remaining Major Project Component(s). For any Major Project Component for which the
conditions precedent have been satisfied in order to enter into one or more Ground Leases, then
the provisions of this Amendment shall terminate (except for those provisions expressly
surviving) and the applicable Ground Lease shall control. Within a reasonable time after
Flagstone believes that it has satisfied each condition precedent of this Article 6, Flagstone shall
notify the City in writing and the City shall have thirty (30) calendar days to acknowledge in
writing whether the City agrees or disagrees that such condition precedent has been satisfied.
Flagstone agrees to use diligent good -faith efforts to cause the satisfaction of the conditions
precedent set forth in this Section 6.1 prior to the Lease Delivery Date for the applicable Major
Project Component either all at once or on a component by component basis, at Flagstone's
option regarding which development course to choose, and Flagstone shall promptly provide to
the City Manager, from time to time, such written documentation as may be reasonably
requested by the City Manager to evidence the same.
6.1.1 Construction Plans and Specifications. The City Manager shall have
received and approved in his or her good faith, reasonable discretion plans and specifications for
the development and construction of the applicable Major Project Component of the Project (the
"Construction Plans and Specifications") which shall be in sufficient detail in order for
Flagstone to obtain foundation permits, as applicable, for such Major Project Component(s)
being developed which Construction Plans and Specifications shall be in accordance with the
Project Approvals. Flagstone shall submit on a component by component basis, for each Major
Project Component, such Construction Plans and Specifications that shall contain sufficient
detail in order for the City Manager 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 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 fmancing 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.
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6.1.3 Initial Equity Requirement. Flagstone shall have provided to the
City Manager written evidence satisfactory to the City Manager in his or her reasonable
judgment of the availability and/or the expenditure of the Initial Equity Requirement applicable
to the relevant Major Project Component(s) (which funds shall be available to Flagstone subject
to typical conditions for the funding of equity in similar projects) which, when added to the
equity expenditures heretofore made by Flagstone and/or committed to be made by Flagstone or
its qualified Disclosed Investors and the loan proceeds to be funded in connection with the Initial
Construction Loan(s) for the relevant Major Project Component(s), is sufficient to complete the
development and construction) of the applicable Major Project Component and to fund any
shortfalls in operations that may exist prior to Project Stabilization for the relevant Major Project
Component(s). In connection with the foregoing, Flagstone and the Financial Advisor shall
provide to the City an updated Investor List, certified to the City by the president or vice-
president of Flagstone and an officer of Financial Advisor, under penalty of perjury, that such
Investor List accurately sets forth each and all of the Disclosed Investors as of the execution date
of each Amended and Restated Ground Lease for the particular component being financed and
constructed at such time, together with a listing, to the best of Flagstone's and the Financial
Advisor's knowledge, of the current address and Social Security Number or U.S. Federal
Taxpayer Identification Number (or in the case of foreign investors who do not have such Social
Security Number or U.S. Federal Taxpayer Identification Number, any similar identification
number, if one exists, provided for in the country of their primary residence or domicile) of such
Disclosed Investors: it being understood and agreed that the provisions of Section 4.1.3 hereof
shall apply to all Investors.
6.1.4 Development Team. On either an all at once development basis or on a
component by component development basis, at Flagstone's option, Flagstone shall have (a)
obtained the prior written approval of the City Manager 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 City Manager to the identities of the operator for each
of the Hotels (when the Hotel(s) Components are being developed and constructed) and the
Marina (when the Marina Component is being developed and constructed) within the Project (the
foregoing, together with Fairchild Tropical Garden and The Historical Museum of South Florida,
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shall be collectively referred to herein as the "Operating Team"), and (b) provided written
evidence that at the time of execution of the applicable Ground Lease(s) binding agreements
with each of the applicable members of the Operating Team have been executed. Each member
of the Operating Team shall be subject to the prior written approval of the City, which approval
shall not be unreasonably withheld and shall include, but not be limited to, the City's ability to
withhold its approval of any Disqualified Person. City hereby approves those certain hotel
operators and/or franchisors set forth on Exhibit 6.1.5 attached hereto. City hereby agrees that, if
Flagstone so elects, Flagstone shall be permitted to operate or manage the Hotel(s), Marina,
Retail, and/or Parking Garage either directly or through an Affiliate thereof
6.1.6 Construction Contracts. On either an all at once development basis
or on a component by component development basis, at Flagstone's option, Flagstone shall have
provided to and the City Manager 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
City Manager 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
City Manager shall have received and approved in his or her good faith, reasonable discretion the
budget setting forth in reasonable detail the anticipated costs of development and construction of
the applicable Major Project Component(s) (the "Construction Budget"). The Construction
Budget shall be submitted no later than 60 days prior to the Commission meeting date for
consideration of the respective Ground Lease(s).
6.1.8 Construction Schedule. Prior to the applicable Lease Delivery Date
for each Major Project Component, Flagstone shall provide to the City Manager evidence of all
necessary Project Approvals as described in Subsection 6.1.13 below, and the City Manager 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 City
Manager's approval; provided that Flagstone shall provide prompt advance written notice to the
City Manager of such acceleration.
6.1.9 Bonds/Letters of Credit. On either an all at once basis, or on a
component by component basis, depending upon Flagstone's option in determining whether to
enter into one or more Ground Leases, Flagstone shall deliver and the City Manager shall have
received and approved in his or her good faith, reasonable discretion a copy of the Payment and
Performance Bond and/or Letters of Credit (which shall have been issued at Flagstone's sole cost
and expense) in an amount equal to 100% of the hard construction costs of the applicable Major
Project Component(s), which shall name City as the owner or dual obligee, as appropriate. The
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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 City Manager,
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 City Manager 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 City Manager of any default by Flagstone under
such hotel management agreement or franchise agreement, together with the reasonable
opportunity to cure such default by the City; and (iii) an attornment provision whereby the hotel
operator or franchisor agrees to attorn to the City pursuant to a subordination, non -disturbance
and attornment agreement acceptable to the City Manager, 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 City Manager in his or her
reasonable discretion. Any such affiliated operator or franchisor shall execute a subordination
agreement reasonably acceptable to the City Manager.
6.1.11 Insurance. All insurance policies required to be maintained by
Flagstone under the Ground Lease(s) (and applicable to the work that is then ongoing) shall have
been obtained, as evidenced by the originals of such policies of insurance or certified duplicates
thereof issued by the applicable insurance companies, which policies shall name the City as an
additional insured thereunder.
6.1.12 No Default. There shall be no Event of Flagstone's Default (as defined
in Section 11.1 of this Agreement).
6.1.13 Project Approvals.
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(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 City Manager in his or
her reasonable judgment.
(b) Flagstone shall (i) obtain and provide to the City Manager the Florida
Department of Transportation Approvals ("FDOT Approvals") and City Approvals for site utility
work for each of the Major Project Components on a component by component basis as
necessary and as approved by the City and as required by the Master Declaration as a condition
precedent to executing the first Ground Lease (the utility lines needed for both Hotel
Components shall be provided at the same time as the construction of the utility lines for the
Parking/Retail Components) 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 City Manager 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.
City Manager 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" 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
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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 City
Manager shall have received (a) subject to the terms and conditions of Composite Attachment 3
regarding time periods for cross -defaults, a form of subordination, non -disturbance and
attornment agreement for such Major Project Component ground lessee, similar to the form
attached to the Amended and Restated Ground Lease as Exhibit "C", 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 City Manager 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.
6.2.1 Right of Termination.
Termination. Flagstone agrees to use diligent good -faith efforts to cause the
satisfaction of the conditions precedent set forth in ARTICLE 6 above and Flagstone shall
promptly provide to the City Manager, from time to time, such written documentation as may be
reasonably requested by the City Manager to evidence the same. In the event the conditions
precedent set forth in ARTICLE 6 above are not satisfied (and the City Manager has not waived
the same in writing in his or her sole and absolute discretion) on or before the applicable outside
dates as described in Section 2.1.3, City or Flagstone, so long as the terminating party is not in
default hereunder (which default has not been cured in accordance with any applicable notice
and cure periods provided for in ARTICLE 11 hereof), shall have the right to terminate this
Agreement, without cost or liability of either party to the other party, by written notice from the
terminating party to the non -terminating party delivered within five (5) business days after the
Lease Deadline, whereupon this Agreement shall be deemed terminated and of no further force
or effect as of the date of such notice and both parties shall be relieved of any and all further
liability or obligations hereunder except with respect to any provisions hereof that are intended
by the parties to survive such termination.
6.3 Outside Date(s). As set forth in Section 2.1.3, the parties agree 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
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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 August 31, 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 6.1 above are not satisfied on or
before August 31, 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
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Plat Book 166 at Page 11 of the Public Records of Miami -Dade County, Florida (the "Plat").
The Plat includes the Property. City shall have the right from time to time to enter into
development related agreements which may impact or otherwise encumber the Property,
including, without limitation, easements, water and sewer agreements (including, without
limitation, the amendment or modification of such existing agreements), road vacations, etc, and
Flagstone shall have no right to object to the same, provided that such agreements do not
materially and adversely affect, in Flagstone's reasonable opinion, the use of the Property as
contemplated by the Development Plans. Should Flagstone request additional changes that would
require a "Re -Plat", then the City will continue to cooperate with Flagstone to complete such
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.
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7.4.2 No Consideration Except for Required Easement Security Deposit.
The parties hereby acknowledge and agree that, during the term of the License or Easements, as
applicable, except for the required Easement Security Deposit, no consideration (i.e.,
construction rent or otherwise) will be due from Flagstone to City. In the event that this
Agreement is terminated for any reason whatsoever, (i) Flagstone shall not be entitled to
reimbursement for any of its costs and expenses incurred in connection 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
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Watson Island (the "Operating Permit"), from the City to Flagstone. The Operating Permit
remains in full force and effect in Flagstone's name through September 30, 2012. 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 City Manager, 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, fmancial 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 "Mega -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 City Manager, any applications for renewals for Mega -Yacht Marina Permits
shall be made with the City asthe 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 Marina subject to and in accordance with
the terms and conditions of the Ground Lease for the Marina Component.
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7.7.1 Best Efforts. For purposes hereof, the term "best efforts" shall mean that
Flagstone shall take all of the following actions:
7.7.1.1 Flagstone has made and shall continue to make good faith
efforts, including expending commercially reasonable amounts of funds, and use all due
diligence (including retaining consultants, professionals and experts and taking their advice) in
pursuing and in continuing to maintain in full force and effect throughout the term of this
Agreement relating to the Marina Component and throughout the term of the Ground Lease
related to the Marina Component, all necessary Mega -Yacht Marina Permits (and specifically in
taking all of the actions described in subsections 7.7.1.2 through 7.7.1.5 below).
7.7.1.2 Flagstone has diligently developed and shall continue to diligently
develop such detailed plans and specifications, drawings, schematics, sketches and other
documentation with respect to a Mega -Yacht Marina (as defined above) as may be necessary or
appropriate in connection with its good faith efforts in pursuing and in maintaining in full force
and effect the Mega -Yacht Marina Permits (collectively, the "Mega -Yacht Marina Plans").
Should any of the Mega -Yacht Marina Permit for the Marina temporarily lapse, (i) such lapse
shall not be a reason to extend the Outside Dates for construction commencement of the Marina
Component, and (ii) such temporary lapse shall not constitute an Event of Flagstone's Default as
long as Flagstone continues to use good faith efforts to reinstate any such lapsed Mega -Yacht
Marina Permit,as applicable.
7.7.1.3 Flagstone submitted the Mega -Yacht Marina Plans to the
City Manager for his or her approval in accordance with the City Manager Approval Procedures
and obtained such approval.
7.7.1.4 After approval of the Mega -Yacht Marina Plans by the City
Manager, with whatever modifications as were agreed upon at that time, all subject to and in
accordance with the City Manager 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 City Manager in writing of such modifications at that time. For any
future modifications, the City Manager 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 City Manager shall have ten
(10) business days from the date of receipt of such notice to review the modifications and advise
Flagstone in writing that the 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 City Manager. If notice of disapproval is not delivered within five (5) Business Days after
such reminder notice is given, the modifications shall be deemed approved. The notice to review
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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 fmal 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 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
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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 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
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approval of this Agreement, the City hereby authorizes the City Manager 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 City Manager, (ii) have authority to coordinate, expedite and
respond for the City on behalf of the City Manager 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 City Manager. Responsibilities of
the Consultant shall include the review of plans and development issues, assistance with
permitting and inspection issues during the construction and development process and
recommendations directly to City Manager 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
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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 City Manager Approval Procedures. Any matter requiring City Manager 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 City
Manager:
8.2.1 Except for those instances expressly set forth herein where approval may be
withheld by the City Manager his or her "sole discretion" or "sole and absolute discretion", any
other approvals to be given by the City Manager 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 City Manager 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;
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
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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 City Manager Approvals; Disclaimer. Notwithstanding anything to the contrary
contained in this Agreement, Flagstone acknowledges that any approvals by the City Manager 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 City Manager of an Approval -Requiring
Matter shall be made solely in City's capacity as the owner of the Property and not in any
governmental capacity and Flagstone shall remain responsible for obtaining whatever permits,
licenses and approvals may be necessary to improve the Property in accordance with any such
Approval -Requiring Matter, as well as all Applicable Laws. In addition, approval by the City
Manager 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 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 agreethat 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.
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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 shall either discharge all
existing and alleged liens, judgments and garnishments as required by Attachment 3, Section IX
and Section 2(c) of the Amended and Partial Modification or deliver to the Miami -Dade County
Clerk of Courts Registry, to be held in an escrow account as follows: (a) under Section 2(c)
under the Amended Partial Modification an amount not less than one hundred twenty five
percent (125%) of all judgments not previously discharged on or before January 17, 2012; and
(b) under Section IX of Attachment 3, an amount not less than the total remaining outstanding
balance of all liens, garnishments and judgments not previously discharged within one hundred
and twenty (120) days from September 15, 2011, as set forth in Composite Attachment 3. If
Flagstone elects to discharge all existing and alleged liens, judgments and garnishments prior to
the execution of this Agreement, Flagstone shall provide satisfactory evidence of such discharges
to the City prior to this Agreement being executed. The escrow amount shall remain until the
first Ground Lease is executed. Such escrow deposit amount shall be incremented as and if
necessary to cover any alleged additional liens, claims of liens, judgments, and garnishments.
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 withinsuch forty-five. (45). dayperiod, 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. Indemnification and Security Agreement. As required by City
Commission Resolution No. 10-0144 adopted March 25, 2010, Flagstone has provided the Hold
Harmless, Indemnification and Security Agreement attached hereto and incorporated hereby as
Exhibit 9.3. Any default by Flagstone under the Hold Harmless, Indemnification and Security
Agreement shall be an Event of Flagstone's Default under this Agreement and an Event of
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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 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
34
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.
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 9.3 which failure is not cured within the cure period set
forth in such Escrow Agreement or such Hold Harmless and Indemnification Agreement as
applicable.
11.1.8. Any failure of Flagstone to make the security deposit(s) required by
Article 5 hereof, which failure is not cured within ten (10) days of the required security deposit
date.
11.1.9. Any Composite Attachment 3 deadline providing for a termination if such
deadline is not achieved is not to be considered a default hereunder; provided however, that
where failure to perform under Composite Attachment 3 by a certain deadline does not have a
termination right, then such type of failure to perform by a certain deadline is a default hereunder
11.2 Remedies for Flagstone's Default. If an Event of Flagstone's Default shall occur, City
shall have the right to terminate this Agreement and require full distribution of the Article 5
Security Deposits, and the Hold Harmless and Indemnification Agreement Security Deposit(s) to
City as liquidated damages as and for its sole remedy hereunder; it being agreed that the Article
5 Security Deposits and the Hold Harmless and Indemnification Agreement Security Deposits
represents. a reasonable endeavor by the parties to ascertain that said sums would be the minimal
damages suffered by City upon the occurrence of an Event of Flagstone's Default hereunder or
pursue the remedy of specific performance for any such Event of Flagstone's Default.
11.3 Citv'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
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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 o f the conditions precedent set forth in Section 4.2 above are not satisfied
on or before August 31, 2028, and so long as the terminating party is not in default (which
default has not been cured in accordance with any applicable notice and cure periods provided in
this ARTICLE 11), either party shall have the absolute right to terminate this Agreement,
without cost or liability of either party to the other party, by written notice from the terminating
party to the non -terminating party delivered within five (5) business days after the Lease
Delivery Date has passed, whereupon this Agreement shall be deemed terminated and of no
further force or effect as of the date of such notice and both parties shall be relieved of any and
all further liability or obligations hereunder except with respect to any provisions hereof that are
intended by the parties to survive such termination.
(b) If all of the conditions precedent set forth in Section 6.1 above are not satisfied
on or before August 31, 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:
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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 Component(s) and to operate the applicable Major Project
Component(s) and comply with the terms and conditions of this Agreement and the related
Ground Lease(s). Flagstone has done such studies and has made such evaluations as it deems
appropriate regarding the tourism and local markets in the area surrounding Watson Island and
has deemed it desirable to invest in the Project, recognizing the risks inherent therein. Flagstone
acknowledges that the City shall not be liable under this Agreement for any actions taken by the
City, acting in its municipal capacity, including, without limitation, any actions which may
adversely impact tourism, crime, the local economy, the success of this Project, etc., and that in
no event shall any actions taken by the City in its municipal capacity be the basis for any cause
of action or defense of any obligation by Flagstone hereunder. Flagstone shall provide to the City
at least thirty (30) days in advance of the proposed Lease Delivery Date for each Major Project
Component such pro forma, budget, financial, and other commercially reasonable written
information necessary for the City's review and to determine the pro rata amount of the Initial
Equity Requirement for that Major Project Component and to determine that such Initial Equity
Requirement has in fact been met for the particular Major Project Component. This section shall
survive any termination of this Agreement.
12.1.3 Binding Obligations. This Agreement constitutes the valid and
binding obligations of Flagstone, enforceable against Flagstone in accordance with its terms.
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
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Permitted Title Exceptions, City shall not permit any liens or other encumbrances to be filed
against the Property.
12.3 Disclaimer of Representations by Flagstone. Flagstone hereby expressly
acknowledges and agrees that, in connection with the Watson Island RFP or otherwise:
12.3.1 City makes and has made no warranty or representation whatsoever as to
the condition or suitability of any portion of the Property for Flagstone's purposes;
12.3.2 City makes and has made no warranty, express or implied, with regard to
the accuracy of any information furnished to Flagstone, and City shall not be bound by any
statement of any broker, employee, agent or other representative of City;
12.3.3 City has made no representations, warranties or promises to Flagstone not
explicitly set forth herein.
12.3.4 City makes and has made no representation or warranty, express or
implied, with regard to the likelihood that the remainder of Watson Island will be developed or
as to the precise type, or quality of improvements that will be constructed thereon or the timing
of the same; and
12.3.5 City makes and has made no representation or warranty, express or
implied, concerning any portion of the Property, their condition or any other thing or matter
directly or indirectly related thereto or hereto including, without limitation, no warranty,
merchantability, or fitness for any particular purpose or relating to the absence of latent or other
defects.
12.3.6 Defense and Release. The parties believe that this Agreement and
the form of Ground Lease(s) attached hereto are consistent in all material respects with the
Watson Island RFP and Island Gardens Proposal. Nevertheless, Flagstone acknowledges and
agrees that the Watson Island RFP, the Island Gardens Proposal, this Agreement and/or the
Ground Lease(s) may be challenged by private third parties for various reasons. Flagstone agrees
to defend City, its officials, employees, agents and representatives against any and all claims
arising from, out of or in connection with or otherwise relating to any such 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
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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, only to the extent that such transfer does not decrease the Lessee's Voting and
Operational Control less than Fifty Percent (50%) of the ownership interest as further defined
under the provisions ofthe 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 oA and the resulting change of control, permitted transfers, and other applicable
provisions of the form of Ground Lease(s) .
13.1.2 By City. In no event shall City be permitted to assign its rights
and/or obligations under this Agreement.
13.2 Notices. Any notices or communications under this Agreement between the parties
shall be in writing and delivered to the persons at the addresses specified for notices to such
parties in the Ground Lease. All notices shall be deemed received when actually delivered, if
delivered by hand, facsimile transmittal or by a nationally recognized overnight delivery service.
Each party may substitute one or more times the persons and the addresses to whom notices and
communications shall be sent to, but such change shall not be effective until the other party
receives such communication in accordance with this Section 13.2.
13.3 Applicable Law. This Agreement shall be governed by the laws of the State of
Florida.
13.4 Severability. If any term, covenant or condition of this Agreement or the application
thereof to any Person or circumstances shall, to any extent, be determined by the appropriate
judicial authority to be illegal, invalid, or unenforceable, the remaining terms, covenants and
conditions of this Agreement or application of such terms, covenants or conditions to Persons or
circumstances other than those as to which it is heldinvalid 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,
39
arbitration or legal proceeding, in addition to any other relief to which such party or parties may
be entitled. Attorneys' fees shall include, without limitation, paralegal fees, investigative fees,
administrative costs and all other charges billed by the attorney to the prevailing party.
13.8 Entire Agreement. This Agreement and the Ground Lease(s) (to the extent in effect)
represent the entire agreement between the parties hereto and supersede any and all previous
agreements and understandings, whether written or oral, between the parties. No representations,
inducements, promises or agreements, oral or otherwise, between the parties not embodied or
described in this Agreement and the Ground Lease(s) (to the extent in effect) shall be of any
force or effect. No modification or amendment of this Agreement shall be binding upon the
parties unless such modification or amendment is in writing and is signed by the party to be
bound thereby.
13.9 Headings. The titles of the several clauses and parts of this Agreement are inserted
for convenience of reference only and shall be disregarded when construing or interpreting any
of its provisions.
13.10 References. Except as otherwise specifically indicated, all references to Article,
Section and Subsection numbers refer to Articles, Sections and Subsections of this Agreement
and all references to Exhibits refer to the Exhibits attached hereto, and all references to
Attachments refer to Attachments attached hereto, which exhibits and attachments are
incorporated herein by this reference. The words "herein", "hereof', "hereunder","hereinafter"
and words of similar import refer to this Agreement as a 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 brokeror finder inconnectionwith 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.
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13.14 Venue and Jurisdiction. The parties acknowledge that a substantial portion of the
negotiations, anticipated performance, and execution of this Agreement occurred in Miami -Dade
County, Florida. Except for matters to be resolved in accordance with specific Arbitration
provisions described herein, the parties agree that any disputes, civil actions, or legal proceedings
arising out of or relating to this Agreement shall be brought in the courts of record of the State of
Florida in Miami -Dade County, Florida, or in the United States District Court, Southern District
of Florida, Miami -Dade County Division. Each Party consents to the jurisdiction of such courts
in any such civil actions or legal proceedings and waives any objections to the laying of venue of
any such civil action or legal proceeding in such court(s). Service of any court paper may be
effected on such party by mail, as provided in the Notice provisions of this Agreement, or in
such other manner as may be provided under applicable laws, rules of procedure, or local rules.
13.15 Waiver of Jury Trial. The parties hereby knowingly, irrevocably, voluntarily,
and intentionally waive any right either may have to a trial by jury in respect of any action,
proceeding, or counterclaim, based on, or arising out of, under or in connection with this
Agreement or any amendment or modification of this Agreement, or any other agreement
executed by and between the parties in connection with this Agreement, or any course of
conduct, course of dealing, statements (whether verbal or written) or actions of any party hereto.
This waiver of jury trial provision is a material inducement for the parties to enter into this
Agreement.
13.16 No Conflicts of Interest. Flagstone agrees to comply with the applicable conflict of
interest provisions of the Code of the City of Miami, the Miami -Dade County Code, and the laws
of the State of Florida as such are amended from time to time. No member, official, or employee
of the City shall have any personal interest, direct or indirect, in this 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.
THE CITY OF MIAMI, a municipal corporation
Attest: of the State of Florida
By: By:
Name: Priscilla A. Thompson Name: Johnny Martinez, P.E.
Title: City Clerk Title: City Manager
Date: Date:
APPROVED AS TO FORM AND APPROVED AS TO INSURANCE
CORRECTNESS: REQUIREMENTS:
By: By:
Name: Julie O. Bru Name: Calvin Ellis
Title: City Attorney Title: Director of Risk Management
Sworn to and subscribed before me this day of , 2011, by
who () is personally known to me, or () has produced as identification.
My commission expires:
Notary Public
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FLAGSTONE ISLAND GARDENS LLC, a
Delaware limited liability company
ATTEST: By: FLAGSTONE DEVELOPMENT
CORPORATION, a Delaware corporation, its
By: Managing Partner
Name:
Title: By:
Date: Name: Mehmet Bayraktar
Its: President
Date:
Sworn to and subscribed before me this day of . 2011, by , who ( )
is personally known to me, or ( ) has produced as identification.
My commission expires:
43
Notary Public
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 4.2.5
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 9.3
Exhibit 12.2
Exhibit 12.1.14
Composite Attachment 1
Composite Attachment 2
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
Amended Partial Modification and City commission Resolution
No. R-11-0337, adopted September 15, 2011
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
Marine Operating Permit
Existing Liens
Hold Harmless and Indemnification Agreement
Permitted Title Exceptions
Existing Insurance Coverages
Resolutions of the (to be updated City Commission Resolution No
R-01-972, adopted September 17, 2011; Resolution No. 01-1028
adopted September 25, 2001; and Resolution No. 10-0402.
Company Authorization of Flagstone
44
Composite Attachment 3
Composite Attachment 4
Exhibit A to City Commission Resolution No. 10-0402, adopted
September 23, 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
45
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.
46
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.
47
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 6.1.1 of this Agreement.
1.2 "Agreement" shall mean and refer to this "Agreement to Enter into Ground Lease" by
and between City and Flagstone.
1.3 "Agreement Security" shall mean and refer to the Easement Security and the Hold
Harmless, Indemnification and Security Deposit and the Security Rent Deposit
collectively.
1.4 "Amended Partial Modification of Restrictions" shall have the meaning ascribed to such
term in Section 4.2.5(a) of this Agreement.
1.5 "Approval -Requiring Matter" shall have the meaning ascribed to such term in Section
8_2 of this Agreement.
1.6 "Board of Trustees" shall have the meaning ascribed to such term in Section 4.2.5(a) of
this Agreement.
1.7 "City Manager" means the administrative head of the City's government who is
authorized to execute this Agreement and other documents, including notices required
hereunder.
1.8 "City Manager 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 hereof.
1.9 "City" shall have the meaning ascribed to such term in the first paragraph of this
Agreement.
1.10 "Completion Date" shall mean that date upon which the earlier of a temporary certificate
of occupancy or a certificate of occupancy has been issued for the completion of
construction.
1.11 "Commence(s) Construction" shall mean that all material plans and permits are approved
and issued and the actual act of physical construction has begun.
48
1.12 "Construction Plans and Specifications" shall have the meaning ascribed to such term in
Section 6.1.1 of this Agreement.
1.13 "DCA" shall have the meaning ascribed to such term in Section 4.2.2 of this Agreement.
1.14 "Development Plans" shall have the meaning ascribed to such term in Section 7.1 of this
Agreement.
1.15 "Development Team" shall have the meaning ascribed to such term in Section 6.1.4 of
this Agreement.
1.16 "Disclosed Investors" means all Investors other than Non -Disclosed Investors.
1.17 "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.
1.18 "Downtown DRI" shall have the meaningascribed to such term in Section 4.2.2 of this
Agreement.
1.19 "Easement Deposit" shall have the meaning ascribed to such term in Section 5.1 of the
Agreement.
1.20 "Easement Security LOC" shall have the meaning ascribed to such term in Section 5.1 of
the Agreement.
1.21 "Easement Security" shall mean and refer to either the Initial Deposit or the Initial LOC
as elected by Flagstone pursuant to Section 5.1.
1.22 "Effective Date" shall have the meaning ascribed to such term as described in the first
paragraph of this Agreement.
1.23 "Escrow Agent" shall mean and refer to Shutts & Bowen LLP, whose address is 1500
Miami Center, 201 South Biscayne Boulevard, Miami, Florida 33131, or such other
49
Escrow Agent determined from time to time by the parties depending upon the
circumstances of the Easement Security, the Security Rent Deposit, the Hold Harmless,
Indemnification, and Security Deposit, and any other security required under this
Agreement and Composite Attachment 3.
1.24 "Escrow Agreement" shall have the meaning ascribed to such term in Section 5.3 of this
Agreement.
1.25 "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
ARTICLE 6 and ARTICLE 7 hereof; provided, however that in no event shall the term
"Event of Closure" as used in this Agreement be deemed to: (i) allow any extensions for
more than six (6) months in the aggregate; and/or (ii) include, without limitation, normal
and customary closures of such governmental offices for weekends and holidays.
1.26 "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.
1.27 "Flagstone" shall have the meaning ascribed to such term in the first paragraph of this
Agreement.
1.28 "Garnishments" shall have the meaning ascribed to such term in ARTICLE 7 of this
Agreement.
1.29 "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.
1.30 "Hold Harmless, Indemnification, and Security Deposit(s)" shall mean and refer to the
types and amounts of security deposits required by Section IX of Composite
Attachment 3 and Section 9.3 of this Agreement.
50
1.31 "Investor(s)" means: (i) all Persons now or hereafter having an equity interest in the
Project; (ii) any direct or indirect legal or beneficial owners of interests in all of the
equity investors in the Project; and (iii) holders of any note, debenture, mortgage or other
security instrument in any Project Component(s) and/or Flagstone, other than an
Approved Lender (as defined in the Ground Lease).
1.32 "Investor List" shall have the meaning ascribed to such term in Section 4.1.3 of this
Agreement
1.33 "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 City Manager and Flagstone.
1.34 "Island Gardens Proposal" shall mean and refer to Flagstone's proposal to the City in
response to the Watson Island RFP, entitled "Island Gardens at Watson Island RFP"
dated July 13, 2001.
1.35 "Judgment" shall mean and refer to any and all judgments of any kind, which might be or
become an encumbrance upon the assets of Flagstone in relation to the Property and for
the project or any part thereof, as referenced in Article 9 hereof.
1.36 "Lease Delivery" shall have the meaning ascribed to such term in the first paragraph of
this Agreement.
1.37 "Lease Delivery Date" shall have the meaning ascribed to such term in Section 2.1.3 of
this Agreement
1.38 "Lien" shall mean and refer to any and all liens, encumbrances, mortgages, pledges,
security interests, collateral assignments or charges of any kind, which might be or
become a lien upon the Property or any part thereof.
1.39 "Major Project Components" means those certain components and amenities of the
Project more particularly set forth on Exhibit E of the Ground Lease.
1.40 "Major Use Special Permit" has the meaning ascribed to it in Article 17 of Ordinance
11000, as amended, the Zoning Ordinance of the City of Miami, Florida.
1.41 "MUSP Application" means any and all of the information required or otherwise
necessary in connection with the obtaining of the Major Use Special Permit.
1.42 "MUSP Approval" shall have the meaning ascribed to such term in Section 4.2.1 of this
Agreement.
51
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.
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 Property, which payment and performance bonds shall be in favor of City, in
amounts acceptable to City with respect to the work to be performed by the general
contractor(s) for the Project and such of the subcontractors as shall be required by City,
shall be issued by a company approved by City and shall otherwise be in form and
substance acceptable to City.
1.51 "Person" means any natural person, trust, 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(a) 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.
52
1.55 "Property" shall have the meaning ascribed to such term in the first recital of this
Agreement.
1.56 "Security Deposit" shall collectively mean and refer to any of the Easement Deposit, the
Security Rent Deposit and the Hold Harmless, Indemnification, and Security Deposit.
1.57 "Start(s) Construction" shall mean that all material plans and permits are approved and
issued and the actual act of physical construction has begun.
1.58 "Total Security" shall mean and refer to the Easement Security, Security Rent Deposit,
and the Hold Harmless, Indemnification, and Security Deposit collectively.
1.61 "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.
53
Exhibit C
Form Ground Lease
[SEE END OF AGREEMENT]
54
Exhibit 3.3.1
Approved Environmental Consultants
1. PBS & J (Post Buckley) - Contact: William Pitcher
2. Langan Engineering & Environmental Services - Contact: Christina Gonzalez
3. K & B Kaderabek & Barreiro Consultants, Inc. -Contact: Thomas Kaderabek
55
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 Statues. Only Flagstone need
be named as insured.
4. The limits set forth in paragraphs (1), (2) and (3) above shall be issued by an Insurance
Company maintaining an "A" rating and Financial Strength of "7".
56
57
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).
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). Flagstone shall provide Title Insurer and City
Commission that there are no outstanding taxes, liens, judgments, or garnishments against the
Property and/or against Flagstone as and if applicable (i.e., proof of payments or exemptions).
2. For purposes of deleting Item 7 of Schedule B-Section 1 and Items 1, 2.a, 2.d, 4
and 17 of Schedule B-Section 2, City shall provide Title Insurer a No Lien, Possession and Gap
Affidavit executed on behalf of the City (stating, among other things, that there are no parties in
possession or having a right to possession of any portion of the Property), in form and content
reasonably satisfactory to Title Insurer.
3. Item 9 of Schedule B-Section 1 and Item 8 of Schedule B-Section 2 refer to the
1949 deed from the Board of Trustees of the Internal Improvement Fund (the "Trustees"). City
shall use reasonable, good -faith efforts to obtain from the Trustees: (i) a release of the right of
entry with respect to the oil, gas and mineral reservations contained in this deed (provided that
the same not be deemed to require City to incur any monetary obligation other than normal and
customary application fees which may be charged in connection therewith); (ii) a termination
and/or release of Items 15 and 16 of Schedule B-Section 1, in form and content reasonably
satisfactory to Title Insurer to delete the same; and (iii) the Amended Partial Modification of
Restrictions.
58
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 ("WASD"),
written confirmation that the water and sewer facilities described in these documents have been
properly completed, conveyed and/or dedicated and accepted by WASD, etc. (if such is the case
at the time of execution as of the Lease Delivery Date), and that the City has otherwise fully
complied with the terms and conditions of these documents. As specifically, Flagstone shall
provide to the City written confirmation from WASD that the water and sewer facilities
described in the applicable documents have been properly completed, conveyed, and/or
dedicated and accepted by WASD, etc. (if such is the case at the time of execution as of the
Lease Delivery Date) and that Flagstone has otherwise fully complied with the terms and
conditions required of Flagstone under those documents including the Amended and restated
Agreement to Enter into Ground Lease and Composite Attachment 3 thereto.
7. All references to "Schedules" in the foregoing shall also refer to those
corresponding schedule items in that certain updated title commitment with an Effective Date of
November 9, 2011 at 11:40 P.M. (a copy of which is attached hereto) (the "Update").
8. City and Flagstone shall work together to satisfy any other matters which appear
on the Update provided that resolution to any other matters are at no costs to the City.
59
Exhibit 4.1.2
Environmental Condition Acceptance Notice
Reference to made to that certain Agreement to Enter into Ground Lease between The
City of Miami, Florida ("City"), and Flagstone Island Gardens LLC, a Delaware limited liability
company ("Flagstone"), having an effective date of January 1, 2003 as the same has been
amended and restated by the Amended and Restated Agreement to Enter Into Ground Lease
between the City and Flagstone having an effective date of February 1, 2010 (collectively, the
"Agreement"). Unless otherwise defined herein, capitalized terms used herein shall have the
respective meanings given to them in the Agreement.
Pursuant to Section 4.1.2 of the Agreement, Flagstone hereby gives notice to City as
follows:
(i) Flagstone has inspected the environmental condition of the Property prior to the
expiration of the Inspection Period pursuant to Section 4.1.1 of the Agreement;
and
(ii) The environmental condition of the Property is satisfactory to Flagstone.
FLAGSTONE ISLAND GARDENS, LLC,
a Delaware limited liability company
By: FLAGSTONE DEVELOPMENT
CORPORATION, a Delaware corporation, its
Managing Partner
By:
Name: Mehmet Bayraktar
Title: President
Date:
60
Exhibit 4.1.3
Investor List
1. Flagstone Island Gardens, LLC
2. Mehmet Bayraktar
3. Bayraktar Family Members (as defined in the Amended and Restated Ground Lease)
61
Exhibit 4.1.4
List of Organizational Documents
Flagstone Property Group, LLC, a Delaware Limited Liability Company f/k/a Flagstone
Properties, LLC
1. Certified Certificate of formation of flagstone Properties, LLC dated December 9, 2002
2. Certified Certificate of amendment of flagstone Properties, LLC, dated December 11, 2002
3. Written consent of the Managing Member of flagstone Properties, LLC (a Delaware Limited
Liability company) dated December 10, 2002
4. Application for Authority of Flagstone Properties, LLC
5. Certified Certificate of Good Standing of Flagstone Properties, LLC dated December 9, 2002
6. Form for filing an application for authority for a foreign limited liability company to conduct
business in New York State dated December 10, 2002
7. Certificate of Amendment or Change of application for authority of Flagstone properties, LLC
dated December 11, 2002
8. Certificate of amendment or Change of Application for authority of Flagstone Properties, LLC-
Filer: Joel J. Goldschmidt, Esq. dated December 11, 2002
9. Certified qualification documents by Flagstone Property Group, LLC dated December 17, 2002
10. Management Agreement dated July 17, 2003
11. Written Consent of the Members of Flagstone Property Group, LLC dated March 1, 2003
12. Limited Liability Company Operating Agreement of Flagstone Property Group, LLC dated
January 15, 2003
62
Flagstone Miami Holdings, LLC, a Delaware Limited Liability Company
1. Certified Certificate of Formation of flagstone Miami Holdings, LLC dated December 9, 2002
2. Written consent of the Managing Member of flagstone Miami Holdings, LLC (a Delaware
Limited Liability Company) dated December 10, 2002
3. Certificate of Good Standing for Flagstone Miami Holdings, LLC dated December 9, 2002
4. Application for authority of Flagstone Miami Holdings, LLC dated December 10, 2002
5. Certified qualification documents by Flagstone Miami Holdings, LLC dated December 17, 2002
6. Application for authority of Flagstone Miami Holdings, LLC
7. Written Consent of the Members of Flagstone Miami Holdings, LLC dated March 1, 2003
8. Management Agreement dated July 17, 2003
9. Limited Liability Company Operating Agreement of Flagstone Miami Holdings, LLC dated
January 15, 2003
63
Flagstone Island Gardens, LLC, a Delaware Limited Liability Company
1. Certified Certificate of formation of flagstone Island Gardens, LLC dated December 9,
2002
2. Consent of the sole Member of flagstone Island Gardens, LLC dated December 11, 2002
3. Certificate of Merger of Flagstone Properties, LLC Properties, LLC (a Florida Limited
Liability company) and Flagstone Island Gardens, LLC (a Delaware Limited Liability
Company) dated December 11, 2002
4. Plan of Merger of Flagstone Properties, LLC (a Florida Limited Liability company) and
Flagstone Island Gardens, LLC (a Delaware Limited Liability company) dated December
10, 2002
5. Certified Articles of Merger for Flagstone Island Gardens, LLC December 11, 2002
6. Articles of Merger of Flagstone Properties, LLC (a Florida Limited Liability Company)
and Flagstone Island Gardens, LLC (a Delaware Limited Liability Company) dated
December 11, 2002
7. Plan of Merger of Flagstone Properties, LLC (a Florida Limited Liability Company) and
Flagstone Island Gardens, LLC (a Delaware Limited Liability Company) dated
December 10, 2002
8. Written consent of the Managing Member of Flagstone Island Gardens, LLC (a Delaware
Limited Liability Company) December 10, 2002
9. Application for authority of flagstone Island Gardens, LLC
10. Certificate of Good Standing of flagstone Island Gardens, LLC dated December 9, 2002
11. Form for filing an application for authority for a foreign limited liability company to
conduct business in New York State dated December 10, 2002
12. Certified qualification documents by Flagstone Island Gardens, LLC dated Decvember
17, 2002
13. Written Consent of the Members of flagstone Island Gardens, LLC dated March 1, 2003
14. Limited Liability Company Operating Agreement of Flagstone Island Gardens, LLC
dated January 15, 2003
15. Management Agreement dated July 17, 2003
64
Exhibit 4.1.5
Expressions of Interest
65
HSBC <X>
December 3, 2002
Mr. Mehmet Bayraktar
Chairman of the Board
Flagstone Properties LLC
201 South Biscayne Boulevard
Suite 2828
Miami, FL 33131
Dear Melunet,
HSBC Securities (USA) Inc. has been serving for the past twelve months as Financial
Advisor to Flagstone Properties in connection with its Island Garden project at Watson
Island. Together with our sub -advisor partner, Holliday Fenoglio Fowler, LP, we have
been actively engaged in all aspects of the project including Flagstone's discussions with
the City, the company's outside development team and your specialists for this marina,
hotel and retail project. Based on the agreements with the City about to be signed, the
project's business plan and our market evaluation, we are confident that the Project's debt
and equity requirements can be raised within the established timeline (assuming
reasonably normal market conditions).
It's been a pleasure Working with you and the Flagstone team on this landmark project.
Respectfully,
l ..
Charles H. Columbus
J-ISBC Securities (USA) Inc.
452 Fifth Avenue, New York, NY 10018
Telephone (212) 525-5000
Z0/Z0'd Ztr:9I Z0, b caQ b68S—SZ8—ZIZ:Xpd '3NI (HSfl)'oaS JHSH
Exhibit 4.2.2
Binding Letter from DCA
66
Exhibit 4.2.2
Binding Letter from DCA
MIADOCS 4419281 2
65
q,11;t1,°-'
STATE OF FLORIDA
DEPARTMENT OF COMMUNITY AFFAIRS
"Dedicated to making Florida a better place to call home"
JEB BUSH
Governor
November 15 , 2002
Judith A. Burke, Esquire
Shuns and Bowen, LLP
1500 Miami Center
201 South Biscayne Boulevard
Miami, FL 33131
STEVEN M. SEIBERT
Secretary
301Jj0 Sn'Oa'NVN )110
RE: Binding Letter of Vested Rights and Interpretation of Development of Regional Impact -
("DRI") Status
File No. BLIVR 11003-001
FINAL ORDER NO: DCA02-BL-288
Dear Ms. Burke:
We have evaluated your Application for a Binding Letter of Vested Rights, dated September 25,
2002 ("Application"), and received on September 27, 2002. Based on the information contained
in the application and supporting documentation, we enter the following Findings of Facts,
Conclusions of Law, and Order. Per your request, the Binding Letter includes a determination as
to the Watson Island Marina ("Marina") site's vested rights.
FINDINGS OF FACT
Preliminary Findings
1. The applicant is Plagstone Properties, LLC, ("Applicant"), which is represented in its
application by Judith A. Burke as its authorized representative. The application describes the
project as redevelopment of a forty-two (42) wet slip marina providing mooring for watercraft,
encompassing 13.4 acres of submerged land, which is owned by the City of Miami.
2555 SHUMARD OAK BOULEVARD • TALLAHASSEE, FLORIDA 32399-2 100
Phone: 850.488.8466/Suncom 278.8465 FAX: 850.921.0781/Suncom 291.0781
Internet address: http !!www.dca.state.fl.us
CRITICAL STATE CONCERN FIELD OFFICE
2796 Overseas Highway. Suite 212
Marathon. FL 3.7.'60.2227
(305) 289-2402
COMMUNITY PLANNING
2555 Shumard Oak Boulevard
Tallahassee, FI. 32399-2100
(850)488-2355
EMERGENCY MANAGEMENT
2555 Shumard Oak Boulevard
Tallahassee,•FL 32399-2100
(850)413-9969
HOUSING & COMMUNITY DEVELOPMENT
2555 Shumard Oak Boulevard
Tallahassee. FL 32399-2100
(850)488.7956
2. All communications made by the applicant, all material submitted by the applicant in the
Application, and all other relevant written materials are incorporated herein by reference.
3. On October 11, 2002, a notice of the applicant's request for Binding Letter was published
in the Florida Administrative Weekly. In addition, the South Florida Regional Planning Council,
the City of Miami, and Miami -Dade County were notified of the application's receipt.
4. The project site is located wholly in the City of Miami ("City"), Miami -Dade County, in
Section 31,Township 53, Range 42.
5. The project site consists of 13.4 acres of submerged land. As represented in the
Application, the existing improvements will lie wholly within the 13.4 area.
6. A brief summary of the development on the project site is as follows:
The site is comprised of a forty-two (42) wet slip marina, which provides mooring for various
watercraft used for sport, pleasure, and/or commercial fishing. The Marina was constructed prior
to July 1, 1973.• It was constructed in 1956 and has been in continuous operation since that date.
The Marina includes a double row of mooring pilings, but does not include any docks or finger
piers.
The Applicant would like to develop a mega -yacht marina ("Project"), a forty-two (42) wet slip
marina in the same footprint.
Vested Rights
7. For Purposes of identifying the types of uses, which were permitted, the applicant
submitted documentation beginning in 1956. There were no City government approvals
pertinent to the scope of review as to vested rights as they relate to marinas. The statement was
made, however, that the Marina was "completed in accordance with all applicable federal, state,
and local statutes, rules regulation's and ordinances in effect as of 1956." In 1967, the City
adopted an ordinance that required a permit for any waterfront improvements. As the Marina
was constructed prior to 1967, a building permit was not required. Aerial photographs from
1966 along with relevant documentation indicate that the Marina was developed, and had
remained in the same condition since prior to July 1, 1973.
8. In 1975. the State of Florida requ,ired Dredge and Fill Permits for coastal construction.
The Marina was constructed prior to 1975 and thus did not require such a permit.
9. In 1980, the Miami -Dade County adopted an ordinance requiring a Class I Coastal
Construction Permit for construction or renovations over any tidal waters, submerged bay
bottomland, or wetlands in the County. The Marina did not require such a permit since it was
constructed prior to 1980.
10. In 1990, Miami -Dade County instituted a Marine Facilities Operating Permit ("MOP")
program. Every year since the inception of the program, the Marina hadreceived an MOP for
forty-three (43) commercial vessels.
11. The submerged land is unplatted. No subdivision plats were approved for development
between August 1, 1967 and July 1, 1973.
12. There are currently no pending development permits or other authorizations for the
Project.
13. There are no development permits or authorizations that have been requested by the
Project.
14. There are no development permits or authorizations that have been denied for the Project.
15. There has been no conveyance or agreement to convey property to the state or local
government as prerequisite for approval of a zoning change.
16. The Marina has not been registered with the Division of Florida Land Sales and
Condominiums.
17. As proposed in the Application, all of the Project will lie within the footprint of the -
existing Marina.
18. The Project is classified as a marina for purposes of DRI guidelines and standards.
19. The Project has not received any prior binding letters of interpretation from the
Department.
CONCLUSIONS. OF LAW
Pursuant to Section 380.06(4)(f), Florida Statutes, a development with vested rights may
demolish and reconstruct within the same approximate footprint of its vested development
without divesting this vested rights if the change in the size of the development does not exceed
the substantial deviation criteria set forth in Section 380.06(19)(b), Florida Statutes.
Under Section 380.06(4)(f), F.S., the existing Marina on the subject site is vested.
Demolition of the existing Marina and subsequent construction of the Project on the subject site
will retain vesting from DRI review.
3
ORDER
It is hereby ordered that the subject site has vested rights with respect to the forty-two (42) slips
for the mega -yacht marina project. The proposed Project, as described in the September 25,
2002, application for binding letter, is deemed to be entitled to vested rights with respect for DRI
review.
The development evaluated in this binding letter shall be considered cumulatively with any
future development in terms of the guidelines and standards contained in Chapter 28-24, F.A.C.,
and Section 380.0651, F.S., and its associated regional impacts. Should any of the above
representations made in the application be substantially changed, further review of the project
may be required.
This letter shall expire and become void as of November .15,.2005,.unless the proposed
development has been substantially commenced by this date. This date may be extended by
mutual agreement of the Department, local govemment of jurisdiction, and the developer.
This determination does not obviate the need to comply with all other applicable state or local
government permitting procedures. Any questions regarding this determination may be directed
to Colin M. R••pnari . As ant General Counsel, at (850) 488-0410.
Since
' Timmerman, Director
Division of Community Planning
cc: David Dahlstrom, South Florida Regional Planning Council
Carlos Gimenez, City Manager, City of Miami
Ruth Ellis Myers, Miami -Dade County
FILING AND ACKNOWLEDGEMENT
FILED, on this date, with the designated
Agency Cler , receipt .ewh,ch is hereby
ackno
Paula P. Ford
Agency Cleric
4
NOTICE OF RIGHTS
The applicant has the opportunity for a formal administrative proceeding regarding this
binding letter pursuant to Sections 120.569 & 120.569 & 120.57(1), F.S. If you dispute any
issue of material fact stated in the binding letter, then you may file a petition requesting a formal
administrative hearing before the an administrative law judge of the Division of Administrative
Hearings pursuant to Sections 120.569 & 120.57(1), F.S. and Chapter 28-106, Parts I and.11,
F.A.C. At a formal administrative hearing, you may be represented by counsel or other qualified
representative, and you will have the opportunity to present evidence and argument on all the
issues involved, to conduct cross examination and submit rebuttal evidence, to submit proposed
findings of fact and orders, and to file exceptions to any recommended order.
If you desire a formal administrative hearing, you must file with the agency clerk of the
Department of Community Affairs a written pleading entitled `petition for administrative
proceedings' within 30 days of receipt of this notice. A petition is filed when it is received by
the Agency Clerk in the Department's Office of General Counsel, 2555 Shumard Oak
Boulevard, Tallahassee, Florida 32399-2100.
The petition must meet the filing requirements in Rule 28-106.104(2), F.A.C. and must
be submitted in accordance with Rule 28-106.201(2), F.A.C. The petition must include the
signature of someone authorized to act on your behalf. A petition must specifically request an
administrative proceeding, it must admit or deny each material fact contained in the binding
letter, and itfmust state any defenses upon which you rely. You waive the right to an
administrative proceeding if you don not file a petition with the agency clerk within the time
frames described above.
You may also decide that no formal administrative proceeding is required for this binding
Letter. If you do not request a formal administrative proceeding, this binding letter constitutes
final agency action and is subject to judicial review of the binding letter pursuant o Section
120.68, F.S., and Florida Rules of Appellate Procedure 9.03(b)(1)(c) and 9.110.
To initiate an appeal of this binding letter, a notice of appeal must be filed with the
Department's Agency Clerk, 2555 Shumard Oak Boulevard, Tallahassee, Florida 32399-2100,
and with the appropriate district court of appeal within 30 days of the day this binding letter is
filed with the agency clerk. The notice of appeal filed with the district court of appeal must be
accompanied by the filing fee specified in Section 35.22(3),F.S., and must be substantially in the
form prescribed by Florida Rule of Appellate Procedure 9.900(a).
You waive your right to judicial review if the notice of appeal is not timely filed with thie
agency clerk and the appropriate district court of appeal.
Mediation under Section 120.573, F.S., is available with respect to the issues resolved by
this binding letter. A request for mediation must include the information required by Rule 28-
106.402, F.A.C. Choosing mediation does not affect the right to an administrative hearing.
5
Exhibit 4.2.5
Amended and Restated Partial Modification of Restriction Deed No 19447-F
. 111111111111111111111111111111111111111111111
CFN 2011R04242.4 OR $}:. 27822 fps 3675 3.' 5 t24Desi
REC:ORDE'C 0?/16/ tt 13:46:€9
NARVEY RUUTH, CLERK OF COURT, NIAMI-DADE C0UNTY, FLORIDA
BOARD OF TRUSTEES OF THE INTERNAL IMPROVEIVIENT
TRUST FUND OF THE STATE OF FLORIDA
AMENDED AND RESTATED PARTIAL MODIFICATION OF RESTRICTIONS
DEED NO.19447-F
KNOW ALL MEN BY THESE PRESENTS: That
WHEREAS, the BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT
TRUST FUND OF THE STATE OF FLORIDA ("BOARD OF TRUSTEES"), is by Section
253.03, Florida Statutes, authorized and empowered to modify restricted uses for certain lands
under the terms and conditions set forth herein; and
WHEREAS, the BOARD OF TRUSTEES conveyed to the City of Miami ("CITY")
certain lands more particularly described in Deed No. 19447, recorded in Deed Book 3130,
Page 257, Public Records of Miami -Dade County, Florida (the `Deed'); and
WHEREAS, the Deed contains the following restrictions (the "Original Restrictions"):
PROVIDED, HOWEVER, anything herein to the contrary
notwithstanding, this deed is given and granted upon the express condition
subsequent that the Grantee herein or its successors and assigns shall never sell or
convey or lease the above described land or any part thereof to any private person,
fern or corporation for any private use or purpose, it being the intention of this
restriction that the said lands shall be used solely for public purposes, including
municipal purposes and not otherwise.
PROVIDED, FURTHER, anything herein to the contrary notwithstanding,
this deed is given and granted upon the further express condition subsequent that
the Grantee herein or its successors or assigns shall not give or grant any license
or permit to any private person, firm or corporation to construct or make by any
means, any islands, fills, embankments, structures, buildings or other similar
things within or upon the above described lands or any part thereof for any private
use or purpose, as distinguished from any public or municipal use or purpose.
Ii is covenanted and agreed that the above conditions subsequent shall run
with the land and any violation thereof shall render this deed null and void and the
above -described lands shall, in any event; revert to the Grantors or their
successors.
WHEREAS, the BOARD OF TRUSTEES approved a modification of the Original
Restrictions on June 24, 2004, and executed and delivered an instnunent entitled "Partial
Modification of Restrictions" on March 2, 2005, and same was recorded on March 18, 2005, in
Official Records Book 23181, Page 775, Public Records of Miami -Dade County, Fiorid,�raYZ , r
est-
t 4i1DOCs 5570952 2
71
WHEREAS, the CITY is still desirous of leasing that portion of the lands conveyed to the
CITY by the Deed which is described in Exhibit "A", attached hereto and made a part hereof (the
"Property"), to Flagstone Island Gardens, LLC, a Delaware limited liability company
("FLAGSTONE"), to allow for the construction and operation of a public and private
commercial, marina, and mixed use, waterfront development, including any and all uses
permitted under the. Ground Lease, as defined below (as a whole or in phases, the
"Development"), and in order to accomplish the same, it is necessary that the Original
Restrictions be modified by the BOARD OF TRUSTEES; and
WHEREAS, the Development is still in the public interest because it will convert the
Property from a sparse, unimproved field to a location that will contain cultural, scenic, and
recreational values that will benefit the public while at the same time retaining 60% of the
Development as open space in the form of gardens, walkways, and a waterfront promenade
available to residents and visitors for cultural and recreational activities; and
\VHEREAS, in furtherance of the public interest, the Development will still also aid
tourism, provide training and employment opportunities to residents, and generate significant tax
revenue for the CITY, Miami -Dade County and the State of Florida; and
WF RREAS, the BOARD OF TRUSTEES, the CITY and FLAGSTONE desire to amend
and. restate the Partial Modification of Restrictions on the terms set forth in this Amended and
Restated Partial Modification of Restrictions; and
WHEREAS, the BOARD OF TRUSTEES approved this Amended and Restated Partial
Modification of Restrictions on August 16, 2011; and
WHEREAS, the CITY approved this Amended and Restated Partial Modification of
Restrictions effective as of September 15, 2011.
NOW THEREFORE, for and in consideration of the foregoing recitals and of the mutual
covenants, terms, and conditions herein contained, and other good and valuable consideration,
the BOARD OF TRUSTEES, the CITY and FLAGSTONE hereby completely amend and restate
the Partial Modification of Restrictions as follows:
1. Consent to Development and Ground Lease. Provided that the CITY and
FLAGSTONE satisfy their respective obligations set forth in Paragraphs 2 and 3 below
and subject to termination in accordance with the provisions of this Amended and
Restated Partial Modification of Restrictions, the Original Restrictions and Partial
Modification of Restrictions are hereby modified to permit, and the BOARD OF
TRUSTEES hereby consents to, the following: (i) the leasing of the Property or parts
thereof by the CITY to FLAGSTONE pursuant to the ground lease or leases between the
CITY and FLAGSTONE (the "Ground Lease," which tern shall include Exhibit "A" to
the Ground I �.ase and any amendments made in accordance with the express terms of the
Ground Lease); (ii) FLAGSTONE's use of the Property for the development,
construction and operation of the Development; (iii) the grant of any easements and/or
license agreements which are necessary or appropriate for pre -development work related
to the Development, such as utility relocation and access related to the Development and
2
Amended and Restated Partial Modification of Restrictions
Deed Restriction No. 19447-F
MIADOCS 5570952 3
72
which are necessary or appropriate for such construction or operation of the
Development, and continued access related to the Development, all upon the Property or
within the areas described in Exhibit "B", attached hereto and made a part hereof (the
"Easement Areas"), and (iv) that certain Amended and Restated Agreement to Enter into
Ground Lease between the CITY and FLAGSTONE effective as of September 15, 2011
(the "Agreement to Enter"), a copy of which has been provided to the Division (defined
below). In the event that (i) FLAGSTONE and the CITY are contemplating any material
modifications to the Ground Lease and/or the Agreement to Enter, FLAGSTONE and the
CITY- agree to discuss such proposed modifications with the Division (defined below)
contemporaneously with any discussions on the proposed modifications between
FLAGSTONE and the t211Y, and (ii) any material amendments to the Ground Lease
and/or the. Agreement to Enter must first receive prior approval by the BOARD OF
TRUSTEES at a regularly scheduled meeting.
2, FLAGSTONB's Obligations.
(a) Payments. Until the Development is completed or October 1, 2021,
whichever occurs first ("Takeover Date"), FLAGSTONE shall make payments to the
BOARD) OF TRUSTEES, on a semi-annual basis, in an amount equal to 15% of the
amount it pays to the CITY under the Agreement to Enter and the Ground Lease(s)
pursuant to the rent schedule set forth on Exhibit "A" to City of Miami Resolution R-10-
0402, adopted September 23, 2010 (the "Resolution"). FLAGSTONE shall make these
semi-annual payments to the BOARD OF TRUSTEES on January 1 and July 1 of each
calendar year. Each payment shall be in an amount equal to 1.5% of the sums paid by
FLAGSTONE to the CITY during the prior six (6) months, except for the first semi-
annual payment which may be based on less than six (6) months of payments if less than
six (6) months have elapsed since commencement of payments to the CITY.
Notwithstanding the foregoing, the first payment by FLAGSTONE to the BOARD OF
TRUSTEES under this Amended and Restated Partial Modification of Restrictions shall
be in the amount of 15% of the amount of the fast payment (the "First Payment") to be
made by FLAGSTONE to the CITY on or before September 29, 2011, and shall be made
on the same date as the First Payment.
(b) Certification. FLAGSTONE certifies to the BOARD OF TRUSTEES as
follows: (i) FLAGSTONE is not the subject of a pending bankruptcy proceeding;
(ii) FLAGSTONE is current with regard to all state and local tax payments for which it is
responsible; and (iii) FLAGSTONE has executed an affidavit dated August 4, 2011,
regarding undischarged judgments. Any breach of a statement in that affidavit or of the
certifications in this paragraph shall constitute a default by FLAGSTONE under this
Amended and Restated Partial Modification of Restrictions.
(c) Discharge of Judvaents. FLAGSTONE shall either discharge all
undischarged judgments identified in the affidavit required.in Paragraph 2(b)(iii) above
or deliver to the Miarni-Dade County Clerk of the Courts' Registry on or before January
17, 2012, to be held in au escrow account, an amount not less than 125% of the total
remaining outstanding principal balance of all undischarged judgments identified on
Exhibit "C" attached hereto and made a part hereof. If FLAGSTONE fails to do the
3
Amended and Restated Partial Modification of Restrictions
Deed Restriction No. 19447-F
MIADOCS 557Ot52 3
73
foregoing, this Amended and Restated Partial Modification of Restrictions shall
automatically and immediately terminate and the cure rights provided for in Paragraph 5
below shall not apply. Additionally, FLAGSTONE agrees to comply with the CITY's
requirements in Section IX, Indemnification/Hold Harmless for City; Discharge of
Existing Liens, Judgments, and Garnishments in Exhibit "A" to the Resolution.
3. CITY's and FLAGSTONE'S Obligations.
(a) payrnents. From and after the Takeover Date, the CITY shall make
payments to the BOARD OF TRUSTEES, on a semi-annual basis, in the amount of 15%
of the total gross rental payments received by the CITY under the Ground Lease
(including, but not necessarily liruited to, Base Rent and Percentage Rent, as defined in
the Ground Lease), with the first semi-annual rental payment being made on the 30th day
of the month in which the CITY receives its sixth month Base Rental payment pursuant
to the Ground Lease, and each subsequent semi-annual payment being made on the 30th
day of each and every sixth month thereafter for as long as the Development remains on
the Property. In no event shall the BOARD OF TRUSTEES receive less than $300,000
during each 12-month period from and after the Takeover Date, regardless of whether the
CITY actually collects Base Rent or Percentage Rent under the Ground Lease.
(b) Permits. The CITY shall insure and guarantee the BOARD OF
TRUSTEES that the CITY shall require FLAGSTONE to apply for and obtain all permits
required by law for the Development.
(c) Financial Audit Reports. Beginning on the date of the CITY's first semi-
annual rental payment to the BOARD OF TRUSTEES as required by Paragraph 3(a)
above, the CITY shall require FLAGSTONE to submit for each calendar year, annual
financial audit reports to the BOARD OF TRUSTEES which have been completed by an
independent certified public accounting firm in accordance with generally accepted
accounting principles and which certify the accuracy of the semi-annual payments
described in Paragraph 3(a) above.
(d) Status Reports Regarding Development. Beginning one year after the
Ground Lease Effective Date (defined below) of this Amended and Restated Partial
Modification of Restrictions, the CITY shall require FLAGSTONE to submit annual
status reports to the Division (defined below) that verify the progress of the proposed
Development. The CITY shall be required to submit such information that the CITY
receives from FLAGSTONE for these annual status reports to the Division until each
phase of the Development has received a certificate of completion. Each such report from
FLAGSTONE shall include a list of all then -existing Curing Parties (defined below).
(e) Completion of Development. The CITY shall require FLAGSTONE to
insure and guarantee that the Development is completed in the manner contemplated and
required by the Ground Lease (including obtaining applicable permits) within the time
periods set forth in the Ground Lease.
4
Amended and Restated Partial Modification of Restrictions
Deed Restriction No. 19447-F
6nADOCS 5570952
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(f) Improvements to dditional Lands. The CITY shall require FLAGSTONE
to insure and guarantee that any staging area located within the Easement Areas used by
FLAGSTONE pursuant to any easement or license agreement shall, after its usage by
FLAGSTONE, be left in a condition better than its condition when it was delivered to
FLAGSTONE. In addition to the foregoing, the CITY shall require FLAGSTONE to
insure and guarantee that FLAGSTONE will spend no less than $1,000,000.00 on
improvements to (1) an open space of land on the southeast side of Watson Island Imown
as Southside Park and, (2) the. Japanese Gardens. Some of these improvements shall
include, but not be limited to, the following: master planning of Southside Park, open air
pavilion or covered support facility, fencing, removal of invasive trees and plants,
underground utilities, park pathways, bicycle and jogging trails, public restroom
facilities, security cameras and/or devices, and parting area.
(g) Executed Copy of Ground Lease. The CITY shall insure that the BOARD
OF TRUSTEES receives a fully executed copy of the Ground Lease within 30 days of the
execution and delivery of the Ground Lease by the parties thereto and all subsequent
amendments thereto.
(h) .,ambling. During the term of the Ground Lease and any renewals,
extensions, modifications or assignments thereof, without the express consent of the
BOARD OF TRUSTEES and notwithstanding any contrary provisions that now exist in
the Ground Lease, the crr Y and FLAGSTONE shall not permit: (1) casino gambling and
all other forms of gambling on the Property and the Easement Areas and (2) the operation
of or entry onto the Property and the Easement Areas of gambling cruise ships, or vessels
that are used principally for the purpose of gambling, when these vessels are engaged in
"cruises to nowhere," where the ships leave and return to the state of Florida without an
intervening stop within another state or foreign country or waters within the jurisdiction
of another state or foreign country, and any watercraft used to carry passengers to and
from such gambling cruise ships.
4. Termination of BOARD OF TRUSTEES' Approval.
(a) Default in the CITY's Obligations. Subject to the notice and cure
provisions set forth in Paragraph 5 below and the unavoidable delays provision set forth
in Paragraph 6(a) below, the BOARD OF TRUSTEES may terminate the approval set
forth in Paragraph 1 above if any of the CITY's obligations as set forth above in
Paragraph 3 are not performed in a timely manner or FLAGSTONE's obligations set
forth above in Paragraphs 2 and 3 are not performed in a timely manner.
(b) Termination of Ground Lease. Subject to the notice and cure provisions
set forth in Paragraph 5 below, the BOARD OF TRUSTEES may terminate the approval
set forth in Paragraph 1 above if the Ground Lease is terminated in accordance with its
terms and it is not replaced with any new replacement lease(s) expressly provided for by
the Ground Lease or by any Subordination; Non -Disturbance and Attornment Agreement
entered into by any of the Curing Parties; provided, however, this termination right shall
not apply if there are separate ground leases for components of the Development and at
least one such Ground Lease has not been terminated.
5
Amended and Restated Partial Modification of Restrictions
Deed Restriction No. 19447-F
MIADOCS 5570352 3
75
(c) Reimposition of Original Restrictions. Lf the BOARD OF TRUSTEES
terminates this Amended and Restated Partial Modification of Restrictions, the Original
Restrictions shall automatically and immediately be reimposed on the Property and
Easement Areas.
5. Cure Rights, The BOARD OF TRUSTEES agrees that in the event that the
BOARD OF TRUSTEES or the Division of State Lands, State of Florida Department of
Environmental Protection (the "Division"), determines that a default (a `Default")
described in Paragraph 2(a), 2(b)(ii) or 3(a) above (a "Monetary Default") or Paragraph
2(b)(i), 3(b), 3(c), 3(d), 3(e), 3(1), 3(g) or 3(h) above (a "Non -Monetary Default") has
occurred, the following procedures shalt apply:
(a) Notice. The BOARD OF TRUSTEES or the Division shall provide notice
to the CITY or FLAGSTONE (whichever is believed to have defaulted) of any Default,
which notice shall identify the alleged Default. The BOARD OF TRUSTEES or the
Division shall send a copy of such notice to each Approved Mortgagee and Major
Subtenant and any association formed to administer the applicable regime(s)
("Association(s)") with respect to Approved Time Share Licenses, as such terms are
defined in the Ground Lease, and to the CITY or FLAGSTONE (whichever is not
believed to be the defaulting party) (the Major Subtenants, the Approved Mortgagees,
such Association(s) and the CITY or FLAGSTONE (whichever is not the defaulting
party), each a "Curing Party"). Notwithstanding the foregoing, the BOARD OF
TRUSTEES or the Division shall be required to send a copy of any such notice only to
each party as to which the BOARD OF TRUSTEES or the Division has been notified in
writing of such party's status as a Curing Party. In the event the BOARD OF TRUSTEES
or the Division fails to send a copy of such notice to any such Curing Party, such failure
shall not affect the validity of the Default notice given to any other Curing Party, or the
cure period set forth in Paragraph 5(b) below which is afforded to such other Curing
Party.
(b) Cure Periods. The BOARD OF TRUSTEES agrees that if the BOARD OF
TRUSTEES determines that the CITY or FLAGSTONE (as applicable) has failed to cure
the Default after being given the opportunity to do so (which determination of the CITY's
or FLAGSTONE's failure to cure the Default may be made in the sole and absolute
discretion of the BOARD OF TRUSTEES), any Curing Party shall have the opportunity:
(i) to cure any Monetary Default within 60 days from the date the BOARD OF
TRUSTEES sends its notice of Default (the "Default Date"); and (ii) to cure any Non -
Monetary Default within 120 days from the Default Date; provided, however, that if any
Non -Monetary Default cannot, in the exercise of due diligence and good faith, be cured
within such 120-day period, any Curing Party shall have such additional reasonable
period as will enable such Curing Party, with the exercise of due diligence and in good
faith, to cure the Non -Monetary Default; provided further that the cure period for such
Non -Monetary Defaults shall not exceed 24 months from the Default Date (except that if
possession of the Property by such Curing Party is reasonably necessary for such Curing
Party to cure such Non -Monetary Default, the cure period for such Non -Monetary
Default shall not exceed 24 months from the date such possession is obtained, so long as
such Curing Party is diligently pursuing proceedings to obtain such possession).
6
Amended and Restated Partial Modification of Restrictions
Deed Restriction No. 19447-F
ML&DOCS 5570952 3
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6. Miscellaneous.
(a) Unavoidable Delays. The BOARD OF TRUSTEES recognizes that there
may be instances when unavoidable delays may be encountered which are caused by
circumstances beyond the reasonable control of the CITY or any Curing Party and could
not have been overcome by the CITY'S or such Curing Parry's due diligence. A filing of
a voluntary petition in bankruptcy or for reorganization or an arrangement pursuant to the
Federal Bankruptcy Code or any similar law, federal or state, now or hereinafter in effect,
or an assignment for the benefit of creditors shall riot be considered an unavoidable delay
for purposes of this Paragraph 6(a). In the unlikely event of such an unavoidable delay,
the BOARD OF TRUSTEES agrees to the following procedure: (i) upon occurrence of
any unavoidable delay, the CITY or any Curing Party shall notify the Director of the
Division in writing within 30 days thereafter of the anticipated length and cause of the
delay, the measures taken or to be taken to minimize the delay and the timetable by
which the CITY and/or such Curing Party intends to implement these measures; (ii) the
parties will then enter into discussions to determine the appropriate extension, to allow
the CITY or such Curing Party adequate time to meet the delay or anticipated delay. The
Division, acting on behalf of the BOARD OF TRUSTEES, shall agree to extend the time
for performance hereunder for a period equal to the agreed delay from such
circumstances. Such agreement shall adopt all reasonable measures necessary to avoid or
minimize the delay; and (iii) if the parties cannot agree, the Division will provide the
CITY or the Curing Party with notice and an opportunity for a hearing before the
BOARD OF TRUS 1 hES to determine the amount of time for extension of performance
hereunder. The provisions of this Paragraph 6(a) shall not apply to Paragraphs 2 or 3(a)
above.
(b) Application Only to Property„ and Easement Areas; Ratification. This
Amended and Restated Partial Modification of Restrictions applies only to the Propel
and the Easement Areas, and shall not affect or modify the restrictions imposed upon the
other lands described in the Deed which have not previously been waived or modified by
the BOARD OF TRUSTEES: Except as expressly modified hereby, the terms of the
Original Restrictions and Partial Modification of Restrictions shall remain unchanged in
each and every respect, and the same are hereby ratified, approved and confirmed by the
BOARD OF TRUSTEES and the CITY as of the date of this Amended and Restated
Partial Modification of Restrictions (it being widerstood that any previous waiver or
modification of the Original Restrictions or thePartial Modification of Restrictions made
with respect to the Property is hereby superseded).
(c) Effective Date. Except for Paragraphs 1(i) and (ii) above, this Amended
and Restated Partial Modification of Restrictions shall be effective upon the mutual
execution and delivery hereof. With respect to the BOARD OF TRUSTEES' consent
pursuant to Paragraphs 1(i) and (ii) above, this Amended and Restated Partial
Modification of Restrictions shall be effective only upon the Division's receipt of a copy
of a fully executed Ground Lease and the Division's confirmation that the Ground Lease
is in substantially the same form as the copy of the proposed Ground Lease that is
attached to the Agreement to Enter ("Ground Lease Effective Date").
7
Arnended and Restated Partial Modification of Restrictions
Dccd Restriction No. 19447-F
MIADOCS 5570952 3
77
IN WITNESS WHEREOF, the BOARD OF TRUSTEES, the CITY and FLAGSTONE
have caused this Amended and Restated Partial Modification of Restrictions to be executed on
this IS day of Srt4R/(2011.
Signature oitness
Print_
Signature of Witne
Printed/Typed Name of Witness
STATE OF FLORIDA
COUNTY OF LEON
BOARD OF TRUSTEES OF THE INTERNAL
IMPROVEMENT TRUST FUND OF THE
STATE OF FLORIDA.
p{�
By: �'%Ii,telr
Mike 1' n( Assistant Director, Division of
State Lands, State of Florida Department of
Environmental Protection, as agent for and on
behalf of the Board of Trustees of the Internal
Improvement Trust Fund of the State of Florida
The foregoing instrument was acknowledged before me this .m day of
2011, by Mike Long, as Assistant Director, Division of State Lands, State of Florida Iepartment
of Environmental Protection, as agent for and on behalf of the Board of Trustees of the Internal
lrnprovement Trust Fund of the State of Florida. H, 's personally known to me.
SEAL
Commission Number:
Commission Expires:
Approved ^ to Form and
gality
By: M'4 I. • 1 UL7
DEP Attorney
8
Amended and Restated Partial Modification of Restrictions
Deed Restriction No. 19447-F
MIADOCS 55709?2 3
78
APPROVE TO INSURANCE
REQUR,ErNTS
vin Ellis, Director of Risk
Management
CITY OF MLAMI, a municipal corporation of the
State of Florida
By:
Jo Martin P.E., City Manager
PurstiSnt to Resolution No. )1 - D-33q-
ATT T:
By:j/kozA .
Priscilla A. Thompson
City Clerk
(01. .PICIAL SEAL)
APPROVED AS TO FORM AND
CORRECTNESS:
By:
Julie O. Bru, City Attorney
STATE OF FLORIDA
COUNTY OF MLA.MI-DADE
The foregoing instillment was acknowledged before 'me this /6 day of 412. 196,-,
2011, by Johnny Martinez, P.E. as City Manager, and Priscilla A. Thompson, as City Clerk, on
behalf of the CITY OF MIAMI, FLORIDA. Each of them is personally known to me or
produced identification.
0951.1*5. PER
FAY COMMISSION t UM%)
EXPIRES: Auptwt 2,2016
auldg Tiro tir,ftwriirs
No y Public, State1W1orida
Printedrfyped/Stamped Name
Commission Number:
Commission Expires:
9 •
Amended and Restated Partial Modification of Restrictions
Deed Restriction No. 19447-F
MIADOCS 5570952 3
79
Signature of Witness
Printed/Typed Name of Witness
Signature of Witness
• vrl/lacz SA , .c
Printcxi Typed Name of Witness
STATE OF FLORIDA
COUNTY OF MI.AMI-DADE
FLAGSTONE ISLAND GARDENS, LLC, a
Delaware limited liability company
By: Flagstone Development Corporation, a
Delaware corporation, its manager
The foregoing instrument was acknowledged before me this day of cz----rifo-t
2011, by Mehmet Bayraktar as President of Flagstone Development Corporation, a Delaware
corporation on behalf of the corporation acting as the manager of FLAGSTONE ISLAND
GARDENS, 1.Tr', a Delaware limited liability company, on behalf of the company. He is
persor ia11v 7nown to me or produced as identification,
NOTARY PLSLUC-STATE Or FLORIDA
lllllllllllll Carlos Echeverria
Commission # EE063267
.. _ moires: FEB. 09, 2015
tc, State o(lorida
Printed/Typed/Stamped Name
Commission Number:
Commission Expires:
10
Amended and Restated Partial Modification of Restrictions
Deed Restriction No. 19447-F
MIADOCS 5570952 3
80
Exhibit "A"
Legal Description of Lands Conveyed by Deed No. 19447
LEGAL DESCRIPTION (NW QIADRANC- UPLAND PARCEL):
COMMENCE AT A POINT SHORT? MARKED BY A 5/8" DIAMETER. IRON ROD AND CAP STAMPED F.D.O.T.,
SHOWN AS PI'. STA. 25+50 ON THE OFFICIAL MAP OF LOCATION AND SURVEY OF A PORTION OF
SECTION 8706, DESIGNATED AS PART OF STATE ROAD A -I -A IN DADE COUNTY, FLORIDA", PREPARED
BY THE STATE ROAD DEPARTMENT OF THE STATE OF FLORIDA, AS RECORDED LN MAP BOOK 56 AT
PAGE 71 OF 7HE.. PUBLIC RECORDS OF DADE COUNTY, FLORIDA, SAID POINT BEING THE POD1T 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 SKEET 3 OF THE STATE ROAD DEPAR'iME_NT MITT -OF -WAY MAP SECTION N0. (8706- il2)
8706t-2117, REVISED MARCH 25, 1959, SAID MOST NORTHERLY CURVE HAVING,; A RADIUS OF 1432.64
FEET AND A CENTRAL ANGLE OF 62°CO'00'; THENCE SOUTH 59°5126" WEST DEPARTING RADIALLY
FROM SAID CENTERLL)t9 A DISTANCE OF 987.36 FEET TO A PROJECTED BULKHEAD LENS; 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 179221" WEST CONTINUING ALONG SAID BULKHEAD L1NE A
DISTANCE OF 924.74 FEET TO THE SOUTHERLY RIGHT -OF -WRY LINE OF STATE ROAD A -I -A — DOUGLAS
MACARTHUR CAUSEWAY: THENCE: ALONG SAID SOUTHERLY RIGHT -OAF -WAY LNE THE FOLLOWING
COURSES AND DISTANCES; SOUTH 89°10'55" EAST A DISTANCE OF 72.89 FEET; THENCE NORTH 56°39'49"
EAST A DISTANCE OF 67.31. 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°0928"; THENCE ALONG SAID CURVE AN ARC LENGTH OF 61.85 FEET; THENCE SOUTH 72°40'15" EAST
CONTINUING ALONG SAID SOUTHERLY RIGHT-OF-WAY LINE A DISTANCE OF 276.49 FEET; ID A CURVE
CONCAVE TO THE SOUTHWEST HAVING A RADIUS OF 600.00 FEET AND CENTRAL ANGLE OF 46°17439";
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 -I -A A DISTANCE OF 196.59 FEET; THENCE SOUTH 541'07139" WEST DEPARTING SAID R,GIIT OI%
WAY LINE A DISTANCE OF 532.16 FEET; THENCE NORTH 35°54'03" W ST A DISTANCE OF 132.74 FEET;
THENCE SOUTH 54°07'39" WEST A DISTANCE OP 150.14 FEET TO THE POINT OF BEGINNING.
LEGAL DESCRIPTION (SUBMERGED PARCEL):
COMMENCE AT A PONT, MARKED BY A 5/8" DIAMETER ERON ROD AND CAP STAMPED F.D.0.7., 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, A, AS RECORDED IN MAP BOOK 56 AT PAGE 71 OF THE
PUBLIC RECORDS OF DADS COUNTY, FLORIDA SAID POINT BEING THE POINT OF TANGENCY OF THE
ORIGINAL CENTER LINE OF THE DOUGLAS MACARIVUR CAUSEWAY RUNNING EASTERLY AND SOUTH
EASTERLY FROM TIME WESTERLY LIMITS (WEST BRIDGE) OF WATSON ISLAND AS SHOWN ON S9Tx7
OF THE STATE ROAD DEPARTMENT RIO}IT-OF-WAY MAP SECTION NO. (8706-112) 57060-2117, 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 FAT TO A PROJECTED BULKHEAD LINE; THENCE NORTH 17°1221" 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 70 A PONT OF
INTERSECTION OF THE TUR-NLNG BASIN LIMIT AS ESTABLISHED BY U.S. ARMY CORPS OF ENGINEERS
AND POSITIONED BY COORDINATES NORTH 527,878.62 FEET, EAST 926,135.22 FEET (BASED ON NORTH
AMERICAN DATUM i983-NAD83) WITH THE NORTHERLY LINE OF THE MIAMI MAIN SHIP CHANNEL;
THENCE NORTH 31°03.50" WEST ALONG THE LIMITS OF SAID TURNING BASIN A DISTANCE OF 42.8.44
FEET TO A POINT OF INTERSECTION WITH THE EAST RIGHT-OF-WAY LINE OF THE INTRACOASTAL
WATERWAY; THENCE 1N0^n.771 03'27'54" WEST ALONG SAID EAST RIGHT-OF-WAY LINE A DISTANCE OF
674.43 FLEET 70 A POINT OF INTLT2SECTION WTTH THE SOUTHERLY RIGHT -OE -WAY LINE OF SAID
DOUGLAS MACARTHUR CAUSEWAY. SAID P01N'T OF IN TERSI:CTION BRING A POINT ON A CURVE
CONCAVE SOUTHERLY AND HAVLNO A RADIUS OF 10,716.59 FEET, A RADIAL LINE TO SAID POINT
BEARS SOUTH 01°I5'15" EAST; TriENCE RUN EASTERLY FOR 3S746 FEET ALONG THE ARC OF SAID
CURVE ANTS ALONG SAE SOUTHERLY RIGHT-OF-WAY LIFE, 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 LINT: A DISTANCE OF 32.06 FEET MORE OR LESS 7O A PONT OF
INTERSECTION WITH AN EXISTING BULKHEAD LINE; THRICE SOUTH 1792'21" EAST ALONG SAID
BULKHEAD LINE A DISTANCE OF 924.74 FEET TO THE POINT OF BEGINNING.
BSM:c:__
MIADOCS 5570952 2
DATE:
3129/11
81
EshJbTt H
tegA) DauiptioOS of STRO,S. Accra end Doxgging Arco
LEG. DEpCAPTION FOR TEMPORARY EASEMENT
PORTIONS OF WATSOF/ ISLAND, CRY OF k005, -LYING WT4F7 5ECT10N 31,
TOWNSHIP' 53 SOUTH, RANGE 42 EAST, Mt08-DADE comm. FLORIDA.
vow moor PARRCULARLY DESC7tIDEO'AS FOLLOWS: •
CONVERGE AT POUT OF TANGENCY 5TAT10N 25+5D ON TICCENTERLTHE
OF GENERAL 0000;AS Meo AR04UR CAUSEWAY (5.R. A-1-A) STATE PROJECT
SECTION NO. (8706-112) R7080-1117 R6GHR OF WAY MAP AS RECORDED IN
'PLAT BOOK'56 AT PAGE. 71 OF THE FUGUE RECORDS OF 4691 DADE COUNTY,
I FLOR0A: THENCE SSYS1'FirW FOR . 2.78 0661. TO A KANT 604 THE
W1-SYu4LY RIGHT OF.WAY LINE OF•OF?7ERAd,. MUCUS Moo ARTHUR
• CAUSEWAY. (THE NE57 FIVE (5) COURSES ARE ALONG, SART WESTERLY R10H7 DF
WAY LANE), THENCE S2572'35i FOR 33.52 FEET; THENCE SIT'S/3'22% FOR
275.81 FEET; THENCE' 604.22,47'E FOR' ,h61.49 FEET TO THE FONT OF
CURVATURE OF A VRCOLAR CURVE TO THE LET HANG A RADIUS 0F:190.00
FEET AND A•CEM.% ANGLE79'15'21'; THENCE SOUTHERLY AND EASTERLY
ALONG THE ARC OF SAM p1RVE AF4 ARC DSTANCE OF 262.82 FEET; THENCE
58.3.19708.E FOR ,T1.H5 FEET TO THE PONT OF REGINNINC OF TEYPOPJJ'Y
&67ULNT A', (7N£.'NC7RT FM1E(5) COURSES ARE,4LONC DAM WESTERLY R10Hi
OF WAY OF 05420 d, 00061A5 Met ARTNUR CAUSEWAY)' THEN 06 583738.087E
FOR 1E7,58 FEET TO THE POINT DF CURVATURE, OF A CIRCULAR CURVE TO '
TFF4 P.GH7 NA9^A70 A RADFJS OP 2EE7.50 FEET AND A CENTRAL ANGLE OF
45285S, THEW EASTET�UR Y AAD 504E7LY CUM
N'-'ALONG THE ARC SAD CU
A4 AR; OISTA, or 1E0.5`9. FM TO i47' P057 OF. REVERSE OWyATJRE OF
A CIRCULAR CU.R7E TO THE LEFT H4NNC A RADIUS OF 2723.00 FEET AND A
CENTRAL ANGLE OF 10'SS18', THENCE SOUTHEASTERLY ALONG THE ARC OF
SMO CURVE AN ARC O'STANCE OF 517.47 FEET; THENCE N4314'30'E FOR
26.98FEET TO A POINT, ON A CURVE THAT 15 CONCAVE TO THE NORTHEAST ,
AHD H,AVING A RACVS OF 1973.06 FEET, SAID CURVE BEARS N43'54'31'E,
THENCE SOUTHEIST64LY A:.bNO THE ARE. OF SAD CURVE THROUGH A
CENTRAL ANGLE 0r O'43'45' FOR AN ARC DISTANCE OF 25.14 FEET; THENCE
525'O1'24'W FOR 118.20 FEET: THENCE N64'58';6'W FOR 638.45 FEET; ' •
THENCE N25'0114'E Tot 251.11 FEES TO THE 4014T OF 9EOINNIt7G. '
Book231811Page783 CFN#20050267972
Exhibit B
Page 1 of7
Amended and Restated Partial Modification of Restrictions
Deed Restriction No. 19447-F
M)ADOCS 5570952 2
82
Exhibit D
Legal D:t iptians of Siegigg. Acxss old Dredging Arms
LE99. DESERPt10H FOR TE:6'ORRR1' EASE1m7E'9'
PORTIONS OF WATSON ISLAND. CRY• OF MWO, WINO MINN SECnON SI,.
TOWNSHIP 53 SOUTH. 'RANGE 42 EtST. UULO••DADE COUNTY, FLOR0'
WIND WORE PARTICULARLY DESCRIBED AS FOLLOWS:
COHMEAk:E AT POINT OF .TANGENCY STATION 26450 ON TFE CENTERLINE .
'OF GENERAL DOJGLAS Moo AMNIA CAU5EW'AY (S.R. A -I -A) STATE PROJECT
SECTION' No. (8708-1!2) 87060-2117 RiGHT.0F WAY WP AS RECORD<'D IN
FLAY 80.0 ( 56 AT PACE-71 OF THE P4'D4;C RECORDS OF NUM EVADE COUN.TY.•
PLOF65A: m060E S59'51'26 W "PA 252.79 FEET TO A POINT ON THE
WESTERLY RDET, OF WAY LINE OF GENERAL D7UGL S Moo •Mi6IR
CAUSEWAY. (THE NEXT FIVE (5) CO2S0 ME *L0NO SAID WESTERLY
MGM OF 'WAY LINE).. THENCE 526'22'36Z FOR 5342 FEET; THENCE •
5173812 E FOR 275.61 FEET; THENCE •SO4'22'47E FOR 281.49 FEET TO
. THE POINT OF CURVATURE OF A CIRcULAR .CURVE .10 THE LEFT HAVINO A
RADIUS OF ;90.00 FEET ANO it CENTRAL ANGLE OF 79'18'211T THENCE
SOUTHERLY MO EASTERLY ALONG -THE ARC OF SAIO CAVE' AN ARC D0TMNCE
OF 282A2 FEET; THENCE 583'38'08'E FOR 31.88 FEET; THE/jCE •
S26-01'2419. FOR 52.77 FEET TO 711E POUR OF 9EO1NNiN0 OF TEMPORARY
EASEMENT .0`; THENCE 006474 0E S2503.24`E FDA, 198.34 FEET; •7i0ENCE
. 1194'58`36NN FOR 250.1X0 FEET;. THENCE N25'01'241 FOR 219.10 FEET;
_THENCE 554'58.3,41C FOR 21.98 FEET 'T0 THE POINT DF CURVATURE OF A
CIRCULAR CLIENT 70'THE RIGHT PAVING A RADIUS OF 25D0 FEET AND A
CENTRAL ANGLE OF 31'08'46'. 11-40NCE• 501/NEASTERLY AL060 THE ARC OF
SA10 CURVE AN ARC DISTANCE OF 13.59 FEET 10 11-E POINT OF REVERSE
CURVATURE OF A CIRCI.IAR CURVE 10 Tt{E LEFT 4AV.NG A RADIUS OF 240.00
FEE! AND A CENTRAL ANGLE OF 49'4750'. THENCE SOUTHEASTERLY ALONG
THE ARC OF SAID 084010 AN ARC. DISTANCE OF 208.89 FEET; PENCE
SUY59'VOE FOR 15.00 FEET TO 'THE POINT OF RECIIJI9NG.
Book23181/Page784 CFN#20050267972
Exhibit B
Page 2 of 7
Amended and Restated Partial Modification of Restrictions
Deed Restriction No. 19447-F
MTA.D(DCS 5570952 2
83
P..iJlgt g •
Ledo Gat*Nli. MCGSS Rai Iked¢iNs Alem
IIT2A1. OES'2T717:TN FOR 1ELP09 ar EASEMENT "C'
PORn0n5 OF wAT50N 151ANi'i. CITY OF 4441 LYN* MINN SECTION 31,
TOwN7H61 53 SOOTL RANGE 42.EA5T. 54.447-DAOE COUNTY, FLOWN.
6Ekw 140RE PARTICULARLY OESCRISEO AS FOLLOWS:
COe4ENCE AT PORT OF TANGENCY SEAT1G7T 25+50 ON nix cEN1ERUNf'
0P 67646RAI 00'JCLAS 445 ARIRL4 ' CL,1SEWAY. (5.R. A-i A) STATE' PROJECT . '
S4.85*4 No. (8706-11'2) 87082-2117 RM.4T Or WAY NAP.A.5 REL'O80E0 84
PLAT 8001E 24 AT PACE 71 OF THE PU8i1C RECORDS OF VW GAGE COUNTY,
Et.OR*A: THENCE S39'51757Y1 FOR 252.79 FEET 70 A PON*. ON -THE
WESTERLY RIGHT 07 WAY UNE OF OENERAL 004101,AS 486 ARIHUR
CAUSEWAY; THENCE N26'2,I'351/ ALONG 9..k'D 8F.5Y271LY p3HT 04'wAY Cat
FOR legal FEET; 764.65E A"5407'391Y FOR 494.19 FEET Tb THE POINT OF
8EG84NOiO OF TEupaRA,Y EASOTOTT.'C': MERGE 033'52'21T FOR 143,3t
FELT; THENCE S43•41'14" FON 1e6.85 FEET: THENCE 944'28'41Y •FOR 154,05
FELT: THENCE 552'14'06'E 1106 31-03 FEET; THENCE 654'5530'E FOR 249.80 mu TO A POINT ON TT* AF0RE0NO' wESTEE73' 6OHT OF.wAY LING OF
GENERAL DOUGLAS 4cc ARTHUR CAUSEWAY. SATO p0g47 ALSO BEING ON A CUME THAT 45 GOAYYNE 70 THE.NORTHEA=T 100.097 A RAO14T OF 19000
.65E1, THENCE SOU7HFASTEITLY ALONG THE ARC OF 750 CURVE THROUGH A
CENTRAL ANGLE OF '7715'21' FOR AN ARC 047ANCE OF 262.82 FEET;
71E14. 583'38'08$ ALo1P.i S40 WESTERLY RIGHTOF WAY um! FOR 37.8E
FEET: THENCE 5-2501.'24W FOR 52,77 FEET; THENCE N23'38'051Y FOR 75.04
FEET TO THE PONT 'Of C,17VATJ,6E OF A CACLTAR CURVE TO THE RICH T
ET AND A CENTRAL ANGLE Of
4S4 50'. 14ENCE NRA7 0+ 7774. LY ALONG THE ARC OF SAO ,C'✓RvE AN ARC 05AN E OF 205.39 FEET TO THE POINT OF F16VERSE CURVATURE 86 C5CIA117. CUENs TO'THE LETT Ht4KNG A R,14N5 OF.25.00 FEET AND A
CENIP4L ANGLE DE 31'08'46', THENCE (40R'1NwcsiswY ,LONG THE Hie OF
SA10 CUR -YE AND ARC 03O NCE OF 73,59 FEET, THENCE N64'55'3611 FOR
232.65 FEET; THENCE F47014'051w FOR 00.00 FEET; THENCE 1444`25'419Y CR
155.00 F6ET: 7NiNCE N4282`717/ FOR' 114.31 MET; THENCE
57T33`35'4,' FOR 9.017!CET: THE%''.' N18'18537 FO761.30 F.£1; .THENCE
S70.35'43'w FOR 149643 FEET; 7RENCE' N1712'2111, FOR 212.14 FEET:
}7HNCE 1454'07'39'E FOR 150.14 .FEET; THENCE 63_5•54'035 FOR 134,35 FEE,': 51TEN0E 104137'39'E FOR 47.43 TF:;T TO THE MITT OF BEOMNNO. . .
Book23181/Page785 CFN#20050267972
Exhibit A
Page 3 of7
Amended and Restated Partial Modification of Restrictions
Deed Restriction No. 19447-F
haADOCS 5570952 2
84
Erhibit
Lagx1 tk cipt ons of Staging, Access end ATTAging Areas
LEGAL. DESmP11Ott FOR P£RXUENT EASF1*Xr 'Cf'
PORTIONS Of WA:SON ITAA"J, COY O5 PAASL LYING W1fHIN S&^T10N 31, 'TO1NSWP 53 SOUTH. RANGE 42 EAST, NIA41-11405 COUNTY, FLORIDA. OEINC MOPE PARTICUIARLT OEScR10E3 AS. FO'yOAS; •
•
CON45MCC AT PONT OF 7ANCERCY 57AT10N 23+50'OA'' THE CLNTER1RIi
OF. GENERAL OOUCLAS Isx ARTHUR CAUSEWAY S.R.(A-1-A) STATE PROJMT
' PLAY BOOK SR ATT6PACE2173B.OFlloINE1 1
PUBU9 RECORDS WAP IS RECORDED IN
OF WANT DADE COUNTY,
FLORink FOR 252.79 FEET TO9ESTERLY KCME OF 0505 C or, GENERAL OUGLASAV. ARTPOINT HUR CAUSEWAY:
THENCE N2927'35.W ALONC'SA70 WESTERLY RIGHT OF WAY UNE FOR 1E021
FEET 'NEW. 55A'07'39'W •FOR 531.61 FEET TO THE POINT or etc:wait OF
P9RUANHM TA5E4ENF 151'I THENCE 544529'1I'W FOR 137.60 FEET: %EWE
NS4'07'39Y FOR 30.00 FEET; THE/ICE N35'54.03'1 FOR 131,3E FEET TO THE
POINT OF REWIRING,
800k23181/Page786 CFN#20050267972
Exhibit B
Page 4 of 7
Amended and Restated Partial Modification of Restrictions
Deed Restriction No. 19447-F
MIADOCS 5570952 2
85
Lift B
:cgai Descriptor's Of 8744. Aeons anti Dredging Arms
IEOFI. LVICForCti FOR Pow/co team ba
PORnO4S of WATSON ISLAND, car OF WWI, LYBIG WfIHIN steno; at,
-TOWNS4P 53 S(XU11C RANGE.42 EAST• 1,11W0-040E COLTN1Y, FEORHM.
BEIM MOR2 PARTICULARLY OESCR19e0 AS FOLLOWS;
COMMFi1=E AT PANT Or TANGENCY"STATi54 25453 ON THE CENTERUNE
• • OF GENERA: DOUGIAS Mac ARTHUR CAUSER'4Y (SR A-1-A) STATE PRDJECT
SMOG. Na. SIDS-1II) B7060-2117 RIGHT- OF WAY IAAP AS RECORDED IN
PLAT BOOK 5 AT PAGE 71 Of 'THE PUBLIC RECORDS OF MAIN WOE COUNTY,
• FT.OROA; ThetiCE 559'51'261N FOR. 232.79 PET TO 4 P044T ON THE
• WESTERLY ROM OF WAY UNE OF GENERAL D0004AS Maa ARiAR
CAUSEWAY; TNEh5E N2677350 ALONG SAID WFSR£RLY .site OF WAY UNE
FOR 114.36 FEET TO THE P014T OF REORAWNG OF PERMAA4NT Fa9EMENT 41:':
• THENCE. 554'07391Y FOR 47.5,15.rirr; TNENCS.435.62111Y FOR S4.00 FECTf
134.NCE N5411739.7 FOR 464.19 FEU TO A PONT O41 THE AFORESAID
WESTERLY R:GHT OF WAY UNE OF MEN& OCUCLA5 Mx ARTHUR CAUSEWAY
THENCE 52C2736'E ALONG SAFJ WESTERLY RIGHT OF WAY' UNE oat 6475
FEET TO TIE POINT OF DEGWNINO:
B01ok23181/Page787 CFN#20050267g72
Exhibit B
Page 5 of 7
Amended and Restated Partial Modification of Restrictions
Deed Restriction No. 19447-F
M)ADOCS 5579952 2
86
Exhibit B
Legal Desaiptioai of Staging, Accmr sni Deoigiog A. -sac
LEGAL 'OeSconioN FOR 1E01iO1rA1tW EMEMENT 'C
PORTIONS 2RGEO O LITWESTERLY p7. alma, .5UNTY,FD.5INOE PARTICULARLY OScRIBS) A5 FOLLOWS:
COIANSA 0 AT PO6IT OF TANGENCY STATION 25+50 ON THE CENTERLINE
OF DERMAL DOUGLAS Moe ARTHUR CAUSEWAY (5A, A-1-AI) STATE PROJECT
SECTION No.. (0706-112) 67050-2117 R4147 OF WAY MAo AS RECOROFA IN
PLAT BCOK 56 AT PAGE 71. OF THE FkIRI. RECORDS OF RAM DADE COUNTY,
F1.ORI1I.I THENCE S5610'14 W FOR 1364.61 FEET To THE PONT OF 6ECINNWG
OF TWPOFIARY EASEUENT 'E; THENCE 649'32'371V FOR 101.36 FEET TO A
P05017 ON THE CASTER07 LSRO6 OF A TLIRNINO FLISIN: THENCE H' 31'0560^R
ALu SAID
CENIERUUIE IRE
EASTERLY.IN ERCO.STAL WATERWAY T3 7 POINT ON The
NO3'27'54'W ALDND 5,ND CFJTERUNE MR02.03 FEET TO A PORT ON THE
SOUTHERLY RIOT OF WAY LINE OF STATE ROAD A-1-A 5+U0 PONT ALSO
BEDr ON A CURVE THAT IS CONCAVE TO THC NORTH WAVING A RADIOS OF
10,716.59 FEET, 710.NCE EASTERLY ALONG THE ARC OF SAD CLIVE 7HROL7H
A CENTRAL MOLE OF F2.7 14. FOR AN ARC 55TA4CE OF 250.10 FEET 70 A
PONT ON ME FAST UHT OF WAY LRIc OF SAID NTERCOASTµ WA7E1N/AY1
THfA 503'27'64-E µOHO SAID FAST MC OF WAY L24E FOR 657.57 FEET
O A Pahl' ON THE EASTERLY UNE OF AN EASENEAT THAT 15 RECORDED IN
OFFICY1 RECORDS BOA05 362E AT PACE 751 OF THE PUSUC RECOn05 OF
w+u1`-DA E COUNTY, Fi5os56 7f•0430 S3 i'0.3'SO'E ALONG SAv EASIFRIY UNE
FOR 503120 FEET TO THE POINT OF 2EC„HNINC.
Book23181/Page788 CFN#20050287972
Exhibit B
Page 6 of 7
Amended and Restated Partial Modification of Restrictions
Deed Restriction No. 19447-F
MLAAOCS 5570952.2
87
BOOK 23181 PAGE 0789
LAST PAGE
F=Mbtt B
Legal Descriptions of Staging. Access and Dredging Areas
Book23181/Page789 CFN#20050267972 Page 15 of 15
Exhibit B
Page 7 of 7
Amended and Restated Partial Modification of Restrictions
Deed Restriction No. 1944 7-F
MLADoCS 5570952 2
88
Exhibit "C"
FLAGSTONE JUDGMENTS
Beach Tower LLC -- Judgrent in amount of $236,203.95
Miller Legg -- Judgment in amount of $3,989.19
Lillian Ser -- Judgment entered in favor of Ser in amount of approximately $674,000, plus
interest. Flagstone currently prosecuting independent action against Ser.
Stephen James Assoc -- Judgment in amount of $33,155.82 (settlement stipulation will be
signed shortly by Flagstone)
Americas Media Group Worldwide -- Judgment in amount of $336,924.91 (settlement
stipulation will be signed shortly by Flagstone)
Pandisco (New York judgment) -- Judgment in amount of S131,471.18
Exhibit C
Page 1 of 1
Amended and Restated Partial Modification of Restrictions
Deed Restriction No. 19447-F
MLADOCS 5570952 2
89
City of Miami
Certified Copy
City Hall
3500 Pan American Drive
Miami, FL 33133
www.rniamigov.com
File Number: 11-00767
Enactment Number: R-11-0337
A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S),
AUTHORIZING THE CITY MANAGER TO EXECUTE THE AMENDED AND
RESTATED PARTIAL MODIFICATION OF RESTRICTIONS TO DEED NO.
19447-F, IN SUBSTANTIALLY THE ATTACHED FORM (THE "AMENDED AND
RESTATED STATE PARTIAL WAIVER") WITH THE BOARD OF TRUSTEES OF
THE INTERNAL IMPROVEMENT TRUST FUND OF THE STATE OF FLORIDA
(THE "BOARD OF TRUSTEES") AND FLAGSTONE ISLAND GARDENS, LLC
("FLAGSTONE'), WITH (1) ANY FUTURE CONTEMPLATED MATERIAL
MODIFICATIONS TO THE REFERENCED AMENDED AND RESTATED
GROUND LEASE(S) AND/OR AMENDED AND RESTATED AGREEMENT TO
ENTER INTO GROUND LEASE(S) SUBJECT TO PRIOR DISCUSSION AND
REVIEW WITH THE DIVISION OF STATE LANDS, STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION, AND (2) ANY FUTURE
MATERIAL AMENDMENTS TO THE AMENDED AND RESTATED GROUND
LEASE(S) AND/OR AMENDED AND RESTATED AGREEMENT TO ENTER INTO
GROUND LEASE(S) SUBJECT TO PRIOR APPROVAL BY THE BOARD OF
TRUSTEES. ;
WHEREAS, the City of Miami ("City") is the owner of certain real property located on Watson
Island at approximately 1050 MacArthur Causeway, Miami, Florida (the "Property"); and
WHEREAS, pursuant to the processes for the City's Mega Yacht Marina and Mixed Use Waterfront
Development Request for Proposal and all addenda thereto (collectively, the "REP"), for development
on the Property of a mega -yacht marina with its ancillary facilities, retail, parking, hotels and all other
related facilities (the "Project") Flagstone Properties, LLC submitted a proposal and was selected as
the most qualified 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, polled the electors of the City of
Miami regarding leasing the Property to Flagstone Properties, LLC for the Project and pursuant to
Referendum on November 6, 2001 (the "Referendum") the voters returned an affirmative vote; and
WHEREAS, Flagstone Properties LLC subsequently merged with Flagstone Island Gardens, LLC
(collectively, "Flagstone"), and pursuant to City Commission Resolution No. 02-1304, adopted
December 12, 2002, entered into an Agreement to Enter Into Ground Lease, with the City, dated
January 1, 2003 with exhibits and attachments thereto (the "Agreement to Enter") including the form of
proposed Ground Lease (the "Ground Lease"); and
WHEREAS, the Agreement to Enter has certain required conditions precedent that must be met for
the future execution of a long-ten-n Ground Lease with Flagstone; and
WHEREAS, the City and Flagstone agreed upon and entered into that certain First Amendment to
the Agreement to Enter Into Ground Lease and Amendment to Form of Ground Lease dated
Ciry•ofMiami Poge I cJ4 8-11•0337
90
File Number: 11-00767 Enactment Number: R-11-0337
December 12, 2004 (the "First Amendment To Agreement To Enter"); and
WHEREAS, the City and Flagstone agreed upon and entered into that certain Second Amendment
to Enter Into Ground Lease dated December 8, 2006 (the "Second Amendment to Agreement to
Enter'); and
WHEREAS, Flagstone experienced delays in obtaining financing due to the downturn in the real
estate market requiring adjustments to the Lease Deadline referred to in Section 6.2.1 of the
Agreement to Enter and to the Outside Date referred to in Section 6.2.3 of the Agreement to Enter to
• February 1, 2010; and
WHEREAS, Flagstone and the City agreed upon and entered into a Third Amendment to the
Agreement to Enter Into Ground Lease and Amendment to Form of Ground Lease dated July 30, 2008
(the "Third Amendment to Agreement to Enter'); and
WHEREAS, the RFP contemplates that the Project may be developed by one developer on a
component by component basis; and
WHEREAS, Flagstone has requested additional modifications to the Agreement to Enter and to the
Ground Lease to allow them sufficient time to secure financing and begin and complete construction
on the Project; and
WHEREAS, in connection with the cooperation provisions of the Agreement to Enter, Flagstone
has agreed to allow the City to use the Property, without prior notice to Flagstone, for the City's and
other user's benefit, as the City may deem appropriate, prior to the City's issuance of Flagstone's
building permit, or September 1, 2013, whichever comes earlier; and
WHEREAS, the parties have negotiated and desire to enter into the terms and conditions of Exhibit
A ("Exhibit A"), the Amended and Restated Agreement to Enter into Ground Lease ("Amended and
Restated Agreement 10 Enter") and the Amended and Restated Ground Lease(s) ("Amended and
Restated Ground Leases)"), each of which was authorized by the City Commission, subject to
subsequent State of Florida required approval, on September 23, 2010 pursuant to Resolution No. R-
10-0402 (the "Authorizing Resolution"), each of which was attached to the Authorizing Resolution and
incorporated thereby, providing for, inter elia, (1) Flagstone's option to develop the Project in its
entirety all at once, or on a component by component basis as described in Exhibit A attached to the
Authorizing Resolution; (2) extending the possession date from February 1, 2010 to September 1,
2013, or sooner, at Flagstone's option; (3) establishing an annual payment schedule based upon all
components commencing with three hundred thousand dollars ($300,000) and increasing to twa million
dollars ($2,000,000) by year 2018, subject to certain credits and certain conditions related to
development on a component by component basis, as described in Exhibit A to the Authorizing
Resolution; (4) extending certain milestone dates in the timelines for construction commencement,
completion, and other development matters as set forth in Exhibit A to the Authorizing Resolution; and
(5) providing for security deposit(s); and
WHEREAS, the proposed changes in the Amended and Restated Ground Lease(s) required
approval by the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida
("Board of Trustees") as required by the Partial Modification of Restrictions for the Property, filed for
record March 18, 2005 in Deed Book 23181, Page 775 of the Public Records of Miami -Dade County,
Florida (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; and
City gf6finn:i
Page 2c t R-11-0337
91
File Number: 11-00767 Enactment Number: R-II-0337
WHEREAS, the Board of Trustees at its August 16, 2011 meeting authorized the execution and
delivery of a new Amended and Restated Partial Modification of Restrictions to Deed No. 19447-F with
the City and Flagstone (the "Amended and Restated State Partial Waiver") incorporating the new
terms and conditions of Exhibit A, the Amended and Restate Agreement to Enter, and the Amended
and Restated Ground Lease(s), and required that: (1) in the event that Flagstone and the City
contemplate in the future any material modifications to the Amended and Restated Ground Lease(s)
and/or the Amended and Restated Agreement to Enter, Flagstone and the City must discuss such
proposed modifications with the Division of State Lands, State of Florida Department of Environmental
Protection, and (2) any future material amendments to the Amended•and Restated Ground Lease(s)
and/or the Amended and Restated Agreement to Enter must first receive prior approval by the Board
of Trustees at a regularly scheduled meeting; and
WHEREAS, the Authorizing Resolution and Exhibit A thereto also required upon approval by the
Board of Trustees of the Amended and Restated State Partial Waiver, that (1) the City Manager return
to the City Commission for approval of the Amended and Restated State Partial Waiver, and (2)
Flagstone provide a $300,000.00 certified check to the City for time extension Consideration for Use
payments, now for the time period from October 1, 2010 through September 30, 2011 as a required
condition precedent to approval of the Amended and Restated State Partial Waiver, which certified
check has been provided to the City prior to consideration of this Resolution;
NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI,
FLORIDA.
Section 1. The recitals and findings contained in the Preamble to this Resolution are adopted by
reference and incorporated as if fully set forth in this Section.
Section 2. The City Manager is authorized{1} to execute the Amended and Restated Partial
Modification of Restrictions to_Deed No. 19447-F, in substantially the attached form, with the Board of
Trustees of the Internal Improvement Trust Fund of the State of Florida (the "Board of Trustees") and
Flagstone Island Gardens, LLC ("Flagstone"), with (1) any future contemplated material modifications
to the referenced Amended and Restated Ground Lease(s) and/or the Amended and Restated
Agreement to Enter Into Ground Lease(s) subject to prior discussion and review with the Division of
State Lands, State of Florida Department of Environmental Protection, and (2) any future material
amendments to the Amended and Restated Ground Lease(s) and/or Amended and Restated
Agreement to Enter Into Ground Lease(s) subject to prior approval of the Board of Trustees.
Section 3. This Resolution shall become effective immediately upon its adoption and signature of
the Mayor.(2}
Date; SEPTEMBER 15, 2011
Mover:. COMMISSIONER SUAREZ
Seconder: COMMISSIONER SARNOFF
Vote: AYES: 4 - COMMISSIONER(S) GORT, SARNOFF, CAROLLO AND SUAREZ
NOES: 1 - COMMISSIONER(S) SPENCE-JONES
Action: ADOPTED
ay of, "ami Fare 3of9 R•Ji•0337
92
File Number: 11-00767 Enactment Number: R-I 1-0337
Date: SEPTEMBER 15. 2011
Action: SIGNED BY THE MAYOR
I, Priscilla A. Thompson, City Clerk of the City of Miami, Florida, and keeper of the records thereof, do
hereby certify that this constitutes a true and correct copy of Resolution No. R-11-0337, with
attachments, passed by the City Commission on 9f15/2011.
September 15, 2011
Deputy Clerk (for P. A. Thompson, City -Clerk) Date Certified
{1) The herein authorization is further subject to compliance with all requirements that may be imposed
by the City Attorney, including but not limited to those prescribed by applicable City Charter and Code
provisions.
{2} If the Mayor does not sign this Resolution, it shall become effective at the end of ten calendar days
from the date it was passed and adopted. If the Mayor vetoes this Resolution, it shall become effective
immediately upon override of the veto by the City Commission.
Gry ofMiana Page 4 ale R.11-0337
93
FOOT". '2 8?8 PAGE 6-R
i_AST PAGE
City HailCity of Miami 3500 Pan American. Drive
Miami, R. 33133
www.miamigov.cam
Master Report •
Enactment Number: R-11-0337
File Number: I1-00167
Version: I
File Name: Auth, Arrend &: Restated Partial Modification , Flagstone
Requester: Department of Public Facilities Cost:
File Type: Resolution
Reference: Controlling Body: Office of the City
Clerk
Introduced: 8/162011
Final Action: 9/11/2011
Status: Passed
Title: A RESOLUTION OF THE MIAMI CITY COMMISSION, W47TIf ATTACHMENT(S), AUTHORIZJNG
THE CITY MANAGER TO EXECUTE THE AMENDED AND RESTATED PARTIAL
MODIFICATION OF RESTRICTIONS TO DEED NO. 19447-F, Dr SUBSTANTIALLY THE
ATTACHED FORM (THE "AMENDED AND RESTATED STATE PARTIAL WAIVER") WITH THE
BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND OF THE STATE OF
FLORIDA (THE "BOARD OF TRUSTEES") AND FLAGSTONE ISLAND GARDENS, LLC
("FLAGSTONE"), WITH (I) ANY FUTURE CONTEMPLATED MATERIAL MODIFICATIONS TO
THE REFERENCED AMENDED AND RESTATED GROUND LEA.SE(S) AND/OR AMENDED AND
RESTATED AGREEMENT TO ENTER INTO GROUND LEASE(S) SUBJECT TO PRIOR
DISCUSSION AND REVIEW WITH THE DIVISION OF STATE LANDS, STATE OF FLORIDA
DEPARTMENT OF 1 VIRONA'IENfAL PROTECTION, AND (2) ANY FUTURE MATERIAL
AMENDMENTS TO THE AMENDED AND RESTATED GROUND LEASES) AND/OR AMENDED
AND RESTATED AGREEMENT TO ENTER INTO GROUND LEASE(S) SUBJECT TO PRIOR
APPROVAL BY THE BOARD OF TRUSTEES.
Sponsors:
Notes:
Indexes:
Attachments: 11-00767 Summary Fonnpdf,11-00767 Pre-Legislation.pdf,11-00767 Legislation.pdf,I1-00767 Exhibit
I.pdf,
History of Legislative File
Version: Acting Body:
Date: Action: Sent To: Due Date: Return Date: Result
1
Office of the City 8/30r2011 Reviewed and
Attorney Approved
City Commission 9/15r2011 ADOPTED
City Commission 9115i2011 ADOPTED
Office of the Mayor 9/15.'2011 Signed by the Mayor Office of the City
Clerk
Office of the City Clerk 9'15/2011 Signed and Attested
by City Clerk STATE OF FirtRIDA, COUNTY OF t3ADE
I etn'HY t:tH1I1.1 trM/Ius s eta. wet rn s.s
IfIA nGAYernern prof
•EP 162i » AD
isnthESSnrlundm Siat
HARVEY RUj7.:, Ct - ' tc ,• efr Ow*
D.O.
Pass
Pass
Gry a/Miami Page 1
Printed an 911512011
94
Exhibit 4.2.6
Existing Occupants
1. John J. Waterman ("Blue Sea H" - 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
96
EXHIBIT 5.3
ESCROW AGREEMENT
(To be further revised)
THIS ESCROW AGREEMENT ("Agreement") is made as of the — day of
, 20, by and among THE CITY OF MIAMI, FLORIDA, a municipal
corporation of the State of Florida ("City"); FLAGSTONE ISLAND GARDENS, LLC, a
Delaware limited liability company ("Flagstone") (City and Flagstone are sometimes collectively
referred to herein as "Principals"); and SHUTTS & BOWEN LLP ("Escrow Agent").
RECITALS:
A. City and Flagstone have entered into that certain Agreement to Enter Into Ground
Lease' having an effective date of January 1, 2003 (the "Agreement to Enter into Ground Lease")
as amended and restated by that certain Amended and Restated Agreement to Enter Into Ground
Lease having an effective date of February 1, 2010 (collectively, the "Agreement to Enter Into
Ground Lease"). Unless otherwise defined herein, all capitalized terms used herein shall have
the respective meanings given to them in the Agreement to Enter Into Ground Lease.
B. Pursuant to Section 5.1 of the Agreement to Enter Into Ground Lease, Flagstone
has delivered to Escrow Agent (subject to clearance of funds) the Easement Deposit (in the
amount of Thirty -Five Thousand Dollars and No/100 ($35,000.00)) or such portion thereof
which, in combination with the amount of any Easement LOC delivered to City pursuant to
Section 5.1 of the Agreement to Enter into Ground Lease, is equal to Thirty -Five Thousand
Dollars and No/100 ($35,000.00).
C. Pursuant to:
(i) Section 5.2 of the Agreement to Enter Into Ground Lease Flagstone is
required to make certain Security Rent Deposits such amounts to increase in accordance with
Article 5 Security Deposit.
(ii) the Hold Harmless, Indemnification, and Security Deposits required by
Section IX of Composite Attachment 3 to the Agreement to Enter into Ground Lease, Flagstone
is required to make certain Hold Harmless Indemnification and Security Deposits (with the
Escrow Agent and the Courts in such applicable amounts.)
(iii) The Easement Deposit, together with the Security Rent Deposit(s), and the
Hold Harmless, Indemnification and Security Deposit(s) to the extent hereafter so delivered by
Flagstone to Escrow Agent, is hereinafter referred to as the "Escrowed Funds".
D. This Agreement is intended to be the Escrow Agreement referenced in Section 5.3
of the Agreement to Enter Into Ground Lease and referenced in Section IX of Composite
Attachment 3.
97
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.
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
98
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 fmancial
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 is a client of
Escrow Agent, and has 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, and except for matters involving the
attorney/client privilege between Escrow Agent and Flagstone, the parties hereby voluntarily and
knowingly, fully, finally, completely and irrevocably (i) waive any such actual, apparent or
alleged conflict between Escrow Agent's duties under this Agreement and any other duties which
Escrow Agent may have to Flagstone, and (ii) remise, release, discharge and forever free Escrow
Agent and each of its partners, employees and agents, of and from any and all liability, claims,
debts, obligations, demands, judgments, actions, causes of action, suits, sums of money,
accounts, covenants, agreements, promises, damages, liabilities and charges of every kind and
nature, at law or in equity, and whether in tort, contract, or otherwise, that the parties now or in
the future have, may have or may claim to have against Escrow Agent or any of its partners,
99
employees or agents based on, arising out of, in connection with, or in any way pertaining to, any
such actual, apparent or alleged conflict, unless the same is caused by the gross negligence or
willful misconduct of Escrow Agent, and agree that Escrow Agent may continue to act as
attorney for Flagstone throughout the transactions contemplated hereby.
5. Disputes. If, in Escrow Agent's sole opinion, any dispute arises among any
of the parties to this Agreement and/or any third parties (whether concerning this Escrow
Agreement, Escrow Agent's duties hereunder, the disposition of the items held in escrow, or any
other matters pertaining to the escrow), or if Escrow Agent shall be uncertain as to its duties or
rights under this Agreement or shall receive instructions, claims, or demands from any of the
other parties to this Agreement and/or any third parties with respect to the Escrowed Funds
which in Escrow Agent's sole opinion, are in conflict with any provision of this Agreement, or if
Escrow Agent is joined as a party to a lawsuit by virtue of the fact that it is holding the
Documents:
(a) Escrow Agent, upon giving written notice to all other parties to this
Agreement, may (but shall not be obligated to) refrain from performing any further duties under
this Agreement, hold the Escrowed Funds in escrow, and/or continue to hold any 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:
(a) 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
2. 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
3. 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
100
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:
Shutts & Bowen LLP
201 South Biscayne Blvd.
1500 Miami Center
Miami, Florida 33131
Attn: Kevin D. Cowan, Esq. and Alexander I. Tachmes, Esq.
8. Choice of Law and Venue. This Agreement shall be governed by and construed
in accordance with the laws of the State of Florida, without application of conflict of law
principles. In the event any action, suit, or proceeding is instituted as a result of any matter or
thing affecting this Agreement, the parties hereby designate Miami -Dade County, Florida, as the
proper jurisdiction and the venue in which same is to be instituted.
9. 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.
101
10. Waiver; Modification. The waiver of any terms, provision or condition of
this Agreement shall be effective only if in writing and signed by all the parties to this
Agreement, and then only in the specific instance and for the particular purpose for which it was
given. No failure to exercise and no delay in exercising any right or power under this Agreement
shall operate as a waiver thereof. No modification, amendment, cancellation or rescission hereof
shall be valid and binding, unless it is in writing and signed by all parties to this Agreement.
11. Counterparts. This Agreement may be executed in any number of counterparts.
Each such counterpart shall be deemed to be an original instrument, but all such counterparts
together shall constitute but one Agreement. This Agreement may be executed via facsimile
transmission, and facsimile counterparts shall have the same force and effect as original
signatures.
12. Enforcement Costs. If any civil action, arbitration or other legal proceeding is
brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default
or misrepresentation in connection with any provision of this Agreement, the successful or
prevailing party or parties shall be entitled to recover reasonable attorneys' fees, court costs and
all expenses (including, without limitation, all 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:
Date:
Priscilla A. Thompson, City Clerk
APPROVED AS TO INSURANCE
REQUIREMENTS:
By:
Calvin Ellis
Risk Management Director
APPROVED AS TO FORM
AND CORRECTNESS:
102
By:
Johnny Martinez, P.E.
City Manager
Date:
By:
Julie O. Bru, City Attorney
FLAGSTONE ISLAND GARDENS LLC, a
Delaware limited liability company
By: FLAGSTONE DEVELOPMENT
CORPORATION, a Delaware
corporation, its Managing Partner
By:
Name: Mehmet Bayraktar
Title: President
Date:
SHUTTS & BOWEN LLP
By:
Name:
Title:
Date:
103
Exhibit 6.1.4
Pre -Approved Candidates for Development Team
• Eric Kuhne & Associates
• Spillis Candella
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
• Orient Express Hotels
• Shangri-La Hotels & Resorts
• Kimpton Hotels
• Morgans Hotel Group
• Aman Resort
• Rixos
105
Exhibit 7.2
List of Permits and Approvals Held by Flagstone
• Major Use Special Permit approved pursuant to Miami City Commission Resolution No.
R-04-0462, as amended.
• Class I Permit No. CC 06-259 approved pursuant to Miami -Dade County Board of
County Commission Resolution No. R-1278-06
• South Florida Water Management District Environmental Resource Permit No. 13-
02353-P, as modified.
• U.S. Army Corps of engineers, Department of Army Permit No. SAJ-2003-6823 (IP-
PLC), as modified.
106
Exhibit 7.4.1
List of Licenses/Easements
1. Temporary Construction Easement Agreement (Parcels A, B, and C). OR Book 26102, Page
2922; Recorded December 12, 2007.
2. First Amendment Temporary Construction Easement Agreement (Parcels A, B, and C). OR
Book 26102, Page 3110; Recorded December 12, 2007.
3. Second Amendment Temporary Construction Easement Agreement (Parcels A, B, and C). OR
Book 26662, Page 0355; Recorded November 24, 2008.
4. South Road Permanent Easement Agreement (Parcel D). OR Book 26598, Page 1416;
Recorded October 6, 2008.
5. First Amendment South Road Permanent Easement Agreement (Parcel D) and Adding a
Temporary Easement Thereto. OR Book 26598, Page 1439; Recorded October 6, 2008.
6. Submerged Area Permanent Maintenance Agreement (Parcel E). OR Book 26598, Page
1447; Recorded October 6, 2008.
7. Easement Agreement (Parcel G). OR Book 26598, Page 1473; Recorded October 6, 2008.
8. First Amendment Entry Road Permanent Easement Agreement (Parcel G) and Adding a
Temporary Easement Thereto. OR Book 26598, Page 1498; Recorded October 6, 2008.
9. Flagstone Site temporary Pre -Development Easement Agreement (Parcel H). OR Book
26598, Page 1507; Recorded October 6, 2008.
107
Exhibit 7.6
Existing Marine Operating Permit
2011100412090748
mlamldade.gov
Department of Environmental Resources Management
Natural Resources Regulation and Restoration Division
701 NW 1st Court 6th floor
Miami, Florida 33136-3912
T 305.372.6567 f 305.372.6407
PERMIT NO: MOP-000306-2011/2012 (1I-G8N
WATSON ISLAND MARINA
.1220 MAC ARMOR CSNY
MIAMI, FL 33132-
PERM1'rTEB:
Mr. Me0met Sayraktar
FLAGSTONE ISLAND GARDENS, LLC
888 MACARTHUR CENT
MIAMI, PI 33132-
MARINE FACILITIES
ANNUAL OPERATING PERMIT
DSSCSIPTION OF FACILITY/ROUEMISNT
This document. issued under the provisions of Chapter 24, Miami -Dade County Code (Ordinance Nmener
09-104), nirall be valid from 01.-OCT-2011 through 30-SEP-2012. The above named permitcee, is hereby
authorized to operate the marine facility at the above location which consists of the following.
2emsercial Boat Docking Facility.
Total wet clips: 43
Total dry slips: 0
Total Co750ercial vessels: 4C
Total recreational vessels: 3
Number of liveaboards, 0
Days of week 1n operation: 7
This facility is subject. to conditions listed below and in the following pages (if any) of this
permit.
SPECIFIC CONDITIONS
5. This facility must be operated in accordance with the "Marine Facilities Best Management
Practices- attached bereft and Incorporated herein by reference AS part or this permit.
2. A11 applicable conditions from previously executed local, stare, and federal permits issued for
the above -referenced marine facility shall be enforced.
3. A11 fixed or floating non -water dependent structures in, on. over. or upon tide; waters. unless
previously approved by a Class I permit. are probiibited.
4 A11 permanent sewage purrpout systems and portsble punrout systems -required at this facility •
pursuant to DERA:, state, or fedrnral permits ehall be maintained on site and in fully operable
condition at all times in order to convey sewage to the sanitary sewer system. Deaigraated slips •
for pumpout stations shall be kept open ac all times except while a vessel is discharging sewage
to the pumpout system. There shall be no overboard discharge of sewage to tidal waters trot
vessels at this fatality. This prohibition also includes dischargesfromr approved Coast Guard
Type 1 or 2 flow -through marine sanitation. devices. A11vesnel occupants shill use shoreairle
facilities unless the vessel is equipped with a Coast Guard approved holding tank system or is
directly connected to the facility's sewage pumpout syston.
5. The facility owner/operator is required to maintain a submerged land lease from the state of
Florida if any vessels or structures are located over state-owned submerged lands. Use of
state-owned subnerned lauds without a lease or other form of consent from the State of Florida its
prohibited.
5. Unless Otherwise approved by DUN, fueling of vessels at this facility shall be prohibited.
-Dade: Commty ..-
e�b£�aa iecrjmontaAeaogr• Retalgo6u la>mebt�
thaw Davis
Page : of 2
108
Facilities approved for fueling operatlons'sha11 maintain on -site spill prevention, containment,
and recovery equipment and materiale including, but not limited to. absorbent pada, booms, and
sweeps and shall maintain staff trained in the deployment and operation of said equipment at all
times. Fueling at approved facilitiee shall be conducted only at the designated fueling location
in order to contain any spills that may occur. A floating containment boom large enough. to
enclose the area of the vessel being fueled, but with a minimum length of fifty (50) feet, shall
be available at all times during fueling operations. Said equipment shall be deployed and
operated in the most effective manner possible when spills occur.
7. The maximum number of.veesels that may be stored, docked or moored•at this facility may not
exceed the number of slips as referenced above in this Operating Permit, This condition shall not
apply to appurtenant vessels such as dinghies and tenders that are aasociated, by ownership.
design and common usage, with a primary vessel docked, moored or stored at the facility, and
therefore, are affixed to/carried by and stored on the primary vessel.
8. earasement of manatees is prohibited. Harassment includes, but is not limited to, feeding,
watering, physical contact, and/or any interference in their normal behavior or movements.
ORNBRAL cONDI:Ti0N8
9. The applicant, by acceptance of this'document, agrees to operate and maintain the subject
operation no as to comply with the requirements of Chapter 24 of.the Code of Miami -Dade County.
10. If for any reason, the applicant does not comply with or will be unable to comply with any
condition or limitation specified on this document the applicant ahall immediately notify and
provide the department with the following information; (al a description of and cause of
non-compliance; "and (b) the period of non-coepliaeoe including seact,detes and fin en:as•; if -hot
corrected. the anticipated time the non-compliance ie expected to continue, and etepo taken to
reduce, eliminate, and prevent recurrence of the non-compliance. The applicant shall be
responsible for any and all damages which may result and may be subject to enforcement action by
the department for penalties or revocation of this document.
11. As provided in Section 24-15 of the Code of Miami -Dade County, the prior written approval of the
Department of Environmental Resources Management shall be obtained for any alteration to this
facility.
12. The issuance of thie document does not convey any vested rights or any exclusive privileges. Nor
does it authorize any injury to public or private property or any invasion of personal rights,
nor any infringement of federal, state or local laws or regulations. Nor does it relieve the
applicant from liability for harm or injury to human health or welfare or property.
13. This document is required to be posted in a conepicuoua location at the facility site during the
entire period of operation.
14 This document is not transferable. upon sale or legal transfer of the property or facility
covered by this document, the applicant shall notify the department within thirty(30) days. The
new owner must apply for a permit within thirty (30) days. The applicant shall be liable for any
non-compliance of the source until the transferree applies for and receives a'tranafer of this
document.
15. The applicant, by acceptance of this document, specifically agrees to allow access to the named
source at reasonable times by department personnel presenting credentials for the purposes of
inspection and testing to determine compliance with this document and department rules.
16. This document does not indicate a waiver of or approval of any other departeeot,perdtit that may
be required for other,aepects of this facility..._
17. This document done not constitute an approval by DERM or certification that the applicant is in
compliance with applicable laws, ordinances, rules or regulations. The applicant acknowledges
that separate enforcement actions may be initiated by DERM and that this document does not
constitute compliance with orders issued in conjunction with enforcement actions for correction
of violations.
16. Failure to comply with any condition of this document, or the requirement° of Chapter 24, Code Of
Miami -Dade County may subject the applicant to the penalty proviaione of said Chapter including
civil penalties up to $25,000 per day per offense and/or criminal penalties of $500 per day or
not less than $1000 per day for violations of Section 24-42.4, Sanitary Sewer Discharge
Limitations and Pretreatment Standards and/or sixty (60) days in jail.
Page 2 of 2
109
•
0
City of Miami
Master Report
Enactment Number: R-04-0702
City Hall
3500 Pan American Drive
Mlarnl, FL 33133
www.miarnigov.com
File Number: 04-01046 •
Version: 1
File Type: Resolution Status: Passed
Reference: Controlling.Body: City Commission
Introduced: 9/1/2004
Requester: Cost: Final Action: 10/28/2004
File Name: Flagstone Island Gardens Covenant
Titled A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENI'(S),
AUTHORIZING THE CITY MANAGER TO EXECUTE A COVENANT RUNNING WITH THE
LAND IN FAVOR OF MIAMI-DADE COUNTY ("COVENANT'), IN SUBSTANTIALLY THE
ATTACHED FORM, TO PROVIDE FOR: (1) LIMITATIONS ON FUELING TO LESSEES OF THE
DOCKING FACILITIES AND PUBLIC AGENCY VESSELS; (2) RESTRICTION ON THE NUMBER
OF POWERBOATS LESS THAN ONE -HUNDRED FEET IN LENGTH THAT CAN BE MOORED
AT THE FLAGSTONE ISLAND GARDENS MARINA FACILITY CONCURRENTLY; (3)
RESTRICTION ON THE NUMBER OP VESSELS MOORED AT THE FACILITY TO FIFTY (50)
CONCURRENTLY; AND (4) RESTRICTION THAT SERVICE VESSELS CAN ONLY OPERATE
WITHIN THE IMMEDIATE VICINITY OF THE DOCKING FACILITY, WITH TERMS AND
CONDITIONS AS MORE PARTICULARLY SET FORTH IN SAID COVENANT.
Sponsors:
Notes:
Indexes:
Attachments: 04-01046-cover
memo.pdf,04-01046-exhibitA.pdf,04-01046-exhibitB.pdf,04-01046-exhibitC.pdf, 04-01046-exhibit
agenda review form.pdf,04-01046-exhibit attachmentA.pdf,04-01046-exhibit
attachmentB.pdf,04-01046-exhibit attachmentC.pdf,04-01046-exhibit attachmentD.pdf,04-01046-exhibit
attachrnentE.pdf,04-01046-exhibit attachmentG.pdf,04-01046-exhibit attachmentH.pdf,04-01046-exhibit
attachnientl.pdf,04-01046-Substitute Cover Memo.pdf,
History of Legislative File
Version: Acting Body:
Date: Action:
Sent To: Due Date: Return Date: Result:
City Commission
Office of the Mayor
Office of the City Clerk
Office of the City
Attorney
Action Note:
10/28/2004 ADOPTED WITH
MODIFICATIONS
11/13/2004 Signed by the Mayor
11/16/2004 Signed and Attested
by City Clerk
12/9/2004 Reviewed and
Approved
Modifications made by Law.
Pass
City ofMiami Page 1 Printed on 11/3/2008
File Number: 04-01046
C) Enactment Number: R-04-0702
Island Gardens Marina facility concurrently; (3) restriction on the number of vessels moored at the
facility to fifty (50) concurrently; and (4) restriction that service vessels can only operate within the
immediate vicinity of the docking facility, with terms and conditions as more particularly set forth in said
Covenant.
Section 3. This Resolution shall become effective immediately upon its adoption and signature of
the Mayor.{2}
Date: OCTOBER 28, 2004
Mover: COMMISSIONER WINTON
Seconder: VICE CHAIRMAN GONZALEZ
Vote: AYES: 4 COMMISSIONER GONZALEZ, WINTON, SANCHEZ AND ALLEN
ABSENT: 1 - COMMISSIONER REGALADO
Action: ADOPTED WITH MODIFICATIONS
Date: NOVEMBER 13,2004
Action: SIGNED BY THE MAYOR
I, Priscilla A. Thompson, City Clerk of the City of Miami, Florida, and keeper of the records thereof, do
hereby certify that this constitutes a true and correct copy of Resolution No. R-04-0702, with
attachments, passed by the City Commission on 10/28/2004.
November 03, 2008
City Clerk, Deputy Clerk (for P. A. Thompson, Date Certified
City Clerk)
{1} The herein authorization is further subject to compliance with all requirements that may be imposed
by the City Attorney, including but not limited to those prescribed by applicable City Charter and Code
provisions.
{2} If the Mayor does not sign this Resolution, it shall become effective at the end of ten calendar days
from the date it was passed and adopted. If the Mayor vetoes this Resolution, it shall become effective
immediately upon override of the veto by the City Commission.
City gfMiami Page 2 of 2 R-04-0702
0
EXHIBIT A
A. LEGAL DESCRIPTION (SUBMERGED AREA)
COMMENCE AT A POINT, MARKGD'DY A vr DIAMETER IRON ROD AND O* STAMPED
SHOWN AS P.T. 3IA, 25a•5D ON THE "OFFICIAL. MAP OF LOCATION AND
SURVEY OF A PORTION OF S^tL T1019 67D6, DESIGNATED AS PART OF STATE IROAD
A 1•�A IN DADE COUNTY) FLORIDI."% PREPARED BY THE STATE ROAD DEPARTMENT OF
THE STATE OF FLORIDA., AS RECORDED IN 7JAP BOOK 58 AT FADE 6'l OF THE
PUBLIC RECORDS OF DADS •COUNTY, FLORIPA SAID POINT SING TIME PONT OF •
TANGENCY OF THE ORIGINAL CENTER LINE OF THE DOUGLAS PACARThUR CAUSEWAY'
RUNNING EAMY AND 'SOUTH E4STE LY 'MOM THE WESTERLY MITTS OM
BRIDGE) OF WAisDN ISLAND .AS SHOWN ON SHEET 3 bF THE STATE ROAD •
DEPARTMENT RIONT••rCF•-WAY MAP SE rflOhi NO. (37US-1 T Z) .87•D8D--2'I 17, RESASI:D
• • MARCH 25,1t89, SAb .MOST NORTHEI?LY CURVE HAVING A RADIUS Or 1$32.58 FEEL"
Mb A CZTTRAL ANGLE; OF 6zoD''D02THENCE SOUTH S9S1'26" WE DEPARTfNG '
EVZIALLY .FROM SAID QENTI:RUNE. A I5TmGE Of •9S7.36FEET TO A PROJECTED
BUL.RHEAD L1NEsitiaiB1:,NORTH 17'1 '21" WEST A1334 SAID 13UI.KHFAO LINE'A
DISTANCE OF 2i1Bifi$ ')~F.t;.l 70' THE POINT AND PLACE OF BEGINNING; 'MENGE 0011TW •
• 48`32161' WT DEPARTING sdlo aulMEAD UNE A DISTANCE. OF r D.sI FEET TO A.
POINT OF IMERSEC11ON 17F mg TURNING .BASIN LD;4IT AB EsT, ppsHED et? U.S.
ARMY CORPS bk grtItgri3s 44o PDphioNED $Y CDORp]IIAT.E5. Non.; t`;27.87$.82 '
FEET, EAST 92.6.E .22 FEET ,(BASED, ON NORil4 AMER/CAN DATU1,1 1t43-NAD$1)
yYTIH ita� NORTHERLY LINE OF 114 ti11AM1 MAW SWP .CHANNPLI 'MENGE MORT; I
31'O3'50'' 1J,znIONG THE; LImrEs OF SAID 'WRUNG BASIN A DISTANCE OF 428.4E
FEET ill A POINT D? K;EITBEC170N W1rM THE E&ST RIOItI »OF WAY UNE OF THE
NTRAC0,1STAi, *AMWAY; TWICE NOR7hi .03'2715+" WEST 'MONO SAID EAST
RIGHT-OF-WAY UNE ,A AISTANM OF 13'?4•4.3 FEET TO A FOINt OF INTIBISECIION
WITH THE SOUTRE LY RIOHr•-or-YIAY• LINE OF £NE} DOUGLAS MACARTHUR •
C,ALISEWAY, SO POINT OF 1TTERSEOT3bN,.BEING A PAINT' ON A CURVE CONCAVE
SOUTHERLY AND NAVRIG,A RADIUS OF 111.71•8.5S FEET, A 7tAD111. LINE TO WO
POINT BEARS SOUTH 0T'15'15" d A,ST; 'INENoE Rt?N FA.:�'T RLY FOR 3E7,45 'FEET
ALONG THE ARC QF END CLIRYE.AND ALONG SAID SOL'1IHT IY ,RIGHT-OF-WAY LINE,
THROUGH A CENTRAL. AliolZ> F' •O2'O4'1T" TO A POINT OF TANCENGYY WEN
5 VTR aV1015° 17141' •C0411NIING EASTERLY,ALONG THE SAID SOUTHERLY
RIGHT-OF-WAY LINE A DISreact or 32.0 Fk 7 MCSRE OR LEAS TO A POINT or
IMERSF;07'ION WITH M bSi5TING 6LIOn•IFAD LINE! THENCE 5t111 H '177221" EAST
ALONG pip BULKHEAD LINE A DISTANCE OF 9 4.7.4 FEET TOTE pp1F1T $F
BEGINNING. •
. CONTAINING 13.35 ACRES OF SUBIAERGED LAND MORE OR L.5';.
B:•LEGAL•DESORIPTION (ADDITIONAL SUBMERGED AREA E) ••
PORTIONS OF SUBMERGED LANDS LYING WESTERLY OF WATSON ISLAND, CITY QF
"MIAMI, MIAMI-DADE COUNTY, FLORIDA. BE INS MORE PAR11CULARLY DESCRIBED
AS FOLLOWS;
CONIMENOE AT POINT OF TANGENQY STATION 254.50 ON THE CENTERLINE,
OF GENERAL•DOUGLAS Mac ARTHUR CAUSEWAY .(rS.R. A-1-A) STATE PROJECT
SECTION No. (870S-11.2) 87060-2117 RIGHT OF WAY MAP A5 RECORDED IN
PLAT BOOK S6 AT PAGE 71 OF THE PU8UC RECORDS OF MIAMI DARE COUNTY,
FLORIDA: THENCE S55'10'14"W FOR 1384-.B1 FEET TO THE POINT OF BEGINNING.
OF TEMPORARY EJASEMENF T THENCE 549'32'S7"W FOR 101.3E FEET TO A
POINT ON THE EASTERLY LIMITS OF A TURNING BASIN; THENCE N 31'03'SDWN
ALONG SAID EASTERLY LIMITS FOR 968.07 FEET '10 A POINT QN THE
CENTERLINE OF THE INTERCOASTAL WATERWAY; THENCE
ND3'27'54°W ALONG SAID CENTERLINE FOR 402.9 ' FEET TO A POINT X1N THE
SQUT-IERLY RIGHT OF WAY UNE OF STATE ROAD A-1-A SAID POINT ALSO
BEN ON A CURVE THAT IS CONCAVE. T0, THE NORTH WAVING A RADIUS QF
i0,7j6.52 FEET, 11-1ENCE'EPSTERLY ALONG THE ARC OF SAID CURVE THROUGH
• A CENTRAL ANGIE OF 1'2O'14" FOR AN ARC DISTANCE OF 250.10 FEET TO A
POINT ON THE EAST RIGHT OF WAY LINE. OF SAID INTERCOASTAL WATERWAY;
THENCE S03 27'54n"E ALONG SAID EAST RIGHT QF WAY UNE' FOR EE58.5✓7 FEET
TO A POINT ON THE EASTERLY LINE OF AN ""CSEMENT THAT 1S RECORDED IN
OFFICIAL RECORDS BOOK 3622 AT PAGE 751 OF THE PUBLIC RECORDS OF
MIAMI-DADE COUNTY, FLORIDA: THENCE. S31'03'50'E ALONG SAID EASTERLY LINE
FOR 803.20 FEET TO THE POINT. OF BEG:NM-NG.
'CONTAINING 4.85 ACRES MORE CR LESS (211,573 SQUARE FEET)
n
Flagstone Island Gardens Mega -Yacht Harbor
Manatee Protection Plan
Revised August 7, 2008
The Flagstone Island Gardens Mega -Yacht Harbor project ("Project") proposes to construct a 50-
slip international mega -yacht facility on Watson Island with supporting upland amenities
adjacent to the timing basin at the west end of the Port of Miami/Government Cut. This
document confirms the proposed Project's compliance with the approved Miami -Dade County
Manatee Protection Plan (MDCMPP) and details the Project specific measures being taken to
ensure the protection of manatees during marina operations.
The MDCMPP designates the area between the Project shoreline and the Port turning basin for
"Freight Terminals/Large Vessel (>100') Berthing". Additionally, the Watson Is[and shoreline
itself is designated as a "Special Use" Marina or Transitory Dock area. The MDCMPP states that
this designation is "for mooring vessels for special uses such as commercial fishing, charter
fishing boats, and ocean-going luxury yachts" (page 96), Both of these designations are based on
the site's nearby access to deep water and short route to the Atlantic Ocean. The proposed Project'
is compliant with the `Large Vessel Berthing" and "Special Use" designations of the MDCMPP
and all uses that are proposed for vessels that are not over 100 feet in length are consistent with
the functions that currently exist onsite. This is one of the most preferable sites in Miami Dade
County to 'accommodate the public demand for vessel mooring with minimal risk to the manatee
population. Additional information regarding the historic and proposed marina functions onsite
and manatee protection measures are discussed below.
Existing Marina Functions
The existing Watson Island Marina facility includes 43 wet slips 'authorized under a Miami -Dade
County Marine Facilities Operating Permit (MOP). These slips have been leased out by the City
of Miami (property owner) for commercial and recreational vessel uses including commercial
and charter fishing, boat rental/cruise operations, and transient recreational slips. The Watson
Island Marina facility has been used historically by vessels ranging in length from 20 to 150 feet.
The commercial vessels using the facility are estimated to average 2 trips per day and transient
recreational vessels average fewer trips per day. A public fuel dock is also located at the Watson
Island Marina.
Reviews of aerial photography and dock records indicate that the Watson Island Marina facility
has been used extensively by commercial and recreational vessels. According to dock check
records provided . by the City's dockmaster, an average of 20 vessels have moored at Watson
Island Marina .at any given time over the past 6 years. This data does not differentiate between
power and sailing vessels.
Follow-up discussions with the City's dockmaster for Watson Island Marina indicate that the 43
slips were fully leased to vessel owners between 1987 and 1992. Prior to 199S, records are
scarce. However, a review of aerial photography provides some data regarding mooring history.
fl
Flagstone Island Gardens
Manatee Protection Plan Compliance
August 7, 2008
Page 2
Since 1985 when the MPP was being developed, 23 or more powerboats have been documented
at the marina in aerial photographs reviewed with Miami -Dade County Department of
Environmental Resources Management (DERM) staff.
Proposed Meza-Yaeht Harbor Facility Manatee Protection Compliance
The state -approved MDCMPP provides marine facility siting recommendations based on criteria
including minimal manatee/boat travel pattern overlap, minimal benthic community disturbance
and compatibility with surrounding land uses. As noted above, the proposed Project uses are
consistent with the MDCMPP designations and historic uses onsite.
The greatest potential risk to manatees would occur as vessels travel north or south within the
Intracoastal Waterway. Mega -yachts, the primary target vessels for the proposed facility, travel
at slower speeds and must utilize Government Cut for deep water ingress/egress. Given. the size
and typical travel patterns of these vessels, it is not likely that.they would travel north or south in
the Intracoastal Waterway, particularly .not for significant distances or at significant speeds.
Vessels less than 100 feet in length that may utilize the facility will similarly utilize Government
Cut for ocean access and function consistent with historic travel patterns.
Construction
Marina construction activities will comply with standard manatee protection guidelines and
permit conditions. Manatee habitat (seagrass beds) is proposed to be dredged to accommodate
the mega -yacht drafts; these unavoidable impacts will be mitigated through restoration of
seagrass habitat within Biscayne Bay.
Design and Operations
The proposed mega -yacht facility will accommodate vessels up to 465 feet in length. The
maximum vessel number of 50 will be limited to no more than 23 vessels less than 100 feet in
length at any time, with specific sub -categories noted below. Of the 23 vessels less than 100 feet
in length authorized at the facility, the majority will be oceangoing luxury, yachts, with the
balance being facility service vessels, water taxis and launched yacht tenders.
Speed Zones: Vessel speed restrictions in the vicinity of the Project provide valuable protection
to manatees within their foraging areas and travel corridors. These speed zones are well enforced
by local, state, and federal agencies.
Large Vessel Mooring: All docks that will accommodate large vessels (100 feet or greater in
length) are now designed as pile supported structures. The marginal dock provides the required
standoff from the bulkhead at the Project site.
Small Yachts and Tenders: As market studies conducted relative to the proposed Project indicate
that it may not be economically viable to fill all proposed slips year-round with vessels greater
than 100 feet in length, the applicant has requested authorization to offer a maximum of 14 slips
0
Flagstone Island Gardens
Manatee Protection Plan Compliance
August 7, 2008 .
Page 3
C>
(consistent with the historic use by powerboats) for powerboat vessels, including yacht tenders,
less than 100 feet in length, at any point in time. Tenders may be launched from yachts to
conduct inspections of their vessels and provide other service functions. Launching of these
tenders will be controlled by the dockmaster and strictly supervised. Due to strict security
controls, these vessels will likely be limited in their movement within or outside of the facility.
Water Taxis,- Two slips are proposed for water taxis to convey upland hotel and harbor guests to
local waterfront destinations. A public fuel dock is not proposed at the Project site; fuel services
will only be provided to vessels leasing a slip at the facility (and public) agency vessels, such as
the Florida Marine Patrol). Additionally, the applicant has agreed to limit fuel services in this
. manner to compensate for the proposed transient .water taxi use to ensure no net increase in
potential impacts to manatees.
Fishing Vessels: Four slips are proposed for use by commercial fishing vessels at the facility. It
is anticipated that the travel patterns and functions of these fishing vessels will be similar to the
existing/historic commercial and charter fishing vessel use of the site.
Service Vessels. Three service vessels and one non -motorized small barge are proposed to assist
with facility operations and will be controlled by the harbor master. The service vessels will be
approximately 30 feet in length and will not leave the harbor and fishing/water taxi pier area.
Services by these vessels will include deploying fuel containment booms, security services and
providing tug -type assistance to incoming and outgoing mega -yachts. At no time will the total
number of vessels in the harbor exceed 50 (including all proposed vessels in the preferred
design) and at no time will the total number of vessels less than 100 feet in length exceed 23 in
harbor waters.
Conclusions
. New mega -yacht slips associated with the proposed Project are compliant with the "Large Vessel
Berthing" and "Special Use" designations of the MDCMPP. Slips for vessels less than 100 feet
in length (23 total: 14 for non -fishing vessels and yacht tenders, 2 for water taxis, 4 for fishing
vessels, and 3 for service vessels) will not result in an increased risk to manatees, as they are
consistent with the existing and historic uses described above,
Wrojem12DI773lPennitdnglP:mdt Annematsl(O8.O8-07) &mind Mania Proteetbn Phn.doc
(1) EExA6,.f 0
Memoranda
Date: .,September 12, 2006
To: Honorable Chairman Joe A. Martinez and Members,
Board of County C. missioners
From: George M, Burge
County Manage
Subject: Class I Permit Application by Flagstone Island Gardens, LLC and the City of Miami to
Dredge 15.81 Acres of Submerged Bay Bottom for the Creation of a 50-Slip Mega Yacht
Marina, Request for a Variance from Section 24-48.24 of the Code of Miami -Dade County
for the Placement of Non -Water Dependent Fixed Structures Over Tidal Waters, and
Acceptance of a Restrictive Covenant- Running With the Land In Favor of Miami -Dade
County •
MIAM1,a4t E..
COUNTY
Agenda Item No.5(BE)
Attached, please find for your consideration an application by Flagstone Island Gardens,
LLC and the City of Miami for a Class I Permit, a Request for Variance from Section 24-
48.24 of the Code of Miami -Dade County, and acceptance of a Restrictive Covenant
Running With the Land in favor of Mlaml-Dade County. Also, attached Is the
recommendation of the Director of the Department of Environmental Resources
Management and a Resolution seeking the Board's approval of the aforesaid application,.
variance request, and acceptance of the restrictive covenarrt.
Assistant County Manager
Date:
To: '
From:
S ubJect:
August 31, 2005
George M. B
Count
�e it ctor
esources Management
Class I Permit Application by Flagstone Island Gardens, LLC and the City. of Miami to
Dredge 15.81 Acres of Submerged Bay Bottom for the Creation of a 50-Slip Mega
Yacht Marina, Request for a Variance from Section 24-48.24 of the Code of Miami -
Dade County for the Placement of Non -Water Dependent Fixed Structures Over Tidal
Waters and Acceptance of a Restrictive Covenant Running With the Land In Favor of
Miami -Dade County
Memorandum
MIAMIZE
COUNTY
RECOMMENDATION
I have reviewed the application for a Class I Permit, the Request for Variance from Section 24-48.24
of the Code of Miami -Dade .County, and the Restrictive Covenant Running with the Land proffered
by Flagstone island Gardens, LLC and the City of Miami. Based upon the applicable evaluation
factors set forth in Section 24.48.3 and 24-48,25 of the Code of Miami -Dade County, I recommend.
that the Board approve this application, grant the variance request, and accept the Restrictive
Covenant for the reasons set forth below.
BACKGROUND
The proposed project was previously approved by the Board on November 30, 2004, via Resolution
No, R-1343-04. Purauant to Section 24-48.19 of the Code of Mlaml-Dade County, Class I permit
approvals by the Board shall only be valid for a period of 18 months from the date of approval unless
another time period is stated in the approving Resolution: The applicants have stated that due to
the complexity of design and the time required to obtain the United States Army Corps of Engineers
permit for the proposed project, the final construction plans have not yet been completed.
Therefore, the Class I permit could not be obtained within the originally allowed 18-month period,
which expired on May 30, 2006. Pursuant to the requirements in Section 24-48.19 of the Code, the
applicants have filed a new Class I permit application for the construction of the same project as
previously approved. In addition, the applicants have requested that Board approval for this
application be valid for 24 months rather than the typical 18 months.
The project area Is located on Watson island in the City of Miami. The project site was previously a
municipal marina owned and operated by the City of Miami. The proposed project involves the
construction of a 50-slip mega yacht marina with two main access piers. The two main access piers
will make an inward tum at 470 linear feet from the seawall forming the marina basin. A portion of
the proposed piers will be bi-level to provide a separate public access area to view Biscayne Bay. In
addition, stairs are proposed to provide non-public access to the lower service level of the dock.
The proposed project also includes the dredging of 15.81 acres of submerged Bay bottom to depths
of minus eighteen (-18) feet and minus twenty-five (-25) feet with one foot of allowable over -dredge.
The applicants have stated that dredging to these depths is necessary to accommodate. the deeper
drafts of mega yachts [vessels greater than 100 feet in length] that could not be moored at the
previously existing marina. As proposed, the completed marina will be able to accommodate mega
yachts with a maximum length not to exceed 465 feet.
George M. Burgess
County Manager
Page 2
Section 24-48.3 of the Code of Miami -Dade County requires that the Department of Environmental
Resources Management (DERM) base its recommendation for approval, denial, or approval subject
to conditions, limitations or restrictions, for Class I Permits on the applicable evaluation factors. One
of these factors is consistency with recommendations of Miami -Dade County's Manatee Protection
Plan (MDCMPP). The MDCMPP identifies the area of Biscayne Bay where this project is proposed
as suitable for construction or expansion of large vessel docking facilities.
As the applicants have stated that the purpose of this project Is to create a mega yacht marina, the
applicants have agreed to limit the total number of non -mega yacht power vessels (less than 100
feet in length) mooring at this facility. In order to maintain consistency with the MDCMPP, and
considering the existing historic use of the site, the Class 1 permit shall require that the maximum
number of powerboats that are less than 100 feet in length, as measured at the water line, that will
be moored at the proposed docking facilities located at the marina, shall not exceed a total of 23
powerboats at any one time. Of the maximum allowable powerboats, not more than two shall be
water taxis to be used by the guests of the marina, not more than four shall be commercial fishing or
diving charter boats, and not more than three shall be marina service vessels. In order to ensure
compliance with this condition, the City of Miami has proffered the attached Restrictive Covenant
Running with the Land as part of the Class I Permit requirements.
In addition, this project was evaluated to identify any potential conflicts with the proposed future:
construction of the Port of Miami Tunnel. Staff discussed details of this project with consultants and
representatives from the Florida Department of Transportation (FDOT) and the Miami -Dade County
Seaport Department. No conflicts were identified. However, if approved, the Class I Permit for this
project will require that the applicant coordinate construction activities with FDOT regarding work on
the Port of Miami Tunnel.
As part of this project, the applicants propose to dredge 15.81 acres of submerged Bay bottom to
achieve the targeted water depths. The proposed dredging will impact various marine resources
within the project footprint, including seagrass habitat, hard bottom/sponge communities, macro
algal communities, and several acres of benthic irifaunal habitat. In order to mitigate for impacts to
seagrass areas and to the hard bottom/sponge habitat, the applicants propose 'to create additional
replacement habitat. Restoration of the lost seagrass habitat will be accomplished by filling a
previously dredged area of Biscayne Bay near the Julia Tuttle Causeway to a shallower depth and
then capping It with clean sand to support seagrass growth. Replacement of the lost hard
bottom/sponge habitat will be accomplished by filling a previously dredged deep depression in the
same area and capping it with a coarse material suitable for the growth of a hard bottom/sponge
community. To offset the other project -related impacts the applicants propose to place 2,439 cubic
yards of limestone riprap boulders under the proposed dock structures and to place 25,670 cubic
yards of limestone riprap boulders at a DERM-approved artificial reef site in Biscayne Bay.
In addition to requesting approval for the proposed dredging and construction of the marina, the
applicants are requesting a variance from Section 24-48.24 of the Code of Miami -Dade County,
which prohibits non -water dependent, flxed structures over tidal waters of the County. The
applicants propose to construct planters, roof structures, storage closets, security fences, vessel
fueling service lines, and two pylons with statues, all of which are proposed for placement on the
piers over tidal waters. Specifically, the applicants propose to construct planters along each edge of
the second level piers. Said planters will border the two piers for approximately 470 linear feet,
resulting in approximately 940 linear feet of planters on each of the piers. In addition, the applicants
propose to install two covered structures at the end of the second level on each of the main piers.
The applicants have indicated that due to the overall length of the pier structures, the covered
structures are necessary to provide refuge from the elements at the far end of the pier. On the
terminus of the main piers (i.e. harbor entrance) the applicants propose to Install poles that will be
George M, Burgess
County Manager
Page 3
approximately 70 feet in height with 10-foot high statues on the top. Lastly, the applicants propose
to Install fuel lines running along the piers to provide in -slip fuel services to vessels moored at the
docking facility.
The proposed project has been designed In accordance with all relevant Miami -Dade County coastal
construction criteria and Is also consistent with all other Miami -Dade County coastal protection
provisions, with the exception of the proposed non -water dependent fixed structures for which the
applicants are seeking a variance. Please find attached two Project Reports from the DERM
Coastal Resources Section, which sets forth in more detail the reasons why the request for a
variance and project are recommended for approval by DERM pursuant to the applicable evaluation.
factors set forth In Section 24-48,3 and in Section 24-48.25 of the Code of Miami -Dade County,
Florida. The conditions, limitations, and restrictions set forth in the Project Report attached hereto
are Incorporated herein by reference hereto.
Attachments
Attachment A: Class I Permit Applications
Attachment B: Affidavit of Ownership
Attachment C: Applicants/Agents Letter, Engineer Certification Letter and Project Sketches
Attachment D: Names and Addresses of Owners of All Riparian or Wetland Property
Within Three Hundred (300) Feet of the Proposed Work
Attachment E: Seagrass Mitigation Plan
Attachment F: Benthlc Mitigation Plan
Attachment G:Harbor Operations Plan
Attachment H: Manatee Protection Plan .
Attachment I: Restrictive Covenant Running with the Land
Attachment J: Zoning Memorandum
Attachment K: Project Report for Proposed Work — Class I Permit
Attachment L: Project Report for Variance Request — Fixed Non -Water Dependent Structures
NOTICE OF PUBLIC HEARING RELATING TO AN
APPLICATION BY FLAGSTONE ISLAND GARDENS, LLC
AND THE CITY OF MIAMI FOR A CLASS I PERMIT TO
DREDGE 15.81 ACRES OF SUBMERGED BAY BOTTOM
FOR THE. CREATION OF A 50-SLIP MEGA YACHT
MARINA LOCATED ON WATSON ISLAND IN THE CITY
OF MIAMI, A REQUEST FOR A VARIANCE FROM
SECTION 24-48.24 OF THE CODE OF MIAMI-DADE
COUNTY, FLORIDA, TO ALLOW THE PLACEMENT OF
NON -WATER DEPENDENT FIXED STRUCTURES OVER
TIDAL WATERS, AND ACCEPTANCE OF A
RESTRICTIVE COVENANT RUNNING WITH THE LAND
rt4 FAVOR OF MIAMI-DADE COUNTY
BOARD OF COUNTY COMMISSIONERS
MIAMI-DADE COUNTY, FLORIDA
NOTICE IS HEREBY GIVEN pursuant to Article IV, Division 1 of Chapter 24 of
the Code of Miami -Dade County that the Board of County Commissioners of
Miami -Dade County will ho1dp and conduct a Public Hearing' on a request by
Flagstone Island Gardens, LLC and the City of Miami for a Class I Permit to dredge
15.81 acres of .submerged bay bottom for the creation of a 50-slip mega yacht
marina, a request for a variance from Section 24-48.24 of the Code of Miami -Dade
County, Florida to allow the placement of non -water dependent fixed. structures over
tidal waters, and acceptance of a restrictive covenant naming with the land in favor
of Miami -Dade County. Such Public Hearing will be held on the 12th day of
September, 2006, at 9;30 am o'clock, at the County Commission Charnbers on the
2nd Floor of the Stephen P. Clark Center in Miami, Florida,
Plans and details concerning the work requested in the application may be reviewed
by interested persons at the office of the Miami -Dade County Department of
EnVironm ntal Resource Management, 4th Floor,, 33 S.W. 2nd Avenue, Miami,
Florida, 33130.
Oral statements will be heard and appropriate records made. For accuracy of records
all important facts and arguments should be prepared in writing in triplicate, with two
copies being submitted to the Deputy Clerk of the County Commission at the hearing
or mailed to her beforehand (Kay Sullivan, Deputy Clerk), 111 N.W, 1st Street,
Stephen P. Clark Center, Suite 17-202, Miami, Florida. 33128; and with one copy
being submitted beforehand to the Miami -Dade County Department of Environmental
Resources Management, 33 S.W. 2nd Avenue, Miami, Florida, 33130.
A person who decides to appeal any decision made by any Board, Agency, or
Commission with respect to any matter considered at its meeting or hearing, will need
a record of proceedings. Such person may need to ensure that a verbatim record of
the proceedings is made, including the testimony and evidence upon which the appeal
is to be based.
BOARD OF COUNTY COMMISSIONERS
MIAMI-DADE COUNTY, FLORIDA
HARVEY RUVJN, CLERK
BY:
Kay Sullivan, Deputy Clerk
MEMORANDUM
(Revised)
TO: Honorable Chairman Joe A. Martinez DATE: September 12 , 2006
and Members, Board of County Commissioners
i+`1tOM: zy A. - eenbe g
County Attorney.
SUBJECT: Agenda Item No. 5 (1) ,
Please note any items checked.
"4-Day Rule" ("3-Day Rule" for committees) applicable if raised
6 weeks required between first reading and public hearing
4 weeks notification to municipal officials required prior to public
hearing 1
Decreases revenues or increases expenditures without balancing budget
Budget required
Statement of fiscal impact required
Bid waiver requiring County Manager's written recommendation
Ordinance creating a new board requires detailed County Manager's
report for public hearing
Housekeeping item (no policy decision required)
No committee review
Approved
Veto
Override
Mayor
nI
Agenda Item No. 5 (I)
09-12-06
RESOLUTION NO.
RESOLUTION RELATING TO AN APPLICATION BY
FLAGSTONE ISLAND GARDENS, LLC AND THE CITY
OF MIAMI FOR A CLASS I PERMIT TO DREDGE 15.81
ACRES OF SUBMERGED BAY BOTTOM FOR THE
CREATION OF . A . 50-SLIP MEGA . YACHT MARINA.
LOCATRD ON WATSON ISLAND IN THE CITY OF
MIAMI, A REQUEST FOR A VARIANCE FROM SECTION
24.48,24 OF THE CODE OF MIAMI-DADE COUNTY,
FLORIDA, TO ALLOW THE PLACEMENT • OF NON -
WATER DEPENDENT FIXED STRUCTURES OVER
TIDAL WATERS, AND ACCEPTANCE OF A
RESTRICTIVE COVENANT RUNNING WITH THE LAND
IN FAVOR OF MIAvII-DARE COUNTY.
WHEREAS, this Board desires to accomplish the purposes outlined in the accompanying
memorandum, a. copy of which is incorporated herein by reference ,
NOW, THEREFORE, BE rr RESOLVED BY THE BOARD OF COUNTY
COMMISSIONERS OF M[AMI DADE COUNTY, FLORIDA, that this Board having
considered all the applicable factors 'contained within Section 24-48.3 and Section 24-48.25 of
the Code of Miami -Dade County, hereby approves the application by Flagstone Island Gardens,
LLC and the City of Miami for a Class 1 Permit to dredge 15.81 acres of submerged bay bottom
for the creation of a 50-slip mega yacht marina, a request for a variance from Section 24-48.24 of
the Code of Miami -Dade County, Florida, to allow the placement of non -water dependent fixed
structures over tidal waters, and acceptance of a restrictive covenant running with the land in
favor of Miami -Dade County, subject to the conditions set forth in the memorandum from.
l
•
Bt .OK 2664-1 PAGE 4978
L` JrT PAGE
Agenda Item No. 5 (I)
Page No. 2
the Director of the Miami -Dade County Department of Environmental Resources Management, a
copy of which is attached hereto and made a part hereof. The issuance of this approval does not
relieve the applicants from obtaining all applicable Federal, State, and local permits. The
approval of the CIass I permit herein granted shall be valid for 24 months from the date of this
approval.
The foregoing resolution was offered by Commissioner
who moved its adoption. Themotion was seconded by Commissioner
and upon being put to a vote, the vote was as follows:
Joe A. Martinez, Chairman
Dennis C. Moss, Vice -Chairman.
Bruno A, Barreiro
Audrey M. Edmonson
Sally A. Heyman
Dorrin D. Rolle
Katy Sorenson
Sen. Javier D. Sotto
Jose "Pepe" Diaz
Carlos A. Gimenez
Barbara J. Jordan
Natacha Seijas
Rebeca Sosa
The Chairperson thereupon declared the resolution dulypassed and adopted this 12th day
of September, 2006. This resolution shall become effective ten (10) days after the date of its
adoption unless vetoed by the Mayor, and if vetoed, shall become effective only upon an.
override by this Board.
Approved by County Attorney as
to form and legal sufficiency. j 1
Peter S. Tell
MIAMI-DADE COUNTY, FLORIDA
BY ITS BOARD OF COUNTY
COMMISSIONERS
HARVEY RUVIN, CLERK
By:
Deputy Clerk
Exhibit 9.2.1
Existing Liens
FLAGSTONE LAWSUITS
Company Claiming
Amount
Filing Date
Jud: ment
Local Case
Comments
Lien
Date
Number
Coastal Building
$4,612.50
April 23,
June 6, 2010
2010-3441-SP-
Voluntary
Maintenance
2010
25
Dismissal
6/10/2010
Sieger Suarez
March 18.
2010-17467-
Lis Pendens —
Architects
2010
CA-01
No Hearing
Scheduled
Stephen James
January 26.
2010-4951-CA-
Hearing
Associates
2010
01
9/29/2010
Daniel Edelman Inc.
?
October 23.
2009-78233-
Hearing
2009
CA-01
8/11/2010
Beach Tower LLC
$236,203.95
July 21,
2009-41142-
Hearing
2009
CA-01
8/5/2010
Lillian A. Ser
$674,031.78
July 1, 2009
October 22,
2009-49662-
Hearing
CA-01
9/3/2010
2009
Miller Leg and
$3,340.00
August 25,
October 20,
2009-11179-
FINAL
Associates Inc.
2009
SP-05
JUDGMENT
2009
Spillis Candela &
?
November
2008-69458-
Hearing
Partners. Inc.
11. 2009
CA-01
10/18/2010
$913.575.73
125
FLAGSTONE LIENS
Company Claiming
Amount
Filing Date
Judgment
Local Case
Comments
Lien
Date
Number
Lillian A. Ser
April 29, 2010
NIA
N A
Writ of
Garnishment
BICON Inc, d/b/a
S1,416.94
January 22, 2009
N/A
N/A
S&S Na onal Waste
PHA Ligh ng
S75.650.00
March 4, 2009
N/A
N/A
_
Design, Inc.
PHA Ligh ng
$4,467.19
March 4, 2009
N A
N A
Design. Inc.
Sieger Suarez
$1,777,990.79
March 20, 2009
N A
N A
_
Architects
Ardaman &
S27,500.00
April 24, 2009
N A
WA ,
Associates
Coastal Systems
5188,415.83
July 10, 2009,
N A
N A
_
Interna onal Inc.
Langan Engineering
561,708.51
August 10, 2009
N/A
N/A
_
& Environmental
Services
S2,137.149.26
126
FLAGSTONE CLAIM OF LIEN
Company Claiming Lien
Amount
Filin
Judgment
Local Case
Comments
Date
Date
Number
Construc on Protec ve
$8,125.15
N A
N A
N A
Services Inc./Boca
Development and
Construc on Corpora on
Landscaping Associates, Inc.
$39,056.64
N/A
N/A
N/A
TBE Group, Inc.
$46,593.00
N A
N/A
N/A
Eagle SWS First Response
$23,307.77
N A
N A
N A
(Langan Engineering)
Miami Awning Company
$11.360.00
N/A
N A
N A
$128,442.56
SUBTOTAL
S3,179,167.55
-$4.612.50
Voluntary Dismissal
TOTAL
$3,175.005.05
127
Exhibit 9.3
Hold Harmless, Indemnification and Security Agreement
KNOW ALL MEN BY THESE PRESENT:
That Flagstone Island Gardens, LLC, a limited liability company ("Flagstone"), for and
in consideration of the approval by the City of Miami (the "City") of the Amended and Restated
Agreement to Enter into Ground Lease between the City and Flagstone pursuant to Resolution
No. R-10-0402 dated September 23, 2010 and the sum of Ten and No/100 ($10.00) Dollars,
receipt of which is hereby acknowledged, on behalf of itself, its successors and assigns, agrees to
indemnify, hold harmless and defend the City from and against any and all liabilities, penalties,
fines, suits, claims, demands, actions, losses, expenses, investigation and remediation costs,
causes of action, proceedings, judgments, executions and reasonable costs of any kind or nature
whatsoever (including reasonable attorneys' fees at trail, administrative proceeding or appeal) in
connection with, arising out of, or related to items listed on Exhibit "A" attached hereto and by
this reference incorporated herein.
IN WITNESS WHEREOF, Flagstone has caused this Indemnification and Hold
Harmless Agreement to be executed this day of , 2011.
FLAGSTONE ISLAND GARDENS, LLC, a
Delaware limited liability company, by Flagstone
Miami Holdings, LLC, by Flagstone Property
Group, LLC
By:
Mehmet Bayraktar, Managing Member
STATE OF FLORIDA
COUNTY OF DADE
The foregoing instrument was acknowledged before me this day of , 2011, by
Mehmet Bayraktar on behalf of and Managing Member of Flagstone Property Group, LLC,
Managing Member of Flagstone Miami Holdings, LLC, Managing Member of Flagstone Island
Gardens, LLC, who is personally known to me or has produced as
identification, and he did / did not take an oath.
[NOTARY SEAL]
Print Name:
Notary Public
128
My Commission Expires:
129
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 that certain release or rights of entry recorded January 26, 2006 in
Official Record Book 24182, Page 1049.
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.
8. Such other items as are shown on the Update which are acceptable to Flagstone and Title
Insurer.
NOTE:A11 recording references are as to the Public Records of Miami -Dade County, Florida.
130
Exhibit 12.1.4
Existing Insurance Coverages
EVIDENCE OF PROPERTY INSURANCE
TH78 EVIDENCE OF PROPERTY INSURANCE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE
ADDITIONAL INTEREST NAMED BELOW. THIS EVIDENCE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE
COVERAGE AFFORDED 8Y THE POLICIES BELOW. THIS EVIDENCE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE
ISSUING INBURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE ADDITIONAL INTEREST.
AGENCY
LrArkE•tt 88Q-591-1954
N._roh Commercial ED31neoo Cantor
a Service of 5aabury 4 Smith
9830 Colonnade Blvd. i400
PO Sox 669520
San Antonio, 7X 78265-9520
JAAI Nat 210-737-3584 go nFsm
MEND
N
samp88L50P
wati le a. M05106
INSURED
Flagstone Development Corp
SUB CO
c/o Ec)mvn.rrin Ca1vo & Aaaociatea
7900 09 57 Ave., Suite 26
South Miami, FL 33143
CLIl ANY
NAUTILUS INSURANCE COMPANY
lOANNUYBER
POLICY tWMBOi
NN155941
EFFECTNEOAT0
CONTHEAUNTa
09/17/201. 08/1:121912 r �7PRNUNATEDIFORRA68
P.%AIfATgN DA
TNIS REPIACE3 PMOR 9VIDEN0e DATED:
PROPERTY INFORMATION
IOCATIONDE0CRIPf0N
888 MacArthur Causeway
Rimmi, IT, 33132
THE POLICIES OF INSURANCE LLSTED BELOW HAVE BEEN ISSUED 70 THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED.
NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESFECT TO WHICH THIS
EVIDENCE CF PROPERTY INSURANCE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE FOUCIES DESCRIBED HEREIN IS
SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. UNITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
COVERAGE INFORMATION
COVSRAOE IP®ULSIFORMS
AMOUNTOF ni0URANCE
LYOLCTISLP
DPP
LC
open
Excl. Kind 4 Rail
5500,060
$1,000
REMARKS [Including Special Conditions)
Evidence of Insurance only.
CANCELLATION
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE
DELIVERED 94 ACCORDANCE WITH THE POLICY PROVISIONS, •
ADDITIONALINTEREST
NASE ANDADDRESS
City of Miami
444 SW 2nd Ave.
Miami
33130
FT,.S....
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ACORD 27 (2009f12)
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01983-2008 ACORD CORPORATION. A0 rights reserved.
The ACORD name and logo are registered marks of ACORD
131
CERTIFICATE OF UASILITY INSURANCE
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132
Composite Attachment 1
Resolutions of City
J-01-724
9/17/01
RESOLUTION NO.
•
01- 972
A RESOLUTION OF THE MIAMI CITY COMMISSION, WITIi
ATTACt1I4ENT(S) , MAKING PROVISIONS FOR HOLDING A':
SPECIAL: MUNICIPAL ELECTION ON NOVEMBER 6, 2001,
FOR THE PURPOSE OF SUBMITTING TO THE ELECTORATE
Al SAID ELECTION THE FOLLOWING REFERENDUM BALLOT
QUESTION, TO BE KNOWN AS BALLOT QUESTION NO. 2:
"SHALT.: THE CITY LEASE CITY -OWNED LAND CONSISTING
OF 24.2 TOTAL UPLAND AND SUBMERGED ACRES ON
WATSON ISLAND TO FLAGSTONE PROPERTIES, LLC, FOR
TIME DEVE,OPMEt4T OF A MEGA YACHT MARINA, FISH
MARKET, HOTELS WITH TIMESHARE UNITS, A MARITIME
MUSEUM, PUBLIC GARDENS, CULTURAL FACILITI.ES,
RESTAURANTS, RETAIL AND SUPPORT FACILITIES, FOR
45 YEARS WITH TWO 15-YEAR, SUBJECT TO CAPITAL
INVESTMENT, SUBJECT 'I'O A MINIMUM ANNUAL
GUARANTEED RENT OF S2,000,000 AND OTHER
CONDITIONS THE CITY MAY REQUIRE?": DESCRIBING THE
REGISTRATION BOOKS AND RECORDS MAINTAINED UNDER
THE PROVISIONS OF THE GENERAL LAWS Or FLORIDA AND
CHAPTER 16 OP THE CODE OF THE CITY OF MIAMI ,
FLORIDA, AS AMENDED, WHICH Tfl2 CITY HAS ADOPTED
AND DESIRES '1'O USE FOR HOLDING SUCH SPECIAL
MUNICIPAL. ELECTION; DESIGNATING AHD APPOINTING
THE CITY CLERK AS THE OFFICIAL REPRESENTATIVE OF
THE CT'.UY COMMISSION WITH RESPECT TO TJUI USE OF
SUCH REGISTRATION BOOKS AND RECORDS; AUTHORIZING
AND DIRECTING THE CITY CLERK TO PUBLISH NOTICE OF
THE ADOPTION OF THIS RESOLUTION AND THE
PROVISIONS THEREOF PURSUANT TO APPLICABLE LAW;
AND DIRECTING THE CITY CLERK TO CAUSE A CERTIFIED
COPY OF THE HEREIN RESOLUTION 'CO BE DELIVERED TO
THE SUPERVISOR OF ELECTIONS OF MIAMI-DARE COUNTY,
PLORIDA., PJRSUANT TO APPLICABLE LAW.
NHEREAc, in accordance- with the City Charter. and Code, the
City has conducted a competitive Unified Development Project
` Ara atrain ewJ
carsTAItlio
CLTV COMIEDISIOW
NUM NO OAF
SEP 11 2001
ji.- 972
133
process for the lease and development of improvements on the
northwest quadrant of Watson Island; and
WHEREAS, the City Manager has made a recommendation to the
City Commission to accept a proposal that has been duly
accepted; and
WHEREAS, the City Commission wishes to poll the electors of
the City of Miami as to whether the City of Miami shall lease
City -owned land consisting of approximately 10.8 acres on Watson
Island and 13.4 acres of submerged land adjacent to Watson
island, a total of 24.2 acres, to Flagstone Properties, LLC, for
development of a mega yacht marina, fish market, hotels with
timeshare units, a maritime museum, public gardens, cultural
facilities, restaurants, retail and support facilities, for ,5
years with two 15-year renewals, subject Co capital investment,
subject to a minimum annual guaranteed rent of $2,000,000 and
other conditions the. City may require;
NOW, THEREFORE, BE I•l RESOLVED BY THE COMMISSION OF THE
CITY OF MIAMI, FLORIDA:
Section 1. A special municipal election is called and
directed to be held in the City of Miami, 1'lorida, on Tuesday,
Pale 2 of 9
01 - 972
134
November G, 2001, from 7;00 A.M. until 7:00 P.M., for the
purpose of submitting the following question to the qualified
electors of the City of Miami for their approval or disapproval:
"Shall the City lease City -owned land
consisting of 24.2 total upland and
submerged acres on Watson island to
Flagstone Properties, LLC, for development
of a mega -yacht marina, -fish-market, hotels
with timeshare units, a maritime museum,
public gardens, cultural facilities,
restaurants, retail and support facilities,
for 45 years with two 15-year renewals,
subject Lo capital investment, subject to a
minimum annual guaranteed rent_ of
S2,000,000 and other conditions the City
may require?"
Section 2.
The election shall be held at the voting
places in the precincts designated on Exhibit No. 1, attached
and incorporated, or as may be designated by the Supervisor o'_'
KJectiori 01'. Miami.-Uado County, in conformity with the
provisions of the general. .laws of the. State. A description of
the registration books and records which pertain to election
precincts wholly or partly within the City and which the City iH
adopting and desires to use for holding such elections is as
follows:
all registration cards, books, records and
certificates pertaining to electors of the City and established
d
and maintained as official by the Supervisor of Elections of
Miami -Dade County, in conformity with the provisions of the
genrral laws of the State, are adopted and declared to be, and
Page 3 of 9
972
135
•
sha.L], hereafter be recognized and accepted as, official
registration cards, books, records and certificates of the City
of Miami.
Section 3. The Precinct Election Clerks and Inspectors
to serve at raid polling •places on said election date sha.l.l nc
designated by the Supervisor of Elections of Miami -Dade County,
Florida, for such purposes in accordance with the general ].aw,
of the State. The registration books and records for the
registration of persons qualified to vote in said elections
shall be those maintained by the Supervisor of Elections of
Miami -Dade County.
''cec. loci 1. FQa.- l:};r purpase of e_nab.i .ng J er::3nnr;+ i,n
register who are qualified to vote in said special municipal
election to be held on November G, 2001, and who have not
registered under the provisions of the general .laws of Florida
- and Chapter if oL the Code of the .City of Miami, Florida, as
amended, or who have transferred their legal residence from one
voting precinct to another voting precinct in the City, they may
register at the following place and times:
Page 4 of 9
c� — 972
136
•
MIAriT-1)A1]F' COUNTY
ELECTIONS DEPARTMENT
0
111 Northwest 1st Street:, Miami, Florida
Monday to Friday, inclusive: 8:00 A.M. 5:00 P.M.
2n addition to the above place and times, qualified persons
may register at such branch officer and may also use any mobile
•registration van for the• purpose of •registration to vote in the
herein described election during such times and on such dates as
may be designated by the Supervisor. of Elections of Miami -Dade
County.
Section 5. In compliance with applicable law, the City
Clerk is authorized and directed to publish notice of the
adoption of the herein Resolution and of the provisions hereof,
which notice shall be substantially as set forth in the
following form:
"NOTICE OF SPACIAL MUNICIPAL ELECTION
IN 1'}Ir: CITY OF MIAMI, FLORIDA
TO BE HELD ON
TUESDAY, NOVEMIBER 6, 2001
PURSUANT TO RESOLUTION NO. 01-
A special election will be held on Tuesday,
November 6, 2001, from 7:00 A.M. until 7:00 P.M., in
the C:i.ty of: Miami., Florida, at the polling places in
the several election precincts designated by the Board
of County Commissioners of Miami -Dade County, Florida,
as set forth herein, unless otherwise provided by law,
for the purpose of submitting to the qualified
electors of the City of Miami, Florida, the following
ballot question, known as Ballot Question No. 2:
Page 5 of 9
972
137
"Shall the City lease City -owned land
consisting of 2.1.2 total upland and
submerged acres or. Watson island to
Flagstone Properties, LLC, for development
of: a mega yacht marina, fish market, hotels
with timeshare units, a maritime museum,
public gardens, cultural facilities,
restaurants, retail and support facilities,
for 45 year with two 7.5-year renewals,
subject to capital .investment., subject to a
minimum • annual- guaranteed rent of
$2,000,000 and other conditions the City
may require:"
Ballot Question. No. 2 polls the electors of the
City of Miami as to whether the City of Miami
shall lease City -owned land consiotino of.
24.2 total upland and submerged acres on Watson
Island to Flagstone Properties, LLC, for
development of a mega yacht marina, fish market,
hotels with timeshare units, a maritime museum,
public gardens, cultural facilities, restaurants,
retail and support facilities, for 45 years with
two 15-year renewals, subject to capital
investment, subject to a minimum annual guaranteed
rent of $2,000,000 and other conditions the City
may require?
By order of the Commission of the City of Miami,
Florida.
CITY CLERK
(See attached list of City of Miami Polling Places.)"
Section 6. '1'hc official ballot to be used in said
election shall be in Lull compliance with the laws of the State
of Florida with respect to absentee ballots and to the use of
the mechanical vo._ny machines or Computer Election system (CES)
and shall bo in substantially the following form, to wit:
Page 6 of: 9
- 972
138
"OFFICIAL BALLOT
SPECIAL MUNICIPAL ELECTION
TUESDAY, NOVEMBER 6, 2001
FOR APPROVAL OR DISAPPROVAL OF THE
FOLLOWING BALIOT QUESTION
Ballot Question No. 2
author. ::ing 45-year
lease of City -owned
upland/submerged land
on Watson Island.
YES
(Fox the Measure)
NO
(Against the Measure)
"Shall the City lease City -owned
lard consisting of 24.2 total
upland and submerged acres on
Watson island to Flagstone
Properties, LLC, for development
of a mega yacht marina, fish
market, hotels with timeshare
units, a maritime museum, public
gardens, cultural facilities,
restaurants, retail and nupper.t
facilities, for. 45 years with
two 15-year renewals, subject
to capital investment,
subject to a minimum annual
guaranteed rent: of $2,000,000
and other conditions the City
may require?"
Section 7. Electors desiring to vote for the approval
of Ballot Question No. 2 described above, shall be instructed to
punch straight down with the stylus through the hole next to the
word "YES" within the ballot from containing the statement
relating to said Question, Electors desiring Lc vote against
the question in disapproval of said Question, shall be
instructed to punch straight down with the stylus through tho
Page 7 of 9
bi- 972
139
hole next to the word "NO' within the ballot frame containing
the statement relating to said Question.
Section. 8. WALTER J. FOEMAN, the City Clerk of the City
of Miami, Florida, or his duly appointed successor, is
designated and appointed as the official representative of the
Commission of the- City of Miami, Florida, in all transactions
with the Supervisor of Elections of Miami -Dade County in
relation to matters pertaining to the use of the registration
books for the holding of the herein special municipal election.
Section 9. The City Clerk shall cause to be prepared
absentee ballots for the use of absentee electors entitled to
cast such ballots in said election.
Section 10. Al] qualified electors of said City shall be
permitted to vote in .snnii special municipal election and the
Supervisor of Flecci.ons of Miami -Dade C:ot;nty is requested,
authorized, and directed to furnish, at the cost and expense of
the City of Miami, a list of all qualified electors residing in
the City of Mi.arni as shown by the •registration hooks and records
of the Office of said Supervisor of Elections and duly certify
the same for delivery to and for use by the election official
des.i.gnated to serve at the respective polling places in said
election precincts.
Section 12. The City Clerk is authorized and directed to
cause a certified cony of this Resolution to he delivered to the
Page 8 of 9
(Li- 9'72
140
Super.viso:: of Electjons of Miami -Dade County pursuant -o
applicable law.
Section 12. This Resolution shall become effective
i.at:nee at:e'y upon its adoption anci signature of the Mayor..1/
PASSED AND ADOPTED this _ 13th day of September , 2001.
JOf, CAROI.I.O, MAYOR
In accordance wi,h Min Coda Sec. 2-36, tiacy, tho Mayor did not indicete apnrovnl of
thin: iegdation by signing i; i;: t" ?::pijt,R ct;e/ rCvz?r. , ;aid focis46,x: r-:i
bOCointiC t ectitic P.•i(ft iia Ck;?;:�_ of (r: (t u) d::J^ ,r/* file date nmisII!0' on
rega(Ginli sarnc, Nrilhout :ha M::yogi i>•r,rc;inn
Walter d. .. .an, • y Clerk
ATTEST:
WALTER J . c'O.",'hif:N, Cn1'ti CLERK
/tPPROy$11- 7TO FORM AND CORRECTNESS[4±.-'
fiN V1LP.RL•LLO
Y Al ORNEY
Wli576:1.N: BS S: DEJ
if. the Mayor does not sign thin Resn10:1.on. it shall become etifectiw
at the end of ten calendar nays front the date it: warn passed and
adopted. if the Mayer vetoes t.lis Resolution , it shal1 ba:c.oma
effecti nulled 10 Le:1 y upon ovr:cx .de o! ;he veto by the City Commission.
Pace 9 et 9
01- 9I2
141
Attachment 2
Companv Authorization of Flagstone
UNANIMOUS WRITTEN CONSENT OF THE MEMBERS
OF
FLAGSTONE ISLAND GARDENS, LLC
The undersigned, being all of the members of Flagstone Island Gardens, LLC, a
Delaware limited liability company (the "Company"), hereby consents to the adoption of the
following resolutions:
be it further
be it further
RESOLVED, that the Company shall enter into an Amended and
Restated Agreement To Enter Into Ground Lease with the City of
Miami, as approved by the Miami City Commission, via
Resolution No. R-10-0402, on September 23, 2010, for the purpose
of amending and restating the Agreement to Enter into Ground
Lease and the exhibits thereto including, but not limited to, the
Amended and Restated form of Ground Lease attached thereto as
Exhibit C;
RESOLVED, that Flagstone Development corporation, the
managing member of the Company, through its officers, is hereby
authorized and directed to execute and deliver, in the name and on
behalf of the Company, any and all agreements, certificates,
instruments, documents and plans, and to take any and all action
and to do any all things, as may be necessary or desirable to carry
out the intent and accomplish the purposes of the foregoing
resolutions; and
Resolved, that all previous resolutions previously adopted by the
company that may be inconsistent with the foregoing resolutions
are hereby superseded or modified by these resolutions.
Dated as of February 1, 2010
Flagstone Miami Holdings, LLC
By: Flagstone Development Corporation
By:
Mehmet Bayraktar, President
151
Flagstone Development Corporation
By:
Mehmet Bayraktar, President
152
Composite Attachment 3
Exhibit A to City Commission Resolution No. 10-0402, adopted September 23, 2010
Construction Schedule, Options to Extend, Payments Schedule, Related Defaults and Notes
EXHIBIT A
This Exhibit A is an attachment to City Commission Resolution No. 10-0402, adopted
September 23„ 2010, contains material business terms, and becomes Composite
Attachment 3 to the Amended and Restated Agreement to Enter Into Ground Lease
(hereinafter, the "Agreement to Enter") -and- to the form of Amended and Restated Ground
Lease(s) (hereinafter the "Ground Lease(s)"). All terms used herein but not defined herein
shall have the definitions given to them in the Agreement to Enter or in the form of Ground
Lease(s).
A. GENERAL CONSTRUCTION SCHEDULE FOR ALL MAJOR PROJECT
COMPONENTS.
Flagstone/Ground Lessee shall have the time periods set forth below to commence and
complete construction of the various Major Project Components, as such Major Project
Components are approved in accordance with the Major Use Special Permit and as such are
defined in the form of Ground Lease(s). Throughout this Exhibit A, (a) "Commence(s)
Construction" or "Start(s) Construction" shall mean that all material plans and permits are
approved and issued and the actual act of physical construction has begun; and (b) "Completion
Date" shall mean the date upon which the earlier of the temporary certificate of occupancy
("TCO") or a certificate of occupancy ("CO"), has been issued for the completion of
construction.
Until 9/1/2013 36 months from 9/1/2010 to Start Construction of the Marina Component.
(a) As described in Section VI(c) below, Marina Component
construction may be started earlier and separately from the
Parking/Retail Components once applicable conditions precedent
for Marina Component have been met.
Until 2/28/2015 54 months from 9/1/2010 to the Completion Date of the Marina
Component.
(a) If Marina Component Starts Construction earlier than 9/1/2013, then
Flagstone shall have 18 months from such earlier start date to the
Completion Date of the Marina Component.
Until 9/1/2016 72 months from 9/1/2010 to Start Construction of both the Retail/Parking
Components
153
Until 8/31/2019 108 months from 9/1/2010 to the Completion Date of Retail/Parking
Components.
(a) Parking spaces for Hotels may be completed separately with
construction of Hotels Components.
(b) Flagstone agrees to design, construct and provide utility lines
needed for each of the Major Project Components on a component
by component basis as necessary and as approved by the City and
as required by the Master Declaration as a condition precedent to
executing the first Ground Lease. Flagstone shall design, construct
and provide utility lines needed for both Hotel Components in
connection with the construction of utility lines for the
Parking/Retail Components.
Until 9/1/2018 96 months from 9/1/2010 to Start Construction of both Hotels
Components, if the two (2) 5-year Options to extend described below are
not exercised, therefore until 8/31/2020 (being twenty-four (24) months)
to the Completion Date. Flagstone cannot exercise the second Option if no
hotel construction has commenced by 8/31/2023.
Until 9/1/2023 156 months from 9/1/2010 to Start Construction of a Hotel Component, if
only the first 5-year Option to extend is exercised. Accordingly, the first
Option period ends on 8/31/2023.
(a) During the first Option period, a Hotel Component must be completed within twenty-four
(24) months after Construction Commencement, therefore until 8/31/2025 to the
Completion Date of at least one Hotel Component. Accordingly, both the Rent(s)
payments schedule and the Option payments schedule in this Exhibit A would apply
throughout the entire period of construction, even if the Completion Date of such
construction period runs beyond the Option period.
(b) The first 5-year Option period runs from 9/01/2018 through 8/31/2023. The first Option
period payment is $250,000 per annum ($125,000 per Hotel Component per annum) with
monthly payments beginning 9/01/2018 for the first Option period ending 8/331/2023.
(c) All Option payments are to be paid monthly in advance beginning on the first day of the
month. The first Option is exercised by Flagstone's giving not less than thirty (30) days
advance written notice prior to 8/31/2018 to the City for the first Option period to begin.
Until 9/1/2028 216 months from 9/1/2010 to Start Construction of the second Hotel
Component if Flagstone exercises the second 5-year Option to extend;
accordingly, the second Option period ends on 8/31/2028:
(a) The second 5-year Option period runs from 9/01/2023 through
8/31/2028. The second 5-year Option period payment is $315,000
154
per annum ($157,500 per Hotel Component per annum) with
monthly payments beginning 9/01/2023 for the second Option
period ending 8/31/2028, but second 5-year Option is not available
unless the first Hotel Component Starts Construction before the
end of the first 5-year Option period on 8/31/2023.
(b) All Option payments are to be paid monthly in advance beginning
on the first day of the month. The second Option is exercised by
Flagstone's giving not less than thirty (30) days advance written
notice prior to 8/31/2023 to the City for the second Option period
to begin.
(c) During the second Option period; the second Hotel Component
must be completed within twenty-four (24) months after Flagstone
Commences Construction, therefore until 8/31/2030 to reach the
Completion Date of the second Hotel Component that commenced
construction during the second Option period. Accordingly, both
the Rent(s) payments schedule and the Section IV Option
payments schedule in this Exhibit A would apply throughout the
entire period of construction, even if such construction period runs
beyond the Option period.
II. GENERAL RENT(S) PAYMENT SCHEDULE FOR ALL MAJOR PROJECT
COMPONENTS.
During the periods outlined below, Flagstone/Ground Lessee shall pay to the City the
amounts outlined below.
Beginning
Annual
Amount
:«:, ;'
2/1/2010
through
9/30/2010
$200,000
Consideration for Extension Period. This amount
shall not be applied as a credit.
10/1/2010
$300,000
$300,000 is a Pre -Payment of Construction
Rent/Base Rent to City
10/1/2011
$500,000
$500,000 is a Pre -payment of Construction
Rent/Base Rent to City
10/1/2012
$750,000
$750,000 is a Pre -payment of Construction
Rent/Base Rent to City
10/1/2013
$1,000,000
$1,000,000 Construction Rent, subject to II(h)
below
10/1/2014
$1,000,000
$1,000,000 Construction Rent, subject to II(h)
below
10/1/2015
$1,000,000
$1,000,000 Construction Rent, subject to II(h)
below
10/1/2016
$1,140,000*
$1,500,000 Construction Rent is the amount
155
• -; , . y , �.
Annual r '
mount 1 1
•
r k
4Be"gmning
.. _ ; r f� 3 '� a( i r bi i
` .,.?� t.,.. + _.,_.. .-... ^.*k ....,. �...•;
actually received by City since $360,000 was pre-
paid for this year per above schedule and Section
II below, unless there is no credit pursuant to
Section VI(a) below.
10/1/2017
$1,315,000*
$1,675,000 Construction Rent is the amount
actually received by City since $360,000 was pre-
paid pursuant to the above schedule and Sections
II below, unless there is no credit pursuant to
Section VI(a) below.
10/1/2018
and annually
thereafter
$1,640,000*
$2,000,000 Base Rent is the amount actually
received by City since $360,000 was pre -paid
pursuant to the above schedule and Section II
below, unless there is no credit pursuant to
Section VI(a) below. Base Rent continues until
termination of Ground Lease(s). Additionally,
Percentage Rent payments begin as described in
(d) below.
10/1/2019
$1,640,000*
$2,000,000 Base Rent is the amount actually
received by City since $360,000 was pre -paid
pursuant to the above schedule and Section II
below, unless there is no credit pursuant to
Section VI(a) below. Additionally, Percentage
Rent payments continue as described in (d) below.
10/1/2020
$1,890,000*
$2,000,000 Base Rent is the amount actually
received by City since $110,000 was pre -paid
pursuant to the above schedule and Section II
below, unless there is no credit pursuant to
Section VI(a) below. Additionally, Percentage
Rent payments continue as described in (d) below
until the termination of Ground Lease(s).
*Notwithstanding the Annual Amounts set forth above and pursuant to Section II(g)
below, credits of the Pre -Payment of Construction/Base Rent cannot be given until
the Marina Component Starts Construction prior to 9/1/2013 and both of the
Parking/Retail Components Start Construction prior to 9/1/2016 pursuant to the
above General Construction Schedule for All Major Project Components. As stated
in Section II(g) below, when all (i) of the Marina Component Starts Construction
prior to 9/1/2013 and (ii) the Retail/Parking Components Start Construction prior
to 9/1/2016, then credit of the Pre -Paid Construction/Base Rent begins the month
following the date upon which all of those three (3) specific Components have
started construction.
156
(a) As set forth in the State Waiver (as defined in Section VII below) at certain times
Flagstone and at certain times the City is obligated to pay an annual fee to the
State of Florida.
(b) During the thirty-six (36) months after 9/01/2010 to 8/31/2013, Flagstone has a
10-day grace period beyond the first of each month to make each "Pre -Paid
Construction Rent" payment, and agrees to not require any notice from the City in
the event of non-payment of any "Pre -Paid Construction Rent" payment. In the
event that Flagstone defaults for non-payment, Flagstone also agrees to waive its
defenses as to non-payment against the City, immediately vacate and turn over to
the City for the City's possession all of Flagstone's rights, and interests in the
Property and the easement areas, remove from such easement areas and from the
Property all of its property of whatever kind as requested in writing by the City
Manager, and immediately (i) return or sign over, as applicable, to the City all of
Flagstone's rights, directly or indirectly, in the permits, plans, specifications, and
all related governmental approvals, documents, instruments, and agreements as
necessary related to the Property, and (ii) deliver to the City all of such permits,
plans, specifications, and all related governmental approvals, documents,
instruments, and agreements which are in Flagstone's possession or in Flagstone's
control.
(c) All payments to the City (for various Rents and for Option payments) are to be
paid monthly in advance beginning on the first day of the month, except for the
lump sum payment Flagstone shall pay to the City upon the date of City
Commission Approval of the Agreement to Enter and the Ground Lease, for the
Consideration of Extension Period amount from February 1, 2010 through
September 30, 2010.
(d) Additionally, if the Agreement to Enter is not signed in the same month of City
Commission Approval, then Flagstone shall alsopay a lump sum payment amount
of $25,000 per month for each month from October 1, 2010 until the Agreement
to Enter is executed.
(e)
Additional provisions regarding Percentage Rent payments are included in the
form of each Amended and Restated Ground Lease(s). As stated therein,
Percentage Rent on the Gross Revenues of each Component begins on the third
anniversary after each Major Project Component is Open for Business. "Open for
Business" means the earlier of the date that the applicable Major Project
Component receives either its TCO or CO. Base Rent may begin sooner than
02/01/2018 (i.e., if both Hotels are Open for Business prior to that time as set
forth in the Amended and Restated Hotel Ground Lease).
(f) As stated in the applicable Amended and Restated Ground Leases, once Base
Rent begins, it continues each year for the remaining term of the applicable
Ground Lease(s). On the first anniversary of the commencement of the Base Rent
for each Major Project Component, the Base Rent thereafter becomes subject to
an annual Consumer Price Index ("CPI") adjustment as set forth in the Ground
157
Lease(s). Percentage Rent on the Gross Revenues of each Major Project
Component begins on the third anniversary after each Major Project Component
is Open for Business.
(g) If the Marina Component Starts Construction prior to 9/1/2013 and the
Retail/Parking Component(s) both Start Construction prior to 9/1/2016, then on
the first day of the month following the date when the Marina Component and
the Retail/Parking Component(s) (all 3 such Components) have started
construction, the Construction Rent payment (subject to credits described in (g)
below) becomes at least $1,000,000 per year, as opposed to the lesser Prepaid
Construction/Base Rent payment amounts shown on the above Section II General
Rents Payment Schedule for All Major Project Components.
(h) If the Marina Component Starts Construction prior to 9/1/2013 and the
Retail/Parking Component(s) (all 3 such Components) Start Construction by
9/1/2016, then as shown on the above Section II General Rent(s) Payment
Schedule for All Major Project Components, Flagstone is entitled to a credit back
of Pre -Paid Construction Rent/Base Rent each year beginning in the month
following the date upon which construction has started on all 3 such Components
in the amount of $30,000 per month for fifty-one (51) months and of $20,000 for
the 52nd month until Flagstone has received a total aggregate credit of $1,550,000.
This monthly credit is a return of Pre -Paid Construction/Base Rent paid by
Flagstone between 9/1/2010 and 8/31/2013. If Flagstone Starts Construction of
all three (3) of the Marina Component and the Retail/Parking Components prior to
9/1/2013, then the total credit back amount is reduced by 1/36`h for each month
prior to 2/1/2013 that all such Components have commenced. Conversely, if
Flagstone does not Commence Construction of all three (3) of the Marina
Component and the Retail/Parking Components by 8/31/2016, then no credit of
Prepaid Construction Rent is allowed and the City keeps all of the Prepaid
Construction Rent amount received.
(i)
If no construction begins by 9/1/2013 on any Major Project Component, then the
City keeps all Prepaid Construction/Base Rent, Flagstone agrees to not require
any notice from the City to terminate for failure to begin construction, and
Flagstone also agrees to waive its defenses against the City, immediately vacate
and turn over to the City for the City's possession all of Flagstone's rights and
interests in the Property and the easement areas, remove from such easement
areas and from the Property all of its property of whatever kind as requested in
writing by the City Manager, and immediately (i) return or sign over, as
applicable, to the City all of Flagstone's rights, directly or indirectly, in the
permits, plans, specifications, and all related governmental approvals, documents,
instruments, and agreements as necessary related to the Property, and (ii) deliver
to the City all of such permits, plans, specifications, and all related governmental
approvals, documents, instruments, and agreements which are in Flagstone's
possession or in Flagstone's control.
HI. OPTION PAYMENT SCHEDULE (FIRST OPTION).
158
Flagstone has two (2) 5-year Options ("Option(s)") to extend the date to Commence
Construction of the Hotels Components, and Flagstone has the choice to build either one Hotel
Component or two Hotel Components; that choice triggers Option payments for one Hotel
Component or two Hotels Components accordingly.
If Flagstone exercises the first Hotel Option period for only one Hotel Component,
Flagstone must also pay to the City the following additional Option payment amounts.
Beguion g
Annual Option
payment (for
One Hotel) ...
Annual Base
Rent
•r fi
Annual Amounts
tiS to the City
M ,
9/1/2018
$125,000
$2,000,000
$2,125,000 (Base Rent plus
Option payment)
9/1/2019
$125,000
$2,000,000
$2,125,000 (Base Rent plus
Option payment)
9/1/2020
$125,000
$2,000,000
$2,125,000 (Base Rent plus
Option payment)
9/1/2021
$125,000
$2,000,000
$2,125,000 (Base Rent plus
Option payment)
9/1/2022
$125,000
$2,000,000
$2,125,000 (Base Rent plus
Option payment)
If Flagstone exercises the first Hotel Option period for two (2) Hotel(s) Components,
Flagstone must also pay to the City the following additional Option payment amounts.
Begmumg
Annual Options
payments (for.
2na Hotel)
Annl Base
ua
Rent
' Q-
Annual Amounts < l
�s , r ;
Ito the City
.... r�,_.. ..;•,.. tY
9/1/2018
$250,000
$2,000,000
$2,250,000 (Base Rent plus
Option payments)
9/1/2019
$250,000
$2,000,000
$2,250,000 (Base Rent plus
Option payments)
9/1/2020
$250,000
$2,000,000
$2,250,000 (Base Rent plus
Option payments)
9/1/2021
$250,000
$2,000,000
$2,250,000 (Base Rent plus
Option payments)
9/1/2022
$250,000
$2,000,000
$2,250,000 (Base Rent plus
Option payments)
(a) As set forth in the the State Waiver (as defined in Section VII below) at certain
times Flagstone and at certain times the City is obligated to pay an annual fee to
the State of Florida.
159
(b) Flagstone can exercise the Option for only one Hotel Component or for both
Hotel Components, or stop Option payments at any time by giving written notice
to the City at least thirty (30) days before the date that the next Option payment is
due, but if Flagstone elects not to exercise the Option for one or both Hotel
Component(s), or fails to make any Option payment(s), then Flagstone must turn
over to the City immediately any applicable Hotel Ground Lease(s), Flagstone
also agrees to waive its defenses as to failure to pay the required Option
payments, immediately vacate and turn over to the City for the City's possession
all of Flagstone's rights and interests in the Hotel Component(s), any Hotel
Ground Lease, and the applicable easement areas, remove from such easement
areas all of its property of whatever kind as requested in writing by the City
Manager, and immediately (i) return or sign over, as applicable, to the City all of
Flagstone's rights, directly or indirectly, in the permits, plans, specifications, and
all related governmental approvals, documents, instruments, and agreements as
necessary related to the applicable Hotel Component(s), and (ii) deliver to the
City all of such permits, plans, specifications, and all related governmental
approvals, documents, instruments, and agreements relating to the applicable
Hotel Component(s) which are in Flagstone's possession or in Flagstone's
control, and City has the rights to seek a new developer for the applicable Hotel
Component(s).
(c) For Any Hotel(s) Component(s) that Start(s) Construction during the first Option
period and continue construction into the second Option period, the Option
payments shall increase on 9/01/2023 to the second Option period Option
payment amount(s) set forth below in Section IV, and shall continue at such
second Option payment amount(s) until the Completion Date. Such Option
payments for the Hotel(s) Component(s) are in addition to the required
Construction Rent, Base Rent, Percentage Rent, CPI Adjustments, Marina Rent,
and any other Rents for the Hotels and any other Major Project Components.
IV. OPTION PAYMENTS SCHEDULE (SECOND OPTION).
If Flagstone exercises its second Hotel Option period for one Hotel Component only,
Flagstone must pay to the City the following additional amounts:
Beginning
Annual Option
Payment(For
One Hotel
Only)
9/1/2023
$157,500
$2,000,000
$ 2,157,500
9/1/2024
$157,500
$2,000,000
$ 2,157,500
9/1/2025
$157,500
$2,000,000
$ 2,157,500
9/1/2026
$157,500
$2,000,000
$ 2,157,500
9/1/2027
$157,500
$2,000,000
$ 2,157,500
160
If Flagstone exercises its second Hotel Option period for two Hotel Components,
Flagstone must pay to the City the following additional amounts:
Beginning
Annual Option-,
payments (For
2nd' Hotel)
Annual Base
Rent
AnnualrAmounts
to the City
9/1/2023
$315,000
$2,000,000
$ 2,315,000
9/1/2024
$315,000
$2,000,000
$ 2,315,000
9/1/2025
$315,000
$2,000,000
$ 2,315,000
9/1/2026
$315,000
$2,000,000
$ 2,315.000
9/1/2027
$315,000
$2,000,000
$ 2,315,000
(a) As set forth in the the State Waiver (as defined in Section VII below) at certain
times Flagstone and at certain times the City is obligated to pay an annual fee to
the State of Florida.
(b) Because Flagstone has twenty-four (24) months to complete construction of any
Hotel(s) Component, Flagstone shall continue to make Option payments to the
City beyond 8/31/2028 until such time that the final Hotel(s) Component(s)
construction has reached the final Completion Date. Flagstone can stop Option
payments at any time by giving written notice to the City at least thirty (30) days
before the date that the next Option payment is due, but if Flagstone elects not to
or fails to make any Option payment(s), then Flagstone must turn over to the City
immediately the Hotel Ground Lease(s) for the Hotel which is not to be
constructed, Flagstone also agrees to waive its defenses as to failure to pay the
required Option payments, immediately vacate and turn over to the City for the
City's possession all of Flagstone's rights and interests in the Hotel
Component(s), any Hotel Ground Lease, and the applicable easement areas,
remove from such easement areas all of its property of whatever kind as requested
in writing by the City Manager, and immediately (i) return or sign over, as
applicable, to the City all of Flagstone's rights, directly or indirectly, in the
permits, plans, specifications, and all related governmental approvals, documents,
instruments, and agreements as necessary related to the applicable Hotel, and (ii)
deliver to the City all of such permits, plans, specifications, and all related
governmental approvals, documents, instruments, and agreements relating to the
applicable Hotel Component(s) which are in Flagstone's possession or in
Flagstone's control, and City has the rights to seek a new developer for the
applicable Hotel Component(s).
(c)
If Flagstone does not Start Construction of the second Hotel Component by
9/1/2028, then both the City and Flagstone have their separate rights to terminate
the Agreement to Enter and Flagstone must immediately vacate and turn over to
the City for the City's possession all of Flagstone's rights and interests in the
Property related to the second Hotel Component and the easement areas, remove
from such easement areas and from the Property related to the second Hotel
Component all of its property of whatever kind as requested in writing by the City
161
Manager, and (i) return or sign over, as applicable, to the City all of Flagstone's
rights, directly or indirectly, in the permits, plans, specifications, and all related
governmental approvals, documents, instruments, and agreements as necessary
related to the applicable Hotel, and (ii) deliver to the City all of such permits,
plans, specifications, and all related governmental approvals, documents,
instruments, and agreements relating to the applicable Hotel Component(s) which
are in Flagstone's possession or in Flagstone's control, and City has the rights to
seek a new developer for the applicable Hotel Component(s).
(d) Flagstone has a 10-day grace period beyond the first of each month to make each
Option payment, and agrees to not require any notice from the City in the event of
non-payment of any Option payment. In the event that Flagstone defaults for non-
payment, Flagstone also agrees to waive its defenses as to non-payment against
the City, immediately vacate and turn over to the City for the City's possession all
of Flagstone's rights and interests in the Second Hotel Component and the
easement areas, remove from such easement areas and from the Second Hotel
Component all of its property of whatever kind as requested in writing by the City
Manager, and immediately (i) return or sign over, as applicable, to the City all of
Flagstone's rights, directly or indirectly, in the permits, plans, specifications, and
all related governmental approvals, documents, instruments, and agreements as
necessary related to the Second Hotel Component, and (ii) deliver to the City all
of such permits, plans, specifications, and all related governmental approvals,
documents, instruments, and agreements which are in Flagstone's possession or in
Flagstone's control.
V. ADDITIONAL AGREEMENTS CONCERNING HOTEL COMPONENTS.
(a) No Hotel Component can Start Construction until both the Marina Component
and the Parking/Retail Components Start Construction.
(b) Once a Hotel Component reaches its Completion Date, the Option payments for
that Hotel Component stop. For the portion of any construction period that
extends into the Option period, all applicable Option payment(s) (and all ongoing
Construction Rent payments) shall continue until the Completion Date. (Pursuant
to the applicable Ground Lease(s), the "Percentage Rent Payment Beginning
Anniversary Date" starts running for any Hotel on the date when it is Open for
Business and Percentage Rent payments begin on the third anniversary of the
Percentage Rent Payment Beginning Anniversary Date in order to give that Hotel
a Stabilization Period).
(c)
The second Option period cannot be exercised unless one Hotel Component has
started construction before the end of the first Option period. If one Hotel
Component does not Start Construction before the end of the first Option period,
then the Option period terminates and no second Option exists. If the second
Hotel Starts Construction before the end of the first Option period and continues
construction into the second Option period, then the Option payments applicable
162
to the second Option period shall be due upon commencement of the second
Option period until the second Hotel Component reaches its Completion Date.
(d) Upon entering into the Ground Lease for any Hotel Component(s) and prior to
Starting Construction for any such Hotel Component(s), Flagstone shall provide a
Construction Bond to the City for the full amount of the construction cost of any
such Hotel Component(s).
VI. ADDITIONAL AGREEMENTS CONCERNING FLAGSTONE FORFEITURE /
CITY TERMINATION RIGHTS.
(a) If the Marina Component does not Start Construction by 9/01/2013 or both the
Parking/Retail Components do not Start Construction by 9/01/2016, then
Flagstone's rights to build any Components expires and ceases, the Agreement to
Enter is terminated, City retains all Prepaid Construction/Base Rent (as
consideration for the extension of time until 9/1/2013 for the Marina Component
and as consideration for the extension of time until 9/1/2016 for both the
Parking/Retail Components) and Flagstone must turn over to the City
immediately the applicable Ground Lease(s), Flagstone also agrees to waive its
defenses as to failure to begin construction against the City, immediately vacate
and turn over to the City for the City's possession all of Flagstone's rights and
interests in the Property and the easement areas, remove from such easement
areas and from the Property all of its property of whatever kind as requested in
writing by the City Manager, and immediately (i) return or sign over, as
applicable, to the City all of Flagstone's rights, directly or indirectly, in the
permits, plans, specifications, and all related governmental approvals, documents,
instruments, and agreements as necessary related to the Property, and (ii) deliver
to the City all of such permits, plans, specifications, and all related governmental
approvals, documents, instruments, and agreements which are in Flagstone's
possession or in Flagstone's control.
(b) If any Hotel Component does not Start Construction according to the applicable
deadline under the construction schedule and the Option schedule(s) (as
applicable), then Flagstone's rights to build the applicable Hotel Component
expires (but Flagstone's obligations under the payment schedule for the Marina
Component, the Parking/Retail Component, and any Hotel Component that is/are
complying continues to the end of the applicable Ground Lease(s)). Any time
Flagstone loses the right to construct a Hotel(s) Component, then Flagstone must
turn over to the City immediately the applicable Ground Lease(s), Flagstone also
agrees to waive its defenses as to failure to begin construction against the City,
immediately vacate and turn over to the City for the City's possession all of
Flagstone's rights and interests in the applicable Hotel Component, any Hotel
Ground Lease, and the related easement areas, remove from such easement areas
and from the Property all of its property of whatever kind as requested in writing
by the City Manager, and immediately (i) return or sign over, as applicable, to the
163
City all of Flagstone's rights, directly or indirectly, in the permits, plans,
specifications, and all related governmental approvals, documents, instruments,
and agreements as necessary related to the applicable Hotel Component, and (ii)
deliver to the City all of such permits, plans, specifications, and all related
governmental approvals, documents, instruments, and agreements which are in
Flagstone's possession or in Flagstone's control.
(c) Subject to Section VII(a), Flagstone may separately ground lease and separately
construct the Marina Component prior to 9/1/2013 if the conditions precedent for
the Marina Component are met
(d) If construction is continuing during the Option period(s), then Flagstone shall pay
both, Construction Rent or Base Rent in accordance with the General Rent
Schedule in Section II above, and the applicable Option payments related to its
choice to construct either one or two Hotel Components.
VII. CROSS DEFAULTS; SEPARATE DEFAULTS.
(a) During the period prior to the earlier of 96 months from 9/01/2010 (being
8/31/2018) or the date upon which the first Hotel is Open for Business, Ground
Leases for the separate Major Project Components shall be cross -defaulted for
any Base Rent payment defaults, Prepaid Construction/Base Rent payment
defaults, and any Construction Rent payment defaults.
(b) After the earlier of 96 months from 9/01/2010 (being 8/31/2018) or the date upon
which the first Hotel is Open for Business, (i) the Base Rent, Percentage Rent,
and all other payments to the City each year thereafter shall be apportioned to
each separate Major Project Component Ground Lease for direct payments to the
City by each separate Ground Lease lessee in an amount reflecting each separate
Major Project Component's respective percentage share of the total Project
Development Costs to that point in time, and (ii) the Ground Leases for the
separate Major Project Components shall not be cross -defaulted for any defaults,
including but not limited to any defaults in payments of Base Rent, Prepaid
Construction Rent/Base Rent, Construction Rent, Percentage Rent, or any other
Rent, with each separate lessee being solely responsible for any payment
default(s) to the City.
(a) Notwithstanding anything to the contrary in this Exhibit A, if the Retail/Parking
Components do not Commence Construction by the 72nd month from 9/01/2010
(being 8/31/2016), then (i) there will be no crediting of Prepaid Construction/Base
Rent, the City shall keep all Prepaid Construction/Base Rent received, (ii) the City
can terminate the Agreement to Enter, all Ground Lease(s), and (iii) the City can
take back the Marina Component, the Retail/Parking Components, any Hotel
Components and the balance of the Project and the Property.,
VIII. STATE WAIVER.
164
Upon approval of this Exhibit A by City Commission Resolution, the City will have
forty-five (45) days to perform due diligence on the State Partial Waiver of Deed Restriction (the
"State Waiver"). If the State conditions approval in any manner unacceptable to the City, and
the City advises Flagstone that it intends to terminate due to such unacceptable conditions, then
the City must send notice of such State action to Flagstone within such forty-five (45) days.
Upon receipt of such notice, Flagstone will have thirty (30) days to resolve the dispute
satisfactorily. If the dispute concerning such unacceptable conditions is not resolved, then the
City, may cancel the current Agreement to Enter Into Ground Lease without executing a new
Amended and Restated Agreement to Enter Into Ground Lease. The parties intend to execute the
Agreement to Enter at such time as the State Waiver is executed and delivered and recorded.
IX. INDEMNIFICATION/HOLD HARMLESS FOR CITY; DISCHARGE OF
EXISTING LIENS, JUDGMENTS; AND GARNISHMENTS.
The City Commission in connection with Resolution No. 10-0144 of March 25, 2010
directed, and Flagstone agreed (a) that Flagstone will enter into a Hold Harmless,
Indemnification, and Security Agreement (the "Hold Harmless, Indemnification, and Security
Agreement") within thirty (30) days of the City's determination in Section X below to proceed
under the new State Waiver, protecting the City against any and all lawsuits and related costs, (b)
that Flagstone shall assist the City in defending against any and all lawsuits involving liens,
judgments, garnishments and any other matters against Flagstone related to the Property and the
easement areas, (c) to the extent any lawsuit is pending against the City relating to any lien(s) on
the subject Property, that Flagstone shall provide to the City not less than $200,000 in security
in such form(s) as satisfactory to the City Manager at such time as the parties enter into the Hold
Harmless, Indemnification and Security Agreement, and (d) Flagstone shall provide to the City
Manager audited financial statements as soon as the same are completed, and any other
information needed in connection with the Hold Harmless, Indemnification and Security
Agreement. Additionally, Flagstone shall have up to one hundred and twenty (120) days from the
date of City Commission approval of the Amended and Restated Agreement to Enter Into
Ground Lease (the "City Commission Approval Date") to clear and discharge as many liens,
garnishments, and judgments as possible, prior to making a deposit with the Miami -Dade County
Clerk of Courts Registry for all remaining outstanding liens, garnishments, and judgments at the
end of that one hundred and twenty (120) day period. Upon the one hundred and twenty first
(121St) day after the City Commission Approval Date, Flagstone shall deliver to the Miami -Dade
County Clerk of Courts Registry to be held in an escrow account, an amount not less than the
total remaining outstanding balance of all liens, garnishments, and judgments not previously
discharged during the one hundred and twenty (120) day period from the City Commission
Approval Date (and update such deposit amount as and if necessary from time to time and at the
time of execution of the Amended and Restated Agreement to Enter into Ground Lease, (and
update such deposit amount as and if necessary at time of execution of the Amended and
Restated Ground Lease). If Flagstone does not provide the foregoing, then the City shall
terminate the existing Agreement to Enter with Flagstone, terminate all easements with
Flagstone, and the City shall not enter into the contemplated new Amended and Restated
Agreement to Enter Into Ground Lease and the Amended and Restated Ground Lease, as
applicable at such time.
165
X. SECURITY DEPOSITS.
The Amended and Restated Agreement to Enter Into Ground Lease and the form of Ground
Lease(s) provide for security deposits in connection with the easement areas, the Pre -paid
Construction Rent/Base Rent, and the Ground Lease(s).
(a) Security for the Easements. Prior to the execution and delivery of the new
Amended and Restated Agreement to Enter by City to Flagstone, Flagstone shall either
(a) deliver the amount of Thirty -Five Thousand and No/100 Dollars ($35,000.00) (the
"Easement Deposit") to Escrow Agent or (b) provide to City, at Flagstone's sole cost
and expense, a Letter of Credit in the amount of Thirty -Five Thousand and No/I00
($35,000.00) (the "Easement Security LOC"). Notwithstanding the foregoing, Flagstone
shall be permitted to utilize any combination of cash or Letter of Credit so long as the
easement deposit equals Thirty -Five Thousand and No/100 Dollars ($35,000.00) in the
aggregate. The Easement 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 the Easements to be
performed or observed by Flagstone.
(b) Security Deposit for the Construction Rent/Base Rent: Prior to execution of
the new and Amended and Restated Agreement to Enter, Flagstone shall either (a) deliver
the amount equal to one year's Construction Rent/Base Rent to the Escrow Agent, or (b)
provide to City, at Flagstone's sole cost and expense, a Letter of Credit in the amount
equal to one year's Construction Rent/Base Rent as defined herein. Notwithstanding the
foregoing, Flagstone shall be permitted to utilize any combination of cash or Letter of
Credit so long as the Security Deposit for the Pre -Paid Construction Rent/Base Rent
equals the amounts defined in the aggregate. The Security Deposit for the Construction
Rent/Base Rent, shall herein after be referred to as the "Security Rent Deposit" and shall
provide security for the faithful performance by Flagstone of all rent payment provisions
of this Agreement to be performed or observed by Flagstone. During the periods outlined
below, Flagstone shall deliver the Security Rent Deposits as defined below:
Commencing
Annual Amount Required for Rent
Security Deposit
October 1, 2010
$300,000
Octoberl, 2011
$500,000
October 1, 2012
$750,000
October 1, 2013
$1,000,000
October 1, 2014
$1,000,000
166
Octoberl, 2015
$1,000,000
October 1, 2016
$1,500,000
October 1, 2017
$1,675,000
Octoberl, 2018
$2,000,000
Any LOC Deposit held by the Lessor or Cash Deposit held by Escrow Agent, as defined in the
Agreement to Enter between the Parties (having an effective date of February 1, 2010) as
security under such Agreement to Enter into Ground Lease to begin being deposited as of
October 1, 2010 may be credited toward the following year's Security Rent Deposit. The annual
amount due on September 1, 2018 of $2,000,000 shall remain in effect for the life of the
Agreement to Enter and of the Ground Lease(s), in accordance with the schedule listed in this
section and in Section 5.2 of the Agreement to Enter. If an Event of Lessee's Default for non-
payment of rent occurs hereunder, Lessor may, at its option and without prejudice to any other
right or remedy that Lessor may have hereunder, apply or require distribution of all or any
portion of the Security Rent Deposit for the payment of any sum to which Lessor may become
entitled by reason of such Event of Lessee's Default, including, without limitation, reasonable'
attorneys' fees and costs which Lessor may incur in connection therewith. If Lessor so applies
or requires the distribution to Lessor of all or any portion of the Security Rent Deposit, Lessee
shall, within thirty (30) days after written demand therefor, deposit cash with Lessor in an
amount sufficient to restore any such deficiency or amend or replace any LOC Deposit,
whichever is applicable, to the full amount thereof, and Lessee's failure to do so shall, at
Lessor's option, constitute an Event of Lessee's Default hereunder. In the event Lessor applies
or requires distribution of all or any portion of an LOC Deposit where no Event of Lessee's
Default then existed, Lessor shall be deemed to have improperly requested and received such
application or distribution, and Lessee shall beentitled to recover from Lessor the amount which
was improperly requested and received, or to reduce the Rent Security Deposit by an equivalent
amount.
XI. LABOR PEACE AGREEMENTS.
The parties acknowledge that the City Commission by Resolution No. 10-0144, adopted on
March 25, 2010, has directed that the Project is subject to the provisions of earlier City
Commission Resolution No. 09-0263, adopted May 28, 2009, regarding the establishment of
labor peace agreements prior to and during the operation of hospitality operations on the
Property.
XII. COVENANT OF GOOD FAITH AND FAIR DEALING.
All matters in this Exhibit A contain a covenant of good faith and fair dealing by Flagstone and
the City in reasonably complying with their respective obligations.
167
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168
Attachment 4
City Commission Resolution No. 09-0263, adopted May 28, 2009
Regarding
Labor Peace Agreements
MIADOCS 4419281 2
86
City of Miami
Text File Report
City Hall
3500 Pan American Drive
Miami, FL 33133
www.miamigov.com
File ID: 09-00450
Enactment #: R-09-0263
Version: 1
Type: Resolution
Introduced: 4/20/09
Status: Passed
Enactment Date: 5/28/09
Controlling Body: Office of the City
Clerk
A RESOLUTION OF THE MIAMI CITY COMMISSION DIRECTING THE CITY MANAGER TO
REQUIRE "LABOR PEACE AGREEMENTS" AS A CONDITION PRECEDENT TO THE ISSUANCE
OR EXECUTION OF CERTAIN CONTRACTS DEPENDENT UPON REVENUES FROM
HOSPITALITY OPERATIONS.
WHEREAS, the City of Miami ("City") has a financial or proprietary interest in certain capital projects and in revenue
producing contracts which include hospitality operations at City -owned venues; and
WHEREAS, it is anticipated that the revenues generated by these operations will be used in part to defray the public costs
incurred in the construction and maintenance of such capital projects as well as to fund lease, rental or license payments to
the City, and the City has a responsibility to the taxpayers to protect these revenues; and
WHEREAS, the City acts as a market participant when entering into such contracts; and
WHEREAS, it is essential that these hospitality operations be conducted without interruption and that no labor disputes
affecting such operations impact the revenues of such capital projects and revenue producing contracts, which would in
turn adversely affect the revenue stream to the City; and
WHEREAS, the City has. found that the uninterrupted operation of hospitality operations may be threatened by labor
disputes, and has found that an efficient way to avoid this problem is by requiring contractors and employers of employees
hired to staff hospitality operations to be signatory to a "labor peace agreement" covering the employees who will staff such
hospitality operations; and
WHEREAS, such labor peace agreements are a method of insuring continuous provision of services under City contracts
because under federal law, employers may not unilaterally prohibit unions or their employees from engaging in work
stoppages;
NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA:
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Section 1. The recitals and findings contained in the Preamble to this Resolution are adopted by reference and incorporated
as if fully set forth in this Section.
Section 2. "Hospitality operations" as used herein means services provided at hotels, motels, restaurants, bars, clubs,
cafeterias, lodging, and food and beverage at convention or conference facilities.
Section 3. The City Manager shall require contractors and employers of employees hired to staff hospitality operations to be
City of Miami Page 1 Printed on 9116/2010
Section 6. This Resolution shall become effective immediately upon its adoption and signature of the Mayor. (2}
City of Miami Page 2 Printed on 9/16/2010