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HomeMy WebLinkAboutExhibit - AgreementSkyRise Hold Harmless Agreement After Recordation Return this instrument to: Victoria Mendez, City Attorney OFFICE OF THE CITY ATTORNEY City of Miami, Florida 444 S.W. 2 Avenue, 9tt' Floor Miami, Florida 33130-1910 (Space Above for Recorder's Use Only) HOLD HARMLESS AND INDEMNIFICATION AGREEMENT THIS HOLD HARMLESS AND INDEMNIFICATION AGREEMENT (hereinafter the "Agreement"), is made and entered into this day of April, 2014, by and between SKYRISE MIAMI, LLC, f/k/a SkyHigh Miami, LLC, a Florida limited liability company, party of the first part (hereinafter called "SkyRise"), BAYSIDE MARKETPLACE, LLC, a Delaware Iimited liability company ("Tenant") and. THE CITY OF MIAMI, FLORIDA, a municipal corporation of the State of Florida, in the County of Miami -Dade, party of the second part, (hereinafter called the "City"). RECITALS: A. The City owns certain property commonly known as Bayside Marketplace ("Bayside") and leases a portion of Bayside (the "Prime Leased Premises") to Tenant pursuant to that certain Amended and Restated Lease Agreement between City and Tenant, as successor by merger to Bayside Center Limited Partnership (as amended, the "Prime Lease"). B. SkyRise has subleased (subject to certain conditions set forth in the Sublease, including Referendum approval, as defined below) a portion of the Prime Leased Premises ("Sublet Premises") from Tenant pursuant to a Bayside Marketplace Sub -Ground Lease ("Sublease"). C. SkyRise desires to construct an approximately 1000 foot tall mixed use commercial and recreational facility on the Sublet Premises, requiring vertical construction beyond that currently authorized in the Prime Lease ("Project"). MIAMI 4103741.8 71982/40643 1 VA- () t- 13- ;-7 (Z- SkyRise Hold Harmless Agreement D. Tenant must obtain City Commission approval of an amendment to the Prime Lease, authorizing SkyRise to construct the Project, and then seek approval from the City's electorate at an August 26, 2014 or November 4, 2014 referendum ("Referendum"). E. SkyRise purports that it must commence foundation work prior to June 12, 2014 in order to preserve an existing FAA Approval. F. City requires that SkyRise and Tenant execute this Agreement as a condition to City issuing a building permit for, and as a condition to commencing, a portion of the foundation work required for the Project on the Prime Leased Premises. NOW, THEREFORE, in consideration of the permission by City to authorize SkyRise to apply for a foundation permit, and commence foundation work, on the Prime Leased Premises, subject to the terms and conditions set forth herein below, and in further consideration of these premises, SkyRise and Tenant do hereby agree with City as follows: 1. The foregoing recitals are true and correct and made a part hereof. 2. SkyRise is hereby authorized to apply for a foundation permit to commence installation of three (3) pilings required for the Project, as reflected on the plan attached hereto as Exhibit A, on the Prime Leased Premises ("Foundation Work") and to commence such work when the permit is issued, 3. Tenant approves SkyRise's application for the necessary permits and approves its performance of the Foundation Work, subject to SkyRise's full compliance with the provisions of the Sublease, as amended (including obtaining all consents and approvals of Tenant as required thereunder). 4. SkyRise shallpay all actual or estimated permit and other applicable regulatory fees associated with the Foundation Work prior to issuance of any building permits. 5. SkyRise agrees to indemnify, hold harmless and post a cash bond in the amount of $500,000.00 (the "Bond") for the benefit of the City as security for payment of the costs of the Foundation Work and restoration of the pier site to a fully operational condition. The City shall, within fifteen (15) days of request by SkyRise following restoration of the pier site to a fully operational condition, accompanied by reasonable evidence of payment for the Foundation Work, refund to SkyRise the full amount of the Bond. If SkyRise does not pay for the Foundation Work or restore the pier site to a fully operational condition, in either case within a MIAMI 4103741.8 71982/40643 2 SkyRise Hold Hal miless Agreement reasonable period of time after notice by the City to SkyRise, the City may do so and utilize the Bond to pay the reasonable costs thereof, with SkyRise promptly thereafter receiving any excess Bond funds or paying to the City any shortfall. In addition, SkyRise shall maintain insurance coverages in the amount listed in Exhibit B. 6. SkyRise shall repay the City for the lost streams of revenue, if any, from the Marina adjacent to the Sublet Premises and the parking for Marina patrons on the Sublet Premises while the Foundation Work is being performed, and shall guarantee to restore the current pier located on the Prime Leased Premises to full operational status within three (3) weeks (subject to extension by reason of force majeure for a like period) following commencement of construction of the Foundation Work. The estimated lost stream of revenue, if any, from May 2014 through November 2014 is less than $5,000.00 and shall be secured by the Bond. All additional amounts due to the City to cover any lost revenue shall be due immediately upon the City's demand to SkyRise, and City shall reimburse SkyRise for any overpayment, if any, of the lost stream of revenue immediately following a determination of the amount thereof. 7. Tenant guarantees all payments due to the City and agrees to hold the City harmless for any possible damages or business interruptions it or any of its subtenants experiences due to SkyRise's performance of the Foundation Work, other thanthose damages or business interruptions, if any, caused solely by the acts or omissions of the City, its agents, employees, representatives or contractors. 8. No vertical construction for the Project to be constructed on the Prime Leased Premises may commence, other than Foundation Work, until the City has been provided with substantial, documented and satisfactory evidence that financing to complete the Project is in place and the Referendum is approved. 9. Should the Referendum pass and City not be provided with substantial, documented and satisfactory evidence that financing to complete the Project is in place and/or the Referendum fail, SkyRise shall immediately cease construction and restore the Sublet Premises site to an operational condition, by restoring or improving, subject to all applicable building and zoning laws, and specifically not simply patching the Prime Leased Premises or any other area utilized or damaged during the construction. Such restoration shall include but not MIAMI 4103741,8 71982/40643 3 SkyRise Hold Harmless Agreement limited to, making all existing utilities fully functional, milling and resurfacing parking facilities with the same number of current spaces and fully restoring the pier. 10. SkyRise acknowledges that nothing in this Agreement shall prejudice the City's right to impose conditions on approval of the Foundation Work which are required by state, county, and/or City ordinances and zoning regulations or are otherwise necessary to ensure the public health, safety and welfare of the citizens of the City; nor shall the City be stopped from enforcing the terms of this Agreement by reason of its issuance of building permits. 11. SkyRise acknowledges that any building permit(s) issued by the City for construction of the Project will be issued in accordance with all applicable laws and the terms and conditions set forth in this Agreement. 12. SkyRise acknowledges it is proceeding at its own risk andacknowledges that it will not make a vested / property rights claim or cause of action arising or accruing by virtue of these exceptions provided by Subsection 55-10(i) of the City of Miami Code. 13. SkyRise acknowledges that the City reserves the right to evaluate all applications for building permits for compliance with all existing laws, ordinances and regulations controlling the issuance of building permits for construction within the City. 14. SkyRise and Tenant agree that the City shall not be held financially responsible to SkyRise, Tenant or any third parties in connection with the Foundation Work. 15. SkyRise agrees to indemnify, defend (at SkyRise's expense) and hold harmless the City, its officials and assigns, and its employees, from any claims, demands, liabilities, losses, causes of action of any nature whatsoever arising out of or in connection with this Agreement, from any injuries to property andpersons during the construction of the Foundation Work, the granting of any building penuits for the Foundation Work, from and against all costs, fees, expenses, liabilities, any orders, judgments or decrees which may be entered in from and against all costs, attorneys' fees, expenses and liabilities incurred in the defense of such claim or in the investigation thereof, in each case other than those claims, demands, liabilities, losses, causes of action or injuries, if any, caused by the acts or omissions of the City, its agents, employees, representatives and contractors. This indemnity shall survive the issuance of a certificate of occupancy or its equivalent for the Foundation Work or the Project. MIAMI 4103741.8 71982/40643 4 SkyRise Hold Harmless Agreement 16. Handling of Hazardous Materials. SkyRise shall, at its sole cost and expense, at all times and in all respects comply with all federal, state and local laws, statutes, ordinances and regulations, rules, rulings, policies, orders and administrative actions and orders related to protection of the environment ("Hazardous Materials Laws"), including, without limitation, any Hazardous Materials Laws relating to industrial hygiene, environmental protection or the use, analysis, generation, storage, disposal or transportation of any fuel, oils, flammable explosives, asbestos, urea formaldehyde, radioactive materials or waste, infectious waste, or other hazardous, toxic, contaminated or polluting materials, substances or wastes, including, without limitation, any "Hazardous Substances", "Hazardous Wastes", "Hazardous Materials" or "Toxic Substances", under any such laws, ordinances or regulations (collectively "Hazardous Materials"). SkyRise shall, at its sole cost and expense, procure, maintain in effect and comply with all conditions of any and all permits, licenses and other governmental and regulatory approvals relating to the presence of Hazardous Materials within, on, under or about the Prime Leased Premises or any other area utilized for the Foundation Work required for SkyRise's use or placement of any Hazardous Materials in conformity with all applicable Hazardous Materials Laws and prudent industry practices regarding management of such Hazardous Materials. SkyRise shall, at its sole cost and expense, be responsible for performing any removal, remediation, cleanup or restoration required as a result of its activities on, under or about the Prime Leased Premises or any other area utilized for the Foundation Work. Upon termination or expiration of this Agreement, SkyRise shall, at its sole cost and expense, cause all Hazardous Materials which are in storage devices placed on, under or about the Prime Leased Premises or any other area utilized for the Foundation Work by SkyRise or its employees, officers, agents, contractors or customers or at any such person's directions to be removed from such property and transported for use, storage or disposal in accordance and compliance with all applicable Hazardous Materials Laws. These requirements shall survive the issuance of a certificate of occupancy or its equivalent for the Foundation Work or the Project. 17. This Agreement shall be binding upon SkyRise, Tenant, and also upon their successors in interest or assigns. MIAMI 4103741.8 71982/40643 5 SkyRise Hold Harmless Agreement 18. Any notice, request, demand, approval or consent given or required to be given under this Agreement shall be in writing and shall be deemed as having been given when mailed by United States registered or certified mail (return receipt requested), postage prepaid, to the other parties at the address stated below or at the last change of address given by the party to be notified as herein specified. As to SkyRise: With a copy to: As to Tenant: With a copy to: As to City: With a copy to: MIAMI 4103741.8 71982/40643 6 SKYEJSE IVIIAMI, LLC c/o Berkowitz Development Group, Inc. 2665 S. Bayshore Drive Suite 1200 Coconut Grove, FL 33133 Attention: Jeffrey Berkowitz John C. Sumberg, Esq. Bilzin Sumberg 1450 Brickell Avenue, Suite 2300 Miami, FL 33131 Bayside Marketplace, LLC c/o General Growth Properties, Inc. 110 North Wacker Drive Chicago, IL 60606 Attention: Chief Legal Officer Bayside Marketplace, LLC c/o General Growth Properties, Inc. 1245 Worcester Street Suite 1218 Natick, MA 01760 Attention: John Charters City Manager City of Miami 444 SW 2nd Avenue, 10th Floor Miami, FL 33130 Director of Public Works Department City of Miami 444 SW 2nd Avenue, 8th Floor Miami, FL 33130 City Attorney City of Miami SkyRise Hold Harmless Agreement 444 SW 2nd Avenue, 9th Floor Miami, FL 33130 20. Joint Preparation. The parties acknowledge that they have sought and received whatever competent advice and counsel was necessary for them to form a full and complete understanding of all rights andobligations herein and that the preparation of this Agreement has been their joint effort. The language agreed to express their mutual intent and the resulting document shall not, solely as a matter of judicial construction, be construed more severely against one of the parties. 21. As between Tenant and SkyRise, if there is any conflict or inconsistency between the provisions of this Agreement and the provisions of the Sublease, the provisions of the Sublease shall control to the extent necessary to resolve any such conflict or inconsistency. MIAMI 4103741.8 71982/40643 [Signature pages follow] 7 SkyRise Hold Harrnless Agreement IN WITNESS WHEREOF, the parties have caused these presents to be executed by its proper officer and its corporate seal to be affixed hereto, the day and year first above set forth. Signed, Sealed and Delivered in the Presence of: SIGNATURE (FISITNESS) i2oc(R r h- P T NAME (FIRST WITNESS) ATURE (SE Oki, WITNESS) PRINT NAME (SECOND WITNESS) STA 1'E OF FLORIDA ) COUNTY OF MIAMI-DADE ) SKYRISE MIA L LLC, a Florida limit- '.bility company, by Berkowit D; elopment Group, Inc., its m By: Name: J Title: Pr (Corpora - Seal) kowitz I hereby certify: That on this day personally appeared before me, an officer duly authorized to administer oaths and take acknowledgments, Jeffrey Berkowitz, President of Berkowitz Development Group, I , as Manager of SKYRISE MIAMI, LLC, a Florida limited liability company, and who [ '✓ ] is personally known to me or [ ] who has produced as identification and who executed the foregoing instrument and acknowledged the execution thereof to be his free act and deed as such officer for the purposes therein expressed. Witness my hand and official seal this day of A"Pg- (t.... Signature of Person Taking Acknowledgement: Print Name of Acknowledger: p\s, t yo 5. Notary Public, State of Serial Number, (if any) My Commission Expires: MIAMI 4103741.8 7I982/40643 YASMIN S. ELEY Notary Public - State of Florida My Comm. Expires Dec 18, 2015 Commission # EE 153923 8 , 2014. SkyRise Hold Harmless Agreement "City" CITY OF MIAMI, a Florida municipal ATTEST: corporation Todd B. Hannon City Clerk By: Daniel Alfonso City Manager APPROVED AS TO FORM AND APPROVED AS TO INSURANCE CORRECTNESS: REQUIREMENTS: Victoria Mendez City Attorney MIAMI 4103741,8 71982/40643 Anne -Marie Sharpe Interim Risk Management Director 9 SkyRise Hold Harmless Agreement Signed, Sealed and Delivered in the Presence o 'SIGNATURE (FIRST WIESS) 4rVilf?n-R).?0, AOlne,///4 PRINT NAME (FIRST WITNESS 1),;,el F i ?A.rs..e, SIGNATURE (SECOND WITNESS) bewia PurSd PRINT NAME (SECOND WITNESS) .o STATE OF COUNTY OF MI=DADE ) BAYSIDE MARKETPLACE, LLC, a Delaware limited liability company Name: lrrJ f, !fir Title: Q (Corporate Seal) I hereby certify: That on this day personally appeared before me, an officer my authorized to administer oaths and take acknowledgments, ! Q, t ' 1fl%,iiais ► of BAYSIDE MARKETPLACE, LLC, a Delaware limited liability company, and who EX ] is personally known to me or [ ] who has produced as identification and who executed the foregoing instrumentand acknowledged the execution thereof to be his free act and deed as such officer for the puroses therein expressed. Witness niy hand and official seal thi '- 4 day of Signature of Person Taking Acknowledgement: Print Name of Acknowledger: Notary Public, State of Serial Number, (if any) a(socie 7 r\iDt My Commission Expires: )2.dt I lb MIAMI 4103741.8 71982/40643 10 2014. OFFICIAL SEAL MARJORIE J ZESSAR NOTARY PUBLIC • STATE OF ILLINOIS MY COMMISSION EXPIRES:12110/15. SkyRise Hold Harmless Agreement MIAMI 4103741.8 71982/40643 Exhibit A Scope of Foundation Work 11 5959 Blue Lagoon Dr. Suite 200 Miami, FI 33126 Phone: 305-559-4900 www.Coastalconstruction.com -11 Li Omer CITY OF MIAMI • Pmlect SKYRISE MIAMI 401 Biscayne Blvd, Miami FI ,MUICAPPEi73Pn3Es D EL 855'00'34"W P/L 168.59' PRODUCTION PILES APPROXIMATELY 20 DAYS Early Foundation Work - PHASE 2 Project number 0000 Date Printed 4/21/2014 4:42:38 PM Drawn by Author A3.22 Checked by Checker Scale 1" = 60'-0" VOCIMOJIZtr CHANLNK FENC Y.xi x X jn' 525'00.34-W PAL 76B.59' CRANE MOBILIZATION AND DEMOBILIZATION APPROXIMATELY 3 DAYS EACH 5959 Blue Lagoon Dr. Suite 200 Miami, FI 33126 Phone: 305-559-4900 www.Coastalconstruction.com Owner CITY OF MIAMI Project SKYRISE MIAMI 401 Biscayne Blvd, Miami FI Early Foundation Work - PHASE 1 & 3 Project number 0000 Date Printed 4/11/2014 2:30:57 PM Drawn by Author Checked by Checker Scale 1' = 60'-0" EXHIBIT B INSURANCE REQUIREMENTS FOR A CERTIFICATE OF INSURANCE -HOLD HARMLESS AGREEMENT SKYRISE MIAMI, LLC, AND ITS CONTRACTORS SkyRise Miami shall carry or cause its contractors to carry the below insurance for the project I. Commercial General Liability (Primary & Non Contributory) A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $1,000,000 General Aggregate Limit $ 2,000,000 Products/Completed Operations $ 1,000,000 Personal and Advertising Injury $1,000,000 B. Endorsements Required (or otherwise provide in the policy form) City of Miami listed an additional. insured Contingent and Contractual Exposures Premises/Operations Liability Explosion, Collapse and Underground Hazard Loading and Unloading II. Business Automobile Liability A. Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Any Auto Including Hired, Borrowed or Non -Owned Autos Any One Accident $ 1,000,000 B. Endorsements Required City of Miami listed as an additional insured III. Worker's Compensation Limits of Liability Statutory -State of Florida Waiver of subrogation USL&H (only for those contractors with a USL&H exposure) Employer's Liability A. Limits of Liability $1,000,000 for bodily injury caused by an accident, each accident. $1,000,000 for bodily injury caused by disease, each employee $1,000,000 for bodily injury caused by disease, policy limit IV. Umbrella Liability (Excess Follow Form) A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $ 10,000,000 Aggregate $ 10,000,000 City of Miami listed as an additional insured V. Installation Floater/Builder's Risk (If Applicable) Causes of Loss: Special Form with Replacement Cost Valuation Deductible: $100,000 AOP, 5% Wind & Hail and Flood City of Miami listed as loss payee VI. Payment and Performance Bond City of Miami listed as an obligee VII. Protection and Indemnity Coverage/Jones Act Included Limits of Liability $1,000,000 VIII. Contractor's Pollution Liability, If Applicable Each Occurrence Policy Aggregate $1,000,000 $1,000,000 City of Miami listed as an additional insured with regards to pollution liability. Retro date applies on professional liability. Certificates of insurance shall be providing the City of Miami with written notice of cancellation not less than (30) days (except 10 days for non-payment) prior to any such cancellation or in accordance with policy provisions. Companies authorized to do business in the State of Florida, with the following qualifications, shall issue all insurance policies required above: The company must be rated no less than. "A-" as to management, and no less than "Class V" as to Financial Strength, by the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent. All policies and /or certificates of insurance are subject to review and verification by Risk Management prior to insurance approval.