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HomeMy WebLinkAboutExhibit SUB-"(1 Yotmouneg-Fc_an at Pd. SECOND AMENDMENT TO MINORITY PARTICIPATION AGREEMENT This Second Amendment to Minority Participation Agreement (this "Amendment") is made and entered into this Ott' day of S, 2014 ("Effective Date") by and between the CITY OF MIAMI, a municipal corporation of the State of Florida ("City") and BAYSIDE MARKETPLACE, LLC, a Delaware limited liability company, successor by merger to Bayside Center Limited Partnership ("Developer"). WITNESSETII: WHEREAS, City and Developer entered into that certain Minority Participation Agreement dated as of January 14, 1985, as amended by that certain First Amendment to Minority Participation Agreement dated as of October 17, 1985 and further amended by that certain Release and Settlement Agreement dated as of December 30, 2008 (collectively the "Minority Participation Agreement") setting forth Developer's obligations with regard to minority participation in connection with the development of the project known as Bayside Marketplace and formerly known as Bayside Specialty Center; WHEREAS, concurrently with this Amendment, City and Developer are entering into that certain Fourth Amendment to Amended and Restated Lease Agreement (Retail Parcel) which provides for, among other things, the extension of the Lease Term of the Retail Lease and certain modifications to Rental (the "Retail Lease Amendment"); and WHEREAS, City and Developer desire to amend certain financial terms of the Minority Participation Agreement as follows: 1. Definitions. All capitalized terms used in this Amendment shall have the definitions ascribed to such terms in the Minority Participation Agreement or the Retail Lease (as amended from time to time), unless defined or amended in this Amendment. The term "Minority Participation Agreement" shall refer to the Minority Participation Agreement, as amended hereby. 2. Foundation Contribution. Section 5.3 of the Minority Participation Agreement is hereby deleted in its entirety and replaced with the following: Section 5.3 Foundation Contribution. From and after the Effective Date, Developer shall pay a Foundation Contribution in the amount of $350,000 (the "Foundation Contribution") annually ti on or before the last day of March of each Rental Year during the Lease Term of the Retail Lease. Each annual payment of the Foundation Contribution shall be for the current Rental Year. The Foundation Contribution for any partial Rental Year during the Lease Term after the Effective Date shall be prorated based on the number of days in the partial Rental Year against the total number of days in the applicable Rental Year. The Foundation Contribution shall increase each Rental Year by two percent (2%) over the Foundation Contribution for the immediately preceding Rental Year commencing with the first CPI Adjustment Year for Minimum Base Rental, as provided in the Retail Lease Amendment. Notwithstanding the foregoing, should the Foundation cease to be a 501(0(3) tax-exempt organization, the Foundation Contribution shall either (i) be placed in an interest bearing escrow account and paid to the Foundation at such time as the Foundation shall satisfactorily prove to Developer that it has .qualified as a 501(c)(3) tax-exempt organization or (ii) at the written request of the City, be paid to such other non-profit •organization qualified as a 501(0(3) tax-exempt organization which is reasonably acceptable to Developer and which has goals and purposes similar to the Foundation. The Foundation Contribution shall be the only financial obligation that Developer shall have to the Foundation or such successor non-profit organization specified in (ii) above. The Foundation Contribution for the period prior to the Effective Date shall continue to be paid as provided in. Section .5.3 of the Minority Participation Agreement; it being understood and agreed that the Foundation Contribution for the period between January 1, 2014 and the Effective Date shall be based solely on Net Income Available for Distribution for the Retail Parcel for such period, The Foundation Contribution for the period from and after the Effective Date through December 31, 2014 shall be prorated as provided in Section 5.3 of the Minority Participation Agreement, as amended hereby, and paid concurrently with the payment of the 2015 Foundation Contribution, on or before 'March 31, 2015. 3. Liberty City Community Revitalization Trust Contributions. (a) One -Time Contribution. Within fourteen (14) days following the approval of the Ground Lease Referendum (as defined in the Retail Lease Amendment) by the City's electorate, Developer agrees to make a onetime contribution in the amount of $350,000 to the City of Miami (at the address set forth below), which shall allocate the dollars specifically to the Liberty City Community Revitalization Trust ("One -Time Contribution"). Provided the Ground Lease 2 Referendum is approved by the City's electorate, the One -Time Contribution shall be made regardless of whether the Ground Lease Referendum is subsequently appealed or challenged; provided, however, that if the Ground Lease Referendum is not approved by the City's electorate, then Developer shall have no obligation to make the One -Time Contribution as provided herein, The One -Time Contribution will be utilized by the voting members of the Liberty City Community Revitalization Trust to further the organization's mission of economic development in the Liberty City Community Revitalization Trust service area, (b) Annual Contribution. From and after the Tower Fixed Rent Commencement Date (as such term is defined in the Retail Lease Amendment) and for the balance of the Lease Term of the Retail Lease, Developer shall make an annual contribution in the amount of $100,000 (the "Annual Contribution") to the City of Miami (at the address set forth below), which shall allocate the dollars specifically to the Liberty City Community Revitalization Trust, on or before the close of City's fiscal year (i.e., September 30) of each Rental Year, Each annual payment of the Annual Contribution shall be for the current Rental Year. The Annual Contribution for any partial Rental Year during the Lease Tenn after the Effective Date shall be prorated based on the number of days in the partial Rental Year against the total number of days in the applicable Rental Year. Commencing upon the one-year anniversary of the Opening Date of the Tower, the Annual Contribution shall increase each Rental Year by one and one-half percent (1.5%) over the Annual Contribution for the immediately preceding Rental Year. The Annual Contribution will be utilized by the voting members of the Liberty City Community Revitalization Trust to further the organization's mission of economic development in the. Liberty City Community Revitalization Trust service area. (0) Contribution Address. All payments due to the City under this Section 4 shall be by separate independent check payable to the City of Miami, Attention, Office of the City Manager, in care of the Liberty City Community Revitalization Trust, 3500 Pan American Drive, Miami, Florida 33133, 4,. Minority, Community Small Business Enterprise ("CSBE") and Community Business Enterprise ("CBE") Participation. Notwithstanding anything to the contrary set forth in the Minority Participation Agreement, solely in connection with the Renovation Work to be performed by Developer (and not by any Subtenant) as described in Section 5(b) and Exhibit "C" of the Retail Lease Amendment and the corresponding Fourth Amendment to Bayside Parking Garage Lease Agreement (Garage Parcel), Developer agrees to use diligent, good faith efforts to achieve or to cause its general contractor(s) (collectively, the "Contractor") to use diligent, good faith efforts to achieve, as applicable, the following goals, which the parties hereto agree are purely aspirational in nature: (a) Fifty percent (50%) of those employed by Contractor in connection with the Renovation Work shall be minorities, including women, as such term is currently defined by the laws of the United States of America. In so doing, Contractor shall seek to employ such persons 3 using the following. priorities: first, minorities and women who are residents of the five highest poverty rate index zip codes in the City; second, City residents in general; third, Miami -Dade County residents who live in the five highest poverty rate index zip codes in Miami -Dade County; and fourth, residents in Miami -Dade County in general, The Contractor shall electronically post job opportunities in established minority related job outreach websites and organizations, including, without limitation, South Florida Workforce, Florida Department of Economic Opportunity Career Source of South Florida located in Miami, their successors or assigns, and similar programs in order to attract as many eligible minority applicants for such jobs as possible, In connection with the Renovation Work performed by Developer (and not by any Subtenant), Developer shall cause the Contractor to pay a minimum hourly wage rate of $11.83 if health benefits are not provided to employees and $10.58 if health benefits are provided to employees. Commencing January 1, 2016 and for the duration of the Renovation Work (each, a "CPI Escalation Year"), the foregoing hourly rates shall be increased on January 1St of the applicable calendar year by an amount equal to the percentage increase during the calendar year immediately prior to the CPI Escalation Year in the consumer price index (the "Index"), which is the monthly index published by the Bureau of Labor Statistics of the United States Department of Labor as the Consumer Price Index for All Items, Miami -Ft. Lauderdale, Florida, Base Year 1982-84=100. The CPI adjustment to the minimum hourly wage rates shall hereinafter be referred to as the "CPI Escalation", The CPI Escalation of the minimum hourly wage rates for the CPI Escalation Year shall be equal to the minimum hourly wage rates in effect for the calendar year immediately preceding the CPI Escalation Year multiplied by the CPI Percentage (as defined below). The "CPI Percentage" shall equal the fraction (i) whose numerator equals the monthly Index published immediately prior to the CPI Escalation Year (or the nearest reported previous month) and (ii) whose denominator is the same monthly Index published immediately prior to the calendar year that preceded the CPI Escalation Year (or the nearest reported previous month). If the Index is discontinued with no successor Index, City shall select a commercially reasonable comparable index. The CPI adjustment set forth herein shall not result in a reduction of the respective minimum hourly wage rates. Developer shall require the Contractor to include the same minimum hourly wage rates in any contracts entered into by the Contractor with its subcontractors for the Renovation Work who will stipulate and agree that they will pay the same minimum hourly wage rates, subject to adjustment, as set forth in this section; (b) Fifteen percent (15%) of the professional services agreements for soft costs, including design, engineering, survey,. inspection, testing and legal, in connection with the Renovation Work shall be awarded by Developer to construction related enterprises that are minority (including women) owned, or currently certified. by Miami -Dade County as a Coinrnunity Small Business Enterprise ("CSBE") as set forth in Sec.10-33.01 and Sec. 10-33.02 of the Miami -Dade County Code or as a Community Business Enterprise ("CBE") as set forth in Sec. 2-10:4.01 of the Miarni-Dade County Code; and 4 (o) Twenty percent (20%) of the contractual agreements for construction and for construction -related materials, supplies and fixtures in connection with the Renovation Work, including subcontracts, should be awarded by Developer or the Contractor, as the case may be, to construction related enterprises that are minority (including women) owned, or currently certified by Miami -Dade County as a CSBE or a CBE. City acknowledges that the Renovation Work may be performed in phases with one or more general contractors and contracts and agrees that the goals set forth above shall pertain to the overall Renovation Work by Developer (and not by any Subtenant) and Minimum Level of Investment ($27,000,000), in the aggregate, not each individual general contractor or contract for the respective phases. Developer agrees that during all phases of the Renovation Work, Developer will submit quarterly reports (i.e,, on or before the last day of March, June, September and December) demonstrating Developer's or the Contractor's, as applicable, diligent, good faith efforts to achieve the goals set forth in this Section 4 to the City Manager at 3500 Pan American Drive, Miami, Florida 33133. Developer shall further provide to the City Manager, or its designee, together with each quarterly report, certified payroll records from the Contractor and each subcontractor, indicating compliance with the wage requirements set forth in this Section 4. 5. Notices. Wherever any notice is required or permitted under the Minority Participation Agreement, such notice shall be in writing. Any notice or document required or permitted to be delivered under the Minority Participation Agreement shall be deemed to be delivered when it is actually received by the designated addressee or, if earlier and regardless of whether actually received or not, when it is either (i) deposited in the United States mail, postage prepaid, certified mail, return receipt requested, or (ii) delivered to the custody of a reputable messenger service or overnight courier service, addressed to the applicable party to whom it is being delivered at the respective address for such party as is set out below, or at such other address as such applicable party may have theretofore specified to the delivering party by written notice: If to City at: City of Miami 444 SW 2nd Avenue, 10th Floor Miami, FL 33130-1910 Attention: City Manager 5 If to Developer at: Bayside Marketplace, LLC c/o General Growth Properties, Inc. 110 North Wacker Drive Chicago, IL 60606 Attention: Chief Legal Officer with a copy to: City of Miami 444 SW 2nd Avenue, 3rd Floor Miami, FL 33130-1910 Attention: Public Facilities Director 6. Miscellaneous. with a copy to: Bayside Marketplace, LLC c/o General Growth Properties, Inc. 1245 Worcester Street Suite 1218 Natick, MA 01760 Attention: John Charters (a) Each of City and Developer hereby acknowledges. and agrees that neither is presently aware of any continuing defaults by reason of any act or omission on the part of the other party under the Lease and that as of the date of execution each party has fulfilled all of its duties and obligations under the Minority Participation Agreement to date. (b) This Amendment shall be construed and governed in accordance with the laws of the State of Florida. Venue in any actions or proceedings between the parties shall be in Miami -Dade County, Florida. In order to expedite such actions or proceedings the parties knowingly and voluntarily waive their right to a jury trial in any such actions or proceedings. Developer and City each agree to pay their own attorneys' fees in connection with any such actions or proceedings, (c) This Amendment may be executed in any number of counterparts and by the separate parties hereto in separate counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. (d) Each party hereby represents and warrants to the other party that (i) it has the full right and authority to enter into this Amendment, and (ii) this Amendment is a binding and valid document enforceable in accordance with its terms. (e) This Amendment shall be deemed a part of, but shall take precedence over and supersede any conflicting provisions in the Minority Participation Agreement. Except as modified hereby, all of the provisions of the Minority Participation Agreement, which are not in conflict with the terns of this Amendment, shall remain in full force and effect, and, as modified hereby, the Minority Participation Agreement is hereby ratified and confirmed in all respects. (f) This Amendment shall be binding upon the parties hereto and. their respective successors and permitted assigns. [Remainder of Page Left Blank Intentionally] 6 IN WITNESS WHEREOF, the parties have executed this Amendment as of the Effective Date. ATTEST: By: dcl• B. Harmon City Clerk THE CITY OF MIAMI, a municipal corporation of the State of Florida By: Daniel J. City Manager APPROVED AS TO LEGAL FORM APPRO AND ORRECTNESS: REQ Bv: Victori ' Mendez City Attorney STA I OF FLORIDA SS.: COUNTYOF MIAMI-DADE ) CE Ann arie Sharpe Director o . Risk Management The foregoing instrument was acknowledged before me this gli day of5ptoV-e- , , 2014, by Daniel J. Alfonso, the City Manager, and 'TMA I\ tt NT+,op, , the City Clerk, f the City of Miami, a Florida municipal corporation, in the capacitresaid; each such peis personally known to me. Sign Name: Print Name: Notary Public My Commission Expires [NOTARIAL SEAL] 7 V COMMISSION it `F'I002 ap Au ublle,Undnlwliteta t3ondad�bluNotary Serial No. (none if blank): WITNESSES: STATE OF ILLINOIS COUNTY OF COOK BAYSIDE MARKETPLACE, LLC, a Delaware limited liability company By: Print Name: Andrew P. Massmann Title.: Authorized Signatory SS.: ) The foregoing instrument was acknowledged be ore me this f 84- day of 20 °, by ! 4 a ; as of Bayside Mirketplace, L. ,, in the capacity a . 'e . s id; such person is personally cno n to n e. Sign Narne: Print Narne: , Notary Public My Commission Expires: [NOTARIAL SEAL] /, fa ,, Lvs/ww,wAiv,aws eaww chewOFFICIAL. SEAL T' A R LEWANDOWSKA F ' PUBLIC - STATE OP ILLINOIS COMMISSION EXPIRES:10/30/10 8 Serial No. (none if blank): SECOND AMENDMENT TO MINORITY PARTICIPATION AGREEMENT This Second Amendment to Minority Participation Agreeme t (this "Amendment") is made and entered into this day of , 2014 ("Eff the CITY OF MIAMI, a municipal corporation of the State of MARKETPLACE, LLC, a Delaware limited liability compa Center Limited Partnership ("Developer"). WITNESL WHEREAS, City and Developer Agreement dated as of January 14, 1985, Minority Participation Agreement dated as certain Release and Settlement Agreement "Minority Participation Agreement") se minority participation in connection,., wit Marketplace and formerly known as WHEREAS, concurrently that certain Fourth Amendha?ent which provides for, am, .o ''atei ".t••.Si. • certain modifications to Rental WHEREAS, City'ar Participation.g Cement as be: tuitions. wi t tive Date") by and between orida ("City") and BAYSIDE successor by merger to Bayside ""`"tkzat~::;certain MinorityParticipation entere � �tQ;<<� p as ertain First Amendment to ed by t o ::o1ober 17, 1985 an as of December 3 foi•,th Developer's obliga the dev`1gpmnet t of the projee de Specialty ',further amended by that 008 (collectively the ions with regard to awn as Bayside and Developer are entering into ;ease Agreement (Retail Parcel) ease term of the Retail Lease and and Amend certain fuia.ncial terms of the Minority , All •capiplized t- •ms used in th . , Amendment shall have the definitions ascribed to such terms in the Minority articipa4tion Agreement or the Retail Lease (as amended from time to time), unless def.e or amended in this Amendment. The term "Minority Participation Agreement" shall re r'to the Mority Participation Agreement, as amended hereby. 2. Founda ion. Cdritnbtitiori, Section 5 : of the Minority Participation Agreement is hereby deleted in its entirety and replaced with t following: Section 5,3 Foundation Contribution. From and after the Effective Date, Developer shall pay a Foundation Contribution in the amount of S350,000 (the "Foundation Contribution") in quarterly installments on the last day of March, June, September and December of each Rental Year during the Lease Term of the 1 -J- 7C-ij Retail Lease. The Foundation Contribution for any partial Rental Year during the Lease Term after the Effective Date shall be prorated based on the number of days in the partial Rental Year against the total number of days in the applicable Rental Year, The Foundation Contribution shall 'increase each Rental Year by two percent (2%) over the Foundation Contribution for the immediately preceding Rental Year commencing with the first CP Adjustment Year for Minimum Base Rental, as provided in e Retail Lease Amendment. Notwithstanding th;oregoing, s .uld the Foundation cease to be a 501(c)(3) tad;=eempt organization, the Foundation Contribution shall either.l((x';''te,placed in an terest bearng escrow account and paid to theAbundat� ix..at su x time as the Foundation shall satisfactorily,; I've to Devafo<pei hat it has qualified as a 501(c)(3) tax-•`'iiipt organization at the ;:n�,;, written request of the City, :a ;;paid to such other i :p# -profit tt,t :•r4 tl k', a:4.:'d.: organization qualified as a 50�'(o)(,) tax- xen►t organizaton which is reasonably acceptable to Derelpp`i' and ' loch has goals p P 'ta,;;:- the ouriciat` pn, he Foundation and ur oses sim I i 1 5 1f t .5, • 1 � 1t1E5h Contribution shall be the onlyxnancial oblrgat:on that Developer shall have to tine Foundation or sic ocher not 'rat organization specified tntn {z)l�ove. Agreement based sot n January 1, 2014 and the Effective 5.3 of the Minority Contribution dation Contribution for 2014 shall be the Retail Parcel for such period. Wherever :rly notice is`. required or per fitted under the Minority Participation :1c1:5. Agreement, such no`t'ic:e. shall b;l writing. Any no 'ice or document required or permitted to be delivered under the 1d �iis z y;.,;P l 'ieipation Agreem nt shall be deemed to be delivered when it is actually received by the de`s'rnated addressee or if earlier and regardless of whether actually received or not, when it is either (i) deposited in t. e United States mail, postage prepaid, certified mail, return receipt requested, or (ii) delivered to the custody of a reputable messenger service or overnight courier service, addressed to the app cable party to whom it is being delivered at the respective address for such party as is set out .elow, or at such other address as such applicable party may have theretofore specified to the delivering party by written notice: 2 If to City at: City of Miami 444 SW 2nd Avenue, 10d' Floor Miami, FL 33130-1910 Attention: City Manager with a copy to: City of Miami. 444 SW 2r,d Avenue, 3rd Floor Miami, FL 33130-1910 Attention: Public Facilities Director. 4. Miscellaneous. If to Developer at: Bayside Marketplace, LL c/o General Growth Pro oerties, Inc. 110 North Wacker Dri ' e Chicago, IL 60606 Attention: Chief L:gal Officer with a copy to: Suite 121''1 Natick, M Attentio place, LLC owth Properties, Inc. er Street 0 John'' f arters (a) Each of, ;ity and DeveloPer here:' c'ackn•' leer ``es and agrees that neither is presently aware of airy ritmum p defaults` b reason of act of omission on the part of the other party under the Lease and that,as of the;`gate of exec tion:='each party has fulfilled all of its duties and. obligations tinder Mtbrity Participation A�, eement to date. (12,) 4 'M1; :. fbx , Ainendnin shall'be, tzue 0i l governed in accordance with the laws of the,;State of Flan da„Venue li.tapy actions Qr .pro eedings between the parties shall be in Miami-D`de. County, F1o44c a. In '"o`dcr to expedite such actions or proceedings the parties knowingly t,n.�.",,voluntarily waive then'`' ght to a jur trial in any such actions or proceedings. Developer and Caty each agxee ;to pay their own orneys fees in connection with any such actions or proceed'in;s. (c) This A exhd e t may be execu ed in any number of counterparts and by the separate parties hereto in separate counterparts, ach of which shall be deemed an original, but all of which shall constitute one and the same instrument. (d) Bach party hereby represents and warrants to the other party that (i) it has the full right and authority to enter into this Am ndnnent, and (ii) this Amendment is a binding and valid document enforceable in accordance wl h its terms. (e) This Amendment shall be deemed a part of, but shall take precedence over and supersede any provisions to the contrary contained in the Minority Participation Agreement, 3 Except as modified hereby, all of the provisions of the Minority Participation Agree ment, which are not in conflict with the terms of this Amendment, shall remain in full force an• effect, and, as • modified hereby, the Minority Participation Agreement is hereby ratified and onfirmed in all respects. (f) This Amendment shall. be binding upon the parties hereto and their respective successors and permitted assigns. [Remainder of Page Left Blank I; 4 )S The foregoing instruMei t was ac lOwledgecl 2014, by IN WITNESS WHEREOF, the parties have executed this Ainendm it as of the Effective Date. ATTEST: By: Print Name:Todd B. Hannon Title:City Clerk APPROVED AS TO LEGAL FORM AND CORRECTNESS: By: Print Name: Victoria Mendez Title:City Attorney STATE OF FLORIDA COUNTYOF MIAMI- : in the capaeity`afol s. Sign Naine:. Print Name: Notary Public THE CITY OF MIAMI, a unicipal corporation of the State of F orida By: Print Name:Daniel J. • fonso Title: City Manager .P''1.(.VE 6"; ' O INSURANCE QUIREME Pi izifi`.Nai�e`;` n-Marie Sham Title:., of the C1; �s :exsona, erector, RiskManagement this day of . Alfonso, the City Manager, and Miami, a Florida municipal corporation, known to me. My Commission Expixe's Serial No. (none if blank): [NOTARIAL SEAL] 5 WITNESSES: By: Print Name: Title: By: Print Name: Title: STATE OF ILLINOIS ) SS.: COUNTY OF COOK The foregoing instrument , 2014, by Marketplace, LLC, in the capacity aforesai Sign Name: Print Name: Notary Pu:l?lzc My Coission Ex [NOTARI L SEAL] ll'c5a;; BAYSIDE MARKETPLACE, ' LC, a Delaware limited liability corn ny By: Print •Nazne: Title: knowledge efore me this day of of Bayside . t t+ st t pez bij: s 6 ersoz 11y known to me. ial No. (none if blank):