HomeMy WebLinkAboutExhibit[EXECUTION VERSION]
AGREEMENT AND LEASE
(Miami Riverside Center)
BY AND BETWEEN
THE CITY OF MIAMI,
a municipal corporation of the State of Florida
AND
LANCELOT MIAMI RIVER, LLC,
a Florida limited liability company
, 2019
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INDEX
Article 1 Property - General Terms of Lease 2
Section 1.1. Lease of Land and Air Rights 2
Section 1.2. Term and Lease Term 2
Section 1.3. Conditions Precedent to Effectiveness of this Agreement 3
Section 1.4. Initial Review Period 3
Section 1.5. Pre -Commencement Period 5
Section 1.6. Conditions Subsequent 8
Section 1.7. Additional Review Period 9
Section 1.8. City's Failure to Vacate 10
Article 2 Definition of Certain Terms 11
Article 3 Minimum Rent 21
Section 3.1. Minimum Rent 21
Section 3.2. Participation Rent 21
Section 3.3. Gross Revenue 22
Section 3.4. City's Right to Verify and Audit Information Submitted 23
Section 3.5. Option Price Advance Payment 24
Section 3.6. Late Payments 24
Section 3.7. Capital Transaction Fee 25
Article 4 Development of Land and Construction of Buildings 25
Section 4.1. Permitted Uses 25
Section 4.2. Development Rights and Phases 25
Section 4.3. Ownership of Improvements 27
Section 4.4. Connection of Buildings to Utilities 28
Section 4.5. Off -site Improvements 28
Section 4.6. Designation of City's Representative 28
Section 4.7. Adjustment of Property 29
Section 4.8. Construction Labor 30
Article 5 Payment of Taxes, Assessments 30
Section 5.1. Developer's Obligations for Impositions 30
Section 5.2. Contesting Impositions 31
Article 6 Surrender 31
Section 6.1. Surrender of Property 31
Section 6.2. Rights to Personal Property After Termination or Surrender 31
Section 6.3. Survival 31
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Article 7 Insurance and Indemnification 32
Section 7.1. Insurance 32
Section 7.2. Indemnification 32
Section 7.3. Waiver of Subrogation 32
Article 8 Operation 33
Section 8.1. Control of Property 33
Section 8.2. Repair and Relocation of Utilities 33
Section 8.3. Rights to Erect Signs; Revenues Therefrom 33
Article 9 Repairs and Maintenance of the Property 34
Article 10 Compliance with Laws and Ordinances 34
Section 10.1. Compliance by Developer 34
Section 10.2. Labor Peace Agreements 35
Section 10.3. Living Wage Requirements 35
Section 10.4. Contest by Developer 35
Article 11 Changes and Alterations to Improvements 36
Article 12 Discharge of Obligations 36
Section 12.1. Developer's Duty 36
Section 12.2. City's Duty 36
Article 13 Use of the Property 36
Section 13.1. Use of Property by Developer 36
Section 13.2. Environmental - Definition of Terms 37
Section 13.3. Developer's Environmental Covenant 37
Section 13.4. Developer's Duty and City's Right of Enforcement Against
Developer and Successor and Assignee 37
Section 13.5. Pre -Existing Conditions 38
Section 13.6. Survival of Obligations 38
Section 13.7. Designation of Buildings by Name 38
Article 14 Entry on the Property by City 38
Section 14.1. Inspection by City of Property 38
Section 14.2. Limitations on Inspection 39
Article 15 Limitation of Liability 39
Section 15.1. Limitation of Liability of City 39
Section 15.2. Limitation of Liability of Developer 39
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Article 16 Damage and Destruction 39
Section 16.1. Restoration After Casualty 39
Section 16.2. Temporary Abatement of Rent 40
Section 16.3. Termination of Agreement 40
Article 17 Transfers and Assignment, Bifurcation of Leasehold Interest under this
Agreement, Integrated Developments, Subleasing, Estoppel Certificates and Other
Interests in Property 40
Section 17.1. Right to Transfer Leasehold 40
Section 17.2. Bifurcation of Leasehold Interest under this Agreement 43
Section 17.3. Master Covenants for Integrated Project 44
Section 17.4. Condominium Restriction During Term 46
Section 17.5. Rights to Sublease and Non -Disturbance to Sublessees and/or
Space Lessees 46
Section 17.6. Estoppel Certificates from City 47
Section 17.7. Waiver of City Lien 47
Section 17.8. No Transfer or Encumbrance of City's Interest 47
Article 18 Financing and Rights of Lenders 47
Section
Section
Section
Section
Section
Section
Section
Section
Section
Section
Section
Section
18.1. Right to Mortgage Leasehold 47
18.2. Right to Pledge Equity Interests 48
18.3. Notice to City of Lender's Interest 49
18.4. Notices to Lender(s) 49
18.5. Termination of Leasehold Estate under this Agreement and New
Lease. 49
18.6. Termination of Leasehold Estate under this Agreement
Sublease
18.7. Other Subleases and Space Leases
18.8. No Subordination or Mortgaging of City's Fee Title
18.9. No Personal Liability
18.10. Priority of Multiple Security Interests
18.11. Further Assurances
18.12. Third Party Beneficiary
and New
51
52
52
52
52
53
53
Article 19 Eminent Domain 53
Section 19.1. Definitions 53
Section 19.2. Effect of Taking 54
Section 19.3. Allocation of Award 54
Section 19.4. Condemnation of Fee Interest 55
Article 20 Default by Developer or City 55
Section 20.1. Events of Default of Developer 55
Section 20.2. Failure to Cure Default by Developer 56
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Section 20.3.
Section 20.4.
Section 20.5.
Section 20.6.
Section 20.7.
Section 20.8.
Section 20.9.
Lender Right to Cure Developer Default 57
Surrender of Property 58
Rights of City After Termination 58
No Waiver by City 58
Events of Default of City 59
Failure to Cure Default by City 59
No Waiver by Developer 59
Article 21 Notices 60
Section 21.1. Addresses 60
Section 21.2. Method of Transmitting Notice 61
Article 22 Quiet Enjoyment 61
Article 23 Certificates by City and Developer
Section 23.1. Developer Certificates
Section 23.2. City Certificates
Article 24 Construction of Terms and Miscellaneous
Section 24.1. Severability
Section 24.2. Captions
Section 24.3. Relationship of Parties
Section 24.4. Recording
Section 24.5. Construction
Section 24.6. Consents
Section 24.7. Entire Agreement
Section 24.8. Successors and Assigns
Section 24.9. Intentionally Deleted
Section 24.10. Holidays
Section 24.11. Schedules/Exhibits
Section 24.12. Brokers
Section 24.13. Protest Payments
Section 24.14. Radon
Section 24.15. Energy -Efficiency Rating Disclosure
Section 24.16. Governing Law
Section 24.17. Counterparts
Section 24.18. Attorneys' Fees
Section 24.19. Waiver of Jury Trial
Section 24.20. Provisions not Merged With Deed
Section 24.21. Exculpation
Section 24.22. Documents Incorporated and Order of Precedence
61
61
62
62
62
62
62
63
63
63
63
63
63
63
64
64
64
64
64
65
65
65
65
65
65
66
Article 25 Representations and Warranties 66
Section 25.1. City's Representations and Warranties 66
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Section 25.2. Developer's Representations and Warranties 66
Article 26 Intentionally Deleted 66
Article 27 Dispute Resolution 66
Section 27.1. Arbitration 66
Section 27.2. Expert Resolution Process 67
Section 27.3. Other Disputes 68
Article 28 Option to Purchase 69
Section 28.1.
Section 28.2.
Section 28.3.
Section 28.4.
Section 28.5.
Section 28.6.
Purchase Option 69
Amendments Upon Closing of an Option 69
Failure to Close 70
Casualty Prior to Closing Under an Option 71
Condemnation Prior to Closing Under an Option 71
Covenant Running with Land 71
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LIST OF EXHIBITS
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit E
Description of Land
Intentionally Deleted
City of Miami Letter to CBRE
Depiction of Parcel to be Conveyed to Adjacent Parcel Owner
Sale/Refinancing Transaction Fee Agreement
LIST OF SCHEDULES
Schedule 1.3
Schedule 7
Schedule 17.2(a)(i)
Schedule 17.5
Schedule 23.2
Schedule 24.4
Schedule 28.1(b)
Confirmation of Date(s) Certificate
Insurance Requirements
Form of Partial Assignment, Bifurcation and Partial Termination of
Leasehold Interests in this Agreement
Form of Recognition and Non -Disturbance Agreement
City's Estoppel Certificate
Memorandum of Agreement and Lease
Form of Purchase and Sale Agreement
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AGREEMENT AND LEASE
(Miami Riverside Center)
THIS AGREEMENT AND LEASE (this "Agreement"), dated as of the day of
, 2019, made by and between the CITY OF MIAMI, a municipal corporation of the
State of Florida, having its principal office and place of business at 444 SW 2nd Avenue, Miami,
FL 33130 ("City"), and LANCELOT MIAMI RIVER, LLC, a Florida limited liability company,
having an office and place of business at 3150 SW 38th Avenue, Suite 500, Coral Gables, FL
33146 ("Developer").
WITNES SETH:
A. City owns certain real property consisting of approximately 3.15 acres of land
located at 444 and 460 SW 2nd Avenue in the City of Miami, Miami -Dade County, Florida, and
commonly known as "Miami Riverside Center", as more particularly described on Exhibit A
attached hereto and made a part hereof, upon which City operates its current administration
building, a parking garage, and an adjacent vacant land parcel. Capitalized terms used herein
(including those used in these Recitals) shall have the definitions and meanings set forth in
Article 2 hereof and/or as elsewhere defined herein.
B. Lancelot Miami River, LLC, a Florida limited liability company, owns certain real
property consisting of approximately 1.59 acres of land located at 230 SW 3rd Street in the City of
Miami, Miami -Dade County, Florida (the "Adjacent Parcel"), upon which Developer's affiliate
intends to develop a mixed -use project. If the development on the Adjacent Parcel includes a
residential component, not less than ten percent (10%) of the dwelling units in such residential
component shall be "work force housing" as described in Miami -Dade County Implementing
Order No. IO 3-60 (Administration of the Workforce Housing Development Program).
C. On February 2, 2016, City issued a competitive solicitation, inclusive of Offering
Memorandum No. 15-16-008 and any related Addenda (collectively, the "OM") for the sale/lease
of the Property, which OM specifically sought the disposition of the Property due to the operational
challenges and deficiencies of the Existing Improvements. Developer submitted a proposal to City
in response to the OM and Developer was recommended as the top -ranked bidder by a selection
committee appointed by the City Manager.
D. On July 26, 2018, the City Commission passed and adopted Resolution No. R-18-
0324, calling for a special election to be held on November 6, 2018, for the purpose of submitting
to the qualified electors of the City of Miami, for their approval or disapproval, the proposed lease
of the Property to Developer with a purchase option, on the terms and conditions set forth in the
ballot question included in the special election, as supplemented by a term sheet negotiated by City
and Developer. The proposed transaction between City and Developer for the Property was
approved by voter referendum by the electorate of the City of Miami on November 6, 2018.
E. On , 2019, the City Commission of the City of Miami passed and
adopted Resolution No. R-19- , authorizing and approving the execution of this Agreement
by City, on the terms and conditions hereinafter set forth.
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F. City desires to lease the Property to Developer and Developer desires to lease the
Property from City, pursuant to and upon the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and of the rent, covenants, and
agreements hereinafter set forth, the parties do hereby covenant and agree that the foregoing
Recitals are true and correct, and further agree as follows:
ARTICLE 1
Property - General Terms of Lease
Section 1.1. Lease of Land and Air Rights. In accordance with (a) the powers
granted to City pursuant to authority properly delegated by the Florida legislature; (b) the Code;
and (c) the authority to lease real property and air rights over real property belonging to City; and,
for and in consideration of the rents, covenants and agreements specified herein, and the easements
reserved unto City, its successors and assigns, City agrees, pursuant to the terms of this Agreement,
and does hereby lease and demise unto Developer, its successors and assigns, and Developer does
hereby take and hire, upon and subject to the conditions and limitations herein expressed, the
Property for and during the Term; to have and to hold the same unto Developer, its successors and
assigns for and during the Term. Developer shall have and hold, exclusively, the development
rights pertaining to the Property, subject to the terms, conditions, covenants and procedures set
forth herein.
Section 1.2. Term and Lease Term.
(a) The term of this Agreement shall commence on the Execution Date and
continue throughout the entire Pre -Commencement Period and end on the last date of the
Lease Term. The term of the leasehold estate under this Agreement shall be a period of
ninety-nine (99) years, commencing on the Commencement Date and ending on the date
that is ninety-nine (99) years thereafter (the "Lease Term"). City and Developer agree that,
despite the Execution Date of this Agreement, the Lease Term shall not commence and
Developer shall not have any right to occupy or possess the Property until the occurrence
of the Commencement Date.
(b) If Developer exercises its right to bifurcate the leasehold estate under this
Agreement pursuant to the terms of Section 17.2, the term of each Bifurcated Lease shall
coincide with the Lease Term, such that each Bifurcated Lease shall commence on the
commencement date thereof and end on the last day of the Lease Term set forth in
Section 1.2(a).
(c) City shall deliver possession of the Property on the Commencement Date
at which time the Lease Term shall commence and Developer may take possession thereof.
City further agrees that during the Initial Review Period, the Additional Review Period and
at other reasonable times upon reasonable advance notice, Developer may enter upon the
Property to perform studies, tests, evaluations and similar type inspections as contemplated
by the terms of Section 1.4 and Section 1.5.
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Section 1.3. Conditions Precedent to Effectiveness of this Agreement. This
Agreement shall not become effective unless and until (i) the City Commission shall have
approved the execution of (A) this Agreement, and (B) the Development Agreement, and (ii) this
Agreement and the Development Agreement have been executed and delivered by City and
Developer. The date on which this Agreement becomes effective as provided herein is called the
"Execution Date" and, upon the Execution Date, this Agreement shall be a binding contract and
agreement between City and Developer. If Developer does not elect to terminate this Agreement
during the Initial Review Period, the Additional Review Period or pursuant to any other right to
terminate provided herein, City shall deliver and Developer shall take possession of the Property
on the first day following the Additional Review Period, which date is referred to herein as the
"Commencement Date". The period from the Execution Date until the Commencement Date shall
be referred to herein as the Pre -Commencement Period. The Execution Date, the MRC Vacation
Date, the Actual MRC Vacation Date, the Commencement Date, the Pre -Commencement Period
and the expiration of the Lease Term will be confirmed in the Confirmation of Date(s) Certificate
in the form attached hereto as Schedule 1.3 upon request of either party following the occurrence
of the Execution Date, the MRC Vacation Date, the Actual MRC Vacation Date, and the
Commencement Date (as applicable). Each party shall respond promptly to any request for a
Confirmation of Date(s) Certificate hereunder. Each Bifurcated Lease shall include a provision
regarding confirmation of the execution date, commencement date and term through a similar
Confirmation of Date(s) Certificate consistent with this provision.
Section 1.4. Initial Review Period. During the Initial Review Period, Developer, its
employees, agents, consultants and representatives, shall be entitled, at Developer's sole cost and
expense, to investigate and evaluate the Property. Such right of investigation shall include the
right to enter the Property, and perform any studies, tests or inspections of the Property as
Developer may deem necessary or appropriate, including without limitation assessments of soil
and subsurface conditions, utility services and environmental audits (including Phase I, Phase II
and any other audit recommended by Developer's environmental consultant), title review, reports
and commitments, and surveys of the Property. City agrees to cooperate reasonably with any such
investigations, tests, samplings, analyses, inspections, studies or meetings made by or at
Developer's direction during the Initial Review Period. If the results of Developer's inspections
reflect site conditions that were not disclosed in writing to Developer or actually known by
Developer prior to the date Developer executes this Agreement, then the following provisions shall
apply:
(a) If, as a result of such site conditions, Developer is not able to develop
Developer's intended Improvements on the Property or any portion thereof as
contemplated in this Agreement, then Developer shall have the right, in its sole discretion,
to terminate this Agreement and its obligations hereunder as to the Property by giving
written notice to City prior to the end of the Initial Review Period, which notice shall
describe in reasonable detail any site conditions that prevent Developer from developing
the Property, and in such event, this Agreement shall terminate as of the date City receives
such notice of termination. In such event, Developer shall provide to City copies of any
reports, studies, tests, and other materials which Developer obtained in connection with its
review of the Property. Developer shall be deemed to have waived its right to terminate
this Agreement pursuant to this Section 1.4(a) if Developer does not notify City of such
termination during the Initial Review Period; and
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(b) If the results of Developer's inspections reflect site conditions that would
require Developer (1) to remediate the Property or any portion thereof (such as, by way of
example and not limitation, remediation of any environmental condition) to develop and
use the Property as contemplated in this Agreement, (2) to increase the scope of
development work or redesign the Project or any portion thereof to address such site
conditions (such as, by way of example and not limitation, the discovery of underground
conditions or facilities that require relocation and/or cannot be relocated), and/or (3) to
incur any other unforeseen cost or suffer any other delays or adverse impacts relative to the
Project or any Phase thereof, and the cost of such remediation or increased scope of work,
or the additional cost of the Project as a result of such redesign and/or other unanticipated
costs or unforeseen conditions (herein, collectively, the "Unanticipated Development
Costs") exceed $150,000 in the aggregate, Developer shall so notify City of the estimated
amount of the Unanticipated Development Costs and City and Developer shall negotiate
in good faith, acting reasonably, appropriate adjustments to the terms of this Agreement
(such as, by way of example and not limitation, additional credits against Rent,
contributions by City to such unanticipated development costs, extensions to the
commencement of Rent, and/or other adjustments to the economic terms of this
Agreement) mutually acceptable to the Parties. If the Parties are unable to achieve a
mutually acceptable agreement in writing with respect to such Unanticipated Development
Costs within sixty (60) days following Developer's initial notice of such costs hereunder,
then Developer shall have the right, in its sole discretion, (x) to terminate this Agreement
and its obligations hereunder as to the Property by giving written notice to City within
fifteen (15) days following the end of such 60-day period, and in such event, the provisions
of Section 1.4(a) with respect to such termination shall apply, or (y) to incur the
Unanticipated Development Costs at Developer's sole cost and expense and proceed with
the transaction contemplated by this Agreement under the terms and conditions set forth
herein. Unanticipated Development Costs shall include hard and soft costs (including
without limitation the cost of remediation plans and/or any redesign of any Improvements)
and may be verified through reasonable documentation evidencing payment of same,
which evidence may include without limitation evidence of paid draw requests, consultant,
architect and/or contractor affidavits or certificates, paid invoices and receipts, and any
other customary evidence of payment (or a combination thereof).
(c) Developer has furnished to Developer's environmental consultant copies
of the environmental records provided to Developer by City for review and inclusion in a
Phase I environmental site assessment report of the Property for Developer in connection
with Developer's investigation and evaluation of the Property. Developer shall cause its
environmental consultant to provide a summary of the environmental conditions at the
Property, including those identified in City's environmental reports on or before the date
such consultant issues the Phase I environmental site assessment report of the Property.
No matters disclosed in the summary of the environmental conditions prepared by
Developer's environmental consultant shall be considered in determining the amount of
Unanticipated Development Cost that Developer will incur with respect to the development
of the Property. For purposes of this Section 1.4, Developer shall be deemed to have
knowledge of matters disclosed in the reports and other written materials provided to
Developer by City prior to the date Developer executes this Agreement, except that, with
respect to the environmental records provided to Developer by City, Developer's
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knowledge shall be limited to the matters disclosed in the summary of environmental
conditions described above.
(d) If this Agreement is terminated by Developer during the Initial Review
Period, City shall reimburse Developer the full amount of the Prepaid Minimum Rent no
later than thirty (30) days following the date of such termination and, upon the City's
delivery of such reimbursement to Developer and the delivery by Developer to City of any
copies of any reports, studies, tests, and other materials which Developer obtained in
connection with its review of the Property, City and Developer shall have no further
obligation of any kind to the other hereunder, except for those obligations hereunder that
expressly survive a termination of this Agreement.
Developer shall indemnify, defend and hold City harmless from and against any and all
damages, mechanics' liens, liabilities and losses to the extent caused by Developer's entry onto
the Property or any inspections performed by Developer thereon during the Initial Review Period
or the Additional Review Period, but expressly excluding any damages, liabilities or losses arising
out of latent defects, the displacement or disturbance of hazardous materials not placed on the
Property by Developer or the discovery of pre-existing conditions. While performing any
inspections on the Property, Developer shall maintain insurance coverage in accordance with
Section I of Schedule 7 attached hereto. Developer acknowledges and agrees that the director of
the City's Risk Management Depaittnent has the right from time to time to make reasonable
revisions to the insurance requirements as set forth in Schedule 7, provided same are consistent
with the insurance required of comparable tenants of City -owned property. If Developer terminates
this Agreement, Developer shall promptly repair any damage caused by Developer's inspections
and restore the Property to its pre -inspection condition, provided that Developer shall have no
obligation to repair or restore any latent or pre-existing condition or any hazardous materials not
placed on the Property by Developer. The indemnity described in this paragraph shall survive any
termination or expiration of this Agreement.
Section 1.5. Pre -Commencement Period. During the Pre -Commencement Period,
the Parties hereby agree as follows:
(a) City shall have the right to continue to use and occupy the Property in the
same manner and for the same purposes as City used and occupied the Property prior to
the Execution Date. Provided Developer has not elected to terminate this Agreement
pursuant to Section 1.4 hereof, City shall vacate the Property in the condition required
under this Article 1 on or before the MRC Vacation Date, failing which the provisions of
Section 1.8 shall apply.
(b) City shall, at City's sole cost and expense, maintain, manage and operate
the Property in the ordinary course of business and in a manner consistent with City's
management practices during the five (5) year period prior to the Execution Date. Without
limitation of the foregoing, City shall (i) maintain and keep the Property and all portions
thereof in the same condition as existed on the Execution Date, reasonable wear and tear
excepted, and (ii) shall be solely responsible for all costs and expenses of any kind or nature
associated with the foregoing, including without limitation capital expenditures, operating
expenses and insurance costs. For the avoidance of doubt, (x) City shall not be required to
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make any material capital expenditures in the Property during the 5-year period described
above; provided, however, that at all times City shall be required to maintain, manage and
operate the Property in compliance with applicable Laws and Ordinances and the other
requirements of this Section 1.5, and (y) Developer shall have no right to or responsibility
for any costs or expenses whatsoever, including, but not limited to, the maintenance, repair,
management or operation of the Property during the Pre -Commencement Period.
(c) City shall continue to maintain insurance in such amounts, providing
such coverages during periods of operation of the Improvements on the Property consistent
with the coverage levels historically maintained prior to the execution of this Agreement;
provided, however, that such insurance may be furnished by City under a blanket policy
carried by it, under a separate policy therefor or under any combination of self-insurance,
primary insurance or umbrella insurance policies carried by City so long as the coverages
required under this provision are provided. Notwithstanding anything herein to the
contrary, any insurance required to be maintained by City hereunder may be maintained in
whole or in part under a commercially reasonable plan of self-insurance or self -insured
retention. Prior to the Execution Date and thereafter from time to time upon Developer's
request, City shall provide Developer with certificates or other satisfactory evidence that
confirms City's maintenance of insurance in compliance with this provision.
(d) There shall be no change in the physical or environmental condition of
the Land or Improvements during the Pre -Commencement Period and, except for repairs
made in the ordinary course of business consistent with City's past practices and in
accordance with Laws and Ordinances, City shall not make any material changes or
alterations to the Existing Improvements.
(e) City shall, immediately upon City obtaining knowledge thereof, provide
Developer with any written notices received from any governmental or quasi -governmental
authorities concerning any violations of any Laws or Ordinances. City shall faithfully
observe and comply with all Laws and Ordinances affecting the Property or any portion
thereof or the use thereof, including without limitation those relating to the correction,
prevention and abatement of unsafe conditions and those relating to the handling and
disposal of hazardous substances and any other environmental concerns.
(f) City shall not lease or rent space or enter into any lease or agreements for
occupancy of the Land or Improvements or any portion thereof or otherwise create any
rights of occupancy or possession in the Land or Improvements during the
Pre -Commencement Period that would extend into the Lease Term, whether through a new
lease or agreement or the modification or amendment of any existing lease or agreement.
All leases or other agreements providing rights of use, occupancy or possession of any
portion of the Property shall be terminated no later than the Actual MRC Vacation Date,
and all tenants, licensees and other parties of the Land or Improvements shall vacate and/or
be removed from the Property on or before the Actual MRC Vacation Date, such that the
Property shall be delivered to Developer on the Commencement Date vacant and free and
clear of all such, leases and other agreements and the rights of any tenants, licensees and
other parties thereunder.
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(g) City shall not enter into any security, maintenance, pest control, trash
removal, equipment leases and any other service contracts (or any modifications or
amendments to existing service contracts) with respect to or affecting the Land or
Improvements or any portion thereof that would remain in effect following the
Commencement Date. All service contracts of any kind or nature relating to the Land or
Improvements or any portion thereof shall be terminated on or before the Actual MRC
Vacation Date.
(h) City shall not encumber title to the Land or Improvements (or any portion
thereof) with any liens, charges, easements, restrictions, covenants or other encumbrances
of any kind or nature whatsoever (or allow same to be so encumbered). If any mechanic's
lien or other lien is filed against the Property or any portion thereof, City will discharge
same of record no later than the later of (i) thirty (30) days after filing thereof, or (ii) the
MRC Vacation Date, failing which Developer may be discharge the same of record by
payment, bonding or otherwise, as Developer may elect, and Developer shall have the right
to offset against Minimum Rent all costs and expenses incurred by Developer in connection
therewith.
(i) City shall not transfer any development rights pertaining to the Property
to any other party or property, other than to Developer as contemplated by this Agreement.
(j) If the Existing Improvements shall be damaged by fire or other casualty,
City shall promptly notify Developer of such damage, shall properly secure the damaged
Existing Improvements to a safe condition in compliance with Laws and Ordinances, and
shall, at its sole option, after settling its insurance claim (if any), either (i) restore or rebuild
the Existing Improvements to the condition that existed prior to the casualty with such
alterations as City shall determine to make, and/or replace the Existing Improvements with
such other improvements as City shall determine to make, provided same shall be in
compliance with all Laws and Ordinances, or (ii) raze the Existing Improvements, remove
the foundations, fill the site with dirt covered with topsoil and leave it as a level, safe vacant
lot, and surrender the Property to Developer (in the condition required by Article 1 of this
Agreement on the MRC Vacation Date) within one hundred and eighty (180) days
following the casualty. City shall notify Developer of its election within ninety (90) days
after the occurrence of the casualty. If City elects to proceed under clause (ii) above, the
date City is required to surrender the Property shall be deemed the Outside Date and the
MRC Vacation Date. After settling its insurance claim (if any), City shall proceed with
reasonable diligence to perform the work it has elected to perform hereunder to completion,
at its sole cost and expense, and all such work shall be carried out in accordance with the
terms of this Agreement and applicable Laws and Ordinances. City shall have the sole
right and authority to adjust and/or settle any insurance claims and receive any insurance
proceeds from a casualty during the Pre -Commencement Period. Notwithstanding
anything herein to the contrary, if the parking garage located on the Property sustains any
damage as a result of any casualty and City elects to raze the parking garage under
clause (ii) above, then Developer, by notice to City no later than sixty (60) days following
receipt of notice of City's election under this provision, may elect to accept the parking
garage in the damaged condition, whereupon City shall not raze the parking garage and
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Developer shall, on the Commencement Date, accept the parking garage in its then current
condition and assume all risks with respect to same.
(k) Intentionally omitted.
(1) During the Pre -Commencement Period, City and Developer shall not be
deemed principal and agent, landlord and tenant, sublandlord and subtenant, or parties to a
partnership, joint venture or association of any kind by virtue of this Agreement.
Accordingly, this Agreement creates (i) a contract between the Parties governing their
respective rights and obligations during the Pre -Commencement Period, and (ii) a lease
between the Parties (as landlord and tenant) automatically effective as of the
Commencement Date through the end of the Lease Term pursuant to the terms hereof.
During the Pre -Commencement Period, City shall remain the legal and equitable owner of
the Property and does not intend to nor does it grant Developer an equitable ownership
interest in the Property. It is the intent of the Parties hereto that City retains all of the
benefits and burdens of ownership in the Property during the Pre -Commencement Period.
(m) The following provisions of this Agreement shall not apply until the
Commencement Date occurs: Article 3 (except Section 3.1(a)(i)), Articles 4 through 14
(inclusive), Articles 16 through 19 (inclusive), Article 20, Section 24.3, and Article 28.
Section 1.6. Conditions Subsequent. This Agreement is subject to the following
conditions subsequent:
(a) City and Developer acknowledge and agree that the rights, duties and
obligations of the Parties provided for in this Agreement have been negotiated based upon
the anticipated rezoning of the Land as contemplated by Developer's response to the OM
and the Term Sheet (the "Rezoning"). As such, City shall use reasonable efforts to apply
for, support and expeditiously have considered the Rezoning by no later than March 1,
2020; provided, however, if City has not achieved the Rezoning by such date, then so long
as City is diligently and in good faith attempting to achieve the Rezoning, then City shall
have such additional time as may be reasonably necessary to achieve the Rezoning, not to
exceed an additional period of ten (10) calendar months (i.e., until January 1, 2021). If
City is unable to achieve the Rezoning by January 1, 2021, then Developer shall have the
right, in its sole discretion, to terminate this Agreement and its obligations hereunder as to
the Property by giving written notice to City no later than fifteen (15) days after such date,
and in such event, this Agreement shall terminate as of the date City receives such notice
of termination. Developer shall be deemed to have waived its right to terminate this
Agreement pursuant to this Section 1.6(a) if Developer does not notify City of such
termination within said 15-day period. If this Agreement is terminated by Developer under
this Section 1.6(a), City shall reimburse Developer the full amount of the Minimum Rent
paid by Developer for the first year of the Lease Term (including the Prepaid Minimum
Rent and the second installment of Minimum Rent paid under Section 3.1(a)(ii), if paid
prior to termination) no later than thirty (30) days following the date of such termination.
(b) City and Developer acknowledge and agree that the rights, duties and
obligations of the Parties provided for in this Agreement are conditioned upon, by no later
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than September 1, 2020, (i) the closing of the transfer of title to a portion of the Adjacent
Parcel upon which the New City Facility Project will be constructed for the City pursuant
to the Agreement of Sale attached to the Development Agreement as Exhibit "F", and (ii)
the release from this Agreement and the Sale Refinancing Transaction Fee Agreement
attached hereto as Exhibit E (if applicable) of the portion of the Land more particularly
depicted on Exhibit D attached hereto, which is necessary to facilitate the construction of
the New City Facility Project, whereupon such portion of the Land shall no longer be
included in the Property subject to this Agreement without the need for further action or
agreement of the Parties. If title to such land has not been transferred to City or released
from this Agreement as hereinabove provided (as applicable) by such date, then, unless the
Parties mutually agree to extend such date, either Party shall have the right, in its sole
discretion, to terminate this Agreement and its obligations hereunder as to the Property by
giving written notice to the other Party no later than fifteen (15) days after such date, and
in such event, this Agreement shall terminate as of the date provided in such notice of
termination. Each Party shall be deemed to have waived its right to terminate this
Agreement pursuant to this Section 1.6(b) if it does not notify the other Party of such
termination within said 15-day period. If this Agreement is terminated by either Party
under this Section 1.6(b), City shall reimburse Developer the full amount of the Minimum
Rent paid by Developer for the first year of the Lease Term (including the Prepaid
Minimum Rent and the second installment of Minimum Rent paid under Section 3.1(a)(ii),
if paid prior to termination) no later than thirty (30) days following the date of such
termination.
Section 1.7. Additional Review Period. During the Additional Review Period,
(i) upon Developer's request, the Parties shall conduct a walkthrough inspection of the Land and
Improvements to confirm that City is in compliance with the operational covenants set forth in
Section 1.5 in all material respects, and (ii) Developer, its employees, agents, consultants and
representatives, shall be entitled, at Developer's sole cost and expense, to update any studies, tests
or inspections of the Property conducted by Developer during the Initial Review Period, as
Developer may deem necessary or appropriate, including without limitation updating assessments
of soil and subsurface conditions, utility services and environmental audits (including Phase I,
Phase II and any other audit recommended by Developer's environmental consultant), title review,
reports and commitments, and surveys of the Property. City agrees to cooperate reasonably with
any such investigations, tests, samplings, analyses, inspections, studies or meetings made by or at
Developer's direction during the Additional Review Period. If the results of Developer's
additional inspections reflect site conditions that were not known by Developer or reasonably
discoverable by Developer during the Initial Review Period and the cost to correct or remediate
any such site conditions exceed $150,000.00 in the aggregate, Developer shall have the same rights
and remedies with respect to such site conditions as those set forth in Section 1.4; provided,
however, that if any new site condition is the result of City's failure to comply with any covenant
or agreement of City set forth in Section 1.5 in any material respect, then the following provisions
shall apply:
(a) City shall, at no expense to Developer, repair, correct, cure, remediate
and/or take such other action as may be necessary to restore the Property to the condition
that existed at the end of the Initial Review Period (as previously repaired, corrected, cured,
remediated or restored, if applicable). City agrees that it shall commence, perform and
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ACTIVE 19926268v13
complete all such work in compliance with all Laws and Ordinances with commercially
reasonable diligence and as soon as reasonably practicable, pursuant to a time schedule to
be mutually agreed to by the Parties and using consultant and other licensed and insured
contractors approved by Developer. Notwithstanding the foregoing, City shall not be
obligated to repair, correct, cure, remediate and/or take such other action as may be
necessary to restore the Property to the extent that any new site condition was caused by
any construction activities on the Adjacent Parcel.
(b) City's work under this provision shall not be discharged until City has
fully repaired, corrected, cured, remediated and/or otherwise restored the Property as
required herein, without condition or controls from any governmental authority or other
third party, restored the affected portions of the Property to a good and safe condition in
full compliance with all applicable Laws and Ordinances and vacated the Property as
required herein. As part of the obligations of City under this provision, City shall provide
Developer with customary and satisfactory evidence (e.g., with respect to environmental
remediation, a "no further action" determination without conditions or engineering controls
from each governmental authority with jurisdiction over the matter, except reasonable
conditions and engineering controls that do not affect, in any material respect, Developer's
ability to develop the Property) that City has fully satisfied all obligations under this
Section in compliance with all applicable Laws and Ordinances promptly following
completion of same.
(c) At Developer's option, the Additional Review Period shall be extended
until the date City's work under this Section is fully satisfied, provided that if Developer
does not elect to so extend the Additional Review Period, the Parties shall work together
in good faith to develop and implement a plan that coordinates Developer's use and
development of the Property with City's performance of its work hereunder without (or
with minimal) interference between the work of the Parties.
(d) Developer shall not be responsible under this Agreement for any claims,
losses or damages, administrative and judicial proceedings and orders, judgments, or other
remedial action requirements, or enforcement actions of any kind, and/or any costs and
expenses incurred in connection therewith, arising out of any site conditions existing at the
Property as of the Commencement Date that are required to be cured, corrected, remediated
or restored by City under this provision or any other provision of this Agreement.
If this Agreement is terminated by Developer during the Additional Review Period, City
shall reimburse Developer the full amount of the Minimum Rent paid by Developer for the first
year of the Lease Term (including the Prepaid Minimum Rent and the second installment of
Minimum Rent paid under Section 3.1(a)(ii), if paid prior to termination) no later than thirty (30)
days following the date of such termination.
Section 1.8. City's Failure to Vacate. The Parties anticipate that the Actual MRC
Vacation Date will occur prior to the Outside Date, such that Developer will obtain possession of
the Property for the uses and purposes contemplated herein no later than the Outside Date (and the
Parties have negotiated this Agreement based upon such expectation). Accordingly, if the Outside
Date occurs prior to the Actual MRC Vacation Date, the Parties agree that Developer's actual
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damages would be impracticable or extremely difficult to measure. The Parties therefore agree
that, in such event, Developer, as Developer's sole remedy, shall be entitled to ascertainable
damages in the amount of the Liquidated Damages. The Parties agree that the amount of the
Liquidated Damages is a fair and reasonable estimate of the total detriment that Developer would
suffer in the event the Actual MRC Vacation Date has not occurred prior to the Outside Date. As
used herein, the term "Liquidated Damages" means the sum of $2,000,000.00 per year or any
portion thereof, subject to annual adjustment and increase equal to one and one-half percent (1.5%)
per annum, commencing on the first anniversary of the Outside Date and each anniversary of the
Outside Date thereafter. Liquidated Damages shall be paid by City to Developer annually, in
advance, on the Outside Date and each anniversary thereof until the Actual MRC Vacation Date.
In the event that payment of Liquidated Damages due Developer shall remain unpaid for a period
of twenty (20) days beyond the applicable due date, (i) interest at the Default Rate shall accrue
against the delinquent payment from the original due date until paid, (ii) Developer shall have all
rights and remedies afforded by law for enforcement and collection of the Liquidated Damages,
and (iii) if Liquidated Damages remain unpaid after the Commencement Date, Developer may
offset any unpaid Liquidated Damages against Minimum Rent due under this Agreement until
fully credited. Liquidated Damages shall be paid to Developer at the address specified herein for
notice to Developer. Upon request, City shall provide Developer with a Consumer Certificate of
Exemption (Form DR-14) from the Florida Depaittnent of Revenue evidencing that City is exempt
from sales tax in the State of Florida (the "Exception Certificate"). If City fails to provide
Developer with the Exemption Certificate within thirty (30) days of Developer's request, City shall
be required to immediately pay sales tax on the Liquidated Damages to the Florida Department of
Revenue, failing which (a) Developer shall have the right (but not the obligation) to pay such sales
tax to the Florida Depatttnent of Revenue on the City's behalf, and (b) Developer shall be entitled
to a credit against Minimum Rent in the amount of the sales tax so paid by Developer on the City's
behalf until fully credited. Any and all cost incurred by Developer in connection with the
enforcement of its rights under this paragraph (excluding attorneys' fees and costs) shall be added
to and included in Liquidated Damages. If the Actual MRC Vacation Date has not occurred by
the earlier of (a) the date that is sixty (60) days following the MRC Vacation Date, or (b) January
1, 2026, then such failure shall be deemed an Event of Default of City (with no right to notice or
an opportunity to cure) and, in addition to the Liquidated Damages, Developer shall have any and
all rights and remedies available under this Agreement, at law and in equity, including without
limitation the right to eject City from the Property.
ARTICLE 2
Definition of Certain Terms
In addition to other capitalized terms as defined in the introductory Recitals or elsewhere
in this Agreement, the terms set forth below, when used in this Agreement (whether before or after
this Article), shall be defined as follows:
(a) Acceptable Developer shall have the meaning ascribed to such term in
Section 17.1.
(b) Actual MRC Vacation Date shall mean the date that City actually vacates
the Property in the condition required by Article 1.
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(c) Additional Review Period shall mean the ninety (90) day period
commencing on the first day after the Actual MRC Vacation Date, as may be extended
pursuant to Section 1.7(c) of this Agreement.
(d) Adjacent Parcel shall have the definition as set forth in the Recitals.
(e) Affiliate or Affiliated Person shall mean, when used with reference to a
specified Person:
(i) any Person that, directly or indirectly, through one or more
intermediaries, Controls or is Controlled by or is under common Control with
the specified Person;
(ii) any Person that, directly or indirectly, is the beneficial owner (herein
a "beneficial owner") of ten percent (10%) or more of any stock, partnership
interest or member interest of, or other beneficial interest in, the specified Person
or Controls the specified Person;
(iii) any Person in which the specified Person is, directly or indirectly,
the beneficial owner of ten percent (10%) or more of any stock, partnership
interest or members interest of, or other beneficial interest in, such Person or
Controls such Person; and
(iv) any Person in which any beneficial owner (as defined in clause (ii)
above) is, directly or indirectly, the beneficial owner of ten percent (10%) or
more of any stock, partnership interest or members interest of, or other beneficial
interest in, such Person or Controls such Person.
(f) Agreement shall mean this Agreement (including all Exhibits and
Schedules) and all amendments, replacements, supplements, addenda or renewals thereof.
(g) Bifurcated Lease shall have the meaning ascribed to such term in
Section 17.2(a).
(h) Building(s) shall mean the buildings or structures (as the context
indicates) and other Improvements now existing or hereafter erected on, above, or below
the Property or a portion thereof (including any replacements, additions and substitutes
thereof).
(i)
of Florida.
a)
Florida.
City shall mean the City of Miami, a municipal corporation of the State
City Commission shall mean the City Commission of the City of Miami,
(k) City Manager shall mean the City Manager for the City of Miami.
(1) Claims shall have the meaning ascribed to such term in Section 7.2.
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(m) Clean Up shall have the meaning ascribed to such term in Section 13.2(c).
(n) Closing Date shall have the meaning ascribed to such term in
Section 28.1(a).
(o) Code shall mean the Code of Ordinances of the City of Miami, Florida,
as amended from time to time.
(p) Commencement Date shall mean the first day after the Additional
Review Period, on which date City shall deliver and Developer shall take possession of the
Property as provided in Section 1.3.
(q) Commencement of Construction and "commenced" when used in
connection with construction of any Phase shall mean that vertical construction has
commenced on the site of such Phase and reached at least the second floor slab of the
proposed structure, but excluding any work or filings related to the maintenance or repair
of the Existing Improvements.
(r) Control (and grammatical variations thereof) means, as applied to any
Person, the possession, directly or indirectly, of the power to direct or cause the direction
of the management and operation of such Person or the day-to-day management of such
Person, whether through the ownership of voting securities or other ownership interests,
by contract or otherwise.
(s) County and Miami -Dade County shall mean Miami -Dade County, a
political subdivision of the State of Florida.
(t) Date of Taking shall have the meaning ascribed to such term in section
19.1(c).
(u) Default Rate shall mean the lesser of (i) an interest rate equal to six
percent (6%) per annum, or (ii) the maximum rate permitted by law.
(v) Developer shall mean, on the Execution Date, Lancelot Miami River,
LLC, a Florida limited liability company. Thereafter, "Developer" shall mean the owner(s)
at the time in question of Developer's interest under this Agreement.
(w) Development Agreement shall mean that certain Development
Management & Construction Agreement dated of even date herewith, by and between City
and Lancelot Miami River, LLC, a Florida limited liability company, as development
manager, as may be amended, modified or assigned, with respect to the site selection,
design, permitting, financing and construction of the new City of Miami Administration
Building, parking facilities and related improvements.
(x) Environmental Laws shall have the meaning ascribed to such term in
Section 13.2(b).
(y) ERP shall have the meaning ascribed to such term in Section 27.2(a).
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(z) ERP Dispute or ERP Disputes shall have the meaning ascribed to such
term in Section 27.2.
(aa) ERP Notice shall have the meaning ascribed to such term in Section
27.2(a).
(bb) Event(s) of Default shall have the meaning ascribed to such term in
Section 20.1 (as to Events of Default of Developer) and Section 20.7 (as to Events of
Default of City), as the context dictates.
(cc) Exception Certificate shall have the meaning ascribed to such term in
Section 1.8.
(dd) Execution Date shall mean the date on which this Agreement shall
become effective as provided in Section 1.3.
(ee) Existing Improvements shall mean the buildings, structures and other
improvements and appurtenances existing upon the Land as of the Execution Date,
including, without limitation, City's administration building and related parking garage.
(ff) Expert shall have the meaning ascribed to such term in Section 27.2(f).
(gg) Gross Revenue shall have the meaning ascribed to such term in
Section 3.3.
(hh) Hazardous Materials shall have the meaning ascribed to such term in
Section 13.2(a).
(ii) Hospitality Operations shall have the meaning ascribed to such term in
Section 10.2
(jj) Impositions shall mean all ad valorem taxes, special assessments, sales
taxes and other governmental charges and assessments levied or assessed with respect to
the Property and the activities conducted thereon or therein.
(kk) Improvements shall mean the Existing Improvements, together with the
Buildings, parking areas, parking garages, above and below surface improvements,
utilities, utility lines and appurtenant equipment, vaults, infrastructure and other
improvements to be developed and constructed on, above or below the Property or a portion
thereof, and all fixtures located or to be located therein which are owned by Developer
(including any replacements, additions and substitutes thereof) as part of the Project on the
Property. If this Lease terminates with respect to any Phase of the Project, or any Phase is
otherwise released from the terms and conditions of this Agreement, then, as used herein,
the term "Improvements" shall exclude the applicable Phase.
(11) Initial Phase shall have the meaning ascribed to such term in
Section 17.2(a).
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(mm) Initial Review Period shall mean the period commencing on the
Execution Date and ending on the date that is ninety (90) days after the Execution Date or
earlier termination of this Agreement.
(nn) Initiating Party shall have the meaning ascribed to such term in Section
27.2(a).
(oo) Labor Peace Agreement shall have the meaning ascribed to such term in
Section 10.2.
(pp) Land shall mean the real property described in Exhibit A attached hereto,
which is the real property owned by City and described on Exhibit A, provided that the
Land shall exclude the portion of the Land depicted on Exhibit D attached hereto upon
conveyance thereof to the owner of the Adjacent Parcel pursuant to Section 1.6(b)(ii).
(qq) Land Value shall mean an amount equal to $69,400,000.00, provided that
commencing on the tenth (loth) anniversary of the Commencement Date, the Land Value
shall mean an amount equal $69,400,000.00 increased by two percent (2%) (i.e., multiplied
by 1.02), and on each anniversary of the Commencement Date thereafter for the remainder
of the Term, the Land Value shall mean an amount equal to the Land Value for the
immediately preceding year increased by two percent (2%) (i.e., multiplied by 1.02),
subject to reduction as set forth in Section 28.2.
(rr) Laws and Ordinances or Laws or Ordinances shall mean all present and
future applicable laws, ordinances, rules, regulations, authorizations, orders and
requirements of all federal, state, county and municipal governments, the departments,
bureaus or commissions thereof, authorities, boards or officers, any national or local board
of fire underwriters, or any other body or bodies exercising similar functions having or
acquiring jurisdiction over all or any part of the Property.
(ss) Lease Term shall have the meaning ascribed to such term in Section 1.2.
(tt) Lease Year shall mean each separate and consecutive period of
twelve (12) full calendar months beginning upon the first day of the first month following
the Commencement Date and upon each anniversary of such date thereafter, provided that
Developer may, with the written consent of City, cause the Lease Year to be a calendar
year. The first Lease Year shall include any partial month (and, if Lease Years are adjusted
to coincide with calendar years, any partial year) at the beginning of the Lease Term,
anything herein to the contrary notwithstanding.
(uu) Leasehold Mortgage shall mean a mortgage or mortgages or other similar
security agreements given to any Leasehold Mortgagee of the leasehold interest of
Developer hereunder, and shall be deemed to include any mortgage or trust indenture under
which this Agreement shall have been encumbered, as modified, amended, restated,
renewed and consolidated from time to time.
(vv) Leasehold Mortgagee shall mean a Lender holding a Leasehold
Mortgage.
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ACTIVE 19926268v13
(ww) Lender shall mean a Federal or State bank, savings bank, association,
savings and loan association, credit union, commercial bank, foreign banking institution,
trust company, family estate or foundation, insurance company (whether foreign or
domestic), pension fund, an institutional investor such as a publicly held real estate
investment trust, an entity that qualifies as a "REMIC" under the Internal Revenue Code
of 1986, as amended, or other public or private investment entity; a brokerage or
investment banking organization; an employees' welfare, benefit, pension or retirement
fund; an institutional leasing company; an entity qualified to provide funding under the
EB-5 program pursuant to USCIS (United States Citizenship and Immigration Service)
guidelines; any governmental agency or entity insured by a governmental agency or similar
institution authorized to take mortgage loans in the State of Florida, in all events whether
acting individually or in a fiduciary or representative capacity (such as an agency capacity),
or any combination of Lenders. The term Lender also includes (x) a Person that is
controlled by, controls or is under common control with a Lender as described in this
paragraph, (y) any Person which is a party to a bond financing, as the initial purchaser or
indenture trustee of a bond, certificate, warrant or other evidence of indebtedness, or any
fiduciary of such issuer, owner or holder, or any provider of credit enhancement and/or
liquidity support for such indebtedness, and/or (z) any Person providing purchase money
financing in connection with a sale, assignment or transfer of this Agreement or any interest
herein. References to Lender under this Agreement shall mean an entity or entities meeting
the above definition that is a Leasehold Mortgagee or a Subleasehold Mortgagee or a
Mezzanine Financing Source (or any combination thereof).
(xx) Liquidated Damages shall have the meaning ascribed to such term in
Section 1.8.
(yy) Master Covenants shall mean those certain covenants, conditions,
restrictions and easements for the Project to be recorded in the Public Records of
Miami -Dade County, Florida, which, inter alia, will govern the relationship of some or all
of the Phases of the Project and/or portions of the Project leased pursuant to this Agreement
and/or the Bifurcated Leases; govern the use of certain components of the Property (which
may include, without limitation, walkways, promenades, driveways, parking facilities,
park areas, project -wide lighting and signage, and other shared components, areas and
facilities) shared by some or all of the Property leased pursuant to this Agreement and/or
the Bifurcated Leases; establish easements for access, pedestrian and vehicular ingress and
egress, utilities, structural support, encroachments, loading areas and other common
property easements; address landscaping, maintenance and repairs of shared facilities, and
financial contributions by each Phase of the Project and/or portions of the Project leased
pursuant to this Agreement and any Bifurcated Leases to cover the cost of the foregoing;
and establish certain maintenance and use standards with respect to the Property, as
modified, amended, restated, supplemented and extended from time to time.
(zz) Mezzanine Financing shall mean a loan or equity investment made by the
Mezzanine Financing Source to provide financing or capital for the Project or any portion
thereof, which shall be subordinate to the first Leasehold Mortgage and may be secured
by, inter alia, a Mortgage and/or a pledge of any direct or indirect equity or other ownership
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ACTIVE 19926268v13
interests in Developer or a Sublessee or structured as a preferred equity investment with
"mezzanine style remedies", the exercise of which would result in a change of control.
(aaa) Mezzanine Financing Source shall mean a Lender or preferred equity
investor selected by Developer or a Sublessee to provide Mezzanine Financing.
(bbb) Minimum Rent shall have the meaning ascribed to such term in
Section 3.1.
(ccc) Mortgage or Mortgages shall mean Leasehold Mortgage(s) or
Subleasehold Mortgage(s) (or both) as the context dictates.
(ddd) Mortgagee or Mortgagees shall mean Leasehold Mortgagee(s) or
Subleasehold Mortgagee(s) (or both) as the context dictates
(eee) Move in Ready shall mean the later of the date that (i) the New City
Facility Project has been substantially completed in accordance with the Development
Agreement and has received a temporary certificate of occupancy, and (ii) all material
punch -list items that would otherwise unreasonably interfere with the ability of the City to
safely and lawfully occupy and operate the New City Facility Project in the ordinary course
of business have been substantially completed.
(fff) MRC Vacation Date shall mean the date that is thirty (30) days following
the date the New City Facility Project is Move in Ready.
(ggg) New City Facility Project shall have the meaning ascribed to such term
in the Development Agreement.
(hhh) OM shall have the meaning ascribed to such term in the Recitals.
(iii) Option or Options shall have the meaning ascribed to such term in
Section 28.1.
(jjj) Option Price shall mean either (i) with respect to the acquisition of the
entire Property under this Agreement as of the date of the Purchase Option Notice, an
amount equal to the Land Value, subject to credits and adjustments as provided for in the
Purchase and Sale Agreement; or (ii) with respect to the acquisition of only a portion of
the Property under this Agreement as of the date of the Purchase Option Notice, an amount
equal to one hundred ten percent (110%) of the Land Value multiplied by a fraction, the
numerator of which is the square footage of the Land being acquired under such Option
and the denominator of which is the square footage of all of the Land subject to this
Agreement at the time of the Purchase Option Notice, subject to credits and adjustments as
provided for in the Purchase and Sale Agreement.
(kkk) Option Price Advance Payment shall have the meaning ascribed to such
term in Section 3.5.
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(111) Option Purchase Deposit shall have the meaning ascribed to such term in
Section 28.1(b).
(mmm)Outside Date shall mean the date that is thirty (30) days following the
third (3rd) anniversary of the Execution Date; provided, however, that, so long as City is
not in default under this Agreement beyond applicable notice and cure periods (if any),
City shall have the right to extend the Outside Date for two (2) additional periods of one
(1) year each (for a total of five (5) years following the Execution Date), by providing
written notice to Developer of City's election to so extend the Outside Date no later than
six (6) months prior to the Outside Date (as previously extended, if applicable). Such
election to extend may be made at the option of the City Manager or his/her designee. In
the event City fails to timely extend the Outside Date in accordance with this provision,
whether due to City's oversight, failure to cure existing defaults or otherwise, such right to
extend (and any remaining rights to extend) shall be deemed waived. In no event shall the
Outside Date extend beyond the fifth (5th) anniversary of the Execution Date.
(nnn) Partial Taking shall have the meaning ascribed to such term in Section
19.1(b).
(000) Participation Rent shall have the meaning ascribed to such term in
Section 3.3.
(ppp) Party or Parties (whether or not by use of the capitalized term) shall mean
jointly or individually (as the context dictates) City and Developer.
(qqq) Permit shall mean any permit issued or to be issued by the appropriate
governmental agency and/or department, including but not limited to applicable permits
for construction, demolition, installation, foundation, dredging, filling, the alteration or
repair or installation of sanitary plumbing, water supply, gas supply, electrical wiring or
equipment, elevator or hoist, HVAC, sidewalk, curbs, gutters, drainage structures, paving
and the like.
()
Permitted Uses shall mean any lawful uses or purposes.
(sss) Person (whether or not by use of the capitalized term) shall mean any
natural person, trust, firm, partnership, corporation, limited liability company, joint
venture, association or any other legal or business entity or investment enterprise.
(ttt) Phase or Phases shall have the meaning ascribed to such term(s) in
Section 4.2.
(uuu) Pre -Commencement Period shall mean the period from the Execution
Date until the Commencement Date as provided in Section 1.3.
(vvv) Prepaid Minimum Rent shall have the meaning ascribed to such term in
Section 3.1(a).
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(www) Pre -Phase 1 Transfer shall have the meaning ascribed to such term in
Section 17.1.
(xxx) Project shall mean the overall development of the Buildings and other
Improvements on the Land, in one or more Phases, as contemplated by this Agreement. If
this Agreement terminates with respect to any Phase of the Project, or any Phase is
otherwise released from the terms and conditions of this Agreement, then, as used herein,
the term "Project" shall exclude the applicable Phase.
(yyy) Property shall mean, collectively:
(i) The Land containing approximately 137,157 square feet; however,
following the conveyance of the portion of the Land depicted on Exhibit D to the
owner of the Adjacent Parcel pursuant to Section 1.6(b)(ii), the Land shall
contain approximately 135,157 square feet;
(ii) The Improvements and any other improvements now or hereafter
existing on the Land;
(iii) The airspace above the Land; and
(iv) The subsurface rights under the Land, sidewalks, Improvements,
streets, avenues, curbs and roadways comprising or abutting the Land, and all
rights of ingress and egress thereto, excluding those subsurface rights hereinafter
expressly reserved to City.
(zzz) Purchase and Sale Agreement shall have the meaning ascribed to such
term in Section 28.1(b).
(aaaa) Purchase Option Notice shall have the meaning ascribed to such term in
Section 28.1(a).
27.2(a).
(bbbb) Recipient Party shall have the meaning ascribed to such term in Section
(cccc) Rent shall mean, collectively, Minimum Rent and Participation Rent.
(dddd) Rezoning shall have the meaning ascribed to such term in Section 1.6(a).
(eeee) Space Lease shall mean a lease (other than this Agreement or a Bifurcated
Lease), sublease, license or other agreement between Developer or a Sublessee and a third
party for the use or occupancy of space on or within the Property.
(ffff) Space Lessee shall mean the tenant/lessee, subtenant/sublessee, or
licensee, or their successors or assigns, under a Space Lease.
(gggg) Sublease shall mean any instrument pursuant to which all or a portion of
the Property is subleased or sub -subleased, including but not limited to a grant by
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Developer to a Sublessee for the right to develop a specific Phase(s) of the Project, but
expressly excluding any Space Leases.
(hhhh) Subleasehold Mortgage shall mean a mortgage or mortgages or other
similar security agreements given to any Subleasehold Mortgagee encumbering the
subleasehold interest of a Sublessee under a Sublease, and shall be deemed to include any
mortgage or trust indenture under which any Sublease shall have been encumbered, as
modified, amended, restated, renewed and consolidated from time to time.
(iiii) Subleasehold Mortgagee shall mean a Lender holding a Subleasehold
Mortgage.
Cljjj )
Sublessee shall mean the entity to which a Sublease is granted or its
successors or assigns under any such Sublease.
(kkkk) Term Sheet shall have the meaning ascribed to such term in
Section 24.22.
(1111) Total Taking shall have the meaning ascribed to such term in Section
19.1.
(mmmm) Unanticipated Development Costs shall have the meaning ascribed
to such term in 1.4(b).
(nnnn) Unavoidable Delays shall mean delays beyond the control of a party
required to perform, such as (but not limited to) delays due to strikes; slowdowns; lockouts;
acts of God; floods; fires; unusually severe weather conditions (such as tropical storms or
hurricanes); casualty; any act, neglect or failure to perform of or by one Party that caused
the other Party to be delayed in the performance of any of its obligations hereunder; war;
enemy action; civil disturbance; acts of terrorism; sabotage; restraint by court or public
authority; litigation or administrative challenges by third parties to the execution or
performance of this Agreement or the procedures leading to its execution; inability to
obtain labor or materials; delays in settling insurance claims; moratoriums or other delays
relating to Laws and Ordinances; and/or delays due to site conditions discovered during
the Initial Review Period under Section 1.4 or the Additional Review Period under
Section 1.7; and/or delays due to unknown site conditions discovered after the
Commencement Date (e.g., Indian burial grounds or other protected archeological
conditions). The obligated party shall be entitled to an extension of time because of its
inability to meet a time frame or deadline specified in this Agreement where such inability
is caused by an Unavoidable Delay, provided that such party shall, within thirty (30) days
after it has become aware of such Unavoidable Delay, give notice to the other party in
writing of the causes thereof and the anticipated time extension necessary to perform.
Neither party shall be liable for loss or damage or deemed to be in default hereof due to
any such Unavoidable Delay(s), provided that party has notified the other as specified in
the preceding sentence and further provided that such Unavoidable Delay did not result
from the fault, negligence or failure to act of the party claiming the delay. Failure to notify
a party of the existence of Unavoidable Delays within the thirty (30) days of its discovery
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by a party shall not void the Unavoidable Delays, but the time period between the
expiration of the thirty (30) days period and the date actual notice of the Unavoidable
Delays is given shall not be credited to the obligated party in determining the anticipated
time extension.
ARTICLE 3
Minimum Rent
Section 3.1. Minimum Rent. During the Lease Term, Developer shall pay annual
minimum rent for the Property as described herein. Minimum rent shall be paid and payable as
follows (herein, "Minimum Rent"):
(a) Developer shall pay City as Minimum Rent for the first Lease Year
following the Commencement Date the sum of $3,620,000.00, payable in two equal
installments as follows:
(i) No later than thirty (30) days after the Execution Date, Developer
shall prepay a portion of such Minimum Rent in the amount of $1,810,000.00,
representing fifty percent (50%) of the Minimum Rent payable for the first (1st)
Lease Year of the Lease Term following the Commencement Date (the "Prepaid
Minimum Rent"); and
(ii) Within one hundred twenty (120) days after the Commencement
Date, Developer shall pay the balance of such Minimum Rent in the amount of
$1,810,000.00, representing the remaining fifty percent (50%) of Minimum Rent
payable for the first (1st) Lease Year of the Lease Term following the
Commencement Date.
Except for the foregoing payments, no Minimum Rent whatsoever shall be due under this
Agreement until the second (2nd) Lease Year of the Lease Term.
(b) Commencing with the second (2nd) Lease Year of the Lease Term and
continuing through the fifth (5th) Lease Year of the Lease Term, Developer shall pay City
as Minimum Rent the sum of $3,620,000.00 per annum
(c) Commencing with the sixth (6th) Lease Year of the Lease Term and each
Lease Year thereafter, annual Minimum Rent shall adjust and increase each Lease Year by
one and one-half percent (1.5%) of the annual Minimum Rent in effect for the immediately
preceding Lease Year.
(d) Minimum Rent, as described in Section 3.1(b) and 3.1(c), shall be
payable annually, in advance, on or before the tenth (10th) day of the first calendar month
of each Lease Year in an amount equal to the annual Minimum Rent due for the applicable
Lease Year.
Section 3.2. Participation Rent. In addition to Minimum Rent, commencing with
the sixth (6th) Lease Year of the Lease Term and each Lease Year thereafter, Developer shall pay
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to City an annual percentage rent in an amount equal to the positive difference between three
percent (3%) of annual Gross Revenue (as defined in Section 3.3 below), less the amount of
Minimum Rent per annum paid in accordance with Section 3.1 ("Participation Rent"). Developer
shall prepare and submit to City a separate statement of Gross Revenue for the Property for each
Lease Year commencing with the sixth (61h) Lease Year of the Lease Term, certified as being
accurate by a reputable, independent certified public accountant selected by Developer.
Participation Rent shall be paid to City in one lump sum within one hundred twenty (120) days
after the end of each Lease Year that Participation Rent is due.
Section 3.3. Gross Revenue. "Gross Revenue" shall mean all revenue generated or
derived and received, directly or indirectly, by Developer as a result of this Agreement. Gross
Revenue shall include, but not be limited to, (a) income received for the occupancy of space within
the Improvements or any portion of the Property (including any parking space), (b) any revenue
realized in lieu of rents pursuant to claims asserted under any business interruption insurance or
rental insurance proceeds as described in Article 16, (c) revenue received as a result of granting
certain rights to a third party such as the granting of easements and/or the right to install and/or
use equipment in or on any part of the Property and/or Improvements, such as advertising or
directional signage and antennae, and (d) revenue received by Developer for the purpose of
providing amenities, insurance coverage, security services, maintenance of common areas,
equipment and facilities and replacement, betterments and/or additions to Improvements,
equipment and facilities located on the Property and all reimbursements for such services,
amenities and fees paid to Developer on behalf of its sublessees, space lessees, subtenants or any
other entity and any and all other expenses that may be construed to be pass -through expenses;
i.e., expenses for goods and services provided to subtenants, space tenants or sublessees. For
purposes of calculating Gross Revenue, items of revenue included in the definition of Gross
Revenue hereunder shall be included without duplication. Notwithstanding anything to the
contrary contained herein, (i) with respect to any portion of the Property leased to a Space Lessee,
only the rent paid by such Space Lessee to its landlord or sublessor under the Space Lease (but not
Gross Revenue of such subleased portions of the Property) shall be included in calculating Gross
Revenue hereunder, and (ii) if any portion of the Project is subleased to a Sublessee under a "master
lease" pursuant to which the Sublessee further subleases the premises to one or more
sub -Sublessees or Space Lessees, then the monies received by the Sublessee under such master
lease shall be included in Gross Revenue hereunder in lieu of Developer with respect to such
subleased portion of the Project.
The following expenses and other items shall be deducted or excluded in calculating Gross
Revenue for all purposes of this Agreement:
(a) Security deposits (but interest earned by Developer on security deposits
to the extent not required to be paid to others shall be included in Gross Revenue);
(b) Any insurance proceeds (except for any business interruption insurance
or rental insurance proceeds as hereinabove provided);
(c) Any condemnation awards (except for an award from a temporary Taking
pursuant to Article 19 herein);
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(d) Any proceeds of sale (except as otherwise expressly provided herein) or
refinancing of any Phase or Improvements or capital contributions or equity payments, or
any refunds of sales tax, income tax or other tax refunds, abatements or rebates;
(e) Ad valorem taxes on the Land and any Impositions, including without
limitation ad valorem taxes on the Improvements, sales or any other governmental charges
on Rent or this Agreement, federal, state or local excise, sales, use, occupancy or similar
taxes collected directly from Sublessees, Space Lessees, patrons, guests or otherwise;
(f) Any gratuities or service charges added to a customer's bill and
distributed as compensation to employees of any business operating on the Property;
(g) Any credits, rebates or refunds made to customers, guests or patrons, and
any unrealized or foregone revenue as a result of promotions or complimentary services;
(h) Any sums and credits received for lost or damaged merchandise;
(i) Any proceeds from the sale or other disposition of personal property
(such as inventory, furniture, fixtures and/or equipment);
(j) Any interest income, except as expressly provided in clause (a) above; or
(k) Amounts paid by Developer to cure defaults of Sublessees under
Subleases or Space Lessees to the extent such monies are reimbursed to Developer by such
Sublessees or Space Lessees.
Section 3.4. City's Right to Verify and Audit Information Submitted. Following
the sixth (6th) Lease Year, City may, at City's expense, during normal business hours and upon
ten (10) business days' prior written notice to Developer, inspect, take extracts from and make
copies of Developer's books and records pertaining to the Property for the purpose of verifying
any statement of Gross Revenue submitted to City as required by this Agreement. City also may,
at its option and at its sole expense, conduct or cause to be conducted an audit (by a reputable,
independent certified public accountant who shall not be compensated on a contingency fee or
commission basis) to verify the Gross Revenue received by Developer from the operation of the
Property for any Lease Year or to verify any payments or rents under this Agreement. To the
fullest extent permitted by law, City shall protect from disclosure any records that are confidential
and exempt same from disclosure under Florida law. City shall use its good -faith, diligent efforts
to provide timely written notice to Developer of any public records request seeking any records of
Developer that may be within City's custody, possession or control, to permit Developer the
opportunity to seek to protect such information from disclosure. If City's audit shall disclose that
an amount is due to City in excess of the amount Developer had previously or should have paid to
City for such Lease Year, then, unless disputed by Developer, such amount shall be paid by
Developer within thirty (30) days after receipt by Developer of a written notice from City setting
forth the amount due and the calculations used in making the determination. If the amount due
City under the preceding sentence exceeds the amount Developer had previously or should have
paid to City for such Lease Year by more than five percent (5%), or if the audit discloses fraud or
intentional misrepresentation by Developer, unless disputed by Developer, the cost of such audit
shall be at Developer's expense and Developer shall also pay interest on the additional amount due
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at the Default Rate. If City's audit shall disclose that City has been overpaid for such Lease Year,
City shall credit such overpayment to the next payment or payments of Rent required to be paid
by Developer under the terms of this Agreement until fully credited. Developer's books and
records regarding the Property shall be maintained in Miami -Dade County, Florida, or such other
location approved by City in writing. City's right to inspect and audit Developer's books and
records under this Section shall continue for a period of seven (7) years after submittal of any
statement or report of Gross Revenue by Developer pursuant to this Agreement, after which time
City shall not have the right to audit such statement or report; provided, however, that with respect
to the sale or conveyance of any portion of the Property to an unaffiliated third party, the City's
right to audit such statement or report relating to such portion of the Property shall terminate one
(1) year following the date of such sale or conveyance. All Bifurcated Leases shall include the
auditing requirements consistent with this provision. City and Developer shall in good faith,
acting reasonably, attempt to resolve any dispute with respect to Developer's statement of Gross
Revenue and City's audit within a period of thirty (30) days of one Party notifying the other of
such dispute prior to pursuing resolution through legal proceedings. The rights and obligation of
the Parties under this Section as to any Phase shall survive the termination of this Agreement,
whether as a result bifurcation or otherwise, with respect to such Phase as set forth above.
Developer shall cause its employees, representatives and agents to comply with all audit
requirements set forth herein.
Section 3.5. Option Price Advance Payment. Commencing on the later of (a) the
sixth (6th) Lease Year of the Lease Term, or (b) the first Lease Year following the Actual MRC
Vacation Date, and continuing each Lease Year thereafter for a period of five (5) Lease Years,
Developer shall pay to City the sum of $2,000,000.00 per annum (individually and collectively,
the "Option Price Advance Payment"). The Option Price Advance Payment shall be made each
Lease Year no later than the date Minimum Rent is due hereunder.
Upon payment of each Option Price Advance Payment hereunder, (i) the Land Value
shall be reduced on a dollar -for -dollar basis by the amount of the Option Price Advance Payment,
and (ii) Minimum Rent shall be adjusted as of the date of payment of the Option Price Advance
Payment to an amount equal to Five and 22/100 Percent (5.22%) of the Land Value, after taking
into account the adjustments resulting from the Option Price Advance Payment under clause (i)
(and, upon such adjustment, the terms and provisions of Section 3.1 hereof shall continue to apply).
The obligation to pay the Option Price Advance Payment shall terminate on the date
(x) the Option Price has been paid for the entire Property, or (y) the Option Price Advance Payment
has been paid for a period of five (5) Lease Years, whichever is earlier.
City and Developer acknowledge and agree that the Option Price Advance Payment
is a negotiated advance payment of the purchase price for the Option under Article 28 of this
Agreement and is not (nor shall it be deemed to be) Rent or a payment required for Developer to
occupy or possess the Property under the terms of this Agreement. Accordingly, City shall not
terminate this Agreement or seek eviction or dispossession of Developer or any successor from the
Property as a result of a failure to pay the Option Price Advance Payment.
Section 3.6. Late Payments. In the event that any payment of Minimum Rent or
Participation Rent due to City shall remain unpaid for a period of twenty (20) days beyond the
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applicable due date, interest at the Default Rate shall accrue against the delinquent payment(s)
from the original due date until City receives payment. In addition to the rights and remedies
provided for herein, City shall also have all rights and remedies afforded by law for enforcement
and collection of Rent and any interest at the Default Rate which are not inconsistent with the
limitations or remedies contained in this Agreement. All Rent and other payments due to City
under this Agreement shall be paid to City at the address specified herein for notice to City.
Section 3.7. Capital Transaction Fee. As contemplated by City
Resolution R-18-0324, Developer shall be obligated to pay to City a capital transaction fee in
connection with any refinancing of the Property or any assignment of this Agreement pursuant to
a "Sale/Refinancing Transaction Fee Agreement" in the form of, and subject to the terms provided
in, the attached Exhibit E.
ARTICLE 4
Development of Land and Construction of Buildings
Section 4.1. Permitted Uses. During the Term, the Property may be used for the
Permitted Uses in accordance with the terms and conditions of this Agreement. The Parties
recognize and acknowledge that the manner in which the Property and Improvements are
developed, used and operated are matters of importance to City during City's ownership of fee
title to the Land. Accordingly, Developer agrees that, during the Lease Term, Developer will use
best efforts, subject to reasonable market conditions, to create and operate on the Property a
mixed -use residential and/or commercial development with a quality of character and operation
consistent with that of similar, comparable projects and uses in City of Miami, Florida. Developer
agrees any development on the Property shall comply with the following conditions: (i) any
"Riverwalk" improvements must be in compliance with Section 3.11 of the Code; (ii) access for
boats along the Miami River adjacent to the Land shall be provided; (iii) coastal flooding shall be
considered in the design of the Improvements; (iv) if the existing sea wall is reasonably determined
to be structurally unsafe or unusable at the time of the construction of Improvements immediately
adjacent thereto, the seawall shall be repaired or replaced (as necessary); and (v) Developer shall
use commercially reasonable efforts to incorporate appropriate "Aspirational Development
Guidelines" presented to the Miami River Commission by Developer in a letter dated as of July 5,
2018.
Section 4.2. Development Rights and Phases. Developer shall have the right to
develop and construct the Buildings and other Improvements comprising the Project on the
Property in one or more Phases, as determined by Developer, in its sole discretion. For purposes
of this Agreement, each phase of the Project is referred to individually as a "Phase" and, if more
than one, collectively, as the "Phases". Notwithstanding the fact that any Phase may be identified
numerically on any plans for the Project, each Phase may be constructed and developed
independently of the other Phases and in any sequence. In addition, notwithstanding anything to
the contrary contained in this Agreement (and for the avoidance of doubt), each Phase may be
constructed and developed pursuant to this Agreement, a Bifurcated Lease, one or more Subleases
or through a combination thereof. If this Agreement terminates with respect to any Phase of the
Project, or any Phase is otherwise released from the terms and conditions of this Agreement for
any reason (as a result of a bifurcation or otherwise), then, from and after the date the applicable
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Phase is released or removed from this Agreement, Developer shall have no further rights or
obligations with respect to such Phase (with respect to the payment of Rent, payment of
Impositions, construction, maintenance or repair, or otherwise) hereunder, except as otherwise
expressly provided herein. The following provisions shall apply to Developer's development of
the Property:
(a) Development of Land. In connection with the Project and each Phase
thereof, the parties agree City will, without charge by City, grant and join in any plat,
Permit or other application, applications for governmental or other financing sources or
incentives, temporary and permanent easements, restrictive covenants, covenants in lieu of
unity of title, easement vacations or modifications and such other documents, including but
not limited to estoppel certificates and non -disturbance and attornment agreements as
provided in this Agreement, as may be necessary or desirable for Developer to develop and
use the Property in accordance with this Agreement, provided that such joinder by City
shall be at no cost to City other than its costs of review, and also provided that the location
and terms of any such easements or restrictive covenants and related documents shall be
reasonably acceptable to City, which acceptance shall not be unreasonably withheld or
delayed. City agrees to use best efforts to review and approve (or disapprove with an
explanation for such disapproval) any such requests within twenty (20) business days of
such request from Developer (except in the event that City Commission approval is
required under applicable Laws and Ordinances for such approval, in which event City
shall use its reasonable diligent efforts to expedite the approval process as soon as
reasonably practicable in an effort to assist Developer in achieving its development and
construction milestones for the Project). If City has not provided Developer with written
notice of its approval or disapproval within said 20-business day period (subject to
requirements for City Commission approval as hereinabove provided), Developer shall
deliver written notice to City advising City that City has not responded to Developer within
the required 20-business day period and City shall have an additional ten (10) days
thereafter to respond to Developer with such approval or disapproval. In the event that
City fails to respond after the expiration of the additional 10-day period, then for each day
after the expiration of such additional 10-day period for which City has failed to respond,
(i) Developer shall receive an abatement of Minimum Rent in an amount equal to the then
current Minimum Rent multiplied by .00274 (such multiplier being equal to 1 divided by
365), and (ii) the Lease Term shall be extended by one (1) day, in each case on a day -for -
day basis.
(b) Payment and Performance Bonds. The Parties agree that the
Improvements are not a public building or public work as contemplated under
Section 255.05, Florida Statutes. Prior to Commencement of Construction of each Phase,
Developer shall obtain or cause its general contractor to obtain customary performance and
payment bond(s), or reasonably equivalent security (such as a guarantee) consistent with
comparable projects. Developer shall have the right from time to time to substitute or
replace, or cause its contractors to substitute or replace, such bonds or other security as
deemed necessary by Developer for any portion of the work then being constructed. With
respect to each Phase, any such performance and payment bond(s), or other security, and
Developer's obligations thereunder (if any), shall terminate upon the date a temporary or
final certificate of occupancy is issued for such Phase.
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(c) City's Rights As Sovereign. It is expressly understood that
notwithstanding any provision of this Agreement and the City's status as City hereunder:
(i) City retains all of its sovereign prerogatives and rights as a
municipal corporation under Florida laws (but not in regard to its status as City
in its capacity as landlord and the performance of its contractual duties
hereunder) and shall in no way be estopped from withholding or refusing to issue
any approvals of applications for building or zoning; from exercising its planning
or regulatory duties and authority; and from requiring development under present
or future Laws and Ordinances of whatever nature applicable to the design,
construction and development of the Buildings and Improvements provided for
in this Agreement. For the avoidance of doubt, this Agreement shall not impose
any obligation upon the City in its regulatory capacity. At Developer's request,
City agrees to cooperate with Developer, in good faith and with reasonable
diligence, with any efforts by Developer to seek approvals and agreements from
the City under Chapter 163 of the Florida Statutes, including without limitation
City's joinder in any applications for and active support of such approval.
(ii) City shall not by virtue of this Agreement be obligated to grant
Developer, the Property or the Project any approvals of applications for building,
zoning, planning or development under present or future Laws and Ordinances
of whatever nature applicable to the design, construction and development of the
Buildings and other Project improvements provided for in this Agreement.
Recognizing the public and private benefits afforded by the Project, City agrees
to use reasonable, diligent efforts to facilitate the approval and permitting process
through City in order to expedite the development of each Phase of the Project
as soon as reasonably practicable in an effort to assist Developer in achieving its
development and construction milestones for the Project. In furtherance thereof,
City has or will designate a designated representative to serve as City's point of
contact and liaison with Developer in order to coordinate and facilitate the
submission of applications, authorizations, Permit documents and the like across
all of the various depaitinents and offices of the City which have the authority,
right or responsibility to review and approve same on behalf of the City. City's
obligations under this provision shall benefit the purchaser of any portion of the
Property pursuant to the Option and survive closing thereunder until such time
that the entire Project is substantially completed, at which point the obligations
under this provision shall automatically terminate.
Section 4.3. Ownership of Improvements. All Buildings and Improvements and all
material and equipment provided by Developer or on its behalf which are incorporated into or
become a part of the Project shall, upon being added thereto or incorporated therein, and the Project
itself, be and remain the property of Developer, unless otherwise specifically excepted in this
Agreement, but subject to the same (not including personal property of Developer, Sublessees or
Space Lessees) becoming the property of City at the expiration or termination of this Agreement,
as extended by renewal terms.
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Section 4.4. Connection of Buildings to Utilities. Developer, at its sole cost and
expense, shall install or cause to be installed all necessary connections between the Buildings
constructed or erected by it on the Property, and the water, sanitary and storm drain mains and
mechanical and electrical conduits and other utilities, whether or not owned by City. Developer
shall pay for the additional cost, if any, of locating and installing new facilities for sewer, water,
electrical, and other utilities as needed to service the Property, for any extension, relocation and/or
upgrading of such utilities, and for relocation of existing utilities presently serving the Existing
Improvements if necessary to develop the Project. City shall cooperate with Developer, in
accordance with Section 4.2 and Section 8.2, to the extent that Developer needs City to (a) join in
any agreements or documents for installation of any connections necessary or desirable for the
Improvements or required to comply with its obligations hereunder, or (b) grant easements to
public utility providers across the Land and other property owned by City as may be required or
desirable to serve the Project, or (c) relocate existing utility lines and facilities to develop or
improve the Project.
Developer's obligations hereunder shall be subject to City's express obligation hereunder
to disclose in writing, to City's best knowledge (and accompanied by plats, surveys, legal
descriptions or sketches of surveys to the extent applicable and available), the location of all
utilities (and utility -related equipment) and all recorded or unrecorded easements or licenses
affecting the Property, which disclosure shall be made prior to the Execution Date.
Section 4.5. Off -site Improvements. Any off -site improvements required to be paid
or contributed as a result of Developer's development of the Property shall be paid or contributed
by Developer or third parties to which Developer delegates such responsibility.
Section 4.6. Designation of City's Representative. The City Manager or the City
Manager's designee shall have the power, authority and right, on behalf of City, in its capacity as
landlord hereunder, and without any further resolution or action of the Commission, to:
(a) review and approve documents, applications, lease assignments and
requests required or allowed by Developer to be submitted to City pursuant to this Article
and this Agreement, including without limitation the Master Covenants;
(b) consent to actions, events, and undertakings by Developer for which
consent is required by City;
(c) make appointments of individuals or entities required to be appointed or
designated by City in this Agreement;
(d) execute Confirmation of Date(s) Certificates, grant extensions of any
deadlines, execute non -disturbance agreements, estoppel statements and certificates and
instruments as provided elsewhere in this Agreement (whether in connection with this
Agreement, any Bifurcated Lease, any Sublease, any Space Lease, the Master Covenants,
any Mortgage, any Mezzanine Financing, or otherwise);
(e) consent to (or join in) and execute any amendment or modification of the
Master Covenants;
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(f) execute on behalf of City any and all consents, covenants, agreements,
easements, applications or other documents, needed to comply with applicable regulatory
procedures and secure permits or other approvals needed to accomplish the construction of
any and all improvements in and refurbishments of the Property, including without
limitation a covenant in lieu of unity of title and related easement and operating agreement
for the development of the Property and the Adjacent Parcel;
(g) execute any and all documents on behalf of City necessary or convenient
to the foregoing approvals, consents, appointments and agreements; and
(h) execute on behalf of City any Bifurcated Leases and any other
agreements or instruments necessary to effectuate the bifurcation of the leasehold interest
in this Agreement as contemplated herein without the need for City Commission approval.
The City Manager or City Manager's designee may exercise the authority granted in this section,
provided that (i) such exercise of authority shall be at no cost to City other than its cost to review
the proposed amendments, agreements, documents and other instruments or materials, and shall
not impose additional obligations or liabilities or potential obligations or liabilities on City beyond
those set forth in this Agreement, and (ii) the form and provisions of such amendments,
agreements, documents and other instruments or materials shall be acceptable to City in its
reasonable discretion.
Section 4.7. Adjustment of Property. Developer shall have the right from time to
time, following completion of construction of any Improvements located within the air rights or
subsurface rights portion of the Property, to adjust and replace the description of such portions of
the Property with actual legal descriptions of the Improvements prepared by a Florida licensed
surveyor, which legal descriptions may include airspace or subsurface areas outside the actual
location of Improvements, inter alia, to simplify the preparation of such legal descriptions given
potential variations in the size and features of the Improvements, to accommodate potential settling
of the Improvements, and to accommodate construction variations resulting from restoration and
reconstruction after casualty. Developer shall have the right from time to time to record notice in
the Public Records of Miami -Dade County, Florida, of the actual location and legal description of
such Improvements upon final determination thereof in accordance with this paragraph. Prior to
recording, Developer shall provide a copy of each proposed notice to City for comment (which
must be reasonable) as to form, and City shall have a period of thirty (30) days within which to
provide such comments. If City has not provided Developer with written notice of its comments
within said 30-day period (subject to requirements for City Commission approval as hereinabove
provided), Developer shall deliver written notice to City advising City that City has not responded
to Developer and City shall have an additional ten (10) days thereafter to respond to Developer
with such comments. In the event that City fails to respond after the expiration of the additional
10-day period, then for each day after the expiration of such additional 10-day period for which
City has failed to respond, (i) Developer shall receive an abatement of Minimum Rent in an amount
equal to the then current Minimum Rent multiplied by .00274 (such multiplier being equal to 1
divided by 365), and (ii) the Lease Term shall be extended by one (1) day, in each case on a
day -for -day basis.
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Section 4.8. Construction Labor. Developer shall coordinate with trade and labor
unions, including but not limited to, life safety, conveyance, plumbing and electric, to bid on
aspects of the Improvements developed on the Property.
ARTICLE 5
Payment of Taxes, Assessments
Section 5.1. Developer's Obligations for Impositions. Developer shall pay or cause
to be paid, prior to their becoming delinquent, all Impositions, which at any time after the
Commencement Date have been, or which may become, a lien on the Property or any part thereof;
provided, however, that:
(a) If, by law, any Imposition (for which Developer is liable hereunder) may
be paid in installments (whether or not interest shall accrue on the unpaid balance of such
Imposition), Developer may, at its option, pay the same in installments, including any
accrued interest on the unpaid balance of such Imposition, provided that Developer shall
pay those installments which are to become due and payable after the expiration of the
Lease Term, but which relate to a fiscal period fully included in the Lease Term; and
(b) Any Imposition for which Developer is liable hereunder relating to a
fiscal period, a part of which period is included within the Lease Term and a part of which
is included in a period of time after the expiration or termination of the Lease Term, shall
be adjusted as of the expiration or termination of the Lease Term so that Developer shall
pay only that portion of such Imposition which is applicable to the period of time prior to
expiration or termination of the Lease Term;
(c) Any Imposition relating to the period after the Commencement Date shall
be the sole responsibility and obligation of Developer;
(d) If City transfers its interest in any portion of the Property and by virtue
of such transfer, the Property becomes subject to ad valorem taxes which were not
applicable to the Property or any portion thereof (such as the Land) prior to such transfer,
or if prior to or as a result of such transfer, the Property had become or becomes subject to
ad valorem taxes which are not an Imposition, then from and after such transfer the new
owner of the Property, and not Developer, shall be liable for and shall pay such taxes; and
(e) Upon the request of Developer, City shall cooperate (at no cost to the
City) with Developer from time to time as needed for Developer to receive (i) any sales tax
exemptions provided under any applicable Laws and Ordinances, (ii) any ad valorem tax
exemption applicable to real property owned by a municipality under any applicable Laws
and Ordinances, and (iii) any benefits to which Developer may be entitled, including but
not limited to any entitlements as a result of the Project being in an enterprise zone and/or
empowerment zone.
(f) City agrees to reasonably cooperate with Developer in executing any
statements, certifications, applications and other documentation that may be required for
Developer to qualify as a "Qualified Opportunity Fund" or designate the Project, under the
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Opportunity Zone program regulations codified in Section 1400Z-2 of the Internal Revenue
Code, as may be amended from time to time.
Section 5.2. Contesting Impositions.
(a) Developer shall have the right to contest the amount or validity, in whole
or in part, of any Imposition, for which Developer is or is claimed to be liable, by
appropriate proceedings diligently conducted in good faith but only after payment of such
Imposition, unless such payment or payment thereof under protest would operate as a bar
to such contest or interfere materially with the prosecution thereof, in which event,
notwithstanding the provisions of Section 5.1 herein, Developer may postpone or defer
payment of such Imposition if:
(i) Neither the Property nor any part thereof would by reason of such
postponement or deferment be in danger of being forfeited or lost; and
(ii) Upon the termination of any such proceedings, Developer shall pay
the amount of such Imposition or part thereof, if any, as finally determined in
such proceedings, together with any costs, fees, including counsel fees, interest,
penalties and any other liability in connection therewith.
(b) City shall not be required to join in any proceedings referred to in this
Section 5.2 unless the provisions of any Laws and Ordinances, at the time in effect, shall
require that City is a necessary party to such proceedings, in which event City shall
participate in such proceedings at Developer's cost.
ARTICLE 6
Surrender
Section 6.1. Surrender of Property. Developer, on the last day of the Lease Term,
or upon any earlier termination of this Agreement, shall surrender and deliver up the Property to
the possession and use of City without delay and, subject to the provisions of Article 16 and
Article 19 herein, with the Buildings and Improvements in their then "as is" condition and subject
to reasonable wear and tear, acts of God, casualties and other events in the nature of an
Unavoidable Delay excepted.
Section 6.2. Rights to Personal Property After Termination or Surrender. Any
personal property of Developer which shall remain in the Property after the fifteenth (15th) day
following the termination or expiration of this Agreement and the removal of Developer from the
Building, may, at the option of City, be deemed to have been abandoned by Developer and, unless
any interest therein is claimed by a Lender, said personal property may be retained by City as its
property or be disposed of, without accountability, in such manner as City may see fit.
Section 6.3. Survival. The provisions of this Article 6 shall survive any termination
or expiration of this Agreement.
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ARTICLE 7
Insurance and Indemnification
Section 7.1. Insurance. City and Developer hereby agree that the terms and
provisions governing the insurance required by Developer pursuant to this Agreement are
contained in Schedule 7 hereto, which is hereby incorporated herein by reference. The insurance
requirements during the Developer's operation of any Improvements on the Property are set forth
in Section II of Schedule 7 attached hereto. The insurance requirements during the construction
of any Improvements by Developer on the Property are set forth in Section III of Schedule 7
attached hereto. Upon written request, Developer agrees that it shall furnish to City copies of its
insurance certificates and policies evidencing the coverages and amounts required by Schedule 7
attached hereto. Developer acknowledges and agrees that the City's Risk Management
Department has the right from time to time to make reasonable revisions to the insurance
requirements as set forth in Schedule 7, provided same are consistent with the insurance required
of comparable tenants of City -owned property.
Section 7.2. Indemnification. Subject to the terms of Section 7.3, Developer shall
indemnify, defend and hold harmless City and its officers, employees, agents and instrumentalities
from any and all liability, losses or damages, including reasonable attorneys' fees and costs of
defense, which City or its officers, employees, agents or instrumentalities may incur as a result of
any claims, demands, suits, causes of actions or proceedings ("Claims") arising out of, relating to
or resulting from the performance of this Agreement by Developer or its employees, agents,
officers, partners, members, principals or contractors; provided, however, that this indemnity shall
not extend to or cover any Claims arising solely out of the negligence or willful misconduct of
City or its officers, employees, authorized agents or instrumentalities or any liability of City to
third parties existing prior to the Commencement Date. Developer shall pay all Claims in
connection with any matters indemnified hereunder, and shall investigate and defend all claims,
suits or actions of any kind or nature in the name of City, where applicable, with respect to such
matters, including appellate proceedings, and shall pay all costs, judgments, and attorney's fees
which may issue thereon. Subject to the terms of Section 7.3, Developer expressly understands
and agrees that any insurance protection required by this Agreement or otherwise provided by
Developer shall in no way limit the responsibility to indemnify, keep and save harmless and defend
City or its officers, employees, agents and instrumentalities as herein provided.
Section 7.3. Waiver of Subrogation. Developer waives all rights to recover against
City, its employees, agents, officers, contractors or instrumentalities, for any claims, losses or
damages arising from any cause covered by property insurance required to be carried by Developer
hereunder. Developer shall cause its insurer(s) to issue appropriate waiver of subrogation rights
endorsements to all such policies of insurance carried by Developer with respect to the Property.
City waives all rights to recover against Developer, its employees, agents, officers, partners,
members, principals or contractors, for any Claims arising from any cause covered by property
insurance (irrespective of whether the insurance is carried by Developer or City). City shall cause
its insurer(s) to issue appropriate waiver of subrogation rights endorsements in favor of Developer
to all such policies of insurance carried by City in connection with the Property. Any
self-insurance program of City shall be deemed to include a full waiver of subrogation consistent
with this Section.
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ARTICLE 8
Operation
Section 8.1. Control of Property. City hereby agrees that, subject to any express
limitations imposed by the terms of this Agreement, Developer shall be free to perform and
exercise its rights under this Agreement and shall have exclusive control and authority to develop,
direct, operate, lease and manage the Property, including with respect to the Project and all Phases
thereof, and the rental or sale of the Buildings and Improvements. Without limiting the foregoing,
Developer is hereby granted the exclusive right to bifurcate the leasehold interest under this
Agreement as contemplated in Section 17.2 and to enter into any Sublease, Space Lease, license
or similar grant for any part or all of the Buildings and/or Improvements. Developer covenants
and agrees to use best efforts to operate the Property consistent with prudent business practices in
order for the Gross Revenue generated by the Property to be reasonably comparable to that
generated in comparable facilities in the City of Miami which are subject to similar uses and
restrictions, adjusted for the location of the Property relative to such other facilities; provided,
however, that nothing contained herein shall limit or restrict Developer's right to limit access to
or close all or any portion of the Property on a temporary basis (i) when necessary to perform
repairs or address events of Unavoidable Delay, (ii) to address appropriate security measures,
(iii) in the case of an emergency, or (iv) for other reasonable closures that are necessary in
Developer's reasonable judgment.
Section 8.2. Repair and Relocation of Utilities. Developer shall maintain and repair,
and Developer shall have the right to replace, relocate, and remove, as necessary, utility facilities
within the Property required for the development and construction of each Phase of the Project, or
for the operation of the Property and all existing and future Improvements. City agrees to
cooperate with Developer in relocating existing utility lines and facilities on or adjacent to the
Property which need to be relocated to develop or improve the Project, including reasonable use
of existing easements benefiting the Land and adjoining rights of way to the Land, and the location
and stubbing of utility connections leading to the Property. Such relocation of existing utilities
shall be at the sole expense of Developer.
Section 8.3. Rights to Erect Signs; Revenues Therefrom.
(a) City hereby agrees that, to the extent permitted by law, Developer shall
have the exclusive right, during the Lease Term, without City's consent, to place, erect,
maintain and operate, or cause, allow and control the placement, erection, maintenance and
operation of any signs or advertisements in accordance with subparagraph (b) below, in or
on the Property so long as such signage is not reasonably foreseeable, in City's reasonable
discretion, to negatively impact City's reputation or disparage City. Developer shall be
responsible for obtaining any and all Permits and licenses which may be required from
time to time by any governmental authority for such signs and advertisements, and City
agrees to execute any consents reasonably necessary or required by any governmental
authority as part of Developer's application for such Permits or licenses.
(b) The following types of signs and advertising shall be allowed, to the
extent allowed by law, in the area described in subparagraph (a) above:
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(i) Signs or advertisements identifying the Buildings and
Improvements to the Property and in particular office, hotel, residential, retail,
and/or commercial uses therein or otherwise customary for mixed -use
developments, and any "branding" graphics developed by Developer in
connection with the Project, as well as signs indicating security features or rules
and regulations as may pertain to any Improvements;
(ii) Signs or advertisements offering all or any portion of the Property
for sale or rent; and
(iii) Signs or advertisements advertising or identifying any product,
company, service or event as permitted under Laws and Ordinances, including
without limitation signage requested or desired by a Lender or any other Person
providing financing or any developer, contractor, subcontractor, supplier or joint
venture participating in the Project or any portion thereof.
(c) Developer shall have the right to remove any signs which, from time to
time, may have become obsolete, unfit for use or which are no longer useful, necessary or
profitable in the conduct of Developer's business, or in the occupancy and enjoyment of
the Property by Developer, or any Sublessees or Space Lessees.
(d) As used in this Agreement, "sign(s)" shall be deemed to include any
display of characters, letters, illustrations, logos or any ornamentation designed or used as
an advertisement or to indicate direction, irrespective of whether the same be temporary or
permanent, electrical, illuminated, stationary or otherwise.
(e) Developer shall be entitled but not required to rent or collect a fee for the
display or erection of signs and advertisements; provided, however that such rent or fees,
if any, shall be a part of Gross Revenue for purposes of this Agreement.
ARTICLE 9
Repairs and Maintenance of the Property
Throughout the Lease Term, Developer, at its sole cost and expense, shall keep the Property
in good order and condition, and make all necessary repairs thereto, ordinary wear and tear and
loss by fire or other casualty excepted. The term "repairs" shall include all replacements, renewals,
alterations, additions and betterments deemed necessary by Developer in its reasonable business
judgment. Except as otherwise provided in this Agreement, City shall have no obligation with
respect to the maintenance and repair of the Property.
ARTICLE 10
Compliance with Laws and Ordinances
Section 10.1. Compliance by Developer. Throughout the Lease Term, Developer, at
Developer's sole cost and expense, shall promptly comply in all material respects with all Laws
and Ordinances applicable to the Property or the Improvements, provided such Laws and
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Ordinances apply to similar properties located in the City of Miami as the Property generally, and
are not adopted specifically to apply to the Property or similar leases such as the leasehold interest
under this Agreement.
Section 10.2. Labor Peace Agreements. During the Lease Term, Developer shall
require that all contractors and employers of employees hired to staff Hospitality Operations
(defined herein as any services provided at hotels, motels, lodging and food and beverage services
provided at convention or conference facilities) on the Property be a party to a "Labor Peace
Agreement" covering such employees to the extent they are members of a labor organization. The
Labor Peace Agreement must be a valid agreement that includes a No -Strike Pledge prohibiting
the labor organization and its members from engaging in any picketing, work stoppages, boycotts,
or any other economic interference with the Hospitality Operations if same would reasonably be
likely to materially reduce Gross Revenues generated from such operations. The Labor Peace
Agreement shall cover all Hospitality Operations (other than construction, alteration or repair of
the Property) that are conducted by Developer and its agents or independent contractors, where the
contract amount is reasonably expected to be in excess of $120,000 per annum. The Labor Peace
Agreement shall not include any provision that would require or compel an employee to be a
member of any labor organization. A contracting party may be relieved of this obligation if:
(a) the labor organization places conditions upon its No -Strike Pledge that the City Commission
finds, after notice and public hearing, to be arbitrary or capricious; or (b) the City Manager makes
a written finding containing the reasons for supporting the conclusion that a labor peace agreement
should not be required as it would not be practicable or is not advantageous to the City, which
finding must be approved by the City Commission, after notice and public hearing. Developer
shall comply (and cause Sublessees to comply) with this provision to the extent not prohibited by
Laws or Ordinances or any other provision within this Agreement or any other agreement between
the Parties.
Section 10.3. Living Wage Requirements. Developer shall comply with the "Living
Wage" requirements as set forth in Article X of the Code (Secs. 18-556 — 18-559), as may be
amended from time to time, with respect to all on -site employees employed by Developer.
Section 10.4. Contest by Developer. Developer shall have the right, after prior written
notice to City, to contest the validity or application of any Law or Ordinance by appropriate legal
proceedings diligently conducted in good faith, in the name of Developer without cost or expense
to City, except as may be required in City's capacity as a party adverse to Developer in such
contest. If counsel is required, the same shall be selected and paid by Developer, except to the
extent that City is an adverse party to Developer, in which case Developer shall have no obligation
to pay for City's counsel. City hereby agrees to execute and deliver any necessary papers,
affidavits, forms or other such documents necessary for Developer to confirm or acquire status to
contest the validity or application of any Laws and Ordinances, which instrument shall be subject
to the reasonable approval of counsel for City, which approval shall not be unreasonably withheld
or delayed. City shall not be required to join in any such contest unless its joinder is required for
a contest to be valid.
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ARTICLE 11
Changes and Alterations to Improvements
Developer shall have the right at any time and from time to time during the Lease Term, at
its sole cost and expense and in its sole discretion, to expand, rebuild, alter and/or reconstruct the
Buildings and Improvements, and to raze the Buildings and Improvements. In connection
therewith, Developer shall obtain all approvals, Permits and authorizations required under
applicable Laws and Ordinances.
ARTICLE 12
Discharge of Obligations
Section 12.1. Developer's Duty. During the Lease Term, except for Leasehold
Mortgages, Subleasehold Mortgages, Mezzanine Financing or as otherwise allowed under this
Agreement, Developer will discharge or cause to be discharged any and all obligations incurred
by Developer which give rise to any liens on the Property, it being understood and agreed that
Developer shall have the right to withhold any payment (or to transfer any such lien to a bond in
accordance with applicable Florida law) so long as it is in good faith disputing liability therefor or
the amount thereof, provided (a) such contest of liability or amount operates as a stay of all sale,
entry, foreclosure, or other collection proceedings in regard to such obligations, or disputed
payments are escrowed while the parties negotiate the dispute, and (b) such action does not subject
City to any expense or liability (or Developer covers the cost thereof).
Section 12.2. City's Duty. During the Lease Term, City will discharge any and all
obligations incurred by City which give rise to any liens on the Property, it being understood and
agreed that City shall have the right to withhold any payment so long as it is in good faith disputing
liability therefor or the amount thereof, provided such contest of liability or amount operates as a
stay of all sale, entry, foreclosure, or other collection proceedings in regard to such obligations,
and such action does not subject Developer to any expense or liability.
ARTICLE 13
Use of the Property
Section 13.1. Use of Property by Developer.
(a) Developer shall not knowingly permit the Property to be used for any
unlawful or illegal business, use or purpose, or for any business, use or purpose which is
extra -hazardous or constitutes a legal nuisance of any kind (public or private).
(b) No covenant, agreement, lease, Sublease, Space Lease, Leasehold
Mortgage, conveyance or other instrument shall be affected or executed by Developer, or
any of its successors or assigns, whereby the Property or any portion thereof is restricted
by Developer, or any successor in interest, upon the basis of race, color, religion, sexual
orientation, sex or national origin in the sale, lease, use or occupancy thereof. Developer
shall comply with all applicable state and local laws, in effect from time to time, prohibiting
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discrimination or segregation by reason of race, color, religion, sexual orientation, sex, or
national origin in the sale, lease or occupancy of the Property.
(c) Except as otherwise specified, Developer may use the Property for the
Permitted Uses (provided Developer otherwise complies with the terms and conditions
hereof).
Section 13.2. Environmental - Definition of Terms. For purposes of this Article 13
the following terms shall have the meaning attributed to them herein:
(a) "Hazardous Materials" means any toxic or hazardous substance,
material, or waste, and any other contaminant, pollutant or constituent thereof, whether
liquid, solid, semi -solid, sludge and/or gaseous, including without limitation, chemicals,
compounds, pesticides, petroleum products including crude oil and any fraction thereof,
asbestos containing materials or other similar substances or materials which are regulated
or controlled by, under, or pursuant to any Laws and Ordinances including, but not limited
to, all Environmental Laws.
(b) "Environmental Laws" shall include all applicable Laws and Ordinances,
existing now or in the future during the Term, as amended, modified, supplemented,
superseded or replaced at any time during the Term, that govern or relate to: the existence,
cleanup and/or remedy of contamination of property; the protection of the environment
from spilled, deposited or otherwise emplaced contamination; the control of hazardous or
toxic substances or wastes; the use, generation, discharge, transportation, treatment,
removal or recovery of Hazardous Materials; or otherwise regulating the impact of human
activities on the environment.
(c) "Clean Up" shall mean any remediation and/or disposal of Hazardous
Materials at or from the Property which is ordered by any federal, state, or local
environmental regulatory agency.
Section 13.3. Developer's Environmental Covenant. Developer shall not knowingly
cause or knowingly permit any Hazardous Materials to be brought upon, treated, stored, disposed
of, discharged, released, produced, manufactured, generated, refined, or used upon, about or
beneath the Property or any portion thereof by the Developer, its agents, employees, contractors,
Sublessees, licensees, or invitees except as may be customarily used and required to construct the
Improvements, or used in comparable Improvements or projects or in the ordinary course of
business or as may be used in compliance with Environmental Laws. Developer shall not
knowingly permit any activities on the Property that violate Environmental Laws. If Developer
(or any lessees, sub -lessees or any other parties to which Developer grants any interest in the
Property) should breach this covenant, Developer shall take (or cause the responsible party to take)
all actions necessary to comply with all Environmental Laws and shall, at Developer's sole cost
and expense, perform (or cause the performance of') any and all Clean Up.
Section 13.4. Developer's Duty and City's Right of Enforcement Against
Developer and Successor and Assignee. Developer, promptly upon learning of the occurrence
of actions prohibited by Section 13.1 and Section 13.2; shall take reasonable steps to terminate
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same, including the bringing of a suit in Circuit Court of Miami -Dade County, if necessary, but
not the taking or defending of any appeal therefrom. In the event Developer does not promptly
take steps to terminate a prohibited action, City may seek appropriate injunctive relief against the
party or parties actually engaged in the prohibited action in the Circuit Court of Miami -Dade
County without being required to prove or establish that City has inadequate remedies at law. The
provisions of this Section shall be deemed automatically included in all Leasehold Mortgages and
any other conveyances, transfers and assignments under this Agreement, and any transferee who
accepts such Leasehold Mortgage or any other conveyance, transfer or assignment hereunder shall
be deemed by such acceptance to adopt, ratify, confirm and consent to the provisions of
Section 13.1, 13.2 and 13.5 and to City's rights to obtain the injunctive relief specified therein.
Section 13.5. Pre -Existing Conditions. Developer's obligations under this Article
shall not include the handling or remediation of, or any responsibility for, or other Clean -Up of,
any adverse environmental condition existing on, under or about, or emanating from, the Property,
prior to the Commencement Date (irrespective of whether such condition is discovered before or
after the Commencement Date) unless such condition has been disclosed in any environmental site
assessment report prepared for Developer during the Pre -Commencement Period. Developer's
obligations under this Article shall also not include the handling or remediation of, or any
responsibility for, or other Clean -Up of, any adverse environmental condition at the Property
caused solely by the negligence or willful misconduct of City or anyone acting by, through or
under it. City covenants and agrees that, except for environmental conditions disclosed in any
environmental site assessment report prepared for Developer during the Pre -Commencement
Period or reasonably ascertainable from new environmental reports or studies provided to
Developer during the Pre -Commencement Period, City shall be responsible for any Claims against
Developer under any Environmental Laws arising out of or relating to City's ownership or use or
the condition of the Property at any time prior to the Commencement Date or any Hazardous
Materials that were present on, under or about, or released from, the Property at any time prior to
the Commencement Date, or otherwise caused solely by the negligence or willful misconduct of
City or anyone acting by, through or under it.
Section 13.6. Survival of Obligations. The respective rights and obligations of City
and Developer under Sections 13.3, 13.4 and 13.5 shall survive the expiration or termination of
this Agreement for a period of two (2) years.
Section 13.7. Designation of Buildings by Name. Developer shall have the right and
privilege of designating name(s) by which the Buildings, the Project or any Phase thereof shall be
known to the general public.
ARTICLE 14
Entry on the Property by City
Section 14.1. Inspection by City of Property. City and its authorized representatives,
upon reasonable advance notice and in the presence of a representative of Developer, shall have
the right to enter the Property at reasonable times during normal business hours for the purpose of
inspecting the same to insure itself of compliance with the provisions of this Agreement.
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Section 14.2. Limitations on Inspection. City, in its exercise of the right of entry
granted to it in Section 14.1 herein, shall (a) not unreasonably disturb the occupancy of Developer,
Sublessees or Space Lessees nor disturb their business activities; and (b) with respect to any hotel,
residential, office and/or other Sublessee or Space Lessee, shall comply with all Laws and
Ordinances governing or applicable to City with respect to such uses and premises.
ARTICLE 15
Limitation of Liability
Section 15.1. Limitation of Liability of City. City shall not be liable to Developer for
any incidental, consequential, special or punitive losses or damages whatsoever arising from any
acts or omissions of City hereunder.
Section 15.2. Limitation of Liability of Developer. Developer shall not be liable to
City for any incidental, consequential, special or punitive losses or damages whatsoever arising
from any acts or omissions of Developer hereunder.
ARTICLE 16
Damage and Destruction
Section 16.1. Restoration After Casualty. If the Improvements shall be damaged by
fire or other casualty, Developer shall promptly notify City of such damage, shall properly secure
the damaged Improvements to a safe condition in compliance with Laws and Ordinances, and
shall, at its sole option, after settling its insurance claim (if any), either (a) restore or rebuild the
Improvements to the condition that existed prior to the casualty with such alterations as Developer
shall determine to make, and/or replace the Improvements with such other Improvements as
Developer shall determine to make, provided that the use of the Improvements following such
restoration, rebuilding or replacement are consistent with the uses that existed prior to the casualty
or are otherwise permitted uses under this Agreement, or (b) if the damage to the Improvements
exceeds twenty-five percent (25%) of the replacement value of the Improvements prior to the
casualty, raze the Improvements, remove the foundations, fill the site with dirt covered with topsoil
and leave it as a level, safe vacant lot with grass and reasonable landscaping. If it is reasonably
necessary in Developer's judgment to demolish the Improvements (or portions thereof') for the
purpose of restoring, rebuilding or replacing same with other Improvements that Developer may
determine to make, Developer shall also have the right to raze the Improvements (or portions
thereof') for such purpose. Developer shall notify City of its election within one hundred
eighty (180) days after the occurrence of the casualty. Developer shall not raze or remove the
Improvements or abandon portions thereof without terminating all affected Subleases and Space
Leases. After settling its insurance claim (if any), Developer shall proceed with reasonable
diligence to perform the work it has elected to perform hereunder, at its sole cost and expense, and
all such work shall be carried out in accordance with the terms of this Agreement, including
Articles 9 through 11. Developer shall have the sole right and authority to adjust and/or settle any
insurance claims, subject to the rights of any Lender.
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Section 16.2. Temporary Abatement of Rent. After the occurrence of a casualty
which prevents the normal operation of more than twenty-five percent (25%) of the leasable space
on the Property, all Rent shall be deferred until (i) the date Developer receives the proceeds from
its rent or business interruption insurance, or (ii) one (1) year after the occurrence of the casualty,
whichever shall first occur, at which time all such deferred Rent shall be due and payable. Except
for the foregoing, Developer shall not be entitled to any other abatement of Rent due to a casualty.
Section 16.3. Termination of Agreement. Notwithstanding anything to the contrary
contained herein, in the event that the Property or any part thereof shall be damaged or destroyed
by fire or other casualty during the last five (5) years of the Lease Term and the estimated cost for
repair and restoration exceeds an amount equal to fifty percent (50%) of the replacement value of
the Improvements, then Developer shall have the right to terminate this Agreement and its
obligations hereunder by giving written notice to City within one hundred eighty (180) days after
such damage or destruction. In such event, (a) this Agreement shall terminate fifteen (15) days
following City's receipt of notice of casualty, and (b) the obligations of Developer to pay Rent
under this Agreement shall cease as of the date of termination. In the event of any termination
hereunder, Developer shall (i) properly secure the damaged Improvements to a safe condition in
compliance with Laws and Ordinances (or, at City's request, raze the Improvements, remove the
foundations, fill the site with dirt covered with topsoil and leave it as a level, safe vacant lot with
grass and reasonable landscaping), and (ii) retain any property insurance proceeds for its own
account, in all cases subject to the rights of Lenders.
ARTICLE 17
Transfers and Assignment, Bifurcation of Leasehold Interest under this Agreement,
Integrated Developments,
Subleasing, Estoppel Certificates and Other Interests in Property
Section 17.1. Right to Transfer Leasehold. Prior to substantial completion of the
Initial Phase of the Project, Developer shall not sell, assign or transfer this Agreement in its entirety
or all of the interest of Developer as tenant hereunder to any Person that is not an Affiliated Person
(herein, a "Pre -Phase 1 Transfer"), without first procuring the prior written consent of the City
Manager, which consent shall not be unreasonably withheld, conditioned or delayed. For the
purposes of determining whether a transfer is a Pre -Phase 1 Transfer, the term "Initial Phase" shall
consist of a Phase containing the development of a vertical tower or similarly substantial component
of the overall development of the Project. Following substantial completion of the Initial Phase of
the Project and provided no Event of Default by Developer then exists under this Agreement,
Developer may freely sell, assign or transfer this Agreement (in whole or in part) or any interest of
Developer hereunder without restriction (except as otherwise expressly provided herein), upon
notice to City. In addition, at any time and from time to time, whether before or after the substantial
completion of the Initial Phase of the Project, and provided no Event of Default by Developer then
exists under this Agreement, Developer may freely sell, assign or transfer this Agreement (in whole
or in part) or any interest of Developer hereunder to any Affiliated Person without restriction (except
as otherwise expressly provided herein), upon notice to City. As used in this Section, the term
"transfer" shall include the transfer of the direct or indirect ownership interests in Developer if such
transfer (individually or in the aggregate) results in a transfer of more than ninety percent (90%) of
the beneficial ownership of Developer and a change in Control of Developer. Transfers for estate
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planning purposes of direct or indirect ownership interests in Developer shall not require the consent
of City. The following provisions shall apply to transfers hereunder:
(a) If Developer desires to make a Pre -Phase 1 Transfer, Developer shall, in
each instance, give written notice to the City Manager not less than forty-five (45) days
prior to the effective date of the proposed Pre -Phase 1 Transfer, which notice shall
(i) specify the nature of the proposed Pre -Phase 1 Transfer and the proposed date thereof,
(ii) identify the proposed transferee, (iii) include a copy of the proposed assignment and
assumption agreement, which shall be in a commercially reasonable form, and (iv) include
any other documents or financial information as the City Manager may reasonably require
to evaluate the proposed transferee. Based on the standards and criteria set forth in this
Section 17.1, the City Manager shall grant or deny consent to the Pre -Phase 1 Transfer no
later than forty-five (45) days following City Manager's receipt of Developer's notice and
all documentation reasonably required in connection therewith. If City Manager fails to
respond within said 45-day period, then for each day after the expiration of such 45-day
period for which the City Manager has failed to respond, (x) Developer shall receive an
abatement of Minimum Rent in an amount equal to the then current Minimum Rent
multiplied by .00274 (such multiplier being equal to 1 divided by 365), and (y) the Lease
Term shall be extended by one (1) day, in each case on a day for day basis. If the City
Manager denies consent to Developer's request for any Pre -Phase 1 Transfer, the City
Manager must have a reasonable basis to do so and shall state the specific reasons for such
disapproval in the notice of denial. Developer acknowledges and agrees that the conditions
and requirements for City Manager's consent to a Pre -Phase 1 Transfer provided herein are
reasonable. City acknowledges and agrees that it shall not be reasonable for the City
Manager to deny consent to any transferee who is an Acceptable Developer. If the City
Attorney determines that City Commission approval is required for any Pre -Phase 1
Transfer under any Laws and Ordinances, then such approval shall be required hereunder
in lieu of the consent of the City Manager, the City Manager shall use due diligence to
present the request for the Pre -Phase 1 Transfer to the City Commission as soon as
reasonably practicable and the time for performance by City hereunder shall be extended
to provide such time as is necessary for the presentation to, and approval by, the City
Commission. Any attempted Pre -Phase 1 Transfer of this Agreement without the consent
of the City Manager (or approval of the City Commission, if required) shall be void and of
no force or effect and shall not confer any interest or estate in the purported transferee and
will additionally be a default by Developer under this Agreement.
(b) If consent to a transfer is not required under this Section (e.g., transfers
to Affiliated Persons or following substantial completion of the Initial Phase of the Project),
Developer shall notify City in writing of such transfer (for informational purposes only)
and provide the City with copies of any executed transfer documents within thirty (30) days
after the date of transfer.
(c) No transferee of Developer's interest in this Agreement shall be a Person
who is prohibited by legislation then in effect from doing business with the City. Any
proposed transferee must possess qualifications for development of an Acceptable
Developer, or shall engage an Acceptable Developer to perform the obligations of
Developer hereunder. For purposes of this Section 17.1, "Acceptable Developer" means a
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Person or Persons possessing: (i) a minimum of ten (10) years of experience in the
development of mixed -use commercial developments in urban locations in the United
States during the ten (10) year period immediately prior to the date of the proposed transfer,
(ii) a good reputation in the business community, and (iii) adequate financial resources
and personnel equivalent to the original Developer or otherwise sufficient for the
performance of Developer's obligations under this Agreement with respect to the
development of the Project. The requirements of an Acceptable Developer may be satisfied
by the proposed transferee or the Person or Persons that directly or indirectly Control the
proposed transferee.
(d) The original Developer or then applicable transferor (as the case may be)
shall be released of and from all obligations under this Agreement accruing after the
effective date of such transfer, but only as to the portion of the Property so transferred,
provided that, in the case of a Pre -Phase 1 Transfer, the City Manager has consented to (or,
if required, City Commission has approved) such transfer as hereinabove provided. Such
release shall be automatic and without the need for an instrument of release; however, City
shall execute and deliver a written release if requested by Developer promptly following
such request. City shall also execute any other assignment and/or transfer documents as
may be reasonably requested by Developer to confirm City's consent to and/or
acknowledgement of any transfer hereunder, provided that the terms of such documents
comply with the requirements hereof.
(e) Any transfer of all or any part of Developer's interest in this Agreement
and the Property shall be made expressly subject to the terms, covenants and conditions of
this Agreement, and such assignee or transferee shall expressly assume all of the
obligations of Developer under this Agreement applicable to that portion of the Property
being sold, assigned or transferred, and agree to be subject to all conditions and restrictions
to which Developer is subject, but only for matters accruing while such assignee or
transferee holds, and only related to, the sold, assigned or transferred interest. However,
nothing in this subsection or elsewhere in this Agreement shall abrogate City's right to
payment of all Minimum Rent and other amounts due City which accrued prior to the
effective date of such transfer.
(f) In connection with any transfer, Developer shall notify City in writing of
the name and address of the transferee and the post office address of the place to which all
notices required by this Agreement are to be sent.
(g) Each transferee of Developer (and all succeeding and successor
transferees) shall succeed to all rights and obligations of Developer under this Agreement
with respect to the portion of the Property so transferred, including the right to mortgage,
and further assign, sublease or transfer; subject, however, to all duties and obligations of
Developer with respect to such portion of the Property, and to the terms of the document
of assignment or transfer (including the Bifurcated Lease, if applicable), in and pertaining
to the then remaining Lease Term.
(h) This Section shall not apply to any sale, assignment or transfer that results
from a foreclosure, a deed or assignment in lieu of foreclosure or the exercise of any other
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remedies under any Leasehold Mortgage, Subleasehold Mortgage or any Mezzanine
Financing, all of which shall be governed by Article 18 hereof (and not this Article).
Section 17.2. Bifurcation of Leasehold Interest under this Agreement. Developer,
at Developer's option, may effectuate a bifurcation of the leasehold interest in this Agreement
from time to time to facilitate the development and operation of the various components of the
Project in Phases, subject to the terms and conditions hereof. Accordingly, if Developer desires
to bifurcate its leasehold interest under this Agreement in connection with any Phase of the Project,
Developer shall so notify City of such election pursuant to Section 17.1(a), and the following
provisions shall apply:
(a) Developer, City and the transferee, shall promptly (and, in any event
within sixty (60) days following Developer's request) enter into, execute and deliver (i) a
bifurcation and partial termination of the leasehold interest under this Agreement in
substantially the form attached hereto as Schedule 17.2(a)(i), and (ii) a new lease with the
transferee with respect to the bifurcated Phase of the Project (each a "Bifurcated Lease")
in the form of this Agreement, but modified to delete Sections 1.4 through 1.8 hereof
relating to the Pre -Commencement Period and as otherwise necessary to reflect that the
Bifurcated Lease covers and affects the bifurcated Phase only.
(b) Any transferee of Developer's leasehold interest in this Agreement shall
be obligated to comply with the terms and provisions of the Bifurcated Lease and shall be
subject to the remedies and rights available to the City under the Bifurcated Lease in the
event such transferee fails to perform its obligations thereunder.
(c) Each Bifurcated Lease shall specify the allocation of the Minimum Rent,
Participation Rent and any other payments under this Agreement to be paid to City
thereunder, provided that (i) the sum of the Minimum Rent allocated under the Bifurcated
Leases and this Agreement (in the event any portion of the Project is developed under this
Agreement without bifurcation) shall equal the total Minimum Rent required by this
Agreement, (ii) the Minimum Rent shall be allocated between this Agreement and the
Bifurcated Lease proportionately based on the square footage of the Land hereunder and
thereunder, based on relative values or in any other fair and equitable manner, and
(iii) Participation Rent under a Bifurcated Lease shall be reduced by the amount of
Minimum Rent per annum paid under such Bifurcated Lease (in the same manner as
Minimum Rent reduces Participation Rent under this Agreement).
(d) For each Bifurcated Lease, the City shall be entitled to receive all
Minimum Rent and all Participation Rent due and owing under such Bifurcated Lease.
(e) Each Bifurcated Lease shall specify the allocation of Land Value based
on the square footage of the demised premises under the Bifurcated Lease in relation to the
square footage of the Property.
(f) The Minimum Rent due and payable by Developer and the Land Value
under this Agreement shall be adjusted and reduced, on a dollar for dollar basis, by the
aggregate amount of Minimum Rent due and payable and the Land Value under the
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Bifurcated Leases, respectively. The bifurcation documents executed by the Parties
pursuant to Section 17.2(a) shall amend this Agreement to confirm such adjustment and
reduction in Minimum Rent and the Land Value.
(g) Notwithstanding anything contained in this Agreement, upon the
execution of a Bifurcated Lease:
(i) Neither Developer nor City shall be obligated to perform any
obligation under this Agreement to the extent such obligation pertains to, or is to
be performed on, any the portion of the Property leased pursuant to such
Bifurcated Lease, and Developer and City shall be automatically released from
any and all such obligations (including, without limitation, any obligation to
(x) pay any rent allocated to such Bifurcated Lease and (y) maintain insurance
for such Phase or portion of the Property);
(ii) No action or omission of, or default by, a tenant (or anyone acting
by, through or under a tenant) under a Bifurcated Lease, including, without
limitation, any failure to develop the applicable Phase of the Project, shall in any
event constitute or give rise to a default, or any liability of Developer under this
Agreement or deprive Developer of any of its rights under this Agreement,
including without limitation the right to develop the remainder of the Project on
the balance of the Property in accordance with this Agreement; and
(iii) Neither Developer nor any assignee or successor thereof shall in any
event be prohibited from developing any portion of the Project (or be in default
hereunder, or have any liability), as a result of any failure of any tenant (or
anyone acting by, through or under a tenant) under any Bifurcated Lease to
develop the applicable Phase of the Project.
Each Bifurcated Lease shall include provisions similar to the above confirming that (1) the
tenant under such Bifurcated Lease shall not be obligated to perform any obligation under
this Agreement or any other Bifurcated Lease, and (2) no action or omission of, or default
by, Developer under this Agreement or any other tenant under any other Bifurcated Lease,
shall constitute a default under such Bifurcated Lease; it being the intention of the parties
that this Agreement and each Bifurcated Lease shall not be cross -defaulted in any way.
(h) Each tenant under a Bifurcated Lease shall have the right to (i) further
assign the Bifurcated Lease, and (ii) enter into subleases, licenses, concession agreements,
management agreements, operating agreements and other arrangements for the purpose of
implementing any use, operation or activity permitted under this Agreement, in accordance
with the terms thereof.
Section 17.3. Master Covenants for Integrated Project. Although the Property may
be leased pursuant to this Agreement and/or one or more Bifurcated Leases, the Project may be an
integrated mixed -use development, to be used for the Permitted Uses pursuant to the terms of this
Agreement and/or the Bifurcated Leases (as applicable). To promote the integrated and mixed -use
nature of the Project, and to ensure that the common or shared components of the overall Project
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are maintained and benefit the Phases and other portions of the Project intended to be served
thereby, each Phase of the Project may be subject to and benefited by the Master Covenants as
follows:
(a) The Project may include certain common or shared components (such as,
without limitation, walkways, promenades, driveways, parking facilities, park areas,
project -wide lighting and signage, and other shared components, areas and facilities)
located on more than one Phase of the Project. Pursuant to the Master Covenants, such
common or shared components, areas and facilities will be (i) available for use by each
Phase and other portions of the Property intended to be served thereby, and (ii) will be
administered by a master association, property owner's association and/or other entity
created for such purpose as more particularly provided in the Master Covenants.
(b) City agrees to recognize and not disturb the rights of Developer, any
tenant under a Bifurcated Lease, any transferee of this Agreement (and its or their
respective Sublessees and other subtenants (including Space Lessees), licensees,
employees, customers, guests, invitees and/or other permitted users) to the common or
shared components, areas or facilities under the Master Covenants irrespective of whether
this Agreement or any Bifurcated Lease controlling such components, areas or facilities
may have terminated or expired. City agrees from time to time, promptly upon request of
Developer, any tenant under a Bifurcated Lease and/or any such transferee, to enter into an
agreement in recordable form confirming such recognition and non -disturbance agreement,
which agreement shall be on such other customary and reasonable terms as may be
mutually acceptable to the parties. In addition, in the event this Agreement or any
Bifurcated Lease is terminated with respect to any Phase of the Project that is encumbered
by the Master Covenants, City shall have the right, at its option (and for the benefit of itself
and its tenants, subtenants, licensees, employees, customers, guests, invitees and/or other
permitted users), to ratify and confirm that the Master Covenants encumber and apply to
such Phase notwithstanding the termination of this Agreement or such Bifurcated Lease,
whereupon such Phase shall continue to be burdened by and enjoy the benefits of the
common or shared components, areas or facilities under the Master Covenants, subject to
the terms and conditions thereof (including without limitation the continuing obligation to
pay assessments for the privilege of using such facilities). Any subsequent lease(s) or other
agreements of any kind or nature whatsoever affecting the common or shared components,
areas and facilities encumbered by the Master Covenants shall be subject to the terms,
conditions and provisions of the Master Covenants.
(c) The Master Covenants may be recorded against and encumber any Phase
of the Project at any time during the Lease Term.
(d) The form and substance of the Master Covenants shall be subject to the
prior approval of City, which shall not be unreasonably withheld, conditioned or delayed,
provided that City's comments or objections to the terms and conditions of the Master
Covenants shall be limited to the provisions thereof that will remain binding on City
notwithstanding the termination of this Agreement or any Bifurcated Lease. If City does
not approve or disapprove the form of the Master Covenants in writing within sixty (60)
days following City's receipt of the initial draft of the Master Covenants (or thirty (30)
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days following any revised draft, as applicable), Developer shall deliver written notice to
City advising City that City has not responded to Developer and City shall have an
additional ten (10) days thereafter to respond to Developer with such approval or
disapproval. In the event that City fails to respond after the expiration of the additional
10-day period, then for each day after the expiration of such additional 10-day period for
which City has failed to respond, (i) Developer shall receive an abatement of Minimum
Rent in an amount equal to the then current Minimum Rent multiplied by .00274 (such
multiplier being equal to 1 divided by 365), and (ii) the Lease Term shall be extended by
one (1) day, in each case on a day -for -day basis. City shall provide specific reasons in
writing to Developer for any disapproval of the Master Covenants simultaneously with any
written notice of disapproval given by City hereunder. Amendments to the Master
Covenants which are material and which, if same were in the original Master Covenants,
would have required City approval, shall be subject to the same approval (and deemed
approval) process as the original Master Covenants. The parties shall use commercially
reasonable efforts to finalize the form of the Master Covenants within a period of sixty (60)
days following the initial draft.
Section 17.4. Condominium Restriction During Term. During the Term, no portion
of the Property shall be submitted to a condominium form of ownership under Chapter 718 of the
Florida Statutes.
Section 17.5. Rights to Sublease and Non -Disturbance to Sublessees and/or Space
Lessees. Developer shall have the right to enter into and/or consent to a Sublease or Space Lease
without any approval or consent of City; however, notwithstanding any other provisions of this
Agreement, no Sublease or Space Lease shall relieve Developer of any obligations under the terms
of this Agreement. City agrees to grant recognition and non -disturbance agreements for Space
Lessees or Sublessees which provide that, in the event of a termination of this Agreement which
applies to the portion of the Property covered by such Space Lessee's or Sublessee's Space Lease
or Sublease (as applicable), such Space Lessee or Sublessee will not be disturbed and will be
allowed to continue peacefully in possession under the terms and conditions of its Space Lease or
Sublease, provided that the following conditions are met:
(a) with respect to any Space Lease, such Space Lease is on market terms;
(b) with respect to any Sublease, such Sublease shall include an equitable
allocation of Minimum Rent, Participation Rent under such Sublease shall be consistent
with the requirements of this Agreement relative to Gross Revenue generated from the
subleased premises, and the rights and obligations of the sublessor and Sublessee under the
Sublease shall be consistent with the other terms and conditions of this Agreement or the
Bifurcated Lease applicable to the subleased premises;
(c) the Space Lessee or Sublessee shall not be in default of the terms and
conditions of its Space Lease or Sublease (as applicable) beyond applicable notice and cure
periods; and
(d) the Space Lessee or Sublessee shall agree to attorn to City; and
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(e) no Space Lease shall be entered into with any Person that operates any
adult book store, adult theatre, adult amusement facility, any facility selling or displaying
pornographic materials or having such displays, massage parlor, any facility for the sale of
paraphernalia for use with illicit drugs or any other use which is prohibited by applicable
law.
Developer shall provide written notice to City specifying the name and address of any
Sublessee or Space Lessee that requires a recognition and non -disturbance agreement under this
Section, which notice shall include a copy of the applicable Sublease or Space Lease. City agrees
that it will grant such assurances to such Space Lessees or Sublessees so long as they remain in
compliance with the terms of their Space Leases or Subleases, and provided further that any such
Space Leases or Subleases do not extend beyond the expiration of the Lease Term. To effectuate
the intent of this Section, City agrees to enter into recognition and non -disturbance agreements in
the form attached hereto as Schedule 17.5, Developer and the Sublessee or Space Lessee (as
applicable), within thirty (30) days following written request, pursuant to which City will agree to
recognize the applicable Sublease or Space Lease as a direct lease between City and such Space
Lessees or Sublessees. Any and all Subleases of the Property may include lender protection
provisions consistent with the provisions of this Agreement that benefit Lenders, including without
limitation Article 18 and 20 hereof, and all such provisions shall be recognized by City.
Section 17.6. Estoppel Certificates from City. Upon request of Developer or any
Lender, City agrees to give such requesting party an estoppel certificate in accordance with
Section 23.2 herein.
Section 17.7. Waiver of City Lien. In order to enable Developer and its Sublessees
and Space Lessees to secure financing for the purchase of fixtures, equipment and/or any other
item of personalty of any kind now or hereafter located on or in the Property, whether by security
agreement and financing statement, mortgage or other form of security instrument, City hereby
waives and will from time to time, upon request, execute and deliver an acknowledgment that it
has waived its "landlord's" or other statutory or common law or contractual liens securing payment
of rent or performance of Developer's other covenants under this Agreement as to such fixtures,
equipment or other items personalty (and does not have rights to a lien against such property).
Section 17.8. No Transfer or Encumbrance of City's Interest. During the Term,
except as provided in Article 28, City shall not sell, transfer, or encumber its interest in the Property
or any portion thereof.
ARTICLE 18
Financing and Rights of Lenders
Section 18.1. Right to Mortgage Leasehold. Developer and each Sublessee shall
have the right from time to time, and without the prior consent of City, to mortgage and otherwise
encumber their leasehold rights under this Agreement, any Sublease and the leasehold estate, in
whole or in part (with respect to the Property or any Phase or any part thereof), by a Leasehold or
Subleasehold Mortgage or Mortgages to any Mortgagee. Such Mortgages shall be expressly
subject to the terms, covenants and conditions of this Agreement (and the Sublease, if applicable),
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and the right, title and interest of City herein and in the fee estate in the Property, but subject at all
times to the rights granted in this Article 18 and elsewhere in this Agreement to Mortgagees. The
granting of a Mortgage or Mortgages against all or part of the leasehold estate in the Property shall
not operate to make the Mortgagee(s) thereunder liable for performance of any of the covenants
or obligations of Developer or Sublessee under this Agreement or a Sublease, except in the case
of a Mortgagee who owns or is in possession and control of all or a portion of the Property, and
then only for the applicable portion of the Property, and during its period of ownership or
possession and control, but City shall always have the right to enforce the leasehold obligations
against such portion of the Property, including such obligations accruing prior to such period of
ownership or possession and control, subject to the terms hereof, except, in each instance, as
otherwise provided herein or in any subordination and recognition agreement between City and
such Mortgagee. The amount of any such Mortgage may be increased whether by an additional
mortgage and agreement consolidating the liens of such Mortgages or by amendment to the
existing Mortgage, and any such Mortgage may be amended, restated, replaced, extended,
increased, refinanced, consolidated or renewed from time to time, all without the consent of City.
Such Mortgage(s) may, inter alia, contain a provision for an assignment of any rents, revenues,
monies or other payments due to Developer or Sublessee as a landlord (but not from Developer or
Sublessee to City) and a provision therein that the Mortgagee(s) in any action to foreclose a
Mortgage shall be entitled to the appointment of a receiver. Any transfer (a) resulting from the
foreclosure of a Mortgage or any conveyance, assignment or other transfer in lieu of foreclosure
of a Mortgage or other appropriate proceedings in the nature thereof, (b) made to the purchaser at
foreclosure of a Mortgage or to the grantee of a conveyance, assignment or transfer in lieu of
foreclosure of a Mortgage (including Mortgagee, any nominee of Mortgagee or a third party
buyer), or (c) made by Mortgagee or its nominee to a third party following the enforcement by
Mortgagee of its Mortgage, shall not require the consent of City and shall not constitute a breach
of any provision or a default under this Agreement.
Section 18.2. Right to Pledge Equity Interests. Developer, each Sublessee and the
direct and indirect owners of equity interests in Developer and each Sublessee, shall have the right
from time to time, and without the prior consent of City, to pledge and otherwise encumber any of
its respective direct or indirect equity or ownership interests (whether stock, partnership interest,
beneficial interest in a trust, membership interest or other interest of an ownership or equity nature)
(herein, "equity interests" or "ownership interests") to secure a loan made by a Mezzanine
Financing Source. The granting of such pledge or other security shall not operate to make the
Mezzanine Financing Source thereunder liable for performance of any of the covenants or
obligations of Developer or such Sublessee under this Agreement or a Sublease. The amount of
any such Mezzanine Financing may be increased, and such Mezzanine Financing may be modified,
amended, restated, replaced, extended, increased, refinanced, consolidated or renewed from time
to time, all without the consent of City. Any transfer of any direct or indirect ownership interest
in Developer or any Sublessee from the foreclosure by any Mezzanine Financing Source of a
pledge of ownership interests in Developer or such Sublessee or other appropriate proceedings in
the nature thereof, or any transfer made to the purchaser at a foreclosure of such pledge of
ownership interests, or any conveyance, assignment or transfer in lieu of such foreclosure
(including any transfer to the Mezzanine Financing Source, any nominee of Mezzanine Financing
Source or a third party buyer), or any change of control or other transfer of any direct or indirect
ownership interest in Developer or such Sublessee to the Mezzanine Financing Source or its
nominee resulting from the exercise by the Mezzanine Financing Source of any other rights or
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remedies under any Mezzanine Financing documents, including without limitation any pledge or
other security agreements or any partnership agreement, operating agreement or other
organizational documents, shall not require the consent of City and shall not constitute a breach of
any provision or a default under this Agreement.
Section 18.3. Notice to City of Lender's Interest. Written notice of each Mortgage
shall be delivered to City specifying the name and address of the Mortgagee to which notices shall
be sent and City shall be furnished a copy of each such recorded Mortgage. City shall also receive
notice of the name and address of any Mezzanine Financing Source who desires notice and the
benefit of the rights of Mezzanine Financing Sources under this Agreement. For the benefit of any
Lender entitled to notice as hereinafter provided in this Article 18, City agrees, subject to all the
terms of this Agreement, without the consent of such Lender, not to accept or consent to a
surrender, cancellation or termination of this Agreement, or enter into any material amendment or
modification to this Agreement, at any time (a) with respect to a Mortgage, during any period that
such Mortgage shall remain a lien on Developer's or a Sublessee's leasehold estate (as applicable),
and (b) with respect to Mezzanine Financing, during any period that the Mezzanine Financing
Source holds an equity interest (directly or indirectly), or is secured by a pledge of ownership
interests, in Developer or any Sublessee (as applicable). No Lender shall be bound by any material
amendment or modification of this Agreement made without its prior written consent as
hereinabove provided, and no sale or transfer of City's fee simple interest in the Land or any
portion thereof to Developer shall terminate this Agreement by merger or otherwise so long as the
lien of any Mortgage remains undischarged. City also agrees to abide by any subsequent written
notice from Developer or any Sublessee and any Lender jointly notifying City that such Lender's
consent is also required to effectuate any other modification, change, waiver, consent, approval or
other matter relative to this Agreement. Upon City's request, Developer shall from time to time
confirm and update the names and addresses of the Lenders entitled to the Lender protections set
forth in this Article 18 and Article 20 of this Agreement based on Developer's then current records.
Section 18.4. Notices to Lender(s). No notice of default under Section 20.1 or notice
of failure to cure a default under Section 20.2(a) shall be deemed to have been given by City to
Developer unless and until a copy has been given to each Lender who shall have notified City of
its respective interests pursuant to Section 18.3. City agrees to accept performance and compliance
by any such Lender of and with any of the terms of this Agreement with the same force and effect
as though kept, observed or performed by Developer, provided such act or performance is timely
under Section 18.5, Section 20.2 or Section 20.3. Nothing contained herein shall be construed as
imposing any obligation upon any such Lender to so perform or comply on behalf of Developer.
Lease.
Section 18.5. Termination of Leasehold Estate under this Agreement and New
(a) In addition to any rights any Lender may have by virtue of Article 20
herein, if this Agreement shall terminate prior to the expiration of the Lease Term (whether
pursuant to the terms of this Agreement, the rejection of this Agreement in a bankruptcy
or insolvency proceeding or otherwise), City shall give written notification thereof to each
Lender, and City shall, upon written request of the applicable Lender (with City to follow
the request of any Leasehold Mortgagee prior to Mezzanine Financing Sources) to City
given within sixty (60) days following such termination, enter into a new lease of the
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Property with the Leasehold Mortgagee (or its nominee) or Developer (as owned or
controlled by the Mezzanine Financing Source), as tenant, for the remainder of the Lease
Term, on the same terms and conditions, and with the same priority over any encumbrances
created at any time by City, its successors and assigns, which Developer has or had by
virtue of this Agreement. City's obligation to enter into such new lease of the Property
with Leasehold Mortgagee or Developer (as owned or controlled by the Mezzanine
Financing Source) shall be conditioned upon, on the date the new lease is executed, (i) City
receiving payment of all Rent due hereunder through the date of such new lease, (ii) all
other monetary defaults hereunder having been cured, (iii) all non -monetary defaults
susceptible to cure having been cured (or Leasehold Mortgagee or Developer (as owned or
controlled by the Mezzanine Financing Source), as applicable, as tenant, proceeding
promptly with such cure and pursuing such cure to completion with reasonable diligence,
and (iv) City receiving all reasonable expenses, costs and fees, including attorneys' fees,
incurred by City in preparing for the termination of this Agreement and in acquiring
possession of the Property, and in the preparation of such new lease. Such new lease shall
have priority over encumbrances created by City by virtue of the notice created by this
Agreement to any transferee of City or any person receiving an encumbrance from City,
which priority shall be self -operative and shall not require any future act by City. Any new
lease hereunder shall contain the same clauses subject to which the demise of the Property
hereunder is made, and shall be at the Rent and other payments for the Property due to City
and upon all of the terms as are herein contained.
(b) Nothing herein contained shall be deemed to impose any obligation on
the part of City to deliver physical possession of the Property to the Leasehold Mortgagee
(or its nominee) or Developer (as owned or controlled by the Mezzanine Financing Source)
until the new lease has been executed by all pertinent parties. City agrees, however, that
City will, at the request, cost and expense of the Leasehold Mortgagee, cooperate in the
prosecution of judicial proceedings to evict the then defaulting Developer or any other
occupants of the Property.
(c) If, upon the termination of this Agreement, Developer, but for such
termination, would have been entitled to receive any credit or other amount pursuant to the
provisions of this Agreement, then City agrees that the same shall be paid to the tenant
under a new lease, in the same manner and to the same extent as it would have been paid
or applied the same to or for the benefit of Developer as if this Agreement had not
terminated; subject however to City's right to offset any damages accrued as a result of
said termination.
(d) Nothing contained in this Agreement shall require any Leasehold
Mortgagee (or its nominee) or any Mezzanine Financing Source (or its nominee), as a
condition to its exercise of its right to enter into a new lease, to cure any default of
Developer not reasonably susceptible of being cured by such parties, in order to comply
with the provisions of this Section 18.5.
(e) The provisions of this Section 18.5 shall survive any termination of this
Agreement. Leasehold Mortgagees and Mezzanine Financing Sources shall be deemed to
be third party beneficiaries of this Section.
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Section 18.6. Termination of Leasehold Estate under this Agreement and New
Sublease.
(a) If any Sublease shall terminate prior to the expiration of its term, this
Agreement has also terminated and City has received written notice of the termination of
such Sublease and City has received written notice of any such Subleasehold Mortgagee
and Mezzanine Financing Source, City shall give written notification thereof to any
Subleasehold Mortgagee and Mezzanine Financing Source that provided Mezzanine
Financing to the Sublessee under such Sublease (even if such Subleasehold Mortgagee
and/or Mezzanine Financing Source failed to timely exercise its cure rights for a default
under such Sublease), and City shall, upon written request of the applicable Lender (with
City to follow the request of the Subleasehold Mortgagee prior to such Mezzanine
Financing Sources) to City given within sixty (60) days following such termination, enter
into a new lease or sublease of the subleased portion of the Property (herein, the "subleased
premises") with such Subleasehold Mortgagee (or its nominee) or Sublessee (as owned or
controlled by such Mezzanine Financing Source), as sublessee, for the remainder of the
term of such Sublease, on the same terms and conditions as set forth in such Sublease (with
appropriate modifications to reflect that the lease is a direct lease rather than a sublease, if
applicable). City's obligation to enter into such new lease or sublease of the subleased
premises with Subleasehold Mortgagee or Sublessee (as owned or controlled by such
Mezzanine Financing Source) shall be conditioned upon the new lessee/sublessee
committing to cure all monetary defaults under the Sublease and all non -monetary defaults
under the Sublease that are susceptible of cure within a reasonable period of time under the
circumstances, and to reimburse all of City's reasonable expenses in the preparation of
such new lease or sublease. Any new lease or sublease(s) hereunder shall contain the same
clauses subject to which the demise under the Sublease is made, and shall be at the rent
and other payments for the subleased premises and upon the terms as are therein contained
(except as otherwise expressly provided herein).
(b) Nothing herein contained shall be deemed to impose any obligation on
the part of City to deliver physical possession of the subleased premises to the Subleasehold
Mortgagee (or its nominee) or Sublessee (as owned or controlled by the applicable
Mezzanine Financing Source) until the new lease or sublease has been executed by all
pertinent parties. City agrees, however, that City will, at the request, cost and expense of
the Subleasehold Mortgagee, cooperate in the prosecution of judicial proceedings to evict
the then defaulting Sublessee or any other occupants of the subleased premises.
(c) Nothing contained herein shall require any Subleasehold Mortgagee (or
its nominee) or any applicable Mezzanine Financing Source (or its nominee), as a condition
to its exercise of its right to enter into a new lease or sublease, to cure any default of a
Sublessee not reasonably susceptible of being cured by such parties, in order to comply
with the provisions of this Section 18.6.
(d) The provisions of this Section 18.6 shall survive any termination of this
Agreement and any applicable Sublease. Subleasehold Mortgagees and Mezzanine
Financing Sources shall be deemed to be third party beneficiaries of this Section.
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Section 18.7. Other Subleases and Space Leases. Upon the execution and delivery
of a new lease or sublease pursuant to Section 18.5 and Section 18.6, all Subleases or Space Leases
which theretofore may have been assigned to City or have reverted to City upon termination of
this Agreement or Sublease or have been entered into by City pursuant to such Sections, shall be
assigned and transferred, without recourse against City, by City to the tenant or sublessees under
any such new lease or sublease (as appropriate). Between the date of termination of this
Agreement and the date of execution and delivery of the new lease or sublease, if any Lender shall
have requested such new lease or sublease as provided for in Section 18.5 and Section 18.6, City
will not cancel or modify any Sublease or Space Lease (subleased or sub -subleased under this
Agreement or a Sublease, as applicable) or accept any cancellation, termination or surrender
thereof (unless such termination shall be effective as a matter of law on the termination of this
Agreement) without the consent of Lender, except for default as permitted thereunder.
Section 18.8. No Subordination or Mortgaging of City's Fee Title. There shall be
no subordination of City's fee simple interest in the Land to the lien of any Mortgage financing
nor shall City be required to join in such mortgage financing. No Mortgagee or other Lender may
impose any lien upon City's fee simple interest in the Land; it being acknowledged and agreed that
City retains the sole right to encumber such interest during the Lease Term.
Section 18.9. No Personal Liability. Notwithstanding anything to the contrary in this
Agreement, no Lender or any Person acting for, on behalf of or at the direction of any Lender shall
have any personal liability under this Agreement or any Sublease (or a new lease or sublease),
even if such Person exercises any Lender's cure rights, except to the extent that such Person
assumes in writing any of Developer's obligations under this Agreement or a new lease or any
Sublessee's obligations under a Sublease or new lease or sublease_
Section 18.10. Priority of Multiple Security Interests. If more than one Lender of a
particular type (Leasehold or Subleasehold Mortgagees, and as to Subleasehold Mortgagees, as to
a particular encumbered Sublease) desires to exercise any mortgagee protection under this
Agreement, then the party against whom such mortgagee protection is to be exercised shall be
required to recognize either: (a) the Lender that desires to exercise such mortgagee protection and
whose Mortgage is most senior (as against other Mortgages of like type); or (b) such other Lender
of a particular type (all Leasehold Mortgagees or all Subleasehold Mortgagees, as applicable), who
all of the Lenders of such type have designated (in writing) to be the Lender to exercise such
mortgagee protection. Priority of Mortgages shall be conclusively evidenced by (in order of
precedence of application): (i) written agreement (or joint written instructions) by all Lenders of
a particular type (Leasehold Mortgagees or Subleasehold Mortgagees, as applicable); or (ii) a
report or certificate of a title insurance company licensed to do business in the State of Florida.
City shall not be obligated to determine the relative priorities of any Mortgages. For any
mortgagee protection that by its nature or under this Agreement only one Leasehold Mortgagee or
Subleasehold Mortgagee can exercise (such as the right to a new lease or sublease), pending the
determination of priority, any time period that applies to Leasehold Mortgagees' or Subleasehold
Mortgagees' (as applicable) exercise of such mortgagee protection shall be tolled.
Notwithstanding the foregoing, unless expressly acknowledged and agreed by the Leasehold
Mortgagee in a written agreement (or written instructions), all Leasehold Mortgages shall be prior
and superior to all Subleasehold Mortgages and Leasehold Mortgagee's rights to exercise any
mortgagee protection under this Agreement (including, without limitation, the rights under this
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Article 18) shall be prior and superior to the rights of any Subleasehold Mortgagees and Sublessees
to exercise same. Finally, all rights and benefits afforded to a Mezzanine Financing Source under
this Agreement shall also be afforded to any other Mezzanine Financing Sources who are not
holding the first lien on the membership interests in Developer or a Sublessee, provided that all of
the rights of such Mezzanine Financing Sources shall be subject to and subordinate to the holders
of more senior Mezzanine Financing. Priority of Mezzanine Financing shall be conclusively
evidenced by (in order of precedence of application): (x) written agreement (or joint written
instructions) by all Mezzanine Financing Sources; or (y) an appropriate financing statement search
under Article 9 of the Uniform Commercial Code (or any successor thereto) or other reasonable
evidence of priority for such financing in the State of Florida. City shall not be responsible for
establishing the priority of the Mezzanine Financing.
Section 18.11. Further Assurances. Upon written request from Developer, any
Sublessee, any Leasehold Mortgagee (prospective or current), any Subleasehold Mortgagee
(prospective or current) or any Mezzanine Financing Source (prospective or current), City shall
promptly, under documentation reasonably satisfactory to the requesting party: (a) agree directly
with the applicable Leasehold Mortgagee that it may exercise against City all Leasehold
Mortgagee's rights in this Agreement; (b) agree directly with the applicable Subleasehold
Mortgagee that it may exercise against City all Subleasehold Mortgagee's rights in this Agreement
and the applicable Sublease; (c) agree directly with the applicable Mezzanine Financing Source
that it may exercise against City all Mezzanine Financing Source's rights in this Agreement and
any applicable Sublease; and (d) amend this Agreement and/or provide other assurances as any
current or prospective Lender reasonably requests, provided such amendment does not adversely
affect City, including reduction of any payment due City or increase of any liability or obligation
of City.
Section 18.12. Third Party Beneficiary. All Lenders that have notified City under
Section 18.3 shall be deemed to be third party beneficiaries of this Article.
ARTICLE 19
Eminent Domain
Section 19.1. Definitions. For purposes of this Article, the following terms shall have
the following meanings:
(a) "Total Taking" shall mean the taking of the entire Property and all
Improvements or a material portion thereof under the power of eminent domain either by
judgment or by settlement in lieu of judgment.
(b) "Partial Taking" shall mean either a temporary taking or the taking of
only a portion of the Property and Improvements that does not constitute a Total Taking.
(c) "Date of Taking" shall mean the date upon which title to the Property and
Improvements or a portion thereof passes to and vests in the condemnor or the effective
date of any order for possession if issued prior to the date title vests in the condemnor.
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Section 19.2. Effect of Taking. If during the Lease Term there shall be a Total Taking,
then the leasehold estate under this Agreement shall cease and terminate as of the Date of Taking.
If this Agreement is so terminated, all Rent and any other financial obligation payable by
Developer to City shall be paid by Developer up to the Date of Taking, and the Parties thereupon
shall be released from all further liability under this Agreement except with respect to any liability
which shall have theretofore accrued. If during the Lease Term there is a Partial Taking, this
Agreement shall remain in full force and effect and Developer shall, after the settlement of any
condemnation award, promptly restore and rebuild the Improvements to the nearest whole
architectural structure consistent with the Improvements that existed prior to the condemnation
(taking into consideration the nature and extent of the condemnation), with such alterations as
Developer shall determine to make, or replace the Improvements (or portions thereof) with other
Improvements as Developer shall determine to make. If it is reasonably necessary in Developer's
judgment to demolish the Improvements (or portions thereof) for the purpose of restoring,
rebuilding or replacing same with other Improvements that Developer may determine to make,
Developer shall have the right to raze the Improvements (or portions thereof) for such purpose. In
the case of a Partial Taking, (a) the Land Value shall be reduced by the amount of the condemnation
award allocated to City under Section 19.3(b), and (b) Minimum Rent shall be adjusted, effective
as of the Date of Taking, to an amount equal to five and 22/100 percent (5.22%) of the Land Value
(as reduced under clause (a) hereof). A Total Taking and a Partial Taking shall include a voluntary
conveyance made with the consent of the Parties to any governmental authority or private entity
or person empowered to condemn property in lieu of formal court proceedings.
Section 19.3. Allocation of Award. Each Party shall have the right, at its own expense,
to appear and participate in any condemnation action affecting the Property. Lenders shall also be
entitled to participate in any proceedings in connection with a Total Taking or Partial Taking. All
compensation awarded for any taking (or the proceeds of private sale in lieu thereof) of the
Property shall be allocated between City and Developer as follows:
(a) Total Taking. In the event of a Total Taking, the condemnation award
shall be divided so that (i) City receives a portion of the award equal to the Land Value
multiplied by a fraction, the numerator of which is the square footage of the Land being
acquired by the taking, and the denominator of which is the square footage of all of the
Land subject to this Agreement immediately prior to the Date of Taking, and (ii) Developer
receives a portion of the award equal to the value of the leasehold estate (including without
limitation the value of the Improvements) as of the Date of Taking, subject to the rights of
any Lender. If the proceeds from a Total Taking are not sufficient to pay the entire award
due to City and Developer under the preceding sentence, then the proceeds shall be paid
on a pari passu (i.e., share and share alike) and pro rata basis based on the ratio that the
amount of the award due to each Party bears to the total award. In no event shall City
receive an award in excess of the Land Value to which it is entitled to hereunder (and any
such excess shall belong to Developer, subject to the rights of Lenders).
(b) Partial Taking. In the event of a Partial Taking, the condemnation award
shall be divided so that (i) first, Developer receives an amount equal to the cost to restore
the Property as provided in Section 19.2, subject to the rights of any Lender, and (ii) then,
the award shall be divided and allocated between the Parties in accordance with
Section 19.3(a) above.
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(c) Temporary Taking If the Partial Taking is a temporary taking,
Developer shall be entitled to receive the entire amount of any award made for such taking
(whether paid by way of damages, rent or otherwise), subject to the rights of any Lender,
unless the period of governmental occupancy extends beyond the termination of the Lease
Term, in which case the award shall be apportioned between Developer and City, in their
respective capacities under this Agreement, as of the date of such termination.
(d) Expenses. All expenses, if any, including reasonable attorneys' fees,
incurred by Developer, City and lenders in connection with a taking or conveyance in lieu
thereof shall be paid prior to the division of any condemnation award between the Parties
hereunder.
(e) Disputes. Any dispute as to the allocation of the condemnation award
shall be resolved strictly in accordance with this Section through an apportionment hearing
within the condemnation proceeding, failing which the Parties shall resolve the dispute in
arbitration pursuant to Article 27.
Section 19.4. Condemnation of Fee Interest. Notwithstanding anything in Article 10
to the contrary and City's rights as a sovereign, City hereby covenants and agrees with Developer
that (i) it will not agree to any Total Taking or Partial Taking by any party without the consent of
Developer which may be withheld in Developer's sole discretion, (ii) it will contest such Total
Taking or Partial Taking, and (iii) it will, as part of its defense against a Total Taking or Partial
Taking, avail itself of the defense, if available, that one entity with condemnation powers cannot
condemn the property of another entity with similar powers. If, notwithstanding the foregoing
efforts by City, City is unable to prevent or preclude any Total Taking or Partial, then City will
cooperate with Developer and in good faith and with reasonable diligence to minimize the effect
of the taking on Developer's ability to develop, construct, reconstruct, restore, repair or rebuild the
Improvements or any Phase as contemplated in this Agreement.
ARTICLE 20
Default by Developer or City
Section 20.1. Events of Default of Developer. The following acts shall be considered
events of default of Developer (herein deemed "Events of Default of Developer"):
(a) Developer fails to pay on time any Minimum Rent, Participation Rent or
other monies due and payable to City under this Agreement when and as the same shall
become due and payable, and such default shall continue for a period of thirty (30) days
after written notice thereof from City to Developer, with copies thereof to each Lender who
shall have notified City of its name, address and interest prior to such notice; or
(b) Developer fails to keep, observe and/or perform any of the other terms
contained in this Agreement that are the responsibility of Developer, excepting the
obligation to pay Rent or other monies due City, and such default shall continue for a period
of sixty (60) days after written notice thereof from City to Developer setting forth with
reasonable specificity the nature of the alleged breach, with copies thereof to each Lender
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who shall have notified City of its name, address and interest prior to such notice; or in the
case of such default or contingency which cannot with due diligence and in good faith be
cured within sixty (60) days, Developer fails within said sixty (60) day period to proceed
promptly and with due diligence and in good faith to pursue curing said default.
Section 20.2. Failure to Cure Default by Developer.
(a) If an Event of Default by Developer shall occur, City, at any time after
the periods set forth in Section 20.1(a) or (b) and provided Developer has failed to cure
such Event of Default within such applicable period, shall give written notice to Developer
and to any Lender who has notified City in accordance with Section 18.3, specifying such
Event(s) of Default by Developer and stating that this Agreement and the term hereby
demised shall expire and terminate on the date specified in such notice, which shall be at
least thirty (30) days after the giving of such notice, during which time Developer and/or
any Lender shall have the right to cure such default. Upon the date specified in such notice,
if the Event of Default has not been cured, then, subject, however, to the provisions of
Section 18.5, Section 18.6 and Section 20.3 herein, this Agreement and the term hereof and
all rights of Developer under this Agreement, shall expire and terminate.
(b) If an Event of Default of Developer shall occur and the rights of Lenders
shall not have been exercised as provided within this Agreement, then City, at any time
after the periods for exercise of rights as set forth under Section 20.1, 20.2 and 20.3 herein,
shall have the following rights and remedies which are cumulative:
(i) to restrain, by injunction, the commission of or attempt or threatened
commission of an Event of Default and to obtain a decree specifically compelling
performance of any such term or provision of this Agreement; and
(ii) to sue Developer for all damages (as limited by Section 15.2 above),
costs and expenses arising from Developer's failure to cure an Event of Default
hereunder that is susceptible of cure and to recover all such damages, costs and
expenses, excluding attorneys' fees and costs; and
(iii) to terminate any and all obligations that City may have under this
Agreement, in which event City shall be released and relieved from any and all
liability under this Agreement; provided, however, that (x) if the Event of Default
is specific to a single or specific Phase or Phases of the Project, and the Event of
Default has not been cured within the applicable notice and cure periods
hereunder, City's obligations under this Agreement shall terminate as to the
affected Phase or Phases only, but not with respect to any other Phases or portion
of the Property (it being agreed that this Agreement and City's obligations
hereunder shall remain in full force and effect with respect to such other Phases
or portions of the Property), and (y) the remedy under this provision may be
exercised only in conjunction with a termination or partial termination of this
Agreement in accordance with this Section 20.2.
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Section 20.3. Lender Right to Cure Developer Default. For so long as any Mortgage
encumbers the Property, or, as applicable, a Mezzanine Financing Source holds an equity interest
(directly or indirectly), or is secured by a pledge of ownership interests, in Developer or a
Sublessee:
(a) Notwithstanding the time allowed for Developer to cure an Event of
Default under Section 20.2(a), Lender shall have the right, but not the obligation, for an
additional period of thirty (30) days following the expiration of Developer's cure periods
under Section 20.2(a), to cure any monetary or non -monetary Event of Default of
Developer, but if such non -monetary Event of Default cannot be cured within such 30-day
period, then Lender shall have up to ninety (90) days to cure, provided that it has
commenced such cure within the initial thirty (30) day period and thereafter pursues such
cure with reasonable diligence, subject to further extension of such cure periods as
provided in clauses (b) and (c) below.
(b) Notwithstanding the provisions of this Agreement to the contrary, no
Event of Default by Developer will be deemed to exist as to a Mortgagee (and City shall
not be permitted to terminate this Agreement due to an Event of Default of Developer) as
long as such Mortgagee, in good faith, either promptly (i) commences to cure such Event
of Default and prosecute the same to completion in accordance with Section 20.3(a) above,
or (ii) if the nature of any non -monetary Event of Default is such that possession of or title
to the Property is reasonably necessary to cure the Event of Default, or the Event of Default
is of the type that cannot commercially reasonably be cured by Mortgagee (e.g., Developer
bankruptcy), files a complaint for foreclosure and thereafter prosecutes the foreclosure
action in good faith and with reasonable diligence, subject to any stays, moratoriums or
injunctions applicable thereto, and as promptly as practicable after obtaining possession or
title, as reasonably necessary, commences promptly to cure such Event of Default and
prosecutes the same to completion in good faith and with reasonable diligence; provided,
however, that during the period in which any foreclosure proceedings are pending, all of
the other obligations of Developer under this Agreement, to the extent they are susceptible
of being performed by Mortgagee (e.g., the payment of Rent), are being duly performed.
Upon Mortgagee curing all Events of Default hereunder that are susceptible of cure, any
Events of Default that cannot commercially reasonably be cured by Mortgagee shall be
permanently waived, including, any interest, penalties and late fees or charges due to City
as a result of such Events of Default.
(c) Notwithstanding the provisions of this Agreement to the contrary, no
Event of Default by Developer will be deemed to exist as to a secured Mezzanine Financing
Source (and City shall not be permitted to terminate this Agreement due to an Event of
Default of Developer) as long as such Mezzanine Financing Source, in good faith, either
promptly (i) commences to cure such Event of Default and prosecute the same to
completion in accordance with Section 20.3(a) above, or (ii) if the nature of any
non -monetary Event of Default is such that possession of or title to the ownership interests
in Developer is reasonably necessary to cure the Event of Default or if the Event of Default
is of the type that cannot commercially reasonably be cured by the Mezzanine Financing
Source (e.g., Developer bankruptcy), takes all reasonable steps necessary to foreclose the
pledge of such ownership interests and prosecutes such action in good faith and with
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reasonable diligence, subject to any stays, moratoriums or injunctions applicable thereto,
and as promptly as practicable after obtaining such possession or title, as reasonably
necessary, commences promptly to cure such Event of Default and prosecutes the same to
completion in good faith and with reasonable diligence; provided, however, that during the
period in which such action is being taken, all of the other obligations of Developer under
this Agreement, to the extent they are susceptible of being performed by the Mezzanine
Financing Source (e.g., the payment of Rent), are being duly performed. Upon the
Mezzanine Financing Source curing all Events of Default hereunder that are susceptible of
cure, any Events of Default that cannot commercially reasonably be cured by Mezzanine
Financing Source shall be permanently waived, including, any interest, penalties and late
fees or charges due to City as a result of such Events of Default.
(d) Any penalties, interest and late payment fees or charges due to City
pursuant to this Agreement as a result of any Event of Default by Developer shall not
commence to accrue and be due from any Mortgagee or Mezzanine Financing Source (but
City may pursue Developer for any such fees or charges) who has commenced and is
proceeding to cure any such Events of Defaults (other than any defaults not susceptible of
being cured by Mortgagee or Mezzanine Financing Source, which shall be subject to the
last sentence of clauses (b) or (c) above, as applicable) until the expiration of the applicable
cure, grace or other periods provided to the Mortgagee or Mezzanine Financing Source to
cure such Events of Defaults in this Article and Article 18.
Section 20.4. Surrender of Property. Upon any expiration or termination of the Lease
Term in accordance with the terms and conditions of this Agreement, Developer and all Sublessees
and Space Lessees shall quit and peacefully surrender the Property to City, except as provided
under any non -disturbance agreement provided by City to any Sublessee or Space Lessees.
Section 20.5. Rights of City After Termination. City shall in no way be responsible
or liable for any failure to relet the Property or any part thereof, or for any failure to collect any
rent due for any such reletting, provided that City acts reasonably and in good faith to mitigate its
damages.
Section 20.6. No Waiver by City. No failure by City to insist upon the strict
performance of any of the terms of this Agreement or to exercise any right or remedy consequent
upon a breach thereof, and no acceptance by City of full or partial Rent during the continuance of
any such breach, shall constitute a waiver of any such breach or of any of the terms of this
Agreement. None of the terms of this Agreement to be kept, observed or performed by Developer,
and no breach thereof, shall be waived, altered or modified except by a written instrument executed
by City. No waiver of any breach shall affect or alter this Agreement, but each of the terms of this
Agreement shall continue in full force and effect with respect to any other then existing or
subsequent breach thereof. No waiver of any default of Developer hereunder shall be implied from
any omission by City to take any action on account of such default, and no express waiver shall
affect any default other than the default specified in the express waiver and then only for the time
and to the extent therein stated. One or more waivers by City shall not be construed as a waiver
of a subsequent breach of the same covenant, term or conditions.
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Section 20.7. Events of Default of City. The provisions of Section 20.7 shall apply if
any of the following "Events of Default of City" shall happen: if City fails to keep, observe and/or
perform any of the duties or obligations imposed upon City pursuant to the terms of this Agreement
and such default shall continue for a period of sixty (60) days after written notice thereof from
Developer to City setting forth with reasonable specificity the nature of the alleged breach; or, in
the case of any such default or contingency which cannot, with due diligence and in good faith, be
cured within sixty (60) days, City fails within said sixty (60) day period to proceed promptly after
such notice and with due diligence and in good faith to cure said Event of Default.
Section 20.8. Failure to Cure Default by City. If an Event of Default of City shall
occur, Developer, at any time after the period set forth in Section 20.7 shall have the following
rights and remedies which are cumulative:
(a) If an Event of Default by City shall occur, Developer, at any time after
the period set forth in Section 20.7 and provided City has failed to cure such Event of
Default within such applicable cure period, shall give written notice to City specifying such
Event(s) of Default by City and providing notice to City of Developer's intention to cure
such default for the account of the City by a date specified in such notice, which shall be
at least thirty (30) days after the giving of such notice, as well as state the anticipated
amount to cure. Upon the date specified in such notice, if the Event of Default has not been
cured, then Developer shall have the right at any time thereafter (but in no event shall be
obligated) to cure such default for the account of City, and City shall promptly reimburse
Developer for any amount paid and any expense or contractual liability so incurred within
thirty (30) days after written demand. In the event City fails to timely reimburse Developer
hereunder, Developer may offset any amounts rightfully due it against future Rent
payments. In the event the City default is of the nature of an emergency, is a threat to any
life or presents any safety issues or materially impairs Developer or any other Person from
operating its business on or within the Property (or any portion thereof), Developer may
immediately commence the cure referenced above upon written notice to City and City
shall reimburse Developer for the expense incurred in connection therewith as provided
above.
(b) Developer shall be entitled to sue City for all damages (as limited by
Section 15.1 above), costs and expenses arising from City's failure to cure an Event of
Default hereunder that is susceptible of cure and to recover all such damages, costs and
expenses, excluding attorneys' fees and costs.
(c) Developer shall be entitled to exercise any and all equitable remedies
against City, including without limitation the right to restrain, by injunction, the
commission of or attempt or threatened commission of an Event of Default of City and/or
to obtain a decree specifically compelling performance of any such term or provision of
this Agreement.
Section 20.9. No Waiver by Developer. Failure by Developer to insist upon the strict
performance of any of the terms of this Agreement or to exercise any right or remedy upon a breach
thereof, shall not constitute a waiver of any such breach or of any of the terms of this Agreement.
None of the terms of this Agreement to be kept, observed or performed by City, and no breach
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thereof, shall be waived, altered or modified except by written instrument executed by Developer.
No waiver of any default of City hereunder shall be implied from any omission by Developer to
take any action on account of such default if such default persists or is repeated, and no express
waiver shall affect any default other than the default specified in the express waiver and then only
for the time and to the extent therein stated. One or more waivers by Developer shall not be
construed as a waiver of a subsequent breach of the same covenant, term or condition.
ARTICLE 21
Notices
Section 21.1. Addresses. All notices, demands or requests by City to Developer shall
be in writing and shall be deemed to have been properly served or given, if addressed to Developer
as follows:
Developer:
With a copy to:
Lancelot Miami River, LLC
c/o Adler Group
3150 SW 38th Avenue, Suite 500
Coral Gables, FL 33146
Attn: Michael M. Adler
Greenberg Traurig, P.A.,
333 S.E. 2nd Avenue, Suite 4400
Miami, Florida 33131
Attn: Ryan Bailine
and to such other address and to the attention of such other party as Developer may, from time to
time, designate by written notice to City. If Developer at any time during the term hereof changes
its office address as herein stated, Developer will promptly give notice of same in writing to City.
The Leasehold Mortgagee, Sublessee, Subleasehold Mortgagee or Mezzanine Financing Source
shall be deemed to have been properly served or given notice if such notice is in writing addressed
to such party at the address furnished pursuant to the provisions of Section 17.5 and Section 18.3
above. All notices, demands or requests by Developer or by a Leasehold Mortgagee, Sublessee,
Subleasehold Mortgagee or Mezzanine Financing Source to City shall be in writing and shall be
deemed to have been properly served or given if addressed to City as follows:
City Manager
City of Miami
444 SW 2nd Avenue, 10th Floor
Miami, Florida 33130
City of Miami City Attorney
Office of City Attorney
444 SW 2nd Avenue, 9th Floor
Miami, Florida 33130
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City of Miami
Director, Department of Real Estate
and Asset Management
444 SW 2nd Avenue, 3rd Floor
Miami, Florida 33130
and to such other addresses and to the attention of such other parties as City may, from time to
time, designate by written notice to Developer. If City at any time during the term hereof changes
its office address as herein stated, City will promptly give notice of same in writing to Developer
and any then -existing Leasehold Mortgage, Sublessee, Subleasehold Mortgagee and Mezzanine
Financing Source.
Section 21.2. Method of Transmitting Notice. All such notices, demands or requests
(a "Notice") shall be sent by: (i) United States registered or certified mail, return receipt requested,
(ii) hand delivery, (iii) nationally recognized overnight courier, or (iv) electronic transmission,
provided the electronic transmission confirms receipt of the transmission and the original of the
Notice is sent by one of the foregoing means of transmitting Notice within twenty-four (24) hours
of the electronic transmission. All postage or other charges incurred for transmitting of Notices
shall be paid by the party sending same. Such Notices shall be deemed served or given on (i) the
date received, (ii) the date delivery of such Notice was refused or unclaimed, or (iii) the date noted
on the return receipt or delivery receipt as the date delivery thereof was determined impossible to
accomplish because of an unnoticed change of address.
ARTICLE 22
Quiet Enjoyment
Developer, upon paying all Rent as provided for and performing in accordance with the
terms, agreements, and provisions of this Agreement, shall peaceably and quietly have, hold and
enjoy the Property during the Lease Term without interruption, disturbance, hindrance or
molestation by City or by anyone claiming by, through or under City.
ARTICLE 23
Certificates by City and Developer
Section 23.1. Developer Certificates. Developer agrees at any time and from time to
time, upon not less than thirty (30) days' prior written notice by City, to execute, acknowledge and
deliver to City a statement in writing (a) setting forth the rents, payments and other monies then
payable under this Agreement, if then known; (b) certifying that this Agreement is unmodified and
in full force and effect (or if there have been modifications, that this Agreement is in full force and
effect as modified and stating the modification), and if this Agreement is not in full force and effect
the certificate shall so state the reasons why; (c) certifying that this Agreement as modified
represents the entire agreement between the parties as to this leasing or, if it does not, the certificate
shall so state why; (d) stating the dates to which the rents, payments and other monies have been
paid; (e) stating the dates on which the term of this Agreement and the Lease Term commenced
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and when this Agreement is scheduled to terminate; and (f) stating (to the best of Developer's
knowledge) whether or not City is in default in keeping, observing or performing any of the terms
of this Agreement; and, if in default, specifying each such default (limited to those defaults of
which Developer has knowledge). It is intended that any such statement delivered pursuant to this
Section 23.1 may be relied upon by City or any prospective assignee, transferee or purchaser of
the fee, but reliance on such certificate shall not extend to any default of City as to which Developer
shall have no actual knowledge.
Section 23.2. City Certificates. City agrees at any time and from time to time, upon
not less than thirty (30) days' prior written notice by Developer or by a Leasehold Mortgagee,
Sublessee, Subleasehold Mortgagee or Mezzanine Financing Source to furnish a statement in
writing, in substantially the form attached hereto as Schedule 23.2 (a) setting forth the rents,
payments and other monies then payable under this Agreement, if then known; (b) certifying that
this Agreement is unmodified and in full force and effect (or if there shall have been modifications
that this Agreement is in full force and effect as modified and stating the modifications); and if
this Agreement is not in full force and effect the certificate shall so state the reasons why;
(c) certifying that this Agreement as modified represents the entire agreement between the parties
as to this leasing or, if it does not, the certificate shall so state why; (d) stating the dates to which
rents, payments and other monies have been paid; (e) stating the dates on which the term of this
Agreement and the Lease Term commenced and when this Agreement is scheduled to terminate;
and (f) stating whether or not (to the best of City's knowledge) Developer is in default in keeping,
observing and performing any of the terms of this Agreement, and, if Developer shall be in default,
specifying each such default of which City may have knowledge. It is intended that any such
statement delivered pursuant to this Section 23.2 may be relied upon by any prospective assignee,
transferee or purchaser of Developer's interest in this Agreement, any prospective Sublessee or
any Leasehold Mortgagee, Subleasehold Mortgagee, Mezzanine Financing Source or any assignee
thereof, but reliance on such certificate may not extend to any default of Developer as to which
City shall have had no actual knowledge.
ARTICLE 24
Construction of Terms and Miscellaneous
Section 24.1. Severability. If any provisions of this Agreement or the application
thereof to any person or situation shall, to any extent, be held invalid or unenforceable, the
remainder of this Agreement, and the application of such provisions to persons or situations other
than those as to which it shall have been held invalid or unenforceable, shall not be affected
thereby, and shall continue valid and be enforced to the fullest extent permitted by law.
Section 24.2. Captions. The Article headings and captions of this Agreement and the
Table of Contents preceding this Agreement are for convenience and reference only and in no way
define, limit or describe the scope or intent of this Agreement nor in any way affect this Agreement.
All references to Sections and Articles mean the Sections and Articles in this Agreement unless
another agreement is expressly referenced.
Section 24.3. Relationship of Parties. This Agreement does not create the
relationship of principal and agent or of mortgagee and mortgagor or of partnership or of joint
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venture or of any association between City and Developer, the sole relationship between City and
Developer being that of City and Developer or lessor and lessee.
Section 24.4. Recording. A Memorandum of this Agreement and Lease in the form
attached hereto as Schedule 24.4, or at Developer's behest, a full copy hereof, shall be recorded
among the Public Records of Miami -Dade County, Florida, at the sole cost of Developer, to give
record notice of the existence of this Agreement and all or certain terms set forth herein.
Section 24.5. Construction. All pronouns and any variations thereof shall be deemed
to refer to the masculine, feminine or neuter, singular or plural, as the identity of the party or parties
may require. The parties hereby acknowledge and agree that each was properly represented by
counsel and this Agreement was negotiated and drafted at arms' length so that the judicial rule of
construction to the effect that a legal document shall be construed against the drafters shall be
inapplicable to this Agreement which has been drafted by counsel for both City and Developer.
Section 24.6. Consents. Whenever in this Agreement the consent or approval of City
or Developer is required, such consent or approval shall be made by the City Manager or City
Manager's designee (on behalf of City) and any duly authorized officer or representative of
Developer (on behalf of Developer) and:
(a) shall not be unreasonably or arbitrarily withheld, conditioned, or delayed
unless specifically provided to the contrary, and shall not require a fee from the party
requesting same;
(b) shall not be effective unless it is in writing; and
(c) shall apply only to the specific act or transaction so approved or
consented to and shall not relieve Developer or City, as applicable, of the obligation of
obtaining the other's prior written consent or approval to any future similar act or
transaction.
Section 24.7. Entire Agreement. This Agreement contains the entire agreement
between the parties hereto and shall not be modified or amended in any manner except by an
instrument in writing executed by the parties hereto, provided that amendments extending the time
for performance of any obligation of Developer by no more than twelve (12) months, and any
extensions of the Initial Review Period or Additional Review Period by no more than six (6)
months in the aggregate, may be executed or granted by the City Manager or the City Manager's
designee on behalf of City.
Section 24.8. Successors and Assigns. The terms herein contained shall bind and
inure to the benefit of City, its successors and assigns, and Developer, its successors and assigns
(including Leasehold Mortgagees, Sublessees, and Space Lessees as appropriate and applicable),
except as may be otherwise provided herein.
Section 24.9. Intentionally Deleted.
Section 24.10. Holidays. It is hereby agreed and declared that whenever the day on
which a payment due under the terms of this Agreement, or the last day on which a response is
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due to a notice, or the last day of the period for performance or a cure period, falls on a day which
is a legal holiday in Miami -Dade County, Florida, or on a Saturday or Sunday, such due date, date
for performance or cure period expiration date shall be postponed to the next following business
day. Any mention in this Agreement of a period of days for performance shall mean calendar
days.
Section 24.11. Schedules/Exhibits. Each Schedule and Exhibit referred to in this
Agreement has been initialed by the parties and forms an essential part of this Agreement. The
Schedules and Exhibits, even if not physically attached, shall be treated as if they were part of this
Agreement.
Section 24.12. Brokers. City and Developer hereby represent and agree that no real
estate broker or other person is entitled to claim a commission as a result of the execution and
delivery of this Agreement other than CBRE. CBRE's brokerage commissions shall be funded by
Developer pursuant to that certain letter agreement dated November 27, 2017 attached to this
Agreement as Exhibit C.
Section 24.13. Protest Payments. If at any time a good faith dispute shall arise as to
any amount or sum of money to be paid by Developer to City under the provisions of this
Agreement, in addition to the rights set forth in Article 20 herein, Developer shall have the right
to make payment "under protest" and such payment shall not be regarded as a voluntary payment,
and there shall survive the right on the part of Developer to seek the recovery of such sum, and if
it should be adjudged that there was no legal obligation on Developer to pay such sum or any part
thereof, Developer shall be entitled to recover such sum or so much thereof as it was not legally
required to pay under the provisions of this Agreement; and if at any time a dispute shall arise
between the parties hereto as to any work to be performed by either of them under the provisions
of this Agreement, the party against whom the obligation to perform the work is asserted may
perform such work and pay the cost thereof "under protest" and the performance of such work
shall in no event be regarded as a voluntary performance and there shall survive the right upon the
part of said Developer and/or City to seek the recovery of the cost of such work, and if it shall be
adjudged that there was no legal obligation on the part of said Developer and/or City to perform
the same or any part thereof, said Developer and/or City shall be entitled to recover the cost of
such work or the cost of so much thereof as Developer or City was not legally required to perform
under the provisions of this Agreement.
Section 24.14. Radon. In accordance with Florida law, the following disclosure is
hereby made:
RADON GAS: Radon gas is a naturally occurring radioactive gas that, when it has
accumulated in a building in sufficient quantities, may present health risk to persons who are
exposed over time. Levels of radon that exceed Federal and State Guidelines have been found in
buildings in Florida. Additional information regarding radon and radon testing may be obtained
from your county public health unit.
Section 24.15. Energy -Efficiency Rating Disclosure. In accordance with Florida law,
the following disclosure is hereby made:
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Developer may have the Property's energy efficiency rating determined. Developer
acknowledges that it has received from City a copy of The Florida Building Energy -Efficiency
Rating System Brochure as provided by the State of Florida Department of Community Affairs.
Section 24.16. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida.
Section 24.17. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original but all of which, when taken together, shall
constitute one and the same agreement.
Section 24.18. Attorneys' Fees. Each party shall be responsible for their respective
attorneys' fees and costs incurred in connection with this Agreement, including, but not limited to,
any action or proceeding brought by either party to enforce or interpret the terms of this
Agreement.
Section 24.19. 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 this Agreement, 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 City and Developer entering into
this Agreement.
Section 24.20. Provisions not Merged With Deed. None of the provisions of this
Agreement, nor the separate estates of Developer and City, are intended to or shall, in any event,
be merged, including by reason of any transfer, whether by operation or law or otherwise,
(i) transferring Developer's leasehold estate in the Property or its interest in the Project or any part
thereof from Developer to City, or (ii) transferring title to the Property or any part thereof from
City to Developer, and any such transfer shall not be deemed to affect or impair the provisions and
covenants of this Agreement. No such merger of estates shall occur unless and until all parties
having any interest in this Agreement, the leasehold estate created hereby, or the Project (or portion
thereof), including all applicable Leasehold Mortgagees, shall join in the execution of a written
instrument effecting such merger.
Section 24.21. Exculpation. It is the intent and agreement of the Parties hereto that only
the Parties as entities shall be responsible in any way for their respective obligations hereunder,
except as otherwise expressly provided herein. In that regard, no officer, director, partner, trustee,
representative, investor, official, representative, employee, agent, or attorney of any of the Parties
to this Agreement shall be personally liable for the performance of any obligation hereunder or for
any other claim made hereunder or in any way in connection with this Agreement, or any other
matters contemplated herein, and any and all such personal liability, either at common law or in
equity or by constitution or statute or other Laws and Ordinances are expressly waived and released
as a condition of, and as a consideration for, the execution of this Agreement.
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Section 24.22. Documents Incorporated and Order of Precedence. City and
Developer acknowledge that the City issued the OM, that Developer submitted a response to the
OM, and the Parties approved that certain Term Sheet dated July 13, 2018 (the "Term Sheet")
prior to the Execution Date. If there is a conflict between or among the provisions of this
Agreement, the Term Sheet, the response to the OM, and the OM, the order of precedence is as
follows: (i) the terms of this Agreement; (ii) the Term Sheet, (iii) the response to the OM, and
(iv) the OM.
ARTICLE 25
Representations and Warranties
Section 25.1. City's Representations and Warranties. City hereby represents and
warrants to Developer that:
(a) It has full power and authority to enter into this Agreement and perform
in accordance with its terms and provisions and that the parties signing this Agreement on
behalf of City have the authority to bind City and to enter into this transaction and City has
taken all requisite action and steps to legally authorize it to execute, deliver and perform
pursuant to this Agreement.
(b) City is the fee simple owner of the Property and on the Commencement
Date City will deliver the leasehold hereunder and exclusive possession of the Land and
Property to Developer free and clear of any and all tenancies and occupancies of every
nature whatsoever, whether by City or otherwise, and also free and clear of any violations
by City of Laws and Ordinances, except as may be agreed by Developer in writing, and
subject only to the rights reserved herein to City.
Section 25.2. Developer's Representations and Warranties. Developer hereby
represents and warrants to City that it has full power and authority to enter into this Agreement
and perform in accordance with its terms and provisions and that the parties signing this Agreement
on behalf of Developer have the authority to bind Developer and to enter into this transaction and
Developer has taken all requisite action and steps to legally authorize it to execute, deliver and
perform pursuant to this Agreement.
ARTICLE 26
Intentionally Deleted
ARTICLE 27
Dispute Resolution
Section 27.1. Arbitration. Any dispute between City and Developer relating to
whether a condition or event constitutes an Unavoidable Delay or which otherwise is expressly
stated to be resolved in arbitration pursuant to the terms of this Agreement, shall be referred to and
exclusively and finally settled by binding arbitration, conducted in accordance with the
Commercial Arbitration Rules of the American Arbitration Association (or similar successor rules
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thereto), and shall not be subject to judicial review. The place of arbitration shall be Miami,
Florida. In the event that any party calls for a determination in arbitration pursuant to the terms of
this Agreement, the Parties shall have a period of ten (10) days from the date of such request to
mutually agree on one arbitrator who, at a minimum, must have at least fifteen (15) years of recent
professional experience as to the subject matter in question, including significant experience in
development projects and related litigation in Miami -Dade County, Florida. If the parties fail to
agree, each Party shall have an additional ten (10) days to select its preferred arbitrator who must
be an individual meeting the same minimum qualifications set forth above, and the two (2)
arbitrators selected shall select a third arbitrator to be the arbitrator to resolve the dispute in
question, failing which the arbitrator shall be an individual meeting the same minimum
qualifications set forth above designated by the American Arbitration Association in Miami -Dade
County, Florida. If any party fails to make its respective selection of an arbitrator within the
additional 10-day period provided for above, then the remaining parry's selection shall be the
arbitrator. The arbitrator shall decide the issues submitted to him/her in accordance with (a) the
language, commercial purpose and restrictions contained in this Agreement (including exhibits
hereto, if any) and (b) what is just and equitable under the circumstances, provided that all
substantive issues shall be determined under the laws of the State of Florida. With respect to any
arbitration proceeding hereunder, the following provisions shall apply: (i) the parties shall
cooperate with one another in the production and discovery of requested documents, and in the
submission and presentation of arguments to the arbitrator at the earliest practicable date; (ii) the
arbitrator conducting any arbitration shall be bound by the provisions of this Agreement and shall
not have the power to add to, subtract from or otherwise modify such provisions; and (iii) each
party shall be responsible for its own costs and expenses incurred in the arbitration, including
attorneys' fees, but the costs of the presiding arbitrator and the arbitration itself shall be shared
equally by the Parties. Arbitration of any dispute hereunder shall be conducted on an expedited
basis under the "Expedited Procedures" of the Commercial Arbitration Rules to the fullest extent
possible.
Section 27.2. Expert Resolution Process. Any disputes between City and Developer
regarding the matters described in Sections 3.4 and 17.2, under this Agreement (individually, an
"ERP Dispute" and collectively, the "ERP Disputes"), shall be resolved in accordance with the
provisions of this Section 27.2 below.
(a) Expert Resolution Process ("ERP"). The Party desiring that the Expert
resolve any ERP Dispute (the "Initiating Party") shall give notice in accordance with the
provisions of this Agreement to the other Party (the "Recipient Party") that it desires to
initiate the ERP (the "ERP Notice"). The Initiating Party and the Recipient Party shall
agree on the Expert as set forth in subsection (f) below.
(b) Within thirty (30) days after the selection of the Expert, the Initiating
Party and the Recipient Party shall submit their ERP Dispute to the Expert for
determination. The Expert shall discuss the ERP Dispute in detail with the Initiating Party
and the Recipient Party and otherwise undertake such investigation and study such
materials as the Expert believes reasonably necessary to make an informed decision.
Examination of witnesses by the Initiating Party and the Recipient Party and by the Expert
shall be permitted in the discretion of the Expert.
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(c) A written transcript of the proceeding shall be made and furnished to the
Parties. The Expert shall determine any ERP Dispute, controversy or claim under this
Agreement in accordance with the terms hereof and shall take into account any appropriate
trade usage applicable to the transactions contemplated by this Agreement. The Expert
shall state the reasons upon which its decision is based in writing. The decision of the
Expert shall be issued promptly but in no event later than thirty (30) days after the Parties
have submitted their final statements and proofs to the Expert. Each Party shall have the
right to bring an action in any court of competent jurisdiction to enforce the Expert's award.
(d) The Expert may grant any remedy or relief within the scope of this
Agreement and the applicable provisions hereof and under applicable law. In the absence
of fraud, gross misconduct or an error in law appearing on the face of the order or award
issued by the Expert, the written decision of the Expert shall be final and binding on the
Parties. The Parties intend that the decision by the Expert shall be binding for all purposes
and that no right of appeal shall exist.
(e) The Parties voluntarily and knowingly waive any right to pursue any ERP
Disputes involving the Parties in any forum or through any process or proceeding other
than the process and procedures set forth in Section 27.2. The foregoing process shall be
the exclusive method available for resolution of ERP Disputes hereunder that cannot
otherwise be resolved.
(f) For purposes of this Agreement, "Expert" means an independent
nationally recognized consulting firm or individual having at least ten (10) years recent
professional experience as to the subject matter in question, who is qualified to resolve the
issue in question and who is appointed in each instance by agreement of the Parties. In the
event either Party calls for an Expert determination pursuant to the terms hereof, the Parties
shall have thirty (30) days from the date of such request to mutually agree on one (1)
recognized consulting firm or individual with relevant experience as the Expert and, if they
fail to agree, each Party shall have an additional ten (10) days to each select one (1)
recognized consulting firm or individual with relevant development experience as the
Expert and within ten (10) days of such respective selections, the two (2) respective firms
and/or individuals so selected by each of the Parties hereto shall select another such
recognized consulting firm or individual to be the Expert. If either Party hereto fails to
make its respective selection of a firm or individual within the ten (10) day period provided
for above, then the other Party's selection shall be the Expert. Also, if the two respective
firms and/or individuals so selected shall fail to select a third recognized consulting firm
or individual to be the Expert, then the Expert shall be appointed by the American
Arbitration Association in Miami -Dade County, Florida.
Section 27.3. Other Disputes. Except to the extent this Agreement expressly provides
that certain matters are to be resolved by arbitration or another form of dispute resolution, and
except as the Parties may otherwise mutually agree, disputes between the Parties under this
Agreement shall be resolved by litigation.
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ARTICLE 28
Option to Purchase
Section 28.1. Purchase Option. City hereby gives and grants to Developer the
exclusive and continuous option (hereinafter referred to as an "Option" or "Options") to purchase
all or any portion of the Property in accordance with the provisions of this Article 28. Each Option
shall be exercisable and subject to the following provisions:
(a) At any time during the Lease Term, Developer may exercise an Option
by giving written notice (a "Purchase Option Notice") to City. The Purchase Option Notice
must specify the portion of the Property that Developer intends to purchase with respect to
such Option and the Closing Date of the acquisition under such Option. The closing date
(a "Closing Date") for the exercised Option shall be the date specified in such Purchase
Option Notice, which shall, at Developer's option, be (x) a date that is no earlier than
sixty (60) days following delivery of the Purchase Option Notice by Developer to City,
(y) the date that is one (1) business day prior to expiration of the then current Lease Year
in which the Purchase Option Notice is delivered to City (provided that Developer provided
City with the Purchase Option Notice no less than sixty (60) days prior to the expiration of
the then current Lease Year), or (z) such other date mutually agreed by City and Developer.
(b) Subject to the terms of Section 28.2 below, any Purchase Option Notice
shall be deemed an obligation of Developer (or its assignee) to purchase the Property (or
the applicable portion of the Property described in the Purchase Option Notice) and of City
to sell the Property (or the applicable portion of the Property described in the Purchase
Option Notice) and shall be accompanied by: (1) one original of the Purchase and Sale
Agreement, which is attached as Schedule 28.1(b) (a "Purchase and Sale Agreement"), and
(2) a non-refundable deposit in an amount equal to one and one half percent (1.5%) (the
"Option Purchase Deposit") of such Option Price. Within thirty (30) days of its receipt of
a Purchase and Sale Agreement signed by Developer and delivered in accordance with the
provisions of this Section 28.1, City will countersign and return a copy of such Purchase
and Sale Agreement to Developer.
(c) The purchase price for an exercised Option shall be the Option Price.
Any dispute between City and Developer regarding the Option Price shall be subject to
arbitration to be conducted in accordance with the provisions of Section 27.1.
(d) Developer's Option and right to purchase the Property shall be subject to
the express condition that no Event of Default shall be continuing under this Agreement at
the time of the closing of such purchase.
Section 28.2. Amendments Upon Closing of an Option. Notwithstanding anything
contained in this Agreement, upon the closing of each Option under a Purchase and Sale
Agreement, this Agreement shall be automatically amended as follows:
(a) Except as otherwise expressly provided in this Agreement or the
Purchase and Sale Agreement, neither Developer nor City shall be obligated to perform
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any obligation under this Agreement to the extent such obligation pertains to, or is to be
performed on, any the portion of the Property sold to Developer pursuant to the Purchase
and Sale Agreement, and Developer shall be automatically released from any and all such
obligations;
(b) The Land Value shall be reduced by the amount of the Option Price paid
by Developer to City under the Purchase and Sale Agreement;
(c) The definition of "Property" shall be adjusted to reflect the release of
such portion of the Property sold to Developer pursuant to the Purchase and Sale
Agreement; and
(d) Minimum Rent shall be adjusted as of the Closing Date under the
Purchase and Sale Agreement to be an amount equal to Five and 22/100 Percent (5.22%)
of the Land Value (after taking into account the adjustments resulting from the sale set
forth in this Section 28.2). Upon such adjustment of the Minimum Rent, the terms and
provision of Section 3.1 of this Agreement shall continue to apply.
(e) The Parties will amend the Memorandum of Agreement and Lease of
record to reflect the amendments to this Agreement set forth in this Section 28.2.
Section 28.3. Failure to Close. Developer's failure to close the purchase of the
Property (or the applicable portion of the Property described in the Purchase Option Notice) upon
exercise of an Option (as described in this Article 28) shall not constitute a breach or a default by
Developer under this Agreement and this Agreement shall continue unaffected thereby.
(a) If (i) Developer fails to close an Option as described in this Article 28,
(ii) such failure constitutes an Event of Default under such Purchase and Sale Agreement,
and (iii) such failure shall continue for ten (10) days after written notice from City (or such
other period as may be set forth in such Purchase and Sale Agreement), then (x) Developer
shall reimburse City within thirty (30) days of demand for all costs and expenses of City
(including, without limitation, all reasonable attorneys' fees and expenses) actually
incurred in connection with the exercise of such Option and preparation for the closing of
such purchase, and (y) Developer shall forfeit the Option Purchase Deposit, as liquidated
damages in full settlement of all claims against Developer with respect to failure to close
an Option as the parties agree that the amount of actual damages that City would suffer as
a result of Developer's default would be extremely difficult to determine and have agreed,
after specific negotiation, that the amount of the Option Purchase Deposit is a reasonable
estimate of City's damages and is intended to constitute a fixed amount of liquidated
damages in lieu of other remedies available to City and is not intended to constitute a
penalty.
(b) If (i) Developer terminates such Purchase and Sale Agreement pursuant
to its terms and/or otherwise fails to close an Option as described in this Article 28, but
(ii) such failure does not constitute an Event of Default under the Purchase and Sale
Agreement, then (X) Developer shall be entitled to the return of the Option Purchase
Deposit, (Y) Developer shall have no obligation to reimburse City for any of their costs or
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expenses, except as otherwise provided under Section 12 of the Purchase and Sale
Agreement, and (Z) the provisions of this Article 28 shall remain in effect.
(c) If City fails to close an Option through no fault of Developer and such
failure constitutes an event of default under the Purchase and Sale Agreement, Developer's
sole remedies shall be (i) to sue for specific performance (and in such event Developer
shall have no obligation to reimburse City for any of their costs or expenses, or to pay any
prepayment penalty or similar cost or expense), or (ii) to terminate the transaction and
recover from City all of Developer's actual out-of-pocket costs and expenses incurred in
connection with the contemplated purchase (and Developer shall have the right to offset
against Minimum Rent all such costs and expenses), in which event the provisions of this
Article 28 shall remain in effect.
Section 28.4. Casualty Prior to Closing Under an Option. The Parties agree that if
the damage or destruction has occurred after Developer has given a Purchase Option Notice,
Developer may, within ten (10) business days following the damage or destruction, rescind the
Purchase Option Notice by written notice to City (in which event this Agreement shall continue
and the provisions of Article 16 shall apply and the provisions of this Article 28 shall remain in
effect).
Section 28.5. Condemnation Prior to Closing Under an Option. The Parties agree
that if the taking by condemnation or eminent domain occurs or is threatened in writing after
Developer has given a Purchase Option Notice, Developer may at any time within ten (10) business
days following the taking or threat thereof and prior to the scheduled Closing Date rescind the
Purchase Option Notice by written notice to City (in which event this Agreement shall continue
and the provisions of Article 19 shall apply and the provisions of this Article 28 shall remain in
effect).
Section 28.6. Covenant Running with Land. The provisions of this Article 28 shall
run with and bind the Land.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, City has caused this Agreement to be executed in its name
by the City Manager; as authorized by the Board, and Developer has caused this Agreement to be
executed by its duly authorized representative all on the day and year first hereinabove written.
LANDLORD: CITY OF MIAMI, a municipal corporation of
the State of Florida
Signed in the presence of the following
witnesses: By:
Emilio T. Gonzalez, City Manager
Print Name:
Print Name:
ATTEST: APPROVED AS TO INSURANCE
REQUIREMENTS:
By:
Todd B. Hannon, City Clerk
Approved as to form and legal sufficiency
Name: Victoria Mendez
Title: City Attorney
By:
Ann -Marie Sharpe, Director of Risk
Management
[Signatures Continue on Following Page]
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DEVELOPER: LANCELOT MIAMI RIVER, LLC, a Florida
limited liability company
Signed in the presence of the following
witnesses:
Print Name:
Print Name:
STATE OF FLORIDA
) SS:
COUNTY OF MIAMI-DADE
By:
Name: Michael M. Adler
Title: President
Date: , 2019
The foregoing instrument was acknowledged before me this day of , 20, by
Michael M. Adler, as President of LANCELOT MIAMI RIVER, LLC, a Florida limited liability
company, on behalf of said entity.
Personally Known OR Produced Identification
Type of Identification Produced:
Notary Public, State of Florida at Large
Print or Stamp Name:
Commission No.:
My Commission Expires:
ACTIVE 19926268v13
LIST OF EXHIBITS
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit E
Description of Land
Intentionally Deleted
City of Miami Letter to CBRE
Depiction of Parcel to be Conveyed to Adjacent Parcel Owner
Sale/Refinancing Transaction Fee Agreement
LIST OF SCHEDULES
Schedule 1.3
Schedule 7
Schedule 17.2(a)(i)
Schedule 17.5
Schedule 23.2
Schedule 24.4
Schedule 28.1(b)
Confirmation of Date(s) Certificate
Insurance Requirements
Form of Partial Assignment, Bifurcation and Partial Termination of Lease
Form of Recognition and Non -Disturbance Agreement
City's Estoppel Certificate
Memorandum of Lease
Form of Purchase and Sale Agreement
ACTIVE 19929732v9
EXHIBIT A
Description of Land
Tracts 1 and 2, RIVERSIDE PLAZA, according to the plat thereof as recorded in Plat Book 139, Page
43, of the Public Records of Nliarni - Dade County, Florida.
LESS AND EXCEPT THE FOLLOWING:
This part of Tracts 1 and 2, RIVERSIDE PLAZA, as recorded in Plat Book 139, Page 43, of the Public
Records of Miami - Dade County, Florida, and being a portion of Section 37, Township 54 South,
Range 41 East.
More particularly described as follows:
BEGINNING at the Northeast corner of said tract 2; thence along the East boundary of said Tracts 2
and 1 also being Westerly right-of-way line of S.W. 2nd Avenue, the following six (6) courses: 1) S
02°15'35" E for 4.550 meters (14.93 feet); 2) S 02°16'29" E for 7.338 meters (24.07 feet); 3) 5
87°43'31"W for 0.838 meters (2.75 feet); 4) S 02°16'29" E for 84.723 meters (277.96 feet); 5) S
00°26'56" E for 24.683 meters (80.98 feet); 6) 5 02°16'29" E for 25.578 meters (83.92 feet) to a
point on the most Southerly boundary cif said Tract 1; thence along said boundary, N 45°39'37" W
for 35.035 meters (114.94 feet); thence N 52°31'38"E for 19.437 meters (63.77 feet); thence N
02°16'29" W for 77.346 meters (253.76 feet); thence N 00°30'18" W for 22.762 meters (74.68
feet); thence N 89°29'43" E for 6.475 meters (21.24 feet); thence N 00°30'14" W for 10.300
meters (33.79 feet) to a point on the North boundary of the aforesaid Tract 2; thence along said
boundary, N 87°42'40" E for 2.315 meters (7.60 feet) to the POINT OF BEGINNING.
A-1
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EXHIBIT B
Intentionally Deleted
B-1
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EXHIBIT C
City of Miami Letter to CBRE
[to be attached]
C — 1
ACTIVE 19929732v9
Titur oft x t
November 27, 2017
Via e-mail
Leeann.korst@cbre.com
Lee Ann Korst
First Vice President
CBRE, Inc.
311 E. Park Avenue
Tallahassee, FL 32301
l3ANIE1..1. ALI ONSO
City Manager
Re: Commission for City of Miami Project; Miami Riverside Center (MRC) and
Acquisition of Replacement Facility
Dear Lee Ann,
In response to our various discussions and the City's evolving needs, the City of Miami ("City")
hereby proposes the following commission structure in compliance with the Florida Department of
Management Services Contract #ITN-DMS-12/13-007 as adopted by the City by Resolution R 14-
0463 for Tenant -Broker and Real Estate Consulting services ("Tenant -Broker Contract") as it
pertains to transaction (1) the sale or lease of the property known as the Miami Riverside Center
("MRC") and, the purchase and/or lease of a replacement Administrative Facility subject to the
following terms and conditions:
Commission Schedule
Total Transaction Value
Commission Rate
$0 - $I OM
3.50%
$1 OM - $20M
3.00%
$20M - $30M
2.50%
$30M - $50M
2.00%
$50M - $100M
1.50%
$100M or greater
0.95%
Payment shall be made in accordance with the above commission schedule, which shall be neither
cumulative nor compounding, and which will be a percentage of the total commissionable amount
DEPARTMENT OF REAI. ESTATE'. AND ASSI3I MANAGEMENT
444 S.W. 2nd Avcnnuc, 3rd floor. Miami. Florida 33130 / (305) 416-I450 / Fax: (305) 416-2I56
described below. The total commissionable amount or transaction value shall be determined as
follows:
For Disposition of IVIRC:
A) If property is conveyed by sale:
The commissionable amount shall be the fee simple value of the property paid by the purchaser at
closing. If for economic development purposes the property is transferred at a bargain price or Tess
than fair market value, the commissionable amount shall be the fair market value as determined by
a duly licensed and qualified MAI appraiser.
B) If property is conveyed by land lease:
The total commissionable amount or transaction value shall be the Value of the land lease over the
term, including extensions, for a total term not to exceed thirty (30) years. The determination of
Value shall include base rent, participation rent, projected profits interest (if any) and fixed
escalations. Participation rent and projected profits interest shall be based on reasonable
projections provided by the Developer.
PLUS
For the Acquisition of Replacement Administration Building:
The commissionable amount for the acquisition of a replacement Administration Building shall be
the aggregate hard and soft costs of the replacement building including but not limited to land,
architectural and engineering fees, infrastructure improvements, furniture, fixtures and equipment
and the cost of all construction for the project.
While CBRE is representing the City's interests in this transaction, the commission shall be paid
by the Developer with whom the City enters into the various agreements to acquire the existing
property and develop the replacement facility.
Payment of the above -stated commission fee shall be made as follows: thirty percent (30%) upon
execution of the 'ARC Purchase and Sale Agreement or Ground Lease, New Facility Purchase
and/or Lease, and Development Agreement (or the later date in the event the agreements are
executed separately); thirty percent (30%) upon issuance of the final approval required in order to
commence construction of the New Facility; thirty percent (30%) upon commencement of
construction of the New Facility, which shall be defined as the physical breaking of ground and ten
percent (10%) upon Certificate of Occupancy (CO). Any previously agreed -upon commission fee
or structure shall be null and void, and this agreement shall govern.
Notwithstanding any language contained herein to the contrary, the above mentioned assignment
shall be subject to and performed in compliance with the Florida Department of Management
DEPARTMENT OF REAL ESTATE AND ASSET MANAGEMENT
444 S.W. 2nd Avenue. 3rd Floor. Miami, Florida 33130 / (305) 416-1450 / Fax; (305) 4E6-2E56
Services Contract #ITN-DMS- I 2/13-007 as adopted by the City by Resolution R 14-0463 for
Tenant -Broker and Real Estate Consulting services ("Tenant -Broker Contract").
Please acknowledge your acceptance of these terms by signing below on behalf of CBRE, Inc. and
return the same to my attention at your earliest convenience.
Respectfully,
Daniel Rotenberg, Director
Department of Real Estate & Asset Management
Agreed:
IAA
William I. Gulliford III
Managing Director
CBRE, Inc,
DEPARTMENT ()f^ REAL ESTATE AND ASSET MANA€iEMENT
444 S.W. 2nd Avenue. 3rd Floor. Miami. Florida 33130 / (305) 416-1450 / Eix: 1305) 416-2156
EXHIBIT D
Depiction of Parcel to be Conveyed to Adjacent Parcel Owner
[Green Portion Only]
11
Lancelot's Property to be sold to City of Miami (BLUE)
City of Miami Property set to be leased/sold to Lancelot
as part of OM #15-10-008 (GREEN)
City of Miami Property set to be leased/sold to Lancelot
as part of OM #15-10-008 (YELLOW)
I OFF OE- LEVEL 19
SCHEDULE 1.3
NICHOLS
WORST"
WOLFS
A304
ACTIVE 19929732v9
EXHIBIT E
Sale/Refinancing Transaction Fee Agreement
[to be attached]
SCHEDULE 1.3
ACTIVE 19929732v9
This instrument prepared by or under the
supervision of (and after recording return to):
Name: Ryan Bailine, Esq.
Address: Greenberg Traurig, P.A.
333 S.E. 2nd Ave., Suite 4400
Miami, FL 33157
(Reserved for Clerk of Court)
SALE/REFINANCING TRANSACTION FEE AGREEMENT
(Miami Riverside Center)
THIS SALE/REFINANCING TRANSACTION FEE AGREEMENT (this
"Agreement") is executed as of , 2019 ("Effective Date"), by and between
LANCELOT MIAMI RIVER, LLC, a Florida limited liability company ("Developer"), and CITY
OF MIAMI, a municipal corporation of the State of Florida ("City"). Developer and City are
sometimes referred to individually as a "Party" and collectively as the "Parties".
RECITALS:
A. On February 2, 2016, the City issued a competitive solicitation titled Offering
Memorandum No. 15-16-008, together with any Addenda (the "OM"), which OM specifically
called for offers from the public to acquire and redevelop certain real property owned by the City
consisting of approximately 3.15 acres of land located at 444 and 460 SW 2nd Avenue in the City
of Miami, Florida, commonly known as "Miami Riverside Center" and more particularly described
on Exhibit A attached hereto and made a part hereof (the "Property"). DEVELOPER submitted a
proposal to the City in response to the OM and was recommended as the top -ranked bidder by a
selection committee appointed by the City Manager.
B. On July 26, 2018, the City Commission adopted Resolution No. R-18-0324, the
purpose of which was to submit to the electors of the City of Miami, for approval or disapproval,
the proposed terms on which Developer would lease and/or acquire title to the Property from the
City based on a term sheet negotiated between the City and Developer. The terms of the proposed
transaction were approved by voter referendum by the electorate of the City of Miami on
November 6, 2018.
C. The City and Developer, consistent with the transaction terms approved by the
voters at referendum, entered into that certain Agreement of Lease (Miami Riverside Center) dated
as of even date herewith (as modified, supplemented, amended or restated from time to time, the
"Master Ground Lease"), a memorandum of which was recorded on , 2019 in
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Official Records Book , Page of the Public Records of Miami -Dade County,
Florida. Pursuant to the Master Ground Lease, the City leased the Property to Developer and
Developer leased the Property from the City on the terms and conditions set forth therein. The
Master Ground Lease contemplates, among other things, that Developer will redevelop the
Property in one or more phases over time.
D. Pursuant to Section 3.6 of the Master Ground Lease, Developer agreed to pay the
City a transaction fee in connection with the sale or refinancing of developed portions of the
Property from time to time pursuant to a Sale/Refinancing Transaction Fee Agreement that would
be entered into by the Parties no later than the Commencement Date (as defined in the Master
Ground Lease), recorded in the Public Records of Miami -Dade County, Florida, and run with title
to the Property until released in accordance with its terms. This Agreement constitutes the
Sale/Refinancing Transaction Fee Agreement contemplated by Section 3.6 of the Master Ground
Lease.
NOW THEREFORE, consistent with Developer's response to the OM, the transaction
terms approved by the voters of the City of Miami on November 6, 2018, and the covenants,
agreements and obligations contained in the Master Ground Lease, the Parties do hereby covenant
and agree that the foregoing recitals are true and correct and are incorporated herein by this
reference, and further agree as follows:
1. Definitions. In addition to those terms otherwise defined in this Agreement
(including the above Recitals), the terms set forth below, when used in this Agreement, shall have
the meanings provided below. Capitalized terms used in this Agreement without definition shall
have the meanings given to them in the Master Ground Lease.
(a) Certificate of Occupancy shall mean the temporary or permanent certificate
issued by the City evidencing that the applicable Improvements are ready for occupancy.
(b) Fee shall mean the Refinance Fee and/or Transfer Fee as the context
dictates.
(c) Improvements shall have the meaning given to it in the Master Ground
Lease, but shall (i) include at least one building or other structure intended for use and occupancy,
and (ii) expressly exclude the Existing Improvements.
(d) Project Costs shall mean, collectively, all costs and expenses incurred by
Developer in connection with the Master Ground Lease or development of the Property, including
without limitation (i) the development and construction of all Improvements on the Property,
whether in connection with the initial development and construction of the Improvements or the
subsequent repair, replacement, refurbishment or maintenance thereof, including without
limitation, all hard costs (including but not limited to general conditions, general contractor fee,
overhead, insurance, bonds and contingencies), and all soft costs (including but not limited to
surveying, testing, architectural, design, engineering, permitting, project/construction
management fees, legal fees and any other soft costs), including a proportionate share of the hard
and soft costs for infrastructure and other common areas or shared facilities that benefit the
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ACTIVE 43272743v8
Improvements in question, and (ii) all interest expense, operating expenses and other carrying costs
associated with the Property and Improvements located thereon.
(e) Refinance Fee shall have the meaning given to it in Section 2 below.
(f) Refinance Loan shall mean any loan obtained by Developer and secured by
a mortgage on the Property or any portion thereof, excluding (i) the proceeds of any loans used for
the construction, repair, replacement, refurbishment, or maintenance of the Improvements, (ii) the
proceeds of any loans required to be escrowed or reserved or otherwise not available for the use
of the borrower, (iii) working capital loans, or (iv) loans extended from an Affiliate of Developer.
The mortgage securing the Refinance Loan may be a Leasehold Mortgage or a mortgage
encumbering fee title to the Property and Improvements with respect to any portion of the Property
acquired pursuant to the Option.
(g) Stabilized Occupancy shall mean, with respect to any Improvements, the
earlier of (i) one (1) year following issuance of a Certificate of Occupancy for such Improvements,
or (ii) the date upon which such Improvements have achieved an occupancy level of not less than
eighty-eight percent (88%).
(h) Transaction Costs shall mean any and all transaction costs associated with
a Refinance Loan or a Transfer (as the context requires), including without limitation brokerage
commissions (in connection with sales, leases, financings or otherwise), loan fees and costs
(including loan origination fees), loan/refinancing prepayment fees, premiums and/or yield
maintenance charges, defeasance fees and costs, title premiums and fees, due diligence costs,
attorneys' fees, consultant fees, transfer taxes, documentary stamp taxes, surtaxes, intangible taxes
and/or other transfer or mortgage taxes, and other ordinary and customary closing costs paid by
Developer.
(i) Transfer shall mean the sale, assignment or other transfer by Developer of
any portion of the Property and any Improvements located thereon, by an assignment of
Developer's rights under the Master Ground Lease, through a Bifurcated Lease or, after the Option
is exercised and closes with respect to any portion of the Property, by conveyance of title to such
portion of the Property and Improvements located thereon.
(j) Transfer Fee shall have the meaning given to it in Section 3 below.
2. Refinance Fee. No later than thirty (30) days following the closing of a Refinance
Loan and Developer's actual receipt of the proceeds of such Refinance Loan, Developer shall pay
to the City a fee (the "Refinance Fee") equal to the sum of:
(a) One percent (1%) of the principal amount of the Refinance Loan, less (i)
the Project Costs for the portion of the Property and Improvements being refinanced, and (ii) the
Transaction Costs for the Refinance Loan; plus
(b) One percent (1%) of the principal amount of the Refinance Loan, less all
Transaction Costs; less
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(c) The aggregate amount of the Refinance Fee previously paid to the City with
respect to the portion of the Property and Improvements being refinanced.
For the avoidance of doubt, in calculating the Refinance Fee hereunder, the portion of the
Refinance Fee calculated under Section 2(a) shall not be included as a Transaction Cost when
calculating the portion of the Refinance Fee under Section 2(b), but any Refinance Fee previously
paid with respect to the portion of the Property and Improvements refinanced through a Refinance
Loan shall be credited against and reduce the Refinance Fee due for any subsequent Refinance
Loan for such portion of the Property and Improvements. The Refinance Fee shall be due and
payable under this Section 2 in connection with a refinancing of any portion of the Property and
Improvements located thereof through a Refinance Loan from time to time until the Transfer Fee
is paid with respect to such portion of the Property and Improvements, whereupon the obligation
to pay any Fee respect to such portion of the Property and Improvements by reason of this
Agreement shall terminate as hereinafter provided.
3. Transfer Fee. No later than thirty (30) days following the closing of a Transfer as
evidenced by the execution and delivery of an assignment of the Master Ground Lease, a
Bifurcated Lease or a deed of conveyance of title (as applicable), Developer shall pay to the City
a fee (the "Transfer Fee") equal to the sum of:
(a) One percent (1%) of the gross purchase price under the sales contract for
the portion of the Property and Improvements being transferred, less (i) Project Costs for such
portion of the Property and Improvements, and (ii) all Transaction Costs for the Transfer; plus
(b) One percent (1%) of the gross purchase price under the sales contract for
the portion of the Property and Improvements being transferred, less all Transaction Costs; less
(c) The aggregate amount of the Refinance Fee previously paid to the City with
respect to the portion of the Property and Improvements that are the subject of the Transfer.
For the avoidance of doubt, in calculating the Transfer Fee hereunder, the portion of the Transfer
Fee calculated under Section 3(a) shall not be included as a Transaction Cost when calculating the
Transfer Fee under Section 3(b); however, any Refinance Fee previously paid with respect to the
portion of the Property and Improvements that are the subject of the Transfer shall be credited
against and reduce the Transfer Fee due for the Transfer of such portion of the Property and
Improvements. Once the Transfer Fee is paid with respect to any portion of the Property and
Improvements, the obligation to pay any Fee respect to such portion of the Property and
Improvements by reason of this Agreement shall terminate as hereinafter provided.
4. Condominium Sales. With respect to any portion of the Property submitted to the
condominium form of ownership and sold as residential or commercial condominium units
("Condominium Units"), if the obligation to pay the Transfer Fee with respect to such portion of
the Property has not previously been satisfied, then Developer shall pay to the City the aggregate
Transfer Fee for all Condominium Units sold in arrears (i) commencing on that date that is sixty
(60) days following the date of developer turnover of the condominium to the condominium
association, and (ii) continuing on each six (6) month anniversary thereof until the Transfer of all
of the Condominium Units. Developer shall keep City reasonably apprised of the inventory for
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unsold Condominium Units. The City agrees that the City's recourse for the Transfer Fee for
Condominium Units shall be solely to the Developer and that neither the purchaser of any
Condominium Unit nor its mortgagee(s) nor any association or other entity responsible for the
common elements or shared areas of the condominium shall be responsible therefor under any
circumstances, nor shall the City's rights hereunder constitute or be construed as a lien against any
closed Condominium Units.
5. Supporting Documentation. In connection with the payment of any Fee under this
Agreement, Developer shall provide the City with reasonable back-up documentation, including
but not limited to closing statements, paid invoices, receipts and similar materials evidencing the
Project Costs and Transaction Costs, preferred returns and other required distributions under any
organizational or other governing documents, and required reserves and other restrictions on use
of funds applicable to a Refinance Loan, supporting the calculation of the amount of such Fee.
6. Conveyances Not Subject to Fee. Notwithstanding any provision in this Agreement
to the contrary, no Fee shall be due or payable by Developer for or with respect to any Transfer or
refinancing affecting the Property or any leasehold interest therein that does not include
Improvements for which construction has been completed, a Certificate of Occupancy has been
issued by the City and the Improvements have achieved Stabilized Occupancy. Accordingly, the
sale, assignment or other transfer, or any refinancing, of any leasehold interest in the Property or
any Improvements thereon under the Master Ground Lease or a Bifurcated Lease, or any fee
interest therein with respect to any portion of the Property acquired pursuant to the Option, shall
not trigger or impose any obligation to pay the Fee or any portion thereof unless and until all of
the required conditions to the Fee set forth in the first sentence of this Section have been satisfied.
Further, any conveyance or other transaction entered into and closed pursuant to the exercise of
the Option and corresponding Purchase and Sale Agreements under the Master Ground Lease shall
be exempt from this Agreement and shall not be subject to any Fee under any circumstances.
7. Partial Release and Termination of Agreement. Following payment in full of the
Transfer Fee for any portion of the Improvements, such Improvements and related Property shall
be deemed permanently released from this Agreement and no further Fee whatsoever shall be due
or payable with respect to such Improvements or Property hereunder. The foregoing release shall
be self -operative and automatic; however, the City shall execute and deliver a partial release in the
form attached to this Agreement as Exhibit B, within ten (10) days of Developer's request, which
partial release may be recorded by Developer in the Public Records of Miami -Dade County,
Florida, to provide record notice of the permanent release of the applicable Improvements and
Property from the effect of this Agreement and satisfaction of Developer's obligations with respect
to same. Following payment of the Transfer Fee for the Improvements constructed as part of the
final phase of development of the Property, this Agreement shall terminate in its entirety and be
of no further force or effect, and no further Fee whatsoever shall be due hereunder. The foregoing
termination shall be self -operative and automatic; however, the City shall execute and deliver a
termination and release in the form attached to this Agreement as Exhibit C, within ten (10) days
of Developer's request, which termination and release may be recorded by Developer in the Public
Records of Miami -Dade County, Florida, to provide record notice of the termination of this
Agreement and satisfaction of Developer's obligations hereunder. If the City disputes the amount
of the Fee paid and fails or refuses to execute a partial release or a termination and release as a
result thereof, Developer may nevertheless secure such partial release or termination and release
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(as applicable) by paying the amount in dispute, whereupon the City shall be required to execute
such partial release or termination and release. The payment of the disputed amount shall be
deemed a payment "under protest" by Developer, and the dispute over the disputed amount shall
be addressed and resolved by the Parties in accordance with Section 19.
8. Mortgagee Exemption. This Agreement and the City's right to receive a Fee
hereunder shall not apply to any sale, assignment or other Transfer that results from a foreclosure,
a deed or assignment in lieu of foreclosure or the exercise of any other remedies under any
mortgage(s) encumbering the Property or any fee or leasehold interest therein or any part thereof,
together with any extensions, modifications, amendments or replacements thereof, whether such
sale, assignment or other Transfer is to the holder of such mortgage or the note secured thereby,
its nominee or a purchaser at a foreclosure sale. Accordingly, in the event any portion of the
Property or the Improvements located thereon or any leasehold estate therein is transferred by
reason of a foreclosure, a deed or assignment in lieu of foreclosure or the exercise of any other
remedies under any Leasehold Mortgage or any mortgage encumbering fee title to the Property or
any portion thereof, such Transfer shall not be subject to, or in any manner required to comply
with, this Agreement, but any subsequent Transfer, unless similarly excluded under this Section
or not subject to this Agreement under any other provision hereof, shall be subject to the provisions
of this Agreement.
9. Estoppels. Each Party will from time to time within thirty (30) days following the
written request of the other Party deliver to such persons as the requesting Party may request, a
statement certifying that, to the knowledge of such Party, neither the City nor Developer is in
default under this Agreement (or specifying any default), identifying any Fee owed, and
confirming such other matters as may reasonably be requested. At the request of any Party, such
statement may be in recordable form and may be recorded in the Public Records of Miami -Dade
County, Florida.
10. Covenant Running with the Land. This Agreement shall constitute a covenant
running with the Property which shall be binding upon Developer, its successors and assignees; it
being the intention of the Parties that the Fee shall be paid, notwithstanding the occurrence of one
or more Transfers, in accordance with the terms and conditions of this Agreement, during the term
hereof. Notwithstanding the foregoing, this Agreement and the covenants contained herein,
including the obligation to pay the Fee, shall be released and terminate in accordance with the
terms and subject to the conditions of this Agreement, including Sections 7 hereof.
11. Notices. Any and all notices required pursuant to the terms of this Agreement shall
be in writing and shall be served by registered or certified mail, with return receipt requested and
postage prepaid, or sent by Federal Express or some other recognized overnight courier or locally
recognized same -day delivery service to the addresses hereinafter provided. Notice shall be
deemed given upon receipt or refusal to accept delivery. Each Party may change from time to time
their respective address for notice hereunder by like notice to the other Party. The notice addresses
of the Parties are as follows:
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Upon Developer
LANCELOT MIAMI RIVER, LLC
c/o Adler Group
3150 SW 38th Avenue, Suite 500
Coral Gables, FL 33146
Attn: Michael M. Adler
With a copy to:
GREENBERG TRAURIG, P.A.
333 S.E. 2nd Avenue, 44th Floor
Miami, Florida 33131
Attn: Ryan D. Bailine & Nancy B. Lash, Esq.
Upon City
City Manager
City of Miami
444 SW 2nd Avenue, loth Floor
Miami, Florida 33130
With copies to:
City of Miami City Attorney
Office of City Attorney
444 SW 2nd Avenue, 9th Floor
Miami, Florida 33130
And
City of Miami
Director, Department of Real Estate
and Asset Management
444 SW 2nd Avenue, 3rd Floor
Miami, Florida 33130
12. Construction and Interpretation. The titles, captions and paragraph headings are
inserted for convenience only and are in no way intended to interpret, define, limit or expand the
scope or content of this Agreement or any provision hereof. This Agreement shall be construed
without regard to any presumption or other rule requiring construction against the party causing
this Agreement to be drafted. If any words or phrases in this Agreement shall have been stricken
out or otherwise eliminated, whether or not any other words or phrases have been added, this
Agreement shall be construed as if the words or phrases so stricken out or otherwise eliminated
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were never included in this Agreement and no implication or inference shall be drawn from the
fact that said words or phrases were so stricken out or otherwise eliminated. All Exhibits attached
hereto are incorporated herein by reference.
13. Severability. This Agreement is intended to be performed in accordance with and
only to the extent permitted by applicable law. If any provisions of this Agreement or the
application thereof to any person or circumstance shall, for any reason and to any extent, be invalid
or unenforceable, but the extent of the invalidity or unenforceability does not destroy the basis of
the bargain between the parties as contained herein, the remainder of this Agreement and the
application of such provision to other persons or circumstances shall not be affected thereby, but
rather shall be enforced to the greatest extent permitted by law.
14. Attorneys' Fees and Costs. Each Party shall be responsible for its own attorney's
fees and costs in connection with any action or proceeding brought by either Party to enforce or
interpret the terms of this Agreement.
15. Governing Law; Venue. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Florida without regard to its conflicts of laws principles.
The Parties hereby agree that the proper venue for any actions or proceedings pursuant to this
Agreement, brought by or on the behalf of any of the parties to this Agreement, shall be heard in
the courts of Miami -Dade County, Florida. The Parties waive any objections to the jurisdiction of
said courts and hereby consent to its jurisdiction.
16. Waiver by Jury. The Parties hereby each knowingly, irrevocably, voluntarily and
intentionally waive any right such Party may have to a trial by jury in respect of any action,
proceeding or counterclaim based on this Agreement, 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.
17. Binding Agreement; Integration. This Agreement, when duly executed by both
Parties hereto, shall be binding upon and shall inure to the benefit of, the Parties hereto and their
successors and assigns, unless and until released in whole or in part in accordance with and
pursuant to the terms of this Agreement. This Agreement contains the entire understanding and
agreement between the Parties hereto with respect to the subject matter hereof and may not be
changed, altered or modified except by an instrument in writing signed by the Party against whom
enforcement of such change would be sought.
18. Counterparts. This Agreement 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 (when taken together) shall constitute one and the same instrument.
19. Recording. This Agreement shall be recorded in the Public Records of Miami -
Dade County, Florida, promptly following the Commencement Date of the Master Ground Lease.
20. Expert Resolution Process. All disputes regarding the Fee or the respective rights
and obligations of the Parties in connection with the Fee (individually, an "ERP Dispute" and
8
ACTIVE 43272743v8
collectively, the "ERP Disputes"), shall be resolved in accordance with the provisions of this
Section 20.
(a) Expert Resolution Process ("ERP"). The Party desiring that the Expert
resolve any ERP Dispute (the "Initiating Party") shall give notice in accordance with the provisions
of this Agreement to the other Party (the "Recipient Party") that it desires to initiate the ERP (the
"ERP Notice"). The Initiating Party and the Recipient Party shall agree on the Expert as set forth
in subsection (f) below. The cost of the ERP shall be borne equally between the Parties.
(b) Within thirty (30) days after the selection of the Expert, the Initiating Party
and the Recipient Party shall submit their ERP Dispute to the Expert for determination. The Expert
shall discuss the ERP Dispute in detail with the Initiating Party and the Recipient Party and
otherwise undertake such investigation and study such materials as the Expert believes reasonably
necessary to make an informed decision. Examination of witnesses by the Initiating Party and the
Recipient Party and by the Expert shall be permitted in the discretion of the Expert.
(c) A written transcript of the proceeding shall be made and furnished to the
Parties. The Expert shall determine any ERP Dispute, controversy or claim under this Agreement
in accordance with the terms hereof. The Expert shall state the reasons upon which its decision is
based in writing. The decision of the Expert shall be issued promptly but in no event later than
thirty (30) days after the Parties have submitted their final statements and proofs to the Expert.
Each Party shall have the right to bring an action in any court of competent jurisdiction to enforce
the Expert's award.
(d) The Expert may grant any remedy or relief within the scope of this
Agreement and the applicable provisions hereof and under applicable law. In the absence of fraud,
gross misconduct, collusion, departure from the essential requirements of law or an error in law or
in a material fact appearing on the face of the order or award issued by the Expert, the written
decision of the Expert shall be final and binding on the Parties. The Parties intend that the decision
by the Expert shall be binding for all purposes and that no right of appeal shall exist; for the sake
of clarity, any such ERP Dispute may not be relitigated through the ERP process or otherwise.
(e) The Parties voluntarily and knowingly waive any right to pursue any ERP
Disputes involving the Parties in any forum or through any process or proceeding other than the
process and procedures set forth in Section. The foregoing process shall be the exclusive method
available for resolution of ERP Disputes hereunder that cannot otherwise be resolved.
(f) For purposes of this Agreement, "Expert" means an independent nationally
recognized consulting firm or individual having at least ten (10) years recent professional
experience as to the subject matter in question, who is qualified to resolve the issue in question
and who is appointed in each instance by agreement of the Parties. In the event either Party calls
for an Expert determination pursuant to the terms hereof, the Parties shall have thirty (30) days
from the date of such request to mutually agree on one (1) recognized consulting firm or individual
with relevant experience as the Expert and, if they fail to agree, each Party shall have an additional
ten (10) days to each select one (1) recognized consulting firm or individual with relevant
development experience as the Expert and within ten (10) days of such respective selections, the
two (2) respective firms and/or individuals so selected by each of the Parties hereto shall select
9
ACTIVE 43272743v8
another such recognized consulting firm or individual to be the Expert. If either Party hereto fails
to make its respective selection of a firm or individual within the ten (10) day period provided for
above, then the other Party's selection shall be the Expert. Also, if the two respective firms and/or
individuals so selected shall fail to select a third recognized consulting firm or individual to be the
Expert, then the Expert shall be appointed by the American Arbitration Association in Miami -
Dade County, Florida.
[SIGNATURES BEGIN ON THE FOLLOWING PAGE]
10
ACTIVE 43272743v8
IN WITNESS WHEREOF, the Parties have executed this Agreement effective as of the
Effective Date.
DEVELOPER: LANCELOT MIAMI RIVER, LLC, a Florida
limited liability company
Signed in the presence of the following
witnesses:
By:
Print Name: Name: Michael M. Adler
Title: President
Print Name: Date: , 2019
STATE OF FLORIDA
COUNTY OF
)
) ss:
)
The foregoing was acknowledged before me on , 20, by
Michael M. Adler, as President of LANCELOT MIAMI RIVER, LLC, a Florida limited liability
company, on behalf of said company, who is ❑ personally known to me or ❑ produced
for identification.
NOTARY PUBLIC, STATE OF FLORIDA
(Print, Type or Stamp Commissioned
Name of Notary Public)
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
11
ACTIVE 43272743v8
CITY: CITY OF MIAMI, a municipal corporation of
the State of Florida
Signed in the presence of the following
witnesses:
Print Name: By:
, City Manager
Print Name:
ATTEST:
By:
, City Clerk
Approved as to form and legal sufficiency
Name:
Title: City Attorney
12
ACTIVE 43272743v8
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
Tracts 1 and 2, RIVERSIDE PLAZA, according to the plat thereof as recorded in Plat Book 1.39, Page
43, of the Public Records of Miami - Dade County', Florida.
LESS AND EXCEPT THE FOLLOWING:
This part of Tracts 1 and 2, RIVERSIDE PLAZA, as recorded in Plat Book 139, Page 43, of the Public
Records of Miami - Dade County, Florida, and being a portion of Section 37, Township 54 South,
Range 41 East.
More particularly described as follows:
BEGINNING at the Northeast corner of said tract 2; thence along the East boundary of said Tracts 2
and 1 also being Westerly right-of-way line of S.W. 2nd Avenue, the following six (6) courses: 1) S
02°15'35" E for 4.550 meters (14.93 feet); 2) S 02°16'29" E for 7.338 meters (24.07 feet); 3) S
87°43'31"W for 0.838 meters (2.75 feet); 4) 5 02°16'29" E for 84.723 meters (277.96 feet); 5) 5
00°26'56" E for 24.683 meters (80.98 feet); 6) S 02°16'29" E for 25.578 meters (83.92 feet) to a
point on the most Southerly boundary of said Tract 1; thence along said boundary, N 45°39'37" W
for 35.035 meters (114.94 feet); thence N 52°31'38"E for 19.437 meters (63.77 feet); thence N
02°16'29" W for 77.346 meters (253.76 feet); thence N 00°30'18" W for 22.762 meters (74.58
feet); thence N 89°29'43" E for 6.475 meters (21.24 feet); thence N 00°30'14" W for 10.300
meters (33.79 feet) to a point on the North boundary of the aforesaid Tract 2; thence along said
boundary, N 87°42'40" E for 2.315 meters (7.60 feet) to the POINT OF BEGINNING.
ACTIVE 43272743v8
EXHIBIT B
FORM OF PARTIAL RELEASE OF AGREEMENT
This instrument was prepared by
and should be returned to:
Nancy B. Lash, Esq.
Greenberg Traurig, P.A.
333 S.E. 2nd Ave, Suite 4400
Miami, FL 33131
[SPACE ABOVE THIS LINE FOR RECORDING DATA]
PARTIAL RELEASE FROM
SALE/REFINANCING TRANSACTION FEE AGREEMENT
(Miami Riverside Center)
KNOW ALL PERSONS BY THESE PRESENTS that
, a ("Developer"), and CITY OF MIAMI,
a municipal corporation of the State of Florida ("City"), are parties to that certain Sale/Refinancing
Transaction Fee Agreement by and between Developer and City dated as of
20 and recorded on , 20 in Official Records
Book , Page , of the Public Records of Miami -Dade County, Florida (as
heretofore amended or partially released, the "Agreement").
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto do hereby release, remise, exonerate, and
forever discharge from the effect and operation of the Agreement the real property located in
Miami -Dade County, Florida, more particularly described on Exhibit A attached hereto and made
a part hereof.
IT IS UNDERSTOOD AND AGREED that, except for the foregoing release of the real
property described in Exhibit A attached hereto, the Agreement shall otherwise remain in full force
and effect.
[SIGNATURES APPEAR ON FOLLOWING PAGES]
ACTIVE 43272743v8
IN WITNESS WHEREOF, the parties have executed this Partial Release effective as of
the day of , 20.
DEVELOPER: , a
Signed in the presence of the following
witnesses:
By:
Print Name: Name: Michael M. Adler
Title: President
Print Name:
STATE OF FLORIDA
COUNTY OF
) ss:
The foregoing was acknowledged before me on , 20, by
as of
, a , on behalf of said
, who is
❑ personally known to me or ❑ produced for identification.
NOTARY PUBLIC, STATE OF FLORIDA
(Print, Type or Stamp Commissioned
Name of Notary Public)
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
ACTIVE 43272743v8
CITY: CITY OF MIAMI, a municipal corporation of
the State of Florida
Signed in the presence of the following
witnesses:
Print Name: By:
, City Manager
Print Name:
ATTEST:
By:
, City Clerk
Approved as to form and legal sufficiency
Name:
Title: City Attorney
ACTIVE 43272743v8
EXHIBIT "A"
Legal Description
[To be inserted]
ACTIVE 43272743v8
EXHIBIT C
FORM OF 'TERMINATION AND RELEASE OF AGREEMENT
This instrument was prepared by
and should be returned to:
Nancy B. Lash, Esq.
Greenberg Traurig, P.A.
333 S.E. 2nd Ave, Suite 4400
Miami, FL 33131
[SPACE ABOVE THIS LINE FOR RECORDING DATA]
TERMINATION AND RELEASE OF
SALE/REFINANCING TRANSACTION FEE AGREEMENT
(Miami Riverside Center)
KNOW ALL PERSONS BY THESE PRESENTS that
, a ("Developer"), and CITY OF MIAMI,
a municipal corporation of the State of Florida ("City"), are parties to that certain Sale/Refinancing
Transaction Fee Agreement by and between Developer and City dated as of
20 and recorded on , 20 in Official Records
Book , Page , of the Public Records of Miami -Dade County, Florida (as
heretofore amended or partially released, the "Agreement").
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto do hereby (i) acknowledge the payment in full
of the Transfer Fee (as defined in the Agreement) as required by the Agreement, (ii) release,
remise, exonerate, and forever discharge from the effect and operation of the Agreement the real
property located in Miami -Dade County, Florida, more particularly described on Exhibit A
attached hereto and made a part hereof, (iii) terminate the Agreement in its entirety, and (iv) direct
the Clerk of the Circuit Court of Miami -Dade County, Florida, to cancel the Agreement of record.
[SIGNATURES APPEAR ON FOLLOWING PAGES]
ACTIVE 43272743v8
IN WITNESS WHEREOF, the parties have executed this Termination and Release
effective as of the day of , 20.
DEVELOPER:
Signed in the presence of the following
witnesses:
a
By:
Print Name: Name: Michael M. Adler
Title: President
Print Name:
STATE OF FLORIDA
COUNTY OF
) ss:
The foregoing was acknowledged before me on , 20, by
as of
, a , on behalf of said
, who is
❑ personally known to me or ❑ produced for identification.
NOTARY PUBLIC, STATE OF FLORIDA
(Print, Type or Stamp Commissioned
Name of Notary Public)
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
19
ACTIVE 43272743v8
CITY: CITY OF MIAMI, a municipal corporation of
the State of Florida
Signed in the presence of the following
witnesses:
Print Name: By:
, City Manager
Print Name:
ATTEST:
By:
, City Clerk
Approved as to form and legal sufficiency
Name:
Title: City Attorney
20
ACTIVE 43272743v8
TO:
FROM:
DATE:
RE:
SCHEDULE 1.3
Confirmation of Date(s) Certificate
Agreement and Lease (Miami Riverside Center) dated , 2019 (the
"Agreement") between the CITY OF MIAMI, a municipal corporation of the
State of Florida (the "City"), and LANCELOT MIAMI RIVER, LLC, a Florida
limited liability company (the "Developer"), with respect to certain land and
improvements located in the City of Miami, Miami -Dade County.
Ladies and Gentlemen:
We refer to the captioned Agreement and the terms thereof. Capitalized terms used in this
certificate have the meanings given to them in the Agreement. In accordance with Section 1.3 of
the Agreement, we wish to advise and/or confirm as follows:
1. The Execution Date of the Agreement is
2. The MRC Vacation Date is
The Actual MRC Vacation Date is
, 20 .
, 20 .
, 20 .
3. The Commencement Date of the Agreement is , 20 .
4. The Pre -Commencement Period commences on , 20 (i.e.,
the Execution Date) and expires on , 20 (i.e., the
Commencement Date).
5. The Lease Term expires on , 2
6. As of execution hereof, the Agreement has not been modified and is in full force and effect
and, to the City's knowledge, that the Developer has performed all obligations on its part
under the Agreement, there exists no breach, condition, state of facts or event that
constitutes, or with the passing of time or the giving of notice, or both, would constitute a
default by either the City or the Developer under the Agreement.
[Signatures appear on the following page]
SCHEDULE 1.3
ACTIVE 19929732v9
CITY: CITY OF MIAMI, a municipal corporation
of the State of Florida
ATTEST:
By:
By: , [insert
Name: name/title of City Official or his/her
Title: designee]
Approved as to form and legal sufficiency
Name:
Title:
DEVELOPER: LANCELOT MIAMI RIVER, LLC, a
Florida limited liability company
By:
Name: Michael M. Adler
Title: President
SCHEDULE 1.3
ACTIVE 19929732v9
SCHEDULE 7
Insurance Requirements
The City's Risk Manager shall have the right to make reasonable revisions to the insurance
requirements from time to time, provided same are consistent with the insurance required of
comparable tenants of City -owned property. Reasonable revisions shall be defined as a newly
identified direct exposure to the City. But the insurance designed to cover this newly discovered
exposure must be commercially available and available at a reasonable cost based on the direct
exposure to the City for loss.
SECTION I. - INSURANCE REQUIREMENTS
PROFESSIONAL SERVICES AGREEMENT INSPECTION PERIOD
I. Commercial General Liability
A. Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence $1,000,000
General Aggregate Limit $ 2,000,000
Personal and Adv. Injury $ 1,000,000
Products/Completed Operations $ 1,000,000
B. Endorsements Required
i. City of Miami listed as an additional insured
ii. Primary Insurance Clause Endorsement
C. Other Conditions
i. The above insurance policy cannot contain a designated premises
(permitted on site specific policies) endorsement, an endorsement
excluding subcontracted work or an endorsement modifying the standard
definition of an insured contract as found in the most current edition of the
ISO CG 0001 Coverage Form.
II. Business Automobile Liability
A. Limits of Liability
Bodily Injury and Property Damage Liability
Combined Single Limit
Owned/Scheduled Autos (if any exist)
Including Hired or Non -Owned Autos
Any One Accident $ 1,000,000
B. Endorsements Required
i. City of Miami listed as an additional insured
III. Worker's Compensation
If Developer has any employees as defined by Chapter 440, Florida Statutes, then
Worker's Compensation Insurance for all employees of Developer as required
below.
SCHEDULE 7
ACTIVE 19929732v9
Limits of Liability
Statutory -State of Florida
Waiver of Subrogation
Employer' s Liability
A. Limits of Liability
$100,000 for bodily injury caused by an accident, each accident
$100,000 for bodily injury caused by disease, each employee
$500,000 for bodily injury caused by disease, policy limit
IV. Professional Liability/Errors and Omissions
Limits of Liability
Each Claim $1,000,000
Aggregate for all Claims $1,000,000
Retro Date Included
Pollution Liability
Limits of Liability
Each Incident Limit $1,000,000
Coverage Aggregate Limit $1,000,000
Retro Date Included
City of Miami listed as an additional insured
V Umbrella Liability/Excess Liability
Limits of Liability
Each Occurrence $1,000,000
Policy Aggregate $1,000,000
City of Miami listed as an additional insured on the Commercial General Liability
Policy with follow form conditions will suffice as with respect to umbrella liability.
Coverage is excess follow form over Commercial General Liability and
Commercial Automobile Liability policies.
The named insured shall provide the City of Miami with written notice of cancellation or
material change from the insurer in accordance to policy provisions as soon as practicable.
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.
All certificates of insurance are subject to review and verification by Risk Management
prior to insurance approval.
SCHEDULE 7
ACTIVE 19929732v9
SECTION II - INSURANCE REQUIREMENTS FOR A CERTIFICATE OF
INSURANCE -LEASE AGREEMENT OPERATIONS PHASE
I. Commercial General Liability
A. Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence $1,000,000
General Aggregate Limit $ 2,000,000
Personal and Adv. Injury $ 1,000,000
Products/Completed Operations $ 1,000,000
B. Endorsements Required
i. City of Miami listed as an additional insured
ii. Primary Insurance Clause Endorsement
C. Other Conditions
i. The above insurance policy cannot contain a designated premises
(permitted on site specific policies) endorsement, an endorsement
excluding subcontracted work or an endorsement modifying the standard
definition of an insured contract as found in the most current edition of the
ISO CG 0001 Coverage Form.
II. Business Automobile Liability
A. Limits of Liability
Bodily Injury and Property Damage Liability
Combined Single Limit
Owned/Scheduled Autos (if any exist)
Including Hired or Non -Owned Autos
Any One Accident $ 1,000,000
B. Endorsements Required
i. City of Miami listed as an additional insured
III. Worker's Compensation
If Developer has any employees as defined by Chapter 440, Florida Statutes, then
Worker's Compensation Insurance for all employees of Developer as required
below.
Limits of Liability
Statutory -State of Florida
Waiver of Subrogation
Employer' s Liability
A. Limits of Liability
$100,000 for bodily injury caused by an accident, each accident
$100,000 for bodily injury caused by disease, each employee
$500,000 for bodily injury caused by disease, policy limit
SCHEDULE 7
ACTIVE 19929732v9
IV Professional Liability/Errors and Omissions
Limits of Liability
Each Claim $1,000,000
Aggregate for all Claims $1,000,000
Retro Date Included
V. Umbrella Liability/Excess Liability
Limits of Liability
Each Occurrence $10,000,000
Policy Aggregate $10,000,000
City of Miami listed as an additional insured on the Commercial General Liability
Policy with follow form conditions will suffice as with respect to umbrella liability.
Coverage is excess follow form over Commercial General Liability and
Commercial Automobile Liability policies.
VI. PROPERTY
Commercial Property Insurance covering the Building and Business Personal Property, including
fixtures, equipment, improvements, and betterments owned by Lancelot Miami River, LLC.
Commercial property insurance shall, at a minimum, cover the perils insured under the ISO Special
Causes of Loss Special Form (CP 10 30), or a substitute form providing equivalent coverages
written on an All Risk or Direct Physical Loss or Damage basis with no coinsurance, including
wind and named storm coverage and hail not to exceed 5% deductible depending on market
conditions, along with flood insurance at reasonable commercially available sub -limits not to
exceed $10 Million. Coverage should be included for debris removal, and demolition and increased
cost of construction that are caused by legal requirements regulating the construction or repair of
damaged facilities or subject property, including an ordinance and law endorsement, in an amount
of not less than the replacement cost of the property insured and leasehold improvements
(exclusive of foundation and excavation costs), trade fixtures and floor coverings. In addition, the
policy should afford coverage for sprinkler leakage, extended coverage including vandalism and
malicious mischief, as well as coverage for time element with limits covering the annual rent and
debt service payment for the leased improvements, and including ordinary payroll and business
income with 180 day extended period of indemnity. Boiler and machinery coverage covering
repair and replacement of all boilers and machinery servicing or benefiting the leasehold
improvements including use and occupancy coverage. Coverage enhancements or extensions as
provided by the coverage form to include errors & omissions, and ingress and egress coverage
among others. The amount of insurance shall equal the full estimated replacement cost of all real
and business personal property owned by Lancelot Miami River, LLC.
The City shall be included as loss payee under the commercial property insurance.
The named insured shall provide the City of Miami with written notice of cancellation or
material change from the insurer in accordance to policy provisions as soon as practicable.
Companies authorized to do business in the State of Florida, with the following qualifications,
shall issue all insurance policies required above:
SCHEDULE 7
ACTIVE 19929732v9
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.
All certificates of insurance are subject to review and verification by Risk Management
prior to insurance approval.
SCHEDULE 7
ACTIVE 19929732v9
SECTION III - INSURANCE REQUIREMENTS FOR A CERTIFICATE OF
INSURANCE - CONSTRUCTION REQUIREMENTS
I. Commercial General Liability OCIP/CCIP/DCIP
A. Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence $ 1,000,000
General Aggregate Limit $ 2,000,000
Personal and Adv. Injury $ 1,000,000
Products/Completed Operations $ 2,000,000
B. Endorsements Required
i. City of Miami listed as an additional insured
ii. Primary Insurance Clause Endorsement
iii. Explosion, Collapse and Underground Hazards
iv. Products/Completed Operations — Lesser of 10 years or statute of repose
C. Other Conditions
i. The above insurance policy cannot contain a designated premises
endorsement (permitted on site specific policies), an endorsement
excluding subcontracted work or an endorsement modifying the standard
definition of an insured contract as found in the most current edition of the
ISO CG 0001 Coverage Form.
II. Business Automobile Liability
A. Limits of Liability
Bodily Injury and Property Damage Liability
Combined Single Limit
Owned/Scheduled Autos (if any exist)
Including Hired or Non -Owned Autos
Any One Accident $ 1,000,000
B. Endorsements Required
i. City of Miami listed as an additional insured
III. Worker's Compensation
If Developer has any employees as defined by Chapter 440, Florida Statutes, then
Worker's Compensation Insurance for all employees of Developer as required
below.
Limits of Liability
Statutory -State of Florida
Waiver of Subrogation
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
SCHEDULE 7
ACTIVE 19929732v9
IV. Umbrella Liability/Excess Liability
Limits of Liability
Each Occurrence $50,000,000
Policy Aggregate $50,000,000
City of Miami listed as an additional insured on the Commercial General Liability
Policy with follow form conditions will suffice as with respect to umbrella liability.
Coverage is excess follow form over Commercial General Liability and
Commercial Automobile Liability policies.
V. Pollution Liability Site Specific
Limits of Liability
Each Incident Limit $5,000,000
Coverage Aggregate Limit $5,000,000
City of Miami listed as an additional insured
Retro Date Included
VI. Builder's Risk
Causes of Loss: All Risk of Direct Physical Loss or Damage
Valuation: Replacement Cost
Deductibles: 5% wind and hail, $50,000 AOP
$10 MIL Flood Sublimit Included (if reasonably commercially available)
City of Miami listed as loss payee
Any combination of Limit of Liability will be accepted for the Commercial General Liability and
Umbrella/Excess Policies as long as the total Limit of Liability is at least $50 Million per
occurrence and in the aggregate.
The named insured shall provide the City of Miami with written notice of cancellation or
material change from any insurer providing any coverage listed above in accordance to policy
provisions as soon as practicable.
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.
All certificates of insurance are subject to review and verification by Risk Management
prior to insurance approval.
SCHEDULE 7
ACTIVE 19929732v9
SCHEDULE 17.2(a)(i)
Form of Bifurcation of Agreement and Lease
This instrument prepared by,
and after recording return to:
Nancy B. Lash, Esq.
Greenberg Traurig, P.A.
333 S.E. 2nd Avenue, Suite 4400
Miami, Florida 33131
BIFURCATION OF AGREEMENT AND LEASE
THIS BIFURCATION OF AGREEMENT AND LEASE (this "Agreement") is made as of
the day of , 2 (the "Effective Date") by and among (i) the CITY OF
MIAMI, a municipal corporation of the State of Florida (the "City"), (ii) LANCELOT MIAMI
RIVER, LLC, a Florida limited liability company (the "Developer"), and (iii) [
, a ] ("Tenant").
WITNESSETH:
WHEREAS, the City, as landlord, and the Developer, as tenant, entered into that certain
Agreement and Lease (Miami Riverside Center) dated as of [ ], 201 ] (as
heretofore and hereafter assigned and amended from time to time, the "Master Ground Lease"), a
memorandum of which was recorded on [ ], 201 ] in Official Records Book
[ ], at Page [ ], of the Public Records of Miami -Dade County, Florida;
WHEREAS, pursuant to Section 17.2 of the Master Ground Lease, the City, the Developer
and Tenant have agreed to bifurcate the Master Ground Lease into two (2) leases by Tenant and
City entering into a Bifurcated Lease solely with respect to the real property more particularly
described on Exhibit A attached hereto (the "Bifurcated Parcel") in substantially the form of the
Master Ground Lease, but modified to delete Sections 1.4 through 1.8 thereof relating to the Pre -
Commencement Period and as otherwise necessary to reflect that the bifurcated lease covers and
affects the Bifurcated Parcel only (the "Bifurcated Lease").
WHEREAS, City, through the City Manager or the City Commission, approves of this
Agreement and the Bifurcated Lease with Tenant,
SCHEDULE 17.2(a)(i)
ACTIVE 19929732v9
NOW, THEREFORE, in consideration of the foregoing recitals and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
hereby agree as follows:
1. Defined Terms; Incorporation of Recitals. Capitalized terms used but not otherwise
defined in this Agreement have the respective meanings given to them in the Master Ground Lease.
The preamble and recitals set forth above are hereby incorporated into this Agreement by this
reference in their entirety.
2. Bifurcated Lease. The City and Tenant hereby agree to simultaneously herewith
enter into, execute and deliver the Bifurcated Lease, a memorandum of which shall be recorded in
the Public Records of Miami -Dade County, Florida, pursuant to which City leases to Tenant and
Tenant leases from City the Bifurcated Parcel.
3. Partial Termination and Release; No Cross Default. The Master Ground Lease is
hereby partially terminated solely as to the Bifurcated Parcel and the Bifurcated Parcel shall no
longer be subject to, and is hereby released from, the terms and provisions of the Master Ground
Lease. Notwithstanding anything contained in the Master Ground Lease, effective as of the
Effective Date:
a. The Developer shall not be obligated to perform any obligation under the
Master Ground Lease to the extent such obligation pertains to, or is to be performed on,
the Bifurcated Parcel, and shall be automatically released from any and all such obligations
(including, without limitation, any obligation to (x) pay any rent allocated to the Bifurcated
Parcel, including without limitation Minimum Rent and Participation Rent, (y) develop the
Phase of the Project governed by the Bifurcated Lease, and (z) maintain insurance for the
Bifurcated Parcel);
b. No action or omission of, or default by, Tenant (or anyone acting by,
through or under Tenant) under the Bifurcated Lease, including, without limitation, any
failure to develop the Phase of the Project governed by the Bifurcated Lease, shall in any
event constitute or give rise to a default, or any liability of Developer under the Master
Ground Lease or deprive Developer of any of its rights under the Master Ground Lease,
including without limitation the right to develop the remainder of the Project on the balance
of the Demised Premises in accordance with the Master Ground Lease;
c. City, Developer and Tenant acknowledge and agree that (i) Developer
retains all right, title and interest in and to the Master Ground Lease (and the leasehold
estate arising thereunder), except only as it relates to the Bifurcated Parcel, and (ii) Tenant
shall solely be responsible for the Bifurcated Parcel and bound by all of the terms,
covenants, agreement, provisions and conditions of the Bifurcated Lease with respect to
the Bifurcated Parcel; and
d. Neither Developer nor any Tenant or successor thereof shall in any event
be prohibited from developing any portion of the Project (or be in default under the Master
Ground Lease, or have any liability), as a result of any failure of Tenant (or anyone acting
SCHEDULE 17.2(a)(i)
ACTIVE 19929732v9
by, through or under Tenant) under the Bifurcated Lease to develop the Phase of the Project
governed by the Bifurcated Lease (notwithstanding that such failure may cause the Project
to be developed other than in accordance with the Master Ground Lease).
The City acknowledges and agrees that a default under the Master Ground Lease shall not
constitute a default under the Bifurcated Lease, and a default under the Bifurcated Lease shall not
constitute a default under the Master Ground Lease; it being the intention of the parties that the
Master Ground Lease and the Bifurcated Lease shall not be cross -defaulted. However, nothing set
forth herein shall release the Developer from its obligations under the Master Ground Lease except
as expressly provided herein.
4. Mutual Indemnification. Tenant hereby indemnifies and agrees to defend (with
counsel reasonably satisfactory to the Developer) and hold harmless the Developer from and
against any and all liabilities, obligations, claims, costs and expenses (including but not limited to
reasonable attorneys' fees and costs at trial court and all appellate levels and in any post judgment
proceedings) suffered or incurred by the Developer by reason of Tenant's failure to perform any
obligations under the Bifurcated Lease with respect to the Bifurcated Parcel. Developer hereby
indemnifies and agrees to defend (with counsel reasonably satisfactory to Tenant) and hold
harmless Tenant from and against any and all liabilities, obligations, claims, costs and expenses
(including but not limited to reasonable attorneys' fees and costs at trial court and all appellate
levels and in any post judgment proceedings) suffered or incurred by Tenant by reason of the
Developer' s failure to perform any of the obligations of the Developer under the Master Ground
Lease with respect to the Bifurcated Parcel, which obligations were to be met by the Developer
prior to the Effective Date.
5. Minimum Rent; Land Value. As contemplated by Section 17.2 of the Master
Ground Lease, (i) the Minimum Rent due and payable by the Developer and the Land Value under
the Master Ground Lease is hereby adjusted and reduced, on a dollar for dollar basis, by the
aggregate amount of Minimum Rent due and payable and the Land Value under the Bifurcated
Lease. Accordingly, Minimum Rent under the Master Ground Lease is hereby adjusted and
reduced by and No/100 Dollars
($ ) per annum to and No/100
Dollars ($ ) per annum, subject to increases as provided in the Master
Ground Lease; and (ii) the Land Value under the Master Ground Lease is hereby adjusted and
reduced to $ , subject to adjustment as provided in the Master Ground
Lease. All references to Minimum Rent and Land Value in the Master Ground Lease shall be
deemed modified accordingly.
6. Continuing Effect. The Master Ground Lease shall hereinafter continue to affect
the Land less and except the Bifurcated Parcel (and any other parcels previously released from the
terms of the Master Ground Lease), and the Bifurcated Lease shall hereinafter affect the Bifurcated
Parcel. The terms "Land", "Demised Premises", "Improvements", and "Building(s)" under the
Master Ground Lease are hereby deemed modified so as to exclude the portion of the Property,
Demised Premises, Improvements, and Building(s) located on or comprising the Bifurcated Parcel.
The term "Lease", as used in the Master Ground Lease, is hereby deemed modified to refer to the
Master Ground Lease, as modified hereby.
SCHEDULE 17.2(a)(i)
ACTIVE 19929732v9
7. Authority to Execute. City hereby represents and warrants to Developer and Tenant
that the individual(s) signing this Agreement on behalf of City have full power and authority to
execute and deliver this Agreement and bind City. Developer hereby represents and warrants to
City and Tenant that the individual(s) signing this Agreement on behalf of Developer have full
power and authority to execute and deliver this Agreement and bind Developer. Tenant hereby
represents and warrants to City and Developer that the individual(s) signing this Agreement on
behalf of Tenant have full power and authority to execute and deliver this Agreement and bind
Tenant.
8. Estoppel. The Master Ground Lease is presently in full force and effect, and has
not been modified, amended, supplemented, altered, assigned or transferred (in whole or in part)
since the date thereof, except for any amendments identified herein and any partial assignments
and/or bifurcation(s) of the Master Ground Lease prior to the Effective Date, and except as
contemplated in this Agreement.
9. Miscellaneous. This Agreement shall be binding upon and shall inure to the benefit
of the parties and their respective successors and assigns. This Agreement shall be construed
according to the laws of the State of Florida. This Agreement cannot be changed except by an
agreement in writing, dated subsequent to the Effective Date, signed by the party against whom
enforcement of the change is sought. In case any one or more of the covenants, agreements, terms
or provisions contained in this Agreement shall be invalid, illegal or unenforceable in any respect,
the validity of the remaining covenants, agreements, terms or provisions contained herein shall be
in no way affected or prejudiced thereby. This Agreement may be executed in any number of
counterparts, each of such counterparts shall for all purposes be deemed to be an original, and all
such counterparts shall together constitute but one and the same Agreement. The headings of the
articles, sections, paragraphs and subdivisions of this Agreement are for convenience of reference
only, are not to be considered a part hereof, and shall not limit or expand or otherwise affect any
of the terms hereof.
10. Condition. This Agreement is conditioned upon and, shall not be effective unless,
City and Tenant enter into the Bifurcated Lease. In the event City and Tenant fail to execute and
deliver the Bifurcated Lease, this Agreement shall be deemed void ab initio and no party hereto
shall have any further rights or obligations hereunder. Upon the satisfaction of the condition set
forth in the preceding sentence, this Agreement shall be recorded in the Public Records of Miami -
Dade County, Florida, and the Master Ground Lease shall be deemed permanently bifurcated and
split into two (2) separate and independent leases as contemplated herein and in the Master Ground
Lease.
[Remainder of Page Intentionally Blank]
SCHEDULE 17.2(a)(i)
ACTIVE 19929732v9
IN WITNESS WHEREOF, City, Developer, and Tenant, intending to be legally bound
hereby, have executed and delivered this Agreement as of the Effective Date.
Signed, sealed and delivered CITY:
in the presence of:
Print Name:
CITY OF MIAMI, a municipal corporation of
the State of Florida
By:
Name:
Print Name: Title:
ATTEST:
By:
, City Clerk
Approved as to form and legal sufficiency
Name:
Title:
[Signatures Continue on Following Page]
SCHEDULE 172(a)(i)
ACTIVE 19929732v9
Signed, sealed and delivered DEVELOPER:
in the presence of:
Print Name:
Print Name:
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
)
) SS:
)
LANCELOT MIAMI RIVER, LLC, a Florida
limited liability company
By:
Name:
Title:
The foregoing instrument was acknowledged before me this day of ,
2019, by , as of Lancelot Miami
River, LLC, a Florida limited liability company, on behalf of said company. He/She is personally
known to me or produced as identification.
Print or Stamp Name:
Notary Public, State of Florida at Large
Commission No.:
My Commission Expires:
[Signatures Continue on Following Page]
SCHEDULE 172(a)(i)
ACTIVE 19929732v9
Signed, sealed and delivered TENANT:
in the presence of:
Print Name:
Print Name:
STATE OF [ ] )
) SS:
COUNTY OF [ ] )
a
By:
Name:
Title:
The foregoing instrument was acknowledged before me this day of ,
20, by , as of [insert name of
Tenant, a ], on behalf of the
[ ]. He/She is personally known to me or produced
as identification.
Print or Stamp Name:
Notary Public, State of [ ] at Large
Commission No.:
My Commission Expires:
SCHEDULE 172(a)(i)
ACTIVE 19929732v9
EXHIBIT A TO SCHEDULE 17.2(a)(i)
Legal Description of Bifurcated Parcel
[to be attached]
EXHIBIT A TO SCHEDULE 17.2(a)(i)
ACTIVE 19929732v9
SCHEDULE 17.5
Form of Recognition and Non -Disturbance Agreement
This instrument prepared by or under the supervision of
(and after recording should be returned to):
(Space Above Reserved for Clerk of Court)
RECOGNITION, NONDISTURBANCE AND ATTORNMENT AGREEMENT
This Recognition, Nondisturbance and Attornment Agreement (this "Agreement") is made
effective as of the day of , 20, by and among the CITY OF MIAMI, a
municipal corporation of the State of Florida (the "City"), having its office at 3500 Pan American
Drive, Miami, Florida 33133, [Insert name of
Subtenant], a [Insert type of entity], having an office at
("Subtenant"), and
[Insert name of Sublandlord], a
[Insert type of entity], having an office at
("Sublandlord").
WITNESSETH:
WHEREAS, the City is the owner in fee simple of certain real property more particularly
described in Exhibit "A", attached hereto and incorporated herein by this reference (the
"Property"); and
WHEREAS, Sublandlord is the tenant of the Property described in and pursuant to that
certain Agreement and Lease (Miami Riverside Center) dated as of
between the City and Sublandlord (such agreement, as the same may be assigned, amended or
restated from time to time, the "Lease"). A Memorandum of Agreement and Lease was recorded
ACTIVE 19929732v9
, 20 in Official Records Book
Miami -Dade County, Florida; and
at Page of the Public Records of
WHEREAS, Sublandlord subleased to Subtenant that portion of the Property (the
"Subleased Premises") as more particularly described in that certain Sublease dated
between Sublandlord and Subtenant (the "Sublease"); and
WHEREAS, the City and Subtenant desire to evidence their understanding with respect to
the Lease and the Sublease as hereinafter provided.
NOW, THEREFORE, in consideration of the promises and of the mutual covenants and
agreements herein contained, the parties hereto agree as follows:
1. The Recitals set forth above and incorporated herein are true and correct.
2. Subtenant covenants and agrees that the Sublease and the rights of Subtenant
thereunder are and shall be at all times subject and subordinate to the Lease.
3. The City agrees that so long as no default exists under the Sublease which has
continued beyond all applicable notice and cure period and would permit Sublandlord to terminate
the Sublease or exercise any dispossess remedy provided for in the Sublease, the Sublease and
Subtenant' s rights thereunder (including without limitation Subtenant' s right of possession, use
and quiet enjoyment of the Subleased Premises, and any extension or renewal period thereof which
may be exercised in accordance with any option afforded in the Sublease to Subtenant), shall not
be terminated, altered, disturbed or extinguished by any action of the City or any New Owner (as
hereinafter defined), including without limitation, by any suit, action or proceeding for the eviction
of Sublandlord or otherwise for the enforcement of the City's rights or remedies under the Lease.
Notwithstanding anything to the contrary contained in this Agreement, the City or any New Owner
upon a Termination Event (as hereinafter defined) shall have the right to pursue all rights and
remedies set forth under the Sublease for any default by Subtenant under the Sublease beyond any
applicable notice and cure period which thereafter occurs or is otherwise then continuing. The City
will not join Subtenant as a party defendant in any action or proceeding for eviction of Sublandlord
from the Property or termination of the Lease, unless such joinder is necessary to complete such
eviction or termination and then only for such purpose and not for the purpose of terminating the
Sublease.
4. If the Lease terminates for any reason other than on its natural expiration or in the
event Sublandlord's right to possession of the Property shall terminate for any reason, including,
but not limited to, voluntarily, by operation of law, by reason of default thereunder (any or all of
the foregoing, a "Termination Event"), then Subtenant shall attorn to the City or any party taking
title or leasehold interest to the Property through the City ("New Owner") as its landlord, the City
or the New Owner shall assume the Sublease and all obligations of landlord thereunder and
ACTIVE 19929732v9
recognize Subtenant as the tenant thereunder, and the Sublease shall continue in full force and
effect, notwithstanding such Termination Event, as a direct [sublease] [OR] [space lease] between
the City or New Owner and Subtenant for the remainder of the term of the Sublease (including any
extensions thereof), without the necessity of executing a new [sublease] [OR] [space lease], and
on the same terms and conditions as are in effect under the Sublease immediately preceding the
Termination Event. Upon the written request of the City or New Owner to Subtenant within thirty
(30) days after any Termination Event, the City or New Owner and Subtenant shall execute a lease
of the Subleased Premises upon the same provisions as contained in the Sublease between
Sublandlord and Sublessee for the unexpired term of the Sublease, except as set forth in this
Agreement. If the City or New Owner does not elect to enter into a direct lease with Subtenant
pursuant hereto, then the City or the New Owner shall, not be:
(i) bound by any fixed rent which Subtenant might have paid for more than one (1)
month in advance of its due date under the Sublease to any prior landlord (including, without
limitation, Sublandlord); unless otherwise consented to by the City or the New Owner or unless
such prepaid amount is actually received by the City or the New Owner;
(ii) liable for any previous act or omission of any prior landlord (including without
limitation, Sublandlord) in violation of the Sublease except for any repair and maintenance or other
obligations of a continuing nature as of the date of such acquisition; or
(iii) subject to any claims, counterclaims, offsets or defenses which Subtenant might
have against any prior landlord (including, without limitation, Sublandlord); or
(iv) liable for the return of any: security deposit; overpayments of taxes, operating
expenses, or other items of additional rent paid in estimates in advance by Subtenant subject to
subsequent adjustment; other monies which pursuant to the Sublease are payable by Sublandlord
to Subtenant; or other sums, in each case to the extent not delivered to the City or the New Owner,
as the case may be; or
(v) obligated to complete any construction work required to be done by any prior
landlord (including, without limitation, Sublandlord) pursuant to the provisions of the Sublease, to
reimburse Subtenant for any construction work done by Subtenant, to make funds available to
Subtenant in connection with any such construction work, or for any other allowances or cash
payments owed by any prior landlord to Subtenant (but the foregoing shall not relieve the City or
New Owner from any repair and maintenance obligations of a continuing nature as of the date of
such acquisition, nor shall the foregoing affect or limit any offset rights of Subtenant pursuant to
the Sublease or the casualty and condemnation provisions of the Sublease); or
(vi) bound by or have any liability for any warranties of any nature whatsoever made
by a prior landlord, including any warranties respecting Sublandlord's title, Sublandlord's
authority, habitability, fitness for purpose or possession; or
ACTIVE 19929732v9
(vii) bound by any material or substantial amendment or modification of the Sublease
(such as revisions to the length of the term or payment of rent) entered into without the City's or
New Owner's prior review and approval, which approval shall not be unreasonably withheld,
conditioned or delayed.
Nothing contained herein shall be deemed to modify the obligations of the City or
Sublandlord under the Lease.
5. No provision of this Agreement shall be construed to make the Subtenant liable for
any covenants and obligations of Sublandlord under the Lease, unless expressly provided for
herein or under the Sublease.
The foregoing provisions shall be self -operative and effective without the execution of any
further instruments on the part of any party hereto; provided, however, that at such time as the Lease
may terminate or the City or New Owner may otherwise succeed to Sublandlord's interest under the
Sublease, Subtenant agrees to execute and deliver to the City or New Owner such other instrument(s)
as may from time to time reasonably be requested to confirm the same, and the City or New Owner
agrees to do likewise.
7. Any notices or communications given under this Agreement shall be in writing and
shall be delivered by (a) personal delivery, (b) the United States mail, certified or registered,
postage prepaid, return receipt requested, or (c) a nationally recognized overnight courier, in each
case addressed as follows:
If to the City:
[ ]
If to Subtenant:
with a copy to:
If to Sublandlord:
[ ]
with a copy to:
[ ]
ACTIVE 19929732v9
Either party may designate a different or an additional address or addresses for notices intended
for such party from time to time by at least 5 days' notice to the other party. Notices from any
party may be given by such party's attorney. Each notice shall be deemed to have been given on
the date such notice is actually received as evidenced by a written receipt therefor, and in the event
of failure to deliver by reason of changed address of which no notice was given or refusal to accept
delivery, as of the date of such failure or refusal.
8. This Agreement shall bind and inure to the benefit of and be binding upon and
enforceable by the parties hereto and their respective successors and assigns.
9. This Agreement contains the entire agreement between the parties and cannot be
changed, modified, waived or cancelled except by an agreement in writing executed by the party
against whom enforcement of such modification, change, waiver or cancellation is sought.
10. This Agreement and the covenants herein contained are intended to run with and
bind all land affected thereby. It is expressly acknowledged and agreed by Sublandlord and
Subtenant that as between Sublandlord and Subtenant, the subordination of the Sublease to the
Lease effectuated pursuant to this Agreement shall in no way affect Sublandlord's and/or
Subtenant' s rights and obligations under the Sublease.
11. The parties hereto agree to submit this Agreement for recordation in the Public
Records of Miami -Dade County, Florida. The parties further agree that this Agreement shall
terminate and be void automatically, immediately upon the expiration or earlier termination of the
Sublease, and without the need for any termination or other agreement being recorded to evidence
such termination. Notwithstanding the foregoing and without in any way affecting the automatic
termination of this Agreement as aforesaid, the parties agree to execute, deliver and submit for
recordation a Memorandum of Termination confirming the termination of this Agreement,
promptly following the expiration or earlier termination of the Sublease.
12. This Agreement may be executed in counterparts, any one or all which shall be one
and the same agreement.
13. No security interest that the City may have in the Property pursuant to the Lease or
otherwise shall cover, or be construed as subjecting in any manner to the lien thereof, any
Subtenant's moveable personal property, regardless of the manner or mode of attachment thereof.
14. This Agreement shall be governed by the internal law (and not the law of conflicts)
of the State of Florida. The parties hereto agree that any suit brought to enforce this Agreement
shall be brought in Miami -Dade County, Florida, in the courts of the State of Florida or in the
United States District Court for the Southern District of Florida, and, by execution and delivery of
this Agreement, each of the parties to this Agreement hereby irrevocably accepts and waives all
objection to, the exclusive jurisdiction of the aforesaid courts in connection with any suit brought
ACTIVE 19929732v9
to enforce this Agreement, and in case of any dispute, each party further agrees to assume full
responsibility for its own court costs and attorneys' fees.
[Remainder of page left intentionally blank]
ACTIVE 19929732v9
IN WITNESS WHEREOF, the parties hereto have hereunto caused this Agreement to be
duly executed as of the day and year first above written.
WITNESSES (as to City Manager/City THE CITY OF MIAMI, a municipal
Manager's designee and City Clerk): corporation of the State of Florida
By:
Print Name: City Manager or City Manager's
Title: designee
ATTEST:
By:
Print Name: City Clerk
Title:
APPROVED AS TO FORM
AND CORRECTNESS:
By:
City Attorney
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
)
) SS.:
)
The foregoing instrument was
, 20, by
Manager's designee, and
municipal corporation, in the capacity
[SEAL]
F-15
[SEAL]
acknowledged before me this day of
, the City Manager or the City
, the City Clerk, of the City of Miami, a Florida
aforestated; each such person is personally known to me.
NOTARY PUBLIC:
Sign:
Print:
My Commission Expires:
Title/Rank:
Commission Number:
ACTIVE 19929732v9
IN WITNESS WHEREOF, Subtenant has caused this Agreement to be executed under seal
the date first above written.
WITNESSES:
a
By:
Print Name: Print Name:
Title: Title:
Print Name:
Title:
STATE OF )
) SS.:
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
, 20, by as of
, in the capacity aforestated; such person is personally
known to me.
[SEAL]
NOTARY PUBLIC:
Sign:
Print:
My Commission Expires:
Title/Rank:
Commission Number:
SCHEDULE 17.5
ACTIVE 19929732v9
IN WITNESS WHEREOF, Sublandlord has caused this Agreement to be executed under
seal the date first above written.
WITNESSES:
a
By:
Print Name: Print Name:
Title: Title:
Print Name:
Title:
STATE OF )
) SS.:
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
, 20, by as of
, in the capacity aforestated; such person is personally
known to me.
[SEAL]
NOTARY PUBLIC:
Sign:
Print:
My Commission Expires:
Title/Rank:
Commission Number:
SCHEDULE 17.5
ACTIVE 19929732v9
SCHEDULE 23.2
City's Estoppel Certificate
(Note: This form subject to amendments based on the requirements of the Developer, the
Developer' s successors and/or assigns, and any prospective Sublessee or Lender)
RE: Agreement and Lease (Miami Riverside Center) dated , 2019 (the
"Agreement") by and between the CITY OF MIAMI, a municipal corporation of
the State of Florida (the "City"), and LANCELOT MIAMI RIVER, LLC, a
Florida limited liability company (the "Developer"), with respect to certain land
and improvements located in the City of Miami, Miami -Dade County.
Ladies and Gentlemen:
The undersigned hereby acknowledges receipt of notice that the above -referenced
Agreement, which grants the Developer certain interests and rights to certain premises described
therein (the "Premises"), [is being assigned to you by the Developer] [as security for a loan to be
made by you to the Developer, which loan will be secured by ] [in connection
with your acquisition of the Developer's interest in the Lease.] Capitalized terms used herein
without definition have the meaning given to them in the Agreement.
In connection therewith, the undersigned hereby certifies to you and agrees with you as
follows:
1. The Agreement is valid and is in full force and effect and is binding and enforceable
against the City.
2. To the best of the City' s knowledge, the Developer is not in default under the
Agreement and there exist no facts that could constitute a basis for any such default upon the lapse
of time or the giving of notice or both. There exist no offsets, counterclaims, or defenses of the
City under the Agreement against the Developer, and there exist no events that would constitute a
basis for any such offset, counterclaim, or defense against the Developer upon the lapse of time or
the giving of notice or both.
3. The Agreement (a true, correct and complete copy of which, including all riders,
exhibits, modifications and amendments to the Agreement (if any), is attached as Exhibit A
hereto) constitutes the entire agreement between the City and the Developer. The Agreement has
not been modified, supplemented or amended in any way other than as follows:
SCHEDULE 23.2
ACTIVE 19929732v9
4. The Commencement Date of the Agreement was , 2
The Lease Term commenced on the Commencement Date and consists of an initial term of ninety-
nine (99) years. The Term ends on , 2
5. [With respect to the first Lease Year of the Lease Term, the Prepaid Minimum Rent
payment in the amount of $1,800,000.00 was made on , 20 , and the second
installment of Minimum Rent for the first Lease Year of the Lease Term in the amount of
$1,800,000.00 was made on [ , 2 ] [is due by , 2 ].]
[Rent payments are paid current and have been paid through , 2 .] [The
current Minimum Rent under the Agreement is $ per annum, subject to annual
adjustment commencing with the sixth (6th) Lease Year of the Lease Term and each Lease Year
thereafter, as set forth in the Agreement.] [The current Minimum Rent under the Agreement is
$ per annum, subject to annual adjustment as set forth in the Lease.]
6. The current Land Value is $ , subject to adjustment as set
forth in the Agreement.
6. The Developer [will pay from and after the sixth (6th) Lease Year] [currently pays]
Participation Rent equal to 3.00% of annual Gross Revenue, provided such amount is reduced by
the amount of annual Minimum Rent paid by the Developer. [The amount of Participation Rent
paid for the immediately preceding Lease Year was equal to $ .]
7. The City represents and warrants that, as of the date hereof, (i) it has not assigned,
conveyed, transferred or sold its interest in the Agreement or Premises, and (ii) no third party has
an option or preferential right to purchase from the City all or any part of the Premises.
8. To the best of the City's knowledge, the Agreement has not been assigned or
transferred or sublet to anyone in whole or in part, except as indicated in Exhibit A attached hereto.
9. This certificate is made for the benefit of (and may be relied upon by) the
Developer, you and your successors and assigns, and shall be binding upon the City and its
successors and assigns. To the extent not delivered to same, this certificate may be relied upon by
any prospective assignee, transferee or purchaser of the Developer's interest in the Agreement,
any prospective Sublessee or any Lender or any assignee thereof. The person signing this
certificate on behalf of the City has been, and is, duly authorized to do so and has been, and is,
duly authorized to bind the City to the terms hereof.
[Signature page follows]
SCHEDULE 23.2
ACTIVE 19929732v9
This certificate has been executed as of the day of , 2
CITY:
CITY OF MIAMI, a municipal corporation
of the State of Florida
By:
, [insert name/title of the City
Official or his/her designee]
ATTEST:
By:
, City Clerk
APPROVED AS TO FORM
AND LEGAL SUFFICIENCY:
By:
Name:
Title:
SCHEDULE 23.2
ACTIVE 19929732v9
EXHIBIT A TO SCHEDULE 23.2
Agreement Documents
[to be attached]
EXHIBIT A TO SCHEDULE 23.2
ACTIVE 19929732v9
SCHEDULE 24.4
Memorandum of Agreement
This instrument prepared by
(and after recording return to):
Name: Nancy B. Lash, Esq.
Address: Greenberg Traurig, P.A.
333 SE 2nd Avenue, Suite 4400
Miami, Florida 33131
MEMORANDUM OF AGREEMENT AND LEASE
(Miami Riverside Center)
THIS MEMORANDUM OF AGREEMENT AND LEASE is made as of this
day of , 2019, by and between the CITY OF MIAMI, a municipal
corporation of the State of Florida (the "City"), whose address is 444 SW 2nd Avenue,
Miami, FL 33130, and LANCELOT MIAMI RIVER, LLC, a Florida limited liability
company (the "Developer"), whose address is 3150 SW 38th Avenue, Suite 500, Coral
Gables, FL 33146.
WITNESSETH:
For and in consideration of Ten and NO/100 Dollars ($10.00) and other valuable
consideration paid, the City does demise and let unto the Developer, and the Developer
does take from the City, upon the terms and conditions and subject to the limitations more
particularly set forth in that certain Agreement and Lease by and between the City and the
Developer dated as of , 2019 (the "Agreement"), the land, improvements,
air rights and subsurface rights located at 444 and 460 SW 2nd Avenue in the City of
Miami, in Miami -Dade County, Florida, and legally described on Exhibit A hereto and by
this reference made a part hereof (the "Demised Premises"). The City remains the legal
and equitable owner of the land underlying the Demised Premises and retains all of the
benefits and burdens of ownership in said land as more particularly provided in the
Agreement. Capitalized terms used in this Memorandum without definition have the
meanings given to them in the Agreement.
The City, in consideration of the payments and covenants set forth in the
Agreement, hereby demises to the Developer, and the Developer hereby takes and hires
from the City, the Demised Premises,
SCHEDULE 24.4
ACTIVE 19929732v9
TO HAVE AND TO HOLD the Demised Premises for a term of ninety-nine (99)
years, commencing on the Commencement Date (as defined in the Lease) and ending on
the date that is ninety-nine (99) years thereafter.
The City has granted to the Developer the exclusive and continuous option
(hereinafter referred to as an "Option" or "Options") during the Lease Term to purchase all
or any portion of the Demised Premises in accordance with the terms and conditions of
Article 28 of the Agreement. At any time during the Lease Term, the Developer may
exercise an Option by giving written notice (a "Purchase Option Notice") to the City. The
Purchase Option Notice must specify the portion of the Demised Premises that the
Developer intends to purchase with respect to such Option and the Closing Date of the
acquisition under such Option. The closing date (a "Closing Date") for the exercised
Option shall be the date specified in such Purchase Option Notice, which shall, at the
Developer' s option, be (x) a date that is no earlier than sixty (60) days following delivery
of the Purchase Option Notice by the Developer to the City, (y) the date that is one (1)
business day prior to expiration of the then current Lease Year in which the Purchase
Option Notice is delivered to the City (provided that the Developer provided the City with
the Purchase Option Notice no less than sixty (60) days prior to the expiration of the then
current Lease Year), or (z) such other date mutually agreed by the City and the Developer.
This instrument is executed and is to be recorded against the Demised Premises for
the purpose of giving notice of the Agreement hereinbefore defined and the Option(s)
granted to the Developer pursuant to Article 28 of the Agreement, but shall not be deemed
or construed to change the terms of the Agreement, which shall govern in the case of a
conflict.
[Signatures begin on following page]
SCHEDULE 24.4
ACTIVE 19929732v9
EXECUTED as of the day and year first above written.
CITY: CITY OF MIAMI, a municipal
corporation of the State of Florida
Signed in the presence of the following
witnesses: By:
Print Name:
Print Name:
ATTEST:
By:
Todd B. Hannon, City Clerk
Approved as to form and legal sufficiency
Name: Victoria Mendez
Title: City Attorney
Emilio T. Gonzalez, City Manager
[Signatures Continue on Following Page]
SCHEDULE 24.4
ACTIVE 19929732v9
DEVELOPER: LANCELOT MIAMI RIVER, LLC, a
Florida limited liability company
Signed in the presence of the following
witnesses:
Print Name:
Print Name:
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
) SS:
)
By:
Name: Michael M. Adler
Title: President
Date: , 2019
The foregoing instrument was acknowledged before me this day of ,
20, by Michael M. Adler, as President of LANCELOT MIAMI RIVER, LLC, a Florida
limited liability company, on behalf of said entity.
Personally Known OR Produced Identification
Type of Identification Produced:
Notary Public, State of Florida at Large
Print or Stamp Name:
Commission No.:
My Commission Expires:
SCHEDULE 24.4
ACTIVE 19929732v9
EXHIBIT A TO SCHEDULE 24.4
LEGAL DESCRIPTION OF DEMISED PREMISES
Tracts 1 and 2, RIVERSIDE PLAZA, according to the plat thereof as recorded in Plat Book 139, Page
43, of the Public Records of Nliarni - Dade County, Florida.
LESS AND EXCEPT THE FOLLOWING:
This part of Tracts 1 and 2, RIVERSIDE PLAZA, as recorded in Plat Book 139, Page 43, of the Public
Records of Miami - Dade County, Florida, and being a portion of Section 37, Township 54 South,
Range 41 East.
More particularly described as follows:
BEGINNING at the Northeast corner of said tract 2; thence along the East boundary of said Tracts 2
and 1 also being Westerly right-of-way line of S.W. 2nd Avenue, the following six (6) courses: 1) S
02°15'35" E for 4.550 meters (14.93 feet); 2) S 02°16'29" E for 7.338 meters (24.07 feet); 3) 5
87°43'31"W for 0.838 meters (2.75 feet); 4) S 02°16'29" E for 84.723 meters (277.96 feet); 5) S
00°26'56" E for 24.683 meters (80.98 feet); 6) 5 02°16'29" E for 25.578 meters (83.92 feet) to a
point on the most Southerly boundary cif said Tract 1; thence along said boundary, N 45°39'37" W
for 35.035 meters (114.94 feet); thence N 52°31'38"E for 19.437 meters (63.77 feet); thence N
02°16'29" W for 77.346 meters (253.76 feet); thence N 00°30'18" W for 22.762 meters (74.68
feet); thence N 89°29'43" E for 6.475 meters (21.24 feet); thence N 00°30'14" W for 10.300
meters (33.79 feet) to a point on the North boundary of the aforesaid Tract 2; thence along said
boundary, N 87°42'40" E for 2.315 meters (7.60 feet) to the POINT OF BEGINNING.
EXHIBIT A TO SCHEDULE 24.4
ACTIVE 19929732v9
SCHEDULE 28.1(b)
Form of Purchase and Sale Agreement
[to be attached]
SCHEDULE 28.1(b)
ACTIVE 19929732v9
SCHEDULE 28.1(b)
FORM OF PURCHASE AND SALE AGREEMENT
AGREEMENT OF SALE
THIS AGREEMENT OF SALE (this "Agreement") is made and entered into this
day of , 20 ("Effective Date"), by and between the CITY OF MIAMI,
a municipal corporation of the State of Florida, as seller ("Seller"), and
[ ], as purchaser ("Purchaser").
BACKGROUND
A. Seller desires to sell to Purchaser and Purchaser desires to purchase from Seller
the Property (as hereinafter defined) on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and agreements
hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, and intending to be legally bound hereby, the parties agree as
follows:
SECTION 1: DEFINITIONS OF CERTAIN TERMS
Unless otherwise provided herein, capitalized terms used in this Agreement shall have the
meaning set forth in this Section 1. Additionally, capitalized terms used in this Agreement
without definition shall have the meanings given to them in the Ground Lease.
Bill of Sale and General Assignment. Shall have the meaning ascribed to such term in
Section 10.2.3.
Changed Circumstance. Shall have the meaning ascribed to such term in Section 5.3.
Closing. The Closing and consummation of the purchase and sale of the Property as
contemplated by this Agreement.
Closing Date (or Date of Closing). [INSERT DATE FROM PURCHASE OPTION
NOTICE OR SUCH OTHER DATE MUTUALLY AGREED TO BY SELLER AND
PURCHASER].
Closing Documents. Shall have the meaning ascribed to such term in Section 7.1.
Deed. Shall have the meaning ascribed to such term in Section 10.1.2.
Escrow Agent. The Title Company or its agent.
Ground Lease. That certain Agreement of Lease dated as of [ , 2 ]
by and between Seller, as landlord, and Buyer (or its predecessor in interest), as tenant.
1
Improvements. Seller's right, title, and interest in and to all Improvements (as defined
in the Ground Lease), structures, buildings, fixtures or other physical improvements located on
the Real Property.
Land Use Rights. Seller's right, title, and interest in and to all permits, certificates of
occupancy, consents, notices of completion, environmental and utility permits and approvals,
authorizations, variances, entitlements, entitlement applications, water and sewer capacity,
impact fee credits, air rights, development rights, waivers, licenses, certificates and approvals
from any governmental or quasi -governmental authority issued or granted with respect to the
Property.
Must -Cure Items. Shall have the meaning ascribed to such term in Section 4.3.
Permitted Exceptions. Shall have the meaning ascribed to such term in Section 4.2.
Personal Property. All tangible personal property, including, without limitation, fixed
and movable fixtures, together with all component and replacement parts, owned by Seller and
used solely in connection with the Real Property or the Improvements, if any, along with any
general intangibles associated with the Real Property and Improvements, if and to the extent
assignable by Seller to Purchaser and made a part hereof. Notwithstanding anything to the
contrary herein, Seller shall be permitted to remove from the Property all furniture, fixtures,
equipment and all other personal property used in Seller's normal operations and all such items
shall not be included in the definition of Personal Property for purposes of this Agreement.
Plans and Specifications. Seller's right, title, and interest in and to any and all
engineering, structural, mechanical, plumbing, drawings prepared in connection with any and all
development on the Real Property; building permit plans, submitted to any local government
authority in connection with any development on the Real Property; applications, plans and/or
building permit plans, submitted to any local government authority; reports, studies, peer review
analysis, and/or such other documentation related to any development on the Real Property; and
reports, peer review analysis, and/or such other documentation related to any development on the
Real Property.
Property. The Real Property, Improvements, Land Use Rights, Plans and Specifications,
Personal Property and Warranties.
Purchase Price. Shall have the meaning ascribed to such term in Section 3.
Prohibited Person. Any of the following: (a) a person or entity that is listed in the
Annex to, or is otherwise subject to the provisions of, Executive Order No. 13224 on Terrorist
Financing (effective September 24, 2001) (the "Executive Order"); (b) a person or entity owned
or controlled by, or acting for or on behalf of any person or entity that is listed in the Annex to,
or is otherwise subject to the provisions of, the Executive Order; (c) a person or entity that is
named as a "specially designated national" or "blocked person" on the most current list
published by the U.S. Treasury Department's Office of Foreign Assets Control ("OFAC") at its
official website, http://www.treas.gov/offices/enforcement/ofac; (d) a person or entity that is
otherwise the target of any economic sanctions program currently administered by OFAC; or (e)
2
a person or entity that is affiliated with any person or entity identified in clause (a), (b), (c)
and/or (d) above.
Purchaser Control Entity. Shall have the meaning ascribed to such term in Section 14.
Purchaser's Election. Shall have the meaning ascribed to such term in Section 4.1.
Purchaser's Objections. Shall have the meaning ascribed to such term in Section 4.1.
Purchaser Representatives. Purchaser's members, directors, officers, employees,
affiliates, contractors, consultants, agents, and representatives.
Real Property. The tracts or parcels of land legally described on Exhibit "A" attached
hereto and incorporated herein by reference, together with all of Seller's right, title and interest
in and to all easements, rights of way, strips and gores of land, tenements, hereditaments and
appurtenances, reversions, remainders, privileges, licenses and other rights and benefits
belonging to, running with or in any way relating thereto; together with all right, title and interest
of Seller in and to any land lying in the bed of any street, road or highway, open or proposed, in
front of, abutting or adjoining the Real Property and all of Seller's right, title, and interest in and
to any and all minerals and mineral rights, oil and gas rights, air rights, water and water rights,
and sanitary or storm sewer capacity.
Seller -Related Party. All directors, officers, employees, representatives, agents, or
consultants of Seller.
Seller's Response. Shall have the meaning ascribed to such term in Section 4.1.
Surviving Obligations. Shall have the meaning ascribed to such term in Section 4.1.
Title Commitment. Shall have the meaning ascribed to such term in Section 4.1.
Title Company. Chicago Title Insurance Company or First American Title Insurance
Company or their respective successors or such other mutually agreed upon title company.
Title Objection Deadline Shall have the meaning ascribed to such term in Section 4.1.
Title Policy. A 2006 ALTA form (or comparable successor form) of extended coverage
owner's policy of title insurance insuring good, marketable, insurable fee simple title to the Real
Property in Purchaser or its assignee in the amount of the Purchase Price, subject only to the
Permitted Exceptions.
Warranties. Seller's right, title, and interest in and to all existing guarantees, warranties,
and indemnities relating to the construction, operation and/or use of the Property and in effect at
the time of Closing, to the extent assignable.
3
SECTION 2: PURCHASE AND SALE
Purchaser shall purchase the Property from Seller, and Seller shall sell, convey, transfer
and assign the Property to Purchaser, subject to and in accordance with the terms and conditions
of this Agreement. No termination of this Agreement shall have any effect on the Ground Lease.
SECTION 3: PURCHASE PRICE AND DEPOSIT
The purchase price for the Property shall be the Option Price as set forth in the Ground
Lease, which is equal to [ ] Dollars ($[ ]) (herein
referred to as the "Purchase Price"). The Purchase Price shall be paid, subject to the
adjustments and prorations as herein provided as follows:
3.1 Prior to the Effective Date, Purchaser delivered to Escrow Agent a deposit in the
amount of [INSERT "OPTION PURCHASE DEPOSIT" PURSUANT TO THE GROUND
LEASE] Dollars ($[ ]) (together with any interest accrued thereon, the
"Option Purchase Deposit"). The Option Purchase Deposit shall be held by Escrow Agent in a
federally insured interest -bearing account and any interest earned thereon shall be added to and
become a part of the Option Purchase Deposit; and
Date.
3.2 The balance of the Purchase Price by Title Company check or wire on the Closing
SECTION 4: TITLE
4.1 Examination of Title. At Purchaser's sole cost and expense, Purchaser shall,
within seven (7) business days of the Effective Date obtain a title commitment with respect to the
Real Property ("Title Commitment") issued by the Title Company. No later than five (5)
business days after its receipt of the Title Commitment ("Title Objection Deadline"), Purchaser
shall provide Seller with written notice of any exceptions or matters of title or survey of which it
disapproves ("Purchaser's Objections"). Purchaser shall be deemed to have approved the
condition of title unless it has delivered to Seller written notice of Purchaser's Objections prior to
the expiration of the Title Objection Period. If Purchaser has timely notified Seller of
Purchaser's Objections, then Seller may notify Purchaser in writing within ten (10) business days
after receipt of Purchaser's Objections whether Seller will cure such matter(s), in which event
this condition shall be deemed satisfied as to such matter(s) and Seller shall be obligated to
remove or cure such matter on or before the Closing, or Seller shall notify Purchaser that Seller
shall not cure such Purchaser's Objection ("Seller's Response"). If no Seller's Response is
given by Seller within ten (10) business days after Seller's receipt of the Purchaser's Objections,
Seller shall be deemed to have elected not to remove or cure such Purchaser's Objections. If
Seller notifies Purchaser in the Seller's Response that it will not cure the Purchaser's Objections,
or such is deemed to be the case, then, within five (5) business days after receipt by Purchaser of
Seller's Response (or Seller's deemed response), Purchaser may elect to in writing to either
("Purchaser's Election"): (i) waive in writing the Purchaser's Objections and proceed to
Closing, or (ii) to terminate this Agreement by providing written notice of such termination to
Seller and upon such termination the Option Purchase Deposit shall be returned to Purchaser
whereupon there shall be no further rights, obligations or liabilities between the parties under this
4
Agreement, except for those rights, obligations or liabilities that expressly survive the
termination of this Agreement ("Surviving Obligations"). If Seller has not received Purchaser's
Election within such five (5) business day period, Purchaser shall be deemed conclusively to
have elected to accept title to the Property in accordance with subsection (i) above.
4.2 Permitted Exceptions. Unless otherwise provided in this Agreement or agreed
to in writing by Seller pursuant to Section 4.1 of this Agreement, Purchaser shall accept title to
the Property subject to the following (collectively, "Permitted Exceptions"): (i) all Laws and
Ordinances; (ii) all current real estate taxes and assessments assessed against the Property and
not yet due and payable as of the Closing; (iii) exceptions to title (x) approved by Purchaser or
recorded against the Property at Purchaser's written request, or to which Purchaser does not
object to in writing to Seller on or before the Title Objection Deadline, (y) resulting from the acts
of Purchaser or Purchaser Representatives, and (z) that would have been disclosed in a title
commitment issued by the Title Company prior to the expiration of the Additional Review
Period; and (iv) the interest of parties in possession claiming by, through or under Purchaser, as
tenant under the Ground Lease.
4.3 Must Cure Items. Notwithstanding anything in this Agreement to the contrary,
Seller covenants and agrees that, at or prior to Closing, Seller shall (i) pay in full and cause to be
canceled and/or released any loan security documents entered into by Seller or a Seller -Related
Party that encumber the Property, and (ii) any liens, delinquencies, judgments, violations or
other encumbrances arising by, through or under Seller or a Seller -Related Party that can be
satisfied by payment of a liquidated amount or bonding (collectively, items (i) through (ii) are
referred to herein as "Must -Cure Items"). In the event Seller fails to cause such Must -Cure
Items to be paid and canceled and/or released at or prior to Closing, Purchaser shall be entitled,
in its sole discretion, to pay such amount to the holder thereof as may be required to pay and
cancel same, and to credit against the Purchase Price the amount so paid.
4.4 New Exceptions. Whether or not Purchaser shall have furnished to Seller any
Purchaser Objections pursuant to the foregoing provisions of this Agreement, Purchaser may, at
or prior to Closing, promptly upon Purchaser obtaining knowledge thereof, notify Seller in
writing of any objections to title not created by Purchaser first arising and raised by the Title
Company between (i) the effective date of the Title Commitment and (ii) the Closing Date. With
respect to any new objections to title set forth in such notice, Seller shall have the same option to
cure and within the same time periods as set forth in Section 4.1 and Purchaser shall have the
same option to accept title subject to such matters or to terminate this Agreement as those which
apply to any notice of objections made by Purchaser before the Title Objection Deadline.
SECTION 5: SELLER'S REPRESENTATIONS, WARRANTIES AND COVENANTS
5.1 Seller's Representations. Seller represents, warrants and covenants to
Purchaser, on and as of the Effective Date and Closing Date as follows:
5.1.1 Organization, Power and Authority. Seller is duly organized and in
good standing under the laws of the State of its formation and has the full power and right to
enter into this Agreement and to execute and deliver this Agreement and to perform all duties
and obligations imposed upon it hereunder, and Seller has obtained all necessary authorizations
5
required in connection with the execution, delivery and performance contemplated by this
Agreement and has obtained the consent of all entities and parties necessary to bind Seller to this
Agreement.
5.1.2 No Conflicts. Neither the execution nor the delivery of this Agreement,
nor the consummation of the purchase and sale contemplated hereby, nor the fulfillment of or
compliance with the terms and conditions of this Agreement conflict with or will result in the
breach of any of the terms, conditions, or provisions of any agreement, instrument, judgment,
order or injunction to which Seller is a party or by which Seller or any of Seller's assets is bound.
5.1.3 No Bankruptcy. No petition in bankruptcy (voluntary or otherwise),
assignment for the benefit of creditors, or petition seeking reorganization or arrangement or other
action under federal or state bankruptcy laws is pending against or contemplated by Seller or
against the Property.
5.1.4 Litigation. There are no actions, suits, or proceedings pending or, to
Seller's actual knowledge, threatened against Seller with respect to the Property at law or in
equity, or before or by any federal, state, municipal, or other governmental court, department,
commission, board, bureau, agency, or instrumentality, domestic or foreign. Seller has not
received written notices from any governmental or quasi -governmental authorities concerning
any violations of any Laws and Ordinances applicable to the Property.
5.1.5 Condemnation. Seller has not received written notice of any pending or
threatened condemnation or eminent domain proceedings that would affect the Property or any
part thereof.
5.1.6 No Undisclosed Contracts. Other than the Ground Lease, neither Seller
nor any Seller -Related Party has entered into any management, sales, leasing or rental
commission, service, occupancy, maintenance, employment, or other contracts or commitments
of any kind or description in existence relating to the Property, the terms of which will survive
the Closing or would constitute an obligation upon Purchaser after the Closing Date.
5.1.7 Purchase Rights. No person other than Purchaser has any right,
agreement, commitment, option, right of first refusal or any other agreement, whether oral or
written, with respect to the purchase or transfer of all or any portion of the Property.
5.2 Limitations on Seller's Representations. The foregoing representations,
warranties and covenants of Seller shall survive Closing for nine (9) months except in the event
Purchaser provides Seller with written notice of any claims prior to the end of such 9-month
period, in which event Seller's liability hereunder shall continue with respect to such claims until
such time as (i) such claim(s) have been adjudicated by a court of competent jurisdiction
resulting in a final, non -appealable judgment (or, alternatively, the party entitled to appeal any
judgment has waived the right to do so in writing), (ii) such claims have been settled pursuant to
a written settlement agreement between Seller and Purchaser or (iii) tolled by applicable statutes
of limitation (the "Survival Period"). Notwithstanding anything contained in this Agreement to
the contrary, if, prior to Closing, Purchaser obtains actual knowledge that any of Seller's
representations or warranties set forth in this Section 5 is inaccurate, incomplete or incorrect in
6
any manner or respect, but Purchaser nevertheless closes the transactions contemplated by this
Agreement, then Purchaser shall be deemed to have waived any and all right and remedies
against Seller under this Agreement, at law and in equity with respect or relating thereto. The
provision of this Section 5.2 shall survive Closing.
5.3 Changed Circumstance. In the event that any representation or warranty of
Seller needs to be modified due to changes or information that comes into the possession of
Seller after the Effective Date, Seller shall promptly notify Purchaser thereof and deliver to
Purchaser a certificate executed by Seller, identifying any representation or warranty which is
not, or no longer is, true and correct and explaining the state of facts giving rise to the change
("Changed Circumstance"). Seller shall not be liable to Purchaser for, or be deemed to be in
default hereunder by reason of, any breach of a representation or warranty which results from
any Changed Circumstance, unless such Changed Circumstance resulted from Seller's acts or
omissions or a breach of this Agreement by Seller. In the event that the Changed Circumstance
is adverse, then the Purchaser shall have the same rights afforded to Purchaser for a failure of a
closing condition under Section 10.3.1.
SECTION 6: PURCHASER'S REPRESENTATIONS AND WARRANTIES
6.1 Purchaser's Representations. Purchaser represents, warrants and covenants to
Seller, on and as of the Effective Date and Closing Date as follows:
6.1.1 Authority. Purchaser is duly organized and in good standing under the
laws of the State of its formation and has the full power and right to enter into this Agreement
and to execute and deliver this Agreement, and Purchaser has obtained all necessary corporate
authorizations required in connection with the execution and delivery of this Agreement and has
obtained the consent of all entities and parties necessary to bind Purchaser to this Agreement.
Purchaser shall have obtained all necessary corporate authorizations required to consummate the
transactions contemplated herein on or before Closing.
6.1.2 Prohibited Person. Purchaser is not a Prohibited Person. To Purchaser's
knowledge, except for third -party persons who hold direct or indirect ownership interests in
Purchaser, none of Purchaser's affiliates or parent entities is a Prohibited Person.
6.1.3 No Conflicts. Neither the execution nor the delivery of this Agreement,
nor the consummation of the purchase and sale contemplated hereby, nor the fulfillment of or
compliance with the terms and conditions of this Agreement conflict with or will result in the
breach of any of the terms, conditions, or provisions of any agreement instrument judgment,
order or injunction to which Purchaser is a party or by which Purchaser or any of Purchaser's
assets is bound.
6.1.4 No Bankruptcy. No petition in bankruptcy (voluntary or otherwise),
assignment for the benefit of creditors, or petition seeking reorganization or arrangement or other
action under federal or state bankruptcy laws is pending against or contemplated by Purchaser.
7
SECTION 7: NO REPRESENTATIONS OR
WARRANTIES BY SELLER; ACCEPTANCE OF PROPERTY
7.1 Except as expressly set forth in this Agreement or as set forth in the documents
delivered by Seller at the Closing pursuant to this Agreement ("Closing Documents"), Purchaser
acknowledges and agrees that Seller has not made and does not make any representations,
warranties, promises, covenants, agreements or guaranties of any kind or character whatsoever,
whether express or implied, oral or written, past, present or future, of, as to, concerning or with
respect to the Property or the transactions contemplated by this Agreement including, without
limitation, any representation or warranty concerning title to the Property, the physical condition
of the Property (including the condition of the soil), the environmental condition of the Property
(including the presence or absence of hazardous substances on or affecting the Property), the
compliance of the Property with Laws and Ordinances, the financial condition of the Property or
any other representation or warranty respecting any income, expenses, charges, liens or
encumbrances, right or claims on, affecting or pertaining to the Property or any part thereof.
Except as to the representations, warranties, agreements and other matters specifically set forth
in this Agreement or in the Closing Documents, the sale of the Property as provided for herein is
made on an "AS IS/WHERE IS," "WITH ALL FAULTS" condition and basis. Nothing herein
shall be deemed to modify or amend the terms and conditions of the Ground Lease. The
provisions of this Section 7 shall survive Closing.
7.2 Intentionally Deleted.
SECTION 8: OPERATIONS PENDING CLOSING
From and after the Effective Date until the Closing Date, the Ground Lease shall govern
and control with respect to the management and operation of the Property.
SECTION 9: CLOSING
Subject to satisfaction of all conditions to Closing, the Closing shall be held during
regular business hours on the Closing Date. The Closing shall be held through the Title
Company acting as the Escrow Agent. Each party may deliver closing instructions to Escrow
Agent with respect to the closing deliverables and other materials or funds delivered by it to
Escrow Agent to effectuate the Closing, provided that such closing instructions shall be
consistent with the terms and conditions of this Agreement.
9.1 Closing Generally.
9.1.1 Delivery. At Closing, Seller shall deliver to the Escrow Agent the items
required of Seller under this Agreement, and Purchaser shall deliver to Seller the balance of the
Purchase Price, after crediting Purchaser with the Option Purchase Deposit (and making other
adjustments and prorations as provided herein) and the other items required of Purchaser under
this Agreement.
9.2 Closing Costs.
8
9.2.1 Seller's Costs. Seller shall pay: (i) all state, county and municipal realty
transfer and recordation taxes, including all documentary stamp taxes and surtaxes, for the
transfer of the Property, (ii) the fees and expenses of Seller's attorneys, (iii) any costs and
expenses related to the discharge and/or recordation of any releases and other instruments
required to clear title exceptions that Seller is obligated to cure under this Agreement or Must -
Cure Items, and (iv) fifty percent (50%) of the escrow charges charged by Escrow Agent.
9.2.2 Purchaser's Costs. Purchaser shall pay: (i) the cost of recording the
Deed, (ii) the fees and expenses of Purchaser's attorneys, (iii) the cost of the Title Commitment
and Title Policy, (iv) recording charges due in connection with any mortgages or other financing
documents entered into by Purchaser, and (v) fifty percent (50%) of the escrow charges charged
by Escrow Agent.
9.2.3 Other Costs. Any other costs not specifically provided for herein shall be
paid by the party who incurred those costs, or if neither party is charged with incurring any such
costs, then by the party customarily assessed for such costs in the Miami -Dade County, Florida.
This Section 9.2 shall survive the Closing.
SECTION 10: CONVEYANCES AND DELIVERIES
10.1 Seller's Obligations at Closing. On and effective as of the Closing Date, Seller
will deliver to Title Company or Purchaser, as appropriate, with respect to the Property, the
following, executed, acknowledged and in recordable form, as appropriate:
10.1.1 Authorizing and Organizational Documents. Seller shall deliver such
organizational and authorizing documents of Seller as shall be reasonably required by the Title
Company authorizing Seller's disposition of the Property pursuant to this Agreement and any
documents to be executed by Seller at the Closing.
10.1.2 Deed. Seller shall deliver a deed to the Property in recordable form, duly
executed by Seller and acknowledged and in the same form as set forth in Exhibit "B" attached
hereto (the "Deed"), conveying to Purchaser title to the Real Property, subject to the Permitted
Exceptions.
10.1.3 Bill of Sale and General Assignment. Seller shall convey to Purchaser
the Personal Property, Land Use Rights, Plans and Specifications, and Warranties by a bill of
sale and general assignment duly executed by Seller, in the same form as set forth in Exhibit
"C" attached hereto (the "Bill of Sale and General Assignment").
10.1.4 Section 1445 Certificates. Seller shall deliver (i) a certificate stating that
Seller is not a "foreign person" as defined in Section 1445 of the Internal Revenue Code and the
regulations thereunder, and (ii) an IRS Form 1099 with respect to this transaction.
10.1.5 Title Affidavits. Seller shall deliver such owner's affidavits, "gap"
affidavits or undertakings, certificates or other documents as are reasonably and customarily
required by Title Company in order to cause Title Company to issue the Title Policy (as defined
herein) in the form and condition required by this Agreement.
9
10.1.6 Settlement Statement. Seller shall deliver a settlement statement
mutually agreeable to the parties.
10.1.7 Other Documents. Seller shall deliver any other documents expressly
required to be delivered or furnished pursuant to any other provisions of this Agreement or
reasonably required to carry out the purpose and intent of this Agreement.
10.2 Purchaser's Obligations at the Closing. On and effective on the Closing Date,
Purchaser shall deliver to Title Company or Seller, as appropriate, the following:
10.2.1 Authorizing and Organizational Documents. Purchaser shall deliver
such organizational and authorizing documents of Purchaser as shall be reasonably required by
Title Company authorizing Purchaser's acquisition of the Property and assumption of the Loan
pursuant to this Agreement and any documents to be executed by Purchaser at the Closing.
10.2.2 Bill of Sale and General Assignment. Purchaser shall deliver a duly
executed counterpart of the Bill of Sale and General Assignment.
10.2.3 Settlement Statement. Purchaser shall deliver a settlement statement
mutually agreeable to the parties.
10.2.4 Other Documents. Purchaser shall deliver any other documents
expressly required to be delivered or furnished pursuant to any other provisions of this
Agreement or reasonably required to carry out the purpose and intent of this Agreement.
10.3 Conditions Precedent.
10.3.1 Purchaser's Conditions Precedent. Purchaser's obligations hereunder
are subject to the conditions that (i) all of Seller's representations, warranties and covenants in
this Agreement shall be true and correct in all material respects as of the Closing; (ii) Seller shall
have performed, observed and complied in all material respects with all covenants and
agreements required to be performed by Seller at or prior to the Closing; and (iii) the Title
Company shall issue (or shall be prepared and irrevocably and unconditionally committed to
issue) the Title Policy. In the event any of the conditions set forth above are not satisfied at
Closing, then the Closing Date shall automatically be extended for up to a total of twenty (20)
business days to allow Seller time within which to cure or satisfy such condition. In the event
Seller is unable to cure or satisfy such condition prior to the expiration of such extension period,
then Purchaser may, in its sole and absolute discretion, (1) waive any such unsatisfied condition
that can legally be waived and proceed to Closing without adjustment or abatement of the
Purchase Price, or (2) terminate this Agreement by written notice thereof to Seller, in which case
the Option Purchase Deposit shall be returned to Purchaser. In addition to (and notwithstanding)
the foregoing, if the failure of any condition is due to an intentional breach by Seller under this
Agreement, Purchaser may pursue any of its remedies under Section 15.1.
10.3.2 Seller's Conditions Precedent. Seller's obligations hereunder are subject
to the condition that (i) all of Purchaser's representations, warranties and covenants in this
Agreement shall be true and correct in all material respects as of the Closing; and (ii) Purchaser
shall have performed, observed and complied in all material respects with all covenants and
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agreements required to be performed by Purchaser at or prior to the Closing. In the event any of
the conditions set forth above are not satisfied at Closing, then the Closing Date shall
automatically be extended for up to a total of twenty (20) business days to allow Purchaser time
within which to cure or satisfy such condition. In the event Purchaser is unable to cure or satisfy
such condition prior to the expiration of the extension period, then Seller may, in its sole and
absolute discretion, (1) waive any such unsatisfied condition that can legally be waived and
proceed to Closing without adjustment or abatement of the Purchase Price, or (2) terminate this
Agreement by written notice thereof to Purchaser, in which case the Option Purchase Deposit
(together with interest accrued thereon) shall be returned to Purchaser. In addition to (and
notwithstanding) the foregoing, if the failure of any condition is due to an intentional breach by
Purchaser under this Agreement, Seller may pursue any of its remedies under Section 15.2.
SECTION 11: NOTICES
All notices, consents, approvals and other communications which may be or are required
to be given by either Seller or Purchaser under this Agreement shall be properly given only if
made in writing (except as expressly provided to the contrary in this Agreement) and sent by
(i) U.S. Certified Mail, Return Receipt Requested, or (ii) a nationally recognized overnight
delivery service (such as FedEx, UPS Next Day Air), with all delivery charges paid by the sender
and addressed to the Purchaser or Seller, as applicable, as follows, or at such other address as
each may request in writing. Such notices shall be deemed received, (x) if delivered by certified
mail, three (3) business days following the date mailed, and (y) if delivered by overnight delivery
service, on the date of delivery. Notices to be sent on behalf of Purchaser or Seller may be sent
by their respective counsel. The refusal to accept delivery shall constitute acceptance and, in
such event, the date of delivery shall be the date on which delivery was refused. Said addresses
for notices are to be as follows:
If to Seller:
With copies to:
City Manager
City of Miami
444 SW 2nd Avenue, 10th Floor
Miami, Florida 33130
City of Miami City Attorney
Office of City Attorney
444 SW 2nd Avenue, 9th Floor
Miami, Florida 33130
And
City of Miami
Director, Department of Real Estate
and Asset Management
444 SW 2nd Avenue, 3rd Floor
Miami, Florida 33130
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If to Purchaser: [ ]
c/o Adler Group
3150 SW 38th Avenue, Suite 500
Coral Gables, FL 33146
Attn: Michael M. Adler
With a copy to:
Greenberg Traurig, P.A.,
333 S.E. 2nd Avenue, Suite 4400
Miami, Florida 33131
Attn: Ryan Bailine
If to Escrow [ ]
Agent:
SECTION 12: CASUALTY AND CONDEMNATION
Seller and Purchaser agree that if either (i) any material loss or damage affecting more
than twenty-five (25%) percent of the value of the Property by windstorm, fire, flood, theft, or
other casualty occurs prior to Closing, or (ii) any taking by condemnation or eminent domain
occurs or is threatened in writing prior to Closing, then Purchaser may, within ten (10) business
days following either such event, terminate this Agreement by written notice to Seller and
Escrow Agent, and in such case the Option Purchase Deposit shall be returned to Purchaser and
Purchaser shall reimburse Seller within thirty (30) days of demand for the actual out-of-pocket
documented third -party costs and expenses incurred by Seller (excluding attorneys' fees and
expenses) in connection with this Agreement, and thereafter neither party shall have any further
rights or obligations hereunder other than Surviving Obligations.
SECTION 13: BROKERS
Seller and Purchaser acknowledge that they have not dealt with any broker, finder or
agent in connection with this transaction. Seller and Purchaser shall indemnify and hold
harmless the other against any and all claims, demands, causes of action, losses, costs and
expenses (including legal fees and expenses) resulting from a breach of said representation of the
indemnifying party. The provisions of this Section 13 shall survive the Closing hereunder and
any termination of this Agreement.
SECTION 14: ASSIGNMENT
Purchaser shall not assign its rights under this Agreement without Seller's written
consent, which consent may be withheld in Seller's sole and absolute discretion.
Notwithstanding the foregoing, upon written notice to Seller, Purchaser may, without Seller's
consent, assign this Agreement in whole or in part to any affiliate of Purchaser. For purposes of
this Section 14, an affiliate of Purchaser shall include (a) any entity that is owned, controlled by
or is under common control with Purchaser (a "Purchaser Control Entity"), and (b) any entity
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in which one or more Purchaser Control Entities directly or indirectly is the general partner (or
similar managing partner, member or manager) or owns more than 10% of the economic
interests of such entity. Notwithstanding any assignment by Purchaser pursuant to this
Section 14, whether permitted or consented to by Seller, Purchaser shall remain liable for all of
the obligations and indemnities on the part of Purchaser contained in this Agreement.
SECTION 15: DEFAULT/REMEDIES
15.1 Seller's Default/Purchaser's Remedies. If Seller should fail to consummate the
sale contemplated herein as a result of a default by Seller and absent a default by Purchaser,
Purchaser may, upon ten (10) days written notice to Seller and Escrow Agent, if such failure is
not cured within such ten (10) day period, as its sole and exclusive remedy select one of the
following two (3) options: (i) terminate this Agreement, in which case Purchaser shall receive
(a) a refund from Seller of the Option Purchase Deposit, and (b) a reimbursement from Seller for
the actual out-of-pocket documented third party -costs and expenses incurred by Purchaser in
connection with this Agreement up to a maximum reimbursement of an amount equal to One and
5/10 Percent (1.5%) of the Purchase Price (or at Purchaser's option, Purchaser shall have the
right to require Seller to apply such refunds set forth in items (a) and (b) above as a credit against
the next payment or payments of Rent (as defined in the Ground Lease) required to be paid by
the tenant under the Ground Lease until fully credited), and thereafter neither party shall have
any further rights or obligations hereunder other than Surviving Obligations; provided, however,
that no termination of this Agreement shall have any effect on the Ground Lease, including
without limitation, any of Purchaser's rights and remedies as tenant under the Ground Lease, or
(ii) initiate and prosecute an action for the specific performance by Seller of its obligations under
this Agreement. Notwithstanding the foregoing, if Purchaser elects to pursue specific
performance pursuant to this Section 15.1 but specific performance as contemplated in this
Section 15.1 is unavailable to Purchaser as a result of any action taken by Seller, Seller shall
reimburse Purchaser for any and all direct, actual and/or consequential losses, costs, expenses
and/or damages, including, without limitation, all out-of-pocket payments, costs and expenses
(but excluding attorneys' fees) incurred or made by Purchaser in connection with this Agreement
and otherwise resulting from Seller's failure to consummate the sale contemplated herein.
15.2 Purchaser's Default/Seller's Remedies. If Purchaser should fail to consummate
the sale contemplated herein as a result of a default by Purchaser and absent a default by Seller,
Seller may, upon ten (10) days written notice to Purchaser and Escrow Agent, if such failure is
not cured within such ten (10) day period, as its sole and exclusive remedy under this
Agreement, terminate this Agreement and receive payment of the Option Purchase Deposit, as
full liquidated damages for such default of Purchaser, whereupon this Agreement shall terminate
and thereafter neither party shall have any further rights or obligations hereunder other than
Surviving Obligations; provided, however, that no termination of this Agreement shall have any
effect on the Ground Lease, including without limitation, any of Seller's rights and remedies as
landlord under the Ground Lease. Purchaser and Seller acknowledge and agree that the
damages that would be sustained by Seller in the event of a breach by Purchaser of its
obligations in the preceding sentence are difficult to determine and, in such event, that the
Option Purchase Deposit represents a reasonable estimate of such damages and is not intended as
a penalty.
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SECTION 16: ESCROW AGENT
16.1 Escrow Agent. Escrow Agent shall not be liable for any actions taken in good
faith, but only for its gross or willful negligence. Further, Escrow Agent shall not be liable for
any loss, liability, claim or damage whatsoever that the Escrow Agent may incur or be exposed
to in its capacity as escrow agent hereunder except for gross negligence or willful misconduct. If
there be any dispute as to disposition of any proceeds held by the Escrow Agent pursuant to the
terms of this Agreement, the Escrow Agent is hereby authorized to interplead said amount or the
entire proceeds with any court of competent jurisdiction and thereby be released from all
obligations hereunder. The parties recognize that if the Escrow Agent is the law firm
representing Purchaser, the parties hereby agree that such law firm may continue to represent
Purchaser in any litigation pursuant to this Agreement. The Escrow Agent shall not be liable for
any failure of the depository.
SECTION 17: GENERAL PROVISIONS
17.1 Agreement Binding. This Agreement shall be binding upon each party hereto
and such party's heirs, legal representatives, successors and assigns and shall inure to the benefit
of each party hereto and such party's heirs, legal representatives, successors and assigns.
17.2 Entire Agreement. This Agreement, and all the Exhibits and Schedules
referenced herein and annexed hereto, contain the final, complete and entire agreement of the
parties hereto with respect to the matters contained herein, and no prior agreement or
understanding pertaining to any of the matters connected with this transaction shall be effective
for any purpose. Except as may be otherwise provided herein, the agreements embodied herein
may not be amended except by an agreement in writing signed by the parties hereto.
17.3 Governing Law; Jurisdiction. This Agreement shall be governed by and
construed under the laws of the State of Florida. Any action brought to interpret or enforce this
Agreement shall be brought in a court of competent jurisdiction in the state in which the Property
is located and each party hereto hereby consents to jurisdiction and venue in such court.
17.4 Further Assurances. Seller and Purchaser each agree to execute and deliver to
the other such further documents or instruments as may be reasonable and necessary in
furtherance of the performance of the terms, covenants and conditions of this Agreement. This
covenant shall survive the Closing.
17.5 Interpretation. The titles, captions and paragraph headings are inserted for
convenience only and are in no way intended to interpret, define, limit or expand the scope or
content of this Agreement or any provision hereof. This Agreement shall be construed without
regard to any presumption or other rule requiring construction against the party causing this
Agreement to be drafted. If any words or phrases in this Agreement shall have been stricken out
or otherwise eliminated, whether or not any other words or phrases have been added, this
Agreement shall be construed as if the words or phrases so stricken out or otherwise eliminated
were never included in this Agreement and no implication or inference shall be drawn from the
fact that said words or phrases were so stricken out or otherwise eliminated.
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17.6 Counterparts. This Agreement may be executed in separate counterparts. It shall
be fully executed when each party whose signature is required has signed at least one (1)
counterpart even though no one (1) counterpart contains the signatures of all of the parties to this
Agreement. Executed copies hereof may be delivered by PDF or email, and, upon receipt, shall
be deemed originals and binding upon the parties hereto.
17.7 Non -waiver. No waiver by Seller or Purchaser of any provision hereof shall be
deemed to have been made unless expressed in writing and signed by such party. No delay or
omission in the exercise of any right or remedy accruing to Seller or Purchaser upon any breach
under this Agreement shall impair such right or remedy or be construed as a waiver of any such
breach theretofore or thereafter occurring. The waiver by Seller or Purchaser of any breach of
any term, covenant or condition herein stated shall not be deemed to be a waiver of any other
breach, or of a subsequent breach of the same or any other term, covenant or condition herein
contained.
17.8 Severability. This Agreement is intended to be performed in accordance with
and only to the extent permitted by applicable law. If any provisions of this Agreement or the
application thereof to any person or circumstance shall, for any reason and to any extent, be
invalid or unenforceable, but the extent of the invalidity or unenforceability does not destroy the
basis of the bargain between the parties as contained herein, the remainder of this Agreement and
the application of such provision to other persons or circumstances shall not be affected thereby,
but rather shall be enforced to the greatest extent permitted by law.
17.9 Exhibits and Schedules. The Exhibits and Schedules referred in and attached to
this Agreement are incorporated herein in full by this reference.
17.10 Attorney's Fees and Costs. Each party hereto shall be responsible for its own
attorneys' fees and costs incurred in connection with this Agreement, including, but not limited
to any action or proceeding brought by either party to enforce or interpret the terms of this
Agreement.
17.11 Time of the Essence. Time shall be of the essence in enforcing this Agreement.
17.12 Recording of Agreement. This Agreement shall not be recorded or filed in the
public land or other records of any jurisdiction by either party and any attempt to do so may be
treated by the other party as a breach of this Agreement.
17.13 Dates. If any date set forth in this Agreement for the delivery of any document or
the happening of any event (such as, for example, the expiration of the Due Diligence Period or
the Closing Date) should, under the terms hereof, fall on a non -business day, then such date shall
be extended automatically to the next succeeding business day. References herein to business
days shall mean means each day of the year other than Saturdays, Sundays, legal holidays and
days on which banking institutions are generally closed in the State of Florida
17.14 Trial by Jury Waiver. Seller and Purchaser hereby knowingly, irrevocably,
voluntarily and intentionally waive any rights to a trial by jury in respect of any action,
proceeding or counterclaim based on this Agreement or arising out of, under, or in connection
with this Agreement or any document or instrument executed in connection with this Agreement,
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or any course or conduct, course of dealing, statements (whether verbal or written) or action of
any party hereto. This provision is a material inducement for Seller and Purchaser entering into
the subject transaction.
17.15 Radon. Pursuant to Florida Statutes Section 404.056(8), Seller hereby makes the
following notification:
RADON GAS: Radon is a naturally occurring radioactive gas that, when
it has accumulated in a building in sufficient quantities, may present health
risks to persons who are exposed to it over time. Levels of radon that
exceed federal and state guidelines have been found in buildings in
Florida. Additional information regarding radon and radon testing may be
obtained from your county public health unit."
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
16
IN WITNESS WHEREOF, Seller and Purchaser have caused this Agreement to be
executed, as of the day and year first above written.
SELLER:
ATTEST:
By:
, City Clerk
Approved as to form and legal sufficiency
Name:
Title:
CITY OF MIAMI, a municipal corporation of
the State of Florida
By:
Name:
Title:
[Signatures Continue on Following Page]
PURCHASER:
[
By:
Name:
Title:
JOINDER BY ESCROW AGENT
Escrow Agent has executed this Agreement in order to confirm that Escrow Agent shall hold the
Option Purchase Deposit required to be deposited under this Agreement, in escrow, and shall
disburse the Option Purchase Deposit, pursuant to the provisions of this Agreement.
11 1
By:
Name:
Title:
EXHIBITS
Exhibit "A" - Legal Description of Real Property
Exhibit "B" - Form of Deed
Exhibit "C" - Form of Bill of Sale and General Assignment
EXHIBIT "A"
Legal Description of Real Property
EXHIBIT "B"
Form of Deed
Prepared by and return to:
PARCEL IDENTIFICATION NOS.: [ ]
SPECIAL WARRANTY DEED
THIS INDENTURE is made this day of , 20, by and between the CITY
OF MIAMI, a municipal corporation of the State of (hereinafter called "Grantor"), whose
address is [ ], and [ ] (hereinafter called
"Grantee"), whose address is [ ].
WITNESSETH
The Grantor, for and in consideration of the sum of Ten Dollars ($10.00), to it in hand
paid by the Grantee, and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, has granted, bargained and sold and does hereby grant, bargain
and sell to Grantee the following described real estate, situated, lying and being in the County of
Miami -Dade, State of Florida, more particularly described on Exhibit A attached hereto and
made a part hereof.
SUBJECT TO only those matters set forth on Exhibit B attached hereto and made a part
hereof (the "Permitted Exceptions"), without reimposing same.
TO HAVE AND TO HOLD the aforesaid real estate, together with all the
improvements, licenses, tenements, hereditaments, easements and appurtenances thereto
belonging or in anywise appertaining unto Grantee, its successors and assigns in fee simple
forever.
And Grantor hereby covenants with Grantee that Grantor is lawfully seized in fee simple
of the aforesaid real estate; that Grantor has good right to sell and convey the same; and that the
same is unencumbered except for the Permitted Exceptions. Grantor hereby warrants the title to
the aforesaid real estate and will defend same against the lawful claims of all persons claiming
by, through or under Grantor, but no others.
(When used herein the terms "Grantor" and "Grantee" shall be construed to include,
masculine, feminine, singular or plural as the context permits or requires, and shall include heirs,
personal representatives, successors or assigns.)
[Signature Page Follows]
IN WITNESS WHEREOF, the Grantor has caused this Indenture to be executed in its
name and caused its seal to be affixed as of the day and year first above written.
GRANTOR: CITY OF MIAMI, a municipal corporation of
the State of Florida
Signed in the presence of the following
witnesses:
Print Name:
Print Name:
ATTEST:
By:
, City Clerk
Approved as to form and legal sufficiency
Name:
Title:
By:
Name:
Title:
Exhibit A to Special Warranty Deed
[to be inserted]
Exhibit B to Special Warranty Deed
[Permitted Exceptions pursuant to PSA to be inserted]
EXHIBIT "C"
Form of Bill of Sale and General Assignment
THIS BILL OF SALE AND GENERAL ASSIGNMENT (this "Assignment"), is made
as of the day of , 20 , by and between the CITY OF MIAMI, a
municipal corporation of the State of Florida, hereinafter referred to as "Assignor," and
[ ], hereinafter referred to as "Assignee."
WITNES SETH:
WHEREAS, contemporaneously with the execution and delivery of this Assignment,
Assignor has sold and conveyed to Assignee its fee interests in all those tracts or parcels of land
as more particularly described on Exhibit "A" attached hereto and incorporated herein by
reference, together with all improvements thereon and all rights, easements and appurtenances
thereto (hereinafter collectively referred to as the "Property"); and
WHEREAS, the purchase and sale of the Property is being made pursuant to the terms of
that certain Agreement for Sale dated as of , 20 entered into by Seller
and Purchaser [OR Purchaser's predecessor in interest], as heretofore amended and/or assigned
(collectively, the "Purchase Agreement"), and, pursuant to the Purchase Agreement, Assignor
has agreed to assign to Assignee all of Assignor's right, title and interest in and to the Personal
Property, Land Use Rights, the Plans and Specifications, and the Warranties subject to the terms
and conditions hereinafter set forth. Any term with its initial letter capitalized and not otherwise
defined herein shall have the meaning set forth in the Purchase Agreement.
NOW, THEREFORE, for and in consideration of the sum of Ten and No/100 Dollars
($10.00) and other good and valuable consideration, in hand paid, the receipt and sufficiency of
which are hereby acknowledged, Assignor hereby grants, transfers and assigns to Assignee all of
Assignor's right, title, and interest in and to the Personal Property, Land Use Rights, the Plans
and Specifications, and the Warranties.
Assignee hereby accepts the forgoing assignment. This Assignment shall be binding
upon and inure to the benefit of the parties hereto, their successors and assigns.
This Assignment may be executed in any number of counterparts, each of which shall be
deemed to be an original, but all of which, when taken together, shall constitute but one and the
same instrument.
[The remainder of this page is intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have executed this Assignment as of the
date first above written.
SELLER:
ATTEST: CITY OF MIAMI, a municipal corporation of
the State of Florida
By:
, City Clerk By:
Name:
Title:
Approved as to form and legal sufficiency
Name:
Title:
[Signatures Continue on Following Page]
PURCHASER:
By:
Name:
Title:
Exhibit "A" to Bill of Sale and General Assignment
Legal Description of Property