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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 ACTIVE 19926268v13 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 i ACTIVE 19926268v13 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 ii ACTIVE 19926268v13 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 iii ACTIVE 19926268v13 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 iv ACTIVE 19926268v13 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 v 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 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 vi ACTIVE 19926268v13 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. 1 ACTIVE 19926268v13 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. 2 ACTIVE 19926268v13 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 3 ACTIVE 19926268v13 (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 4 ACTIVE 19926268v13 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 5 ACTIVE 19926268v13 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. 6 ACTIVE 19926268v13 (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 7 ACTIVE 19926268v13 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 8 ACTIVE 19926268v13 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 9 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 10 ACTIVE 19926268v13 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. 11 ACTIVE 19926268v13 (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. 12 ACTIVE 19926268v13 (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). 13 ACTIVE 19926268v13 (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). 14 ACTIVE 19926268v13 (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. 15 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 16 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. 17 ACTIVE 19926268v13 (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). 18 ACTIVE 19926268v13 (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 19 ACTIVE 19926268v13 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 20 ACTIVE 19926268v13 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 21 ACTIVE 19926268v13 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); 22 ACTIVE 19926268v13 (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 23 ACTIVE 19926268v13 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 24 ACTIVE 19926268v13 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 25 ACTIVE 19926268v13 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. 26 ACTIVE 19926268v13 (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. 27 ACTIVE 19926268v13 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; 28 ACTIVE 19926268v13 (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. 29 ACTIVE 19926268v13 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 30 ACTIVE 19926268v13 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. 31 ACTIVE 19926268v13 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. 32 ACTIVE 19926268v13 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: 33 ACTIVE 19926268v13 (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 34 ACTIVE 19926268v13 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. 35 ACTIVE 19926268v13 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 36 ACTIVE 19926268v13 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 37 ACTIVE 19926268v13 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. 38 ACTIVE 19926268v13 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. 39 ACTIVE 19926268v13 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 40 ACTIVE 19926268v13 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 41 ACTIVE 19926268v13 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 42 ACTIVE 19926268v13 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 43 ACTIVE 19926268v13 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 44 ACTIVE 19926268v13 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) 45 ACTIVE 19926268v13 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 46 ACTIVE 19926268v13 (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), 47 ACTIVE 19926268v13 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 48 ACTIVE 19926268v13 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 49 ACTIVE 19926268v13 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. 50 ACTIVE 19926268v13 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. 51 ACTIVE 19926268v13 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 52 ACTIVE 19926268v13 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. 53 ACTIVE 19926268v13 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. 54 ACTIVE 19926268v13 (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 55 ACTIVE 19926268v13 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. 56 ACTIVE 19926268v13 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 57 ACTIVE 19926268v13 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. 58 ACTIVE 19926268v13 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 59 ACTIVE 19926268v13 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 60 ACTIVE 19926268v13 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 61 ACTIVE 19926268v13 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 62 ACTIVE 19926268v13 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 63 ACTIVE 19926268v13 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: 64 ACTIVE 19926268v13 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. 65 ACTIVE 19926268v13 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 66 ACTIVE 19926268v13 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. 67 ACTIVE 19926268v13 (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. 68 ACTIVE 19926268v13 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 69 ACTIVE 19926268v13 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 70 ACTIVE 19926268v13 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] 71 ACTIVE 19926268v13 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] ACTIVE 19926268v13 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 ACTIVE 19929732v9 EXHIBIT B Intentionally Deleted B-1 ACTIVE 19929732v9 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 1 ACTIVE 43272743v8 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 2 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 3 ACTIVE 43272743v8 (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 4 ACTIVE 43272743v8 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 5 ACTIVE 43272743v8 (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: 6 ACTIVE 43272743v8 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 7 ACTIVE 43272743v8 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 10 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 11 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 12 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. 13 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. 14 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, 15 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