HomeMy WebLinkAboutBack-Up DocumentsDRAFT VERSION
DEVELOPMENT MANAGEMENT & CONSTRUCTION AGREEMENT
This Development Management & Construction Agreement (the "Agreement"),
made effective as of , 2019 (the "Effective Date"), by and between the CITY
OF MIAMI, a Florida municipal corporation ("City"), LANCELOT MIAMI RIVER, LLC a
Florida limited liability company ("Development Manager"). The City and Development
Manager shall be referred to individually as a "Party" and/or collectively as the "Parties".
RECITALS:
A. On or about July 26, 2018, City and Development Manager or an affiliate of
Development Manager, entered into that certain Term Sheet for the Site Selection, Design,
Financing, Construction and Conveyance of the New City of Miami Administration Building (the
"Term Sheet"), a copy of which is attached hereto as Exhibit "A" and made a part hereof.
B. Development Manager owns that certain real property located at 230 SW 3rd Street
in the City of Miami, Miami -Dade County, Florida (the "Land") more particularly described on
Exhibit "B.
C. The City intends to purchase the portion of the Land from the Development
Manager labeled "City Parcel" on Exhibit B; the Development Manager intends to retain
ownership of the balance of the Land.
D. The following improvements shall be constructed on the Land: (i) a minimum of
230,000 usable square feet of office space (using BOMA measurement standards) to serve as the
City's new Administration Facility (the "City Facility"); (ii) a parking garage containing
approximately One Thousand (1,000) parking spaces (the "Parking Structure"), of which Seven
Hundred (700 +/-) spaces will be owned by the City (the "City Spaces") and Three Hundred (300
+/-) will be owned by the Development Manager, or an affiliate (the "Developer Spaces"); (iii)
Three Hundred (300 +/-) multi -family apartments (together with the Developer's Spaces the
"Developer's Project" ); (iv) retail and/or office space, some of which will be owned by the City
and some of which will be owned by the Development Manager, and (v) amenities to serve the
entire Project, as such term is defined below, all in accordance with Approved Plans and
Specifications (as herein defined) reviewed by City pursuant to this Agreement (collectively, the
above are defined as the "Project Improvements; "the Project Improvements together with the
Land, are defined as the "Project"; the City Facility, the City Spaces and the portion(s) of
additional retail and/or office space to be owned by the City are collectively referred to as the
"City Project"; the balance of the Project is referred to herein as the "Developer Project."
C. The Parties agree that the terms of this Agreement are consistent with the Term
Sheet, in compliance with applicable laws and regulations, and is expressly subject to prior review,
consideration and approval by the Miami City Commission as a condition precedent to its
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execution.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the Parties, intending to be legally bound, hereby agree as follows:
Article 1
DEVELOPMENT MANAGEMENT
1.1 Engagement of Development Manager. In connection with the development of the
City Project, which shall be financed, owned, operated and maintained by the City, Development
Manager shall have the responsibilities described in Sections 1.2 and 1.3 hereof. For the avoidance
of doubt, the Development Manager shall have all responsibility, and the City shall have none in
connection with the development of the Developer Project.
(a) Attached as Exhibit "C" is the proposal and recommendations submitted
by Development Manager regarding the City Project's concept, development strategy,
architectural and design schedule guidelines, process and strategy for obtaining governmental
approvals, construction schedule requirements, construction budget requirements, and other
relevant construction and development matters related to the City Project (collectively
"Development Manager Proposal").
(b) All predevelopment costs for the City Project shall be a part of the
Preconstruction Budget and the Construction Budget, (collectively the "Budgets") initial drafts of
which are attached as composite Exhibit "D".
(1) Within Thirty (30) Days after the Execution Date of that certain
Agreement and Lease (Miami Riverside Center) by and between the City and the
Development Manager, dated of even date herewith (the "Lease" ), as such term is defined
in the Lease, the Development Manager shall deposit in escrow with a national title
company reasonably agreed to by the Parties, which shall serve as escrow agent (the
"Escrow Agent"), an amount equal to ONE MILLION EIGHT HUNDRED AND TEN
THOUSAND DOLLARS ($1,810,000) (the "Escrowed Amount") representing a portion
of the predevelopment costs for the City Project. All advances of the Escrowed Amount
(each, an "Advance"; collectively, the "Advances") as required from time to time to
develop the City Project shall be made in accordance with the terms and provisions of an
escrow agreement by and among Development Manager, City and Escrow Agent (the
"Escrow Agreement") dated as of the Effective Date. For the avoidance of doubt, none of
the Escrowed Amount shall be used in connection with the design and/or construction of
any portion of the Developer Project. Among other things, the Escrow Agreement shall
provide, the following:
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(i) Development Manager shall have the right to make a written request
to Escrow Agent (with a copy thereof delivered to City) on a monthly basis for a
disbursement of an Advance for any costs under the Budgets, which request shall
be in the form of AIA G702 Payment Application and shall include paid or to be
paid invoices for predevelopment and/or construction costs together with a
description of such costs to be reimbursed or paid out of the Escrowed Amount.
(ii) Provided that all Advances under the Escrow Agreement have been
submitted to Escrow Agent in accordance with the terms thereof, the remaining
portion of the Escrowed Amount held by Escrow Agent after payment of all
Advances, shall be disbursed by Escrow Agent to Development Manager within
five (5) business days following Escrow Agent's payment of such last Advance;
any such amounts disbursed under this section shall be applied to the Budget(s);
(iii) If at any time prior to the date that is six (6) months prior to the
closing date of the Construction Financing (as defined below), the Escrowed
Amount is insufficient to pay for the costs in accordance with the Budget(s),
Development Manager shall advance such amounts as necessary, upon approval by
the City (in City's sole and absolute discretion), and at closing of Construction
Financing, Development Manager shall be reimbursed for its investment in the
Project in accordance with and at the rate of return set forth in Section 1.1(f) below.
(iv) Notwithstanding anything to the contrary contained herein, the
obligations of Development Manager with respect to the Escrowed Amount under
this Agreement are one and the same as obligations of Development Manager under
Article 3 of the Lease, and are not in addition thereto and shall not be construed as
an additional payment obligation under the Agreement and Lease or hereunder.
(2) In addition to the Escrow Amount, Development Manager hereby
agrees to spend up to $150,000 on certain initial predevelopment expenses in accordance
with the Predevelopment Budget attached hereto as Exhibit "E". On monthly basis,
Development Manager shall provide City with evidence of paid invoices for such costs.
City agrees to credit Development Manager (on a dollar -for -dollar basis) with such amount
expended by Development Manager against the assessments, costs and expenses under that
certain Declaration of Restrictive Covenants between River Tower, LLC and the City dated
April 7, 2015 and recorded in Official records Book 29173, Page 3365, Public Records of
Miami -Dade County, Florida, (the "Declaration") which Declaration shall be released of
record within Thirty (30) days of the Effective Date of the Lease, to reflect the above credit.
(c) Development Manager shall, on behalf of the City, select and retain of all
contractors and consultants including: the general contractor and subcontractors, and architectural,
civil, structural, mechanical, electrical, landscape and geotechnical engineers (collectively,
"Engineers"), and the interior designer and other consultants and professionals for the City
Project, as appropriate. Notwithstanding anything to the contrary herein, Development Manager
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shall review the bids with City Project Representative (defined below) prior to selection of the
General Contractor and shall consult with City Project Representative regarding the final selection
of the General Contractor. The general contractor selected for the Project is herein called the
"General Contractor" and the architect selected for the Project is herein called the "Project
Architect." Upon selection of the General Contractor, Project Architect, Engineers, and other
consultants and professionals, the Development Manager shall assemble and negotiate the terms
and conditions of the contracts therefor in consultation and cooperation with City. Engineers shall
be licensed professional engineers as provided in Chapter 471, Florida Statutes. Project Architect
shall be a registered architect as provided in Chapter 481, Florida Statutes. General Contractor
shall be a licensed general contractor under the laws of the State of Florida.
(d) Development Manager shall coordinate the General Contractor, Project
Architect, Engineers, and other consultants and professionals, in order to value engineer the City
Project and complete Approved Plans and Specifications as more fully provided for under Section
1.2.
(e) Development Manager (in consultation with the City Project
Representative) shall finalize the construction budget for the City Project (including hard costs and
soft costs, acquisition costs, financing costs, the development fees payable to Development
Manager hereunder, and cost of furniture, fixture and equipment to be selected by City to be
installed in the New City Facility) (as may be adjusted from time to time, the "Construction
Budget"), a City Facility Project logistics plan for the City Facility Project staging of construction
activities, crews, materials and equipment ("Logistics Plan"), and a development schedule
(including any critical path performance dates, the "Development Schedule") for the design,
engineering, construction and completion of the City Project.
(f) The Development Manager will have no responsibilities or obligations in
connection with obtaining financing to build the City Project. Rather, the City shall issue a Special
Obligation Bond (the "Bond") to finance the entirety of the City Project. For the avoidance of
doubt, the Bond shall cover any and all costs associated with the development of the City Project,
including, but not limited to, the purchase of the portion of the Land from the Development
Manager on which the City Project will be constructed pursuant to the terms of the Purchase &
Sale Agreement attached as Exhibit "F", together with any and all costs, including cost -overruns,
associated with the design, construction and finishing of the City Project.
(g) If the City approves an advance of capital by Development Manager over
and above the Escrowed Amount plus the amount in the Declaration, the Development Manager
shall receive a return on its capital based on the then current market rates of return for similar
projects but not to exceed a twelve percent (12%) internal rate of return.
(h) Development Manager shall provide regular monitoring of design and
development and construction and completion progress and costs for the City Project in
consultation and with the involvement of City Project Representative, and if and as appropriate,
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shall assist City and advise City on any action to attempt to avoid, or remediate or mitigate against
field conflict(s), cost overrun(s) and/or delay(s).
(i) Except as otherwise agreed to between the Parties under the Construction
Funding Agreement (as defined herein), Development Manager shall review and submit all
payment applications and invoices from the General Contractor, Project Architect, Engineers, and
all other consultants, professionals and material suppliers, to the City and/or the City's Project
Representative and shall work with the City and the City's Project Representative to make sure
the City processes such payments in the ordinary course.
(j) Development Manager shall, in consultation with City Project
Representative, (i) receive and analyze bids for construction contract, (ii) organize value
engineering, and (iii) advise City with respect to the selection of the General Contractor. The
General Contractor shall be bonded and shall provide a bond for the full construction of the City
Project consistent with the requirements and regulations contained in Section 255.05 of Florida
Statutes. The City shall be named as a dual obligee on any such bonds with respect to the City
Project. City shall have the right to review all bids received by Development Manager in
connection with the City Project; however, Development Manager shall have the sole authority, in
consultation with City, to select the General Contractor. Upon selection of the General Contractor,
the Development Manager shall coordinate with City and applicable consultants in order to
negotiate the terms and conditions of the guaranteed maximum price general construction contract
for the construction of the City Project (the "GMP Contract") to be entered into between the
General Contractor and Development Manager. The Development Manager agrees that the GMP
Contract shall include provisions which grant the City with limited third party beneficiary rights
to the extent necessary for the City to have the right to enforce the GMP Contract obligations in
favor of the City for the City Project. The GMP Contract shall also include a provision providing
that all warranties obtained under the GMP Contract shall be assignable to the City. The
Development Manager agrees that mere consultation with the City Project Representative shall
impose no liability on the City for any recommendations made to the Development Manager nor
affect any of Development Manager's obligations hereunder.
(k) Development Manager shall, in consultation with City Project
Representative, select subcontractors and subcontracts. Development Manager shall (i) analyze
subcontractor bids along with General Contractor, (ii) advise City with respect to the selection of
subcontractors and the award of the subcontracts.
(1) Prior to Development Manager's execution of the GMP Contract, City and
Development Manager shall enter into a written agreement ("Construction Funding
Agreement") whereby the Parties shall agree to the terms and conditions of, and processes and
procedures for, City's payment of all costs associated with the design, development and
construction of the City Project. The Parties' execution of the Construction Funding Agreement
shall be a condition precedent to Development Manager's obligation to enter into the GMP
Contract.
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(m) Development Manager will apply for and use commercially reasonable
efforts to obtain or cause to be obtained all approvals necessary for the construction and
development of the Project, including, without limitation, planning, zoning or rezoning, plat, site
plan approval, licenses, variables and approvals, as necessary, as required by (x) all applicable
governmental agencies, bodies, boards and tribunals, with jurisdiction over the development of the
Land (collectively, the "Governmental Authorities"), including building permits and all
certificates of occupancy and/or certificates of use, occupational licenses and similar approvals for
the construction, development, operation, use and occupancy of the City Project. Development
Manager will also negotiate with the appropriate municipal and public utility bodies for providing
water, sewer and drainage utilities, electric, telephone and telecommunication services and
facilities to the City Project and cause the necessary documentation to effectuate same to be
prepared; which, subject to review by the City Manager and the City Attorney, the City agrees to
execute pursuant to this Agreement, provided that all such agreements are the standard agreements
typically used for such utilities and the rates charged for such utilities are consistent with rates
charged for similar development projects.
(n) Development Manager shall make recommendations to City, General
Contractor, Engineers, the Project Architect, and other consultants and professionals regarding the
division of work under the Approved Plans and Specifications in order to facilitate the bidding and
awarding of trade contracts, taking into consideration such factors as time of performance,
availability of labor, overlapping trade jurisdictions, provisions for temporary facilities, and so
forth.
(o) Development Manager shall conduct meetings on a regular schedule with
City Project Representative, General Contractor, the Project Architect, Engineers, and other
consultants and professionals in order to coordinate the work to be done pursuant to the Approved
Plans and Specifications and shall give reasonable prior notice to City of such schedule. The
Parties agree that such meetings shall take place at least once every thirty (30) days prior to the
commencement of construction of the Project Improvements and thereafter on as -needed basis
until completion of the City Project in accordance with this Agreement. Development Manager
shall render to City a monthly report, which report shall contain the following information as to
the City Project:
(1) the actual progress of work achieved on the City Project during such
month and to date, including any Development Schedule delays and proposed sequencing
changes or proposed changes to the Logistics Plan;
(2) the actual expenditures made, during such month and to date, by
category of expenditure and a Construction Budget variance report and Development
Schedule report;
(3) the estimated cost and time to complete the City Project using
acceptable industry construction cost estimation methods; and
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(4) any change orders, Construction Budget changes and/or Logistics
Plan changes for the preceding month.
(p) Without limitation of the foregoing, Development Manager, together with
the Project Architect, shall conduct regular monthly meetings with General Contractor to review
with General Contractor unpaid requisitions and monthly draws, and Development Manager,
together with Project Architect, shall review and process requisitions of payment received from
General Contractor in accordance with the terms of its GMP Contract. City Project Representative
shall be provided prior notice and be permitted to attend all such meetings.
(q) Development Manager shall monitor the construction of the City Project by
the General Contractor in accordance with the terns of this Agreement and the GMP Contract.
(r) Development Manager shall establish and administer a change order
program. Development Manager shall have the right to negotiate any change orders pursuant to
the GMP Contract and any other City Project contractual commitments, including without
limitation, any change orders required to meet requirements of Governmental Authorities.
Development Manager shall inform City of such change orders and shall maintain records thereof.
Notwithstanding anything to the contrary herein, if any change order affecting the City Project (i)
exceeds $250,000 individually, or (ii) will result in a material delay to the Development Schedule
of the City Project, then Development Manager shall provide written notice to City and City
Manager of any such change order prior to negotiating or approving same. If any change order
will result in a cumulative reduction in the usable square footage within the City Facility as
described in the Space Plan (as hereinafter defined) by more than one percent (1%), then such
change order shall be subject to review and approval by City and City Project Representative.
Without limitation of the foregoing, City, acting by written directive of the City Manager, may
order in good faith design changes to the City Facility consisting of additions, deletions or other
revisions, that will not result in a delay to the Development Schedule of the City Project and do
not exceed $1,000,000 in the aggregate.
(s) In the event there are any cost savings realized with respect to the
construction of the City Project, such costs savings shall be shared between Development Manager
and City equally.
(t) Development Manager shall negotiate the closeout of the GMP Contract,
including completion of punch -list items, occupancy certificates, releases of liens and related
documents and final payment.
The parties acknowledge and agree that, except as otherwise set forth herein, any provision in this
Agreement that requires Development Manager to consult with the City or the City Project
Representative shall not be deemed to require Development Manager to obtain consent or approval
of the City.
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1.2 Preparation of Plans and Specifications.
(a) Development Manager shall submit to City for review and approval
conceptual plans and specifications (the "Conceptual Plans") for the construction of the City
Project. Development Manager hereby agrees and acknowledges that the Design Development
Plans (as defined below) for the City Project shall be substantially similar to the "Office Building
Plan and Description" set forth on pages 8 through 17 of the response by Development Manager
or its affiliate to the RFP (as defined in the Term Sheet).
(b) The Development Manager shall engage an architect or other appropriate
professional to prepare a detailed plan of the interior space of the City Project which shall be
substantially similar to the "Office Building Plan and Description" set forth in the response by
Development Manager or its affiliate to the RFP and which describes how space in the City Project
will be allocated amongst the various departments of the City and include such other detail as
necessary so that the City can insure that the City Project meets the needs of the City and so the
City can plan how to use the space accordingly (the "Space Plan"). The Space Plan shall be
subject to the City's approval which shall not be unreasonably withheld, provided that the Space
Plan demonstrates that the space in the City Project is sufficient for the City's needs.
(c) Development Manager shall direct the Project Architect and Engineers (and
other required professionals and consultants) to prepare the design development plans and
specifications that further define the scope of the City Project based on the Conceptual Plans and
the Space Plan approved by City (collectively, the "Design Development Plans").
(d) Upon approval by City of the Design Development Plans for the City
Project, Development Manager shall direct the Project Architect and Engineers (and other required
professionals and consultants) to prepare and to submit to City for approval, final permit and
construction plans and specifications for the City Project that further define the scope depicted in
the Design Development Plans. The final plans and specifications as approved by City (as the
same from time to time may be modified or amended and approved by City), are termed the
"Approved Plans and Specifications".
For clarity, nothing in this Agreement shall be deemed an express or implied representation,
covenant or warranty by Development Manager with respect to merchantability or fitness for a
particular purpose of any of the Conceptual Plans, the Design Development Plans or the Approved
Plans and Specifications for the City Project (or any other particular design, architectural or
engineering document) or their respective compliance with applicable laws, codes, regulations or
ordinances.
1.3 Overall Standard of Care. Development Manager shall perform the services under
this Agreement substantially in accordance with the standards of care, skill, prudence and diligence
that an experienced professional developer of projects in south Florida similar to the City Project
would be expected to use and exercise in the conduct of such development, and the responsibility
of Development Manager in performing the services hereunder shall be measured in each case
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against the standards of performance described in this Section or otherwise in this Agreement. In
carrying out its duties and obligations, Development Manager shall not be responsible for matters
beyond its reasonable control (including City's failure or delay to authorize or permit Development
Manager to take any actions or make any expenditures required to meet these standards). Except
as expressly authorized under this Agreement, or unless otherwise approved by City, Development
Manager shall deal at "arms -length" with all third parties and shall not make any payment to or
enter into any arrangement with respect to the City Project with any affiliated or related party of
Development Manager, without the prior written disclosure to and prior written consent of City,
which consent shall not be unreasonably conditioned, delayed or withheld.
1.4 Limitation on Scope of Services and Responsibilities. The General Contractor,
Project Architect, Engineers, and City's other third -party consultants and professionals shall be
responsible to Development Manager for providing (i) professional services and advice regarding
construction design, means, methods, sequences and techniques, (ii) other services that are
appropriately performed by a licensed general contractor, architect, engineer or other design
professional, and (iii) legal services and/or other professional services. As such, City understands
and agrees that Development Manager is not responsible for, or liable to, City for (A) any
Liabilities (as defined herein) relating to (i) the acts and omissions of the General Contractor, the
Project Architect, the Engineers, or any other third party professional, (ii) any defects or
deficiencies in Approved Plans and Specifications, or the workmanship of the General Contractor
or any subcontractor or other provider, or any defect in materials or equipment, in connection with
the design and/or construction of the Project, (iii) the completion of the portions/components of
the Project to be financed, owned and operated by the City on time, in budget, in compliance with
the Approved Plans and Specifications or in compliance with laws, including any additional
delays, costs, loss or damage occasioned by the foregoing, or (iv) any cost or other costs
whatsoever (whether budgeted or not) for the City Project incurred in connection with the design,
development, construction, leasing or occupancy of the City Project (all of which shall remain the
responsibility of City), or (B) any Liabilities for any delay, loss or damage caused by City's
intentional failure or refusal to timely make decisions, or provide information or funds, required
in connection with the design, development and construction of the City Project, however, for the
purposes of (A) and (B) aforesaid, Liabilities proximately caused by, and to the extent of the
contribution of, the Development Manager Default (herein defined). Further, except as expressly
provided in this Agreement, Development Manager has no obligation to perform any services to
or for the benefit any person other than City, including, but not limited to, any party or parties
related to the issuance of the Bond nor any other affiliate of City, nor any other person or entity
that may have or acquire an interest in the City Project.
1.5 City's Responsibilities. City hereby covenants that:
(a) City shall promptly provide full information regarding City's requirements
for the City Project.
(b) City shall furnish Development Manager with all reports, plans, documents
and information reasonably required for the performance by Development Manager of the scope
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of its services and responsibilities under this Agreement in City's possession or of which City has
knowledge (and not in possession or knowledge of Development Manager).
(c) For purposes of this Agreement, any approval by the City shall mean the
approval by the City Manager (or his or her designee). If, within [ten (10)] business days after
City's receipt of any written request from Development Manager for any approval or consent under
this Agreement, City does not approve or disapprove such item (disapproval to include reasons),
then Development Manager shall provide written notice to City and City Project Representative
and City shall have an additional Five (5) business day period to respond. If City fails to timely
respond within such additional period, then for each day of the delay by City up to Fifteen (15)
additional days after such Five (5) business day period, the City shall accrue a delay fee in the
amount of $ 1,000 per day; if the City fails to respond after such Fifteen (15) day period, the delays
for shall increase to $3,000 per day for an additional Fifteen (15) days; If the City fails to respond
after the 2nd Fifteen (15) day period, the daily delay fee shall increase to $5,000 per day; for the
avoidance of doubt, the Parties intent is that the daily delay fine imposed on the City shall increase
to a maximum of $5,000 per day beginning on the 31S` day after the additional three (3) business
day period contained above. All delays fees imposed against the City pursuant to this section of
the Agreement amount shall be credited against any and all monetary obligations of Development
Manager or its affiliates under the Lease. This provision shall be of no further force and effect
upon the Actual Move In Date, as such term is defined in the Lease.
(d) City has appointed F ] (including any successors or
substitutions of any of the foregoing) as City's representative for the Project (the "City Project
Representative"). City shall cause either City Project Representative to remain generally
available to perform City's duties and obligations under this Agreement and be involved
throughout the term of this Agreement on behalf of City to the extent reasonably necessary for
City to perform its obligations under this Agreement, including without limitation, City providing
feedback and approval, as warranted, with respect to certain development and construction maters
hereunder.
(e) City shall cooperate with Development Manager in connection with the
construction of the Project (including, without limitation, attending such meetings as are necessary,
and signing documents, applications, instruments and agreements in furtherance of completing the
Project) and, upon the written request of Development Manager, from time to time, also shall
coordinate with Development Manager any interaction with private and public sector entities that
may have standing with respect to the Project and those having approval or regulatory authority
regarding the Project.
(0 Recognizing that development of the Project will require mutual
cooperation between the Parties, the City agrees to cooperate with Development Manager, in the
event Development Manager (or its affiliate(s)) subjects the Project to a condominium regime of
ownership, a set of comprehensive Master Covenants (to be agreed upon by the Parties subsequent
to the Effective Date), one or more Covenants In Lieu of Unity of Title, Reciprocal Easement and
Operating Agreements and other similar documentation required to operate the Project in a
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cohesive and integrated fashion, and shall execute all declarations, documents, instruments and
agreements in furtherance thereof. In such event, the proposed condominium declaration or Master
Covenants shall be in form and content reasonably acceptable to the City Manager and City
Attorney whose approval(s) shall not be unreasonably conditioned, withheld or delayed
(g) City acknowledges that Development Manager may elect to create separate
parcels within the Project via a declaration or master covenants governing the Project, in which
event the City Project will be a separate parcel. City shall cooperate with Development Manager
in applying for and obtaining separate folio numbers for the separate parcels within the Project.
City and Development Manager shall in good faith and with diligence work together on declaration
or master covenants documents, which may include permanent parking easements in favor of
Development Manager (including any affiliate), agreements regarding operation and management
of the Parking Structure and any other shared -use arrangements within the Parking Structure and/or
portions of the Project.
(h) The City shall not be responsible for the payment of ad valorem taxes for
the Developer Project, nor any portion of the Project subject to shared use agreements.
(i) The City agrees that Development Manager can assign its rights and
obligations under this Agreement to any Affiliated Person (as such term is defined under the
Agreement and Lease) without further approval by the City. The Development Manager shall
provide the City with a copy of such assignment within Ten (10) days of execution.
(j) Subject to review by the City Manager and the City Attorney (which review
shall not be unreasonably withheld, conditioned or delayed), the City agrees to execute
acknowledgements and/or customary consents to all agreements, contracts and documentation
negotiated between Development Manager and General Contractor, Project Architect, Engineers,
and other consultants and professionals for the City Project.
(k) The City hereby agrees and acknowledges that the City Project is part of the
Project Improvements and to the extent there is a delay in completion and delivery of any portion(s)
of the Project Improvements, the City shall issue a partial temporary certificate of occupancy for
the portions of the Project Improvements that have been completed consistent with applicable
building code requirements.
(1) This Agreement shall not impose any obligation upon the City in its
regulatory capacity.
Article 2
DEVELOPMENT MANAGEMENT FEE
2.1 Development Management Fee. In consideration of the services to be performed
by Development Manager, Development Manager shall be entitled to a Development Fee equal in
the aggregate to four percent (4%) of the actual expenditures consistent with the Budgets, as such
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amounts may be revised in accordance herewith from time to time in the future (the "Development
Fee"). If the GMP Contract is not executed as of the Effective Date, the Parties agree that the
Budgets are estimates, and shall be updated and approved promptly following the signing of the
GMP Contract in accordance with Section 1.3 hereof. From and after the Effective Date, the
Development Fee shall be payable from the Escrowed Funds, as follows: (1) an amount equal to
$10,000 representing a portion of the Development Fee shall be paid to the Development Manager
on a monthly basis until commencement of construction of the City Project; (2) seventy-five
percent (75%) of the entire Development Fee less the amount of the Development Fee payable
under subsection (1) above, shall be paid during construction of the City Project on a monthly
basis; and (3) the remaining portion of the Development Fee shall be payable to Development
Manager upon the issuance of a Certificate of Occupancy (the "CO") for the City Project.
2.2 Relationship. The payment of the Development Fee or any other fees paid to
Development Manager pursuant to this Agreement shall neither (a) create any express or implied
consultant, contractor relationship between City and Development Manager, nor (b) otherwise
create any express or implied obligation, liability, or duty by Development Manager to City, or
any affiliate, principal, agent, or employee of City, except as expressly set forth in this Agreement,
nor (c) otherwise create any express or implied obligation, liability, or duty by the City, or to the
Development Manager or any affiliate, principal, agent, or employee of City, except as expressly
set forth in this Agreement.
Article 3
AGREEMENT TERM & CITY FINANCING OBLIGATIONS, TIMING
3.1 Term. This Agreement shall continue from the Effective Date until completion of
the City Project, unless otherwise earlier terminated pursuant to, and in accordance with, the terms
hereof. For all purposes of this Agreement, the term "Completion of the City Project" shall mean
the latest to occur of the date (a) the Project Architect issues a certificate stating that the City
Project has been substantially completed in accordance with the Approved Plans and
Specifications (and any and all approved change orders from time to time) and (b) the issuance by
the General Contractor of a final lien release and the payment of final retainage under the GMP
Contract and the perfonnance of final punch -list items, and (c) the issuance of a CO for the City
Project, exclusive of temporary certificate of occupancy for other areas within the Project (such as
unfinished retail, office or commercial space, to the extent applicable) to be completed by the
tenants or occupants thereof, and (d) the completion of all material punch -list items which would
otherwise unreasonably interfere with the City's ability to safely and lawfully occupy and operate
the City Project in the ordinary course of business.
3.2 City to Obtain Financing. As soon as reasonably possible after the Effective Date
of this Agreement, the City shall issue the Bond for the City Project, including the cost to acquire
the portion of the Land on which the City Project will be constructed. The terms of the Bond
financing shall be approved by the City Manager as long as such terms accurately reflect the then
interest rate and credit conditions in the financial markets through which the Bond will be issued.
The City's (re)payment obligations under the Bond shall be secured by a covenant to budget as
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approved by the City Commission.
Article 4.
TERMINATION AND SUSPENSION; INDEMNITIES.
4.1 Termination/Suspension of Development Manager.
(a) Notwithstanding the term of this Agreement as established under Section
3.1 hereof, the engagement and services of Development Manager under this Agreement may be
terminated at any time in the good faith sole discretion of City effective upon written notice given
by City upon the occurrence of any of the following:
(1) Subject to Force Majeure Events, and delays caused by the City,
including its agencies, instrumentalities, departments and officials, Development
Manager's failure to commence construction of the City Project by the later of: (a) thirty-
six (36) months after the Effective Date or (b) within One Hundred Fifty (150) days after
the City closes on the Bond.
(2) The dissolution of Development Manager or the sale, assignment,
pledge or conveyance of this Agreement not previously approved by the City in its sole
discretion, or the placement of the Development Manager, its principals or affiliates on the
convicted vendors list, or if they are convicted of any crime involving moral turpitude;
(3) (i) any receiver, trustee or custodian shall be appointed for all or any
substantial part of the property or assets of Development Manager; (ii) Development
Manager shall commence any voluntary proceeding under present or future federal
bankruptcy laws or under any other bankruptcy, insolvency or other laws respecting
debtor's rights; or (iii) an "order for relief' or other judgment or decree by any court of
competent jurisdiction is entered against Development Manager in any involuntary
proceeding against Development Manager under present or future federal bankruptcy laws
or under any other bankruptcy, insolvency or other laws respecting debtor's rights, or any
such involuntary proceeding shall be commenced against Development Manager and shall
continue for a period of Ninety (90) days after commencement without dismissal; or
(4) A Development Manager Default.
Upon the termination or suspension of this Agreement or the engagement and services of
Development Manager, City shall pay Development Manager that portion of the Development Fee
accrued through the date of termination or suspension (pro -rated for any partial month) and all
reimbursements earned or incurred as of the date of such termination or suspension, if any, in each
instance as of the regular due date of the ensuing calendar month.
4.2 Development Manager Indemnity Undertaking. The Development Manager agrees
to indemnify, defend (at its own cost and expense by defense counsel reasonably acceptable to the
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City Attorney) and hold harmless each City Indemnitee (as defined herein) from and against any
and all Liabilities that may be incurred by such City Indemnitee by reason of, or in connection
with, any Development Manager Default under this Agreement. This indemnification provision
shall obligate the Development Manager to investigate, adjust, and respond (at its own expense)
to any such claims, actions, demands and through investigatory, administrative, appellate,
supplemental or bankruptcy proceedings, and to any and all claims of liability and all suits and
actions of every name and description covered by this Section, which may be brought against the
City whether performed by Development Manager or persons employed or utilized or
subcontracted by the Development Manager. Notwithstanding the foregoing, Development
Manager's obligation to indemnify, defend and hold City harmless hereunder shall not extend to
liability caused solely by the willful misconduct or gross negligence of the City or any City
Indemnitee. If this Agreement is cancelled or terminated prior to Completion of the City Project,
then this indemnification shall survive for 6 months from the date of such cancellation or
termination; otherwise, this indemnification shall survive for 1 year after the date of Completion
of the City Project. In the event the City becomes liable for Liquidated Damages, pursuant to, and
as defined in, Section 1.8 of the Lease, solely and directly as a result of a failure by the
Development Manager to achieve Completion of the City Project, except to the extent such failure
was caused by a delay or default by City, then the Development Manager will indemnify the City
for such Liquidated Damages. For the avoidance of doubt, the failure of Development Manager
to achieve Completion of the City Project as a result of a Force Majeure Event, and absent a delay
or default by the City, shall trigger the Development Manager's obligation to indemnify City for
Liquidated Damages as described above. For purposes of this Agreement, the following terms have
the following meanings:
(i) "City Indemnitee" means each of the City and its officers, directors,
employees, and successors and assigns, jointly and severally, as well as any City agency
or instrumentality which performs any official function under this Agreement;
(ii) "Liabilities" means any and all, liabilities, indebtedness, obligations,
expenses, claims, demands, actions, causes of action, suits, damages, costs, penalties,
decrees, deficiencies, guarantees or endorsements of any type, whether accrued, absolute,
contingent, matured, unmatured or otherwise (including costs and reasonable attorneys'
fees and disbursements), and whether or not arising out of third party claims.
Notwithstanding the foregoing, except in the event of the theft, fraud or other dishonesty
of the Development Manager (to the extent such action otherwise constitutes a
Development Manager Default under item (1) of Section 4.2(iii) hereof after giving effect
to the last sentence thereof), the term "Liabilities" shall include punitive or exemplary
damages; and
(iii) "Development Manager Default" means with respect to the performance
of its duties under this Agreement or otherwise in connection with the City or the City
Project: (1) the theft, fraud or other dishonesty of Development Manager; (2) the gross
negligence or willful misconduct of Development Manager; or (3) any act or omission of
the Development Manager that constitutes a material default or breach of this Agreement
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and the failure by the Development Manager to cure such default or breach within Thirty
(30) days of written notice thereof from City, provided, however, that, if such default or
breach is not reasonably capable of being cured within such Thirty (30) day period, and if
Development Manager shall initiate and document such diligent efforts to cure such default
or breach within such Thirty (30) day period, and thereafter diligently shall pursue such
cure, then such cure period shall be extended for such period of time as is reasonably
necessary under the attendant facts and circumstances to cure such failure, such extension
not to exceed, however, ninety (90) days in the aggregate or any lesser period required by
any governmental agency or instrumentality to effect such cure, whichever is earlier. For
clarity, a Development Manager Default shall expressly exclude (i) any act or omission
solely of City, or (ii) the negligence, dishonesty or bad faith of any agent, consultant or
broker selected, engaged or retained by the Development Manager. Notwithstanding
anything to the contrary set forth in this clause (iii), no act shall be attributed to the
Development Manager nor constitute a Development Manager Default hereunder as
against the Development Manager if such act is committed by a person employed or
engaged by the Development Manager or any affiliate of the Development Manager, if (A)
written notice thereof is given to the City promptly upon the Development Manager
obtaining actual knowledge thereof, (B) the damage(s) arising or resulting from such act is
reasonably susceptible to being cured within no more than thirty (30) business days from
the date such notice is given to the City, (C) such cure in fact is effected within such 30-
business day period to the reasonable satisfaction of the City, and (D) the responsible party
is terminated from employment or from engagement as a consultant or other advisor on the
City Project.
4.3 City Default; Termination; Indemnity Undertaking.
(b) City shall be in "Default" under this Agreement if City fails to perform or
observe any express, proprietary or non -sovereign duty, obligation or agreement of City under this
Agreement in any material respect, and fails to cure such failure within thirty (30) days of written
notice thereof from Development Manager, provided, however, that, if such failure is not
reasonably capable of being cured within such thirty (30) day period, and if City shall initiate
diligent efforts to cure such failure within such thirty (30) day period, and thereafter diligently
shall pursue such cure, then such cure period shall be extended for such period of time as is
reasonably necessary under the attendant facts and circumstances to cure such failure, such
extension not to exceed, however, ninety (90) days in the aggregate or any lesser period required
by any Governmental Agency or instrumentality to effect such cure. Upon the occurrence of a
Default by City, Development Manager shall have as its sole right and remedy hereunder (and in
lieu of all other rights and remedies at law or in equity), the right to terminate this Agreement upon
written notice of termination given by Development Manager, and recover from City any then
unpaid Development Fee earned or incurred through the date of such termination (although the
Development Fee shall otherwise terminate effective as of any termination hereunder). Without
limitation of Section 4.3(a), Development Manager may terminate this Agreement at any time in
the sole discretion of Development Manager effective upon written notice given by Development
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Manager in the event: (i) any receiver, trustee or custodian shall be appointed for all or any
substantial part (i.e. more than 50%) of the property or assets of City; (ii) City shall commence
any voluntary proceeding under present or future federal bankruptcy laws or under any other
bankruptcy, insolvency or other laws respecting debtor's rights; or (iii) an "order for relief" or
other judgment or decree by any court of competent jurisdiction is entered against City in any
involuntary proceeding against City under present or future federal bankruptcy laws or under any
other bankruptcy, insolvency or other laws respecting debtor's rights, or any such involuntary
proceeding shall be commenced against City and shall continue for a period of Ninety (90) days
after commencement without dismissal. Upon a termination of this Agreement, Development
Manager shall have the right to assert a claim for any then unpaid Development Fee and all
reimbursements earned or incurred through the date of such termination, if any (although the
Development Fee shall otherwise terminate effective as of any termination hereunder).
4.4 City Indemnification. City agrees to indemnify, defend (at its own cost and expense
by defense counsel reasonably acceptable to the Development Manager) and hold the
Development Manager harmless from and against any and all liabilities that may be incurred by
the Development Manager in connection with its responsibilities in this Agreement to develop and
cause the City Project to be constructed as a result of arbitrary or capricious action by City, the
City Project Representative and/or City employees, including but not limited to City's failure to
authorize the timely payment of all invoices and amounts owed to the Development Manager, the
General Contractor, Project Architect, Engineers, and other consultants and professionals in
connection with the development and construction of the City Project consistent with the Budget,
as may be changed from time to time. This indemnification provision shall obligate City to
investigate, adjust, and respond (at its own expense) to any such claims, actions, demands and
through investigatory, administrative, appellate, supplemental or bankruptcy proceedings, and to
any and all claims of liability and all suits and actions of every name and description covered by
this Section, which may be brought against the Development Manager. Notwithstanding the
foregoing, City's obligation to indemnify, defend and hold Development Manager harmless
hereunder shall not extend to liability caused solely by the willful misconduct or gross negligence
of the Development Manager. City's obligations under this Section 4.4 shall be subject to the
limitations set forth in Section 768.28 of Florida Statutes.
4.5 Termination Obligations. Upon the expiration or earlier termination of this
Agreement, or upon the termination or suspension of the engagement and services of Development
Manager hereunder, promptly upon the request of City, Development Manger shall:
(c) Provide a final accounting to City solely for the portions/components of the
City Project;
(d) Deliver to or as designated by City all materials, supplies, equipment, keys,
contracts and documents, all books of account, all records, all permits and approvals, plans and
specifications, and other personal property (tangible and intangible) maintained or in the
possession or control of Development Manager under this Agreement and/or pertaining to the City
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Project (copies of which may be made and retained by Development Manager at the Development
Manager's sole cost and expense);
(e) Assign any contract rights regarding the City Project; and
(f) Furnish all such information, take all such other action, and cooperate with
City as City shall reasonably request in order to complete the orderly termination and transfer of
Development Manager's services, duties, obligations and activities on the City Project.
Article 5
INSURANCE
5.1 Insurance to Be Maintained by Development Manager. Development Manager
shall purchase and maintain insurance of the type and extent as set forth on Exhibit "G" attached
hereto. All such insurance maintained by Development Manager in connection with the City
Project shall name City as an additional insured and, with respect to matters arising from
Development Manager's negligence or willful misconduct, shall be primary as against any policies
maintained by City, but shall be excess and non-contributing as against any policies maintained
by General Contractor or its subcontractors.
5.2 Construction Insurance. Development Manager shall instruct General Contractor
to obtain, prior to commencement of any work, and at its sole cost and expense, and thereafter at
all times during the performance of the construction contract with General Contractor until
completion of the City Project (or such longer period as specified in the GMP Contract), maintain,
and instruct General Contractor to have each subcontractor and sub -subcontractor to obtain, and
thereafter at all times during the performance of this Agreement, maintain, at each subcontractor's
and sub -subcontractor's sole cost and expense, the insurance required to be maintained as set forth
on Exhibit "H" attached hereto. Development Manager shall instruct General Contractor to
monitor each subcontractor's and sub -subcontractor's insurance to require each subcontractor and
sub -subcontractor to maintain such insurance until completion of the Project.
5.3 Insurance by City. Throughout the term of this Agreement, City shall maintain, in
full force and effect, the types and amounts of insurance coverage required of City.
5.4 Cooperation. City and Development Manager shall cooperate with the other Party
and with General Contractor in connection with the processing of claims and the collection of any
insurance proceeds that may be payable in the event of loss or claim under any of the policies of
insurance maintained by each, and execute and deliver to the insurers such proofs of loss and other
documents as may be required for the recovery of the proceeds of any such insurance.
5.5 Insurance Schedule. City and Development Manager acknowledge that the
insurance coverage held by General Contractor and all subcontractors must be approved by City.
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Article 6
MISCELLANEOUS
6.1 Estoppel Certificate. Each Party shall from time to time, within thirty (30) days
after receipt of written request from the other Party, or the other Party's lender(s), execute and
deliver to the requesting written estoppel certificates, in the form Exhibit "I" attached hereto,
containing the reasonably requested information, including, without limitation, a certification that
this Agreement is in full force and effect.
6.2 No Third Party Beneficiaries. The rights granted under this Agreement shall be
solely for the benefit of City and each person comprising the City Indemnitee, and Development
Manager and no other third party shall have any claim to any such right or benefit thereof It is
further understood and agreed that Development Manager shall in no event be deemed to have any
privity of contract, either express or implied, with any other party besides City with respect to
Development Manager's rights and responsibilities set forth in this Agreement.
6.3 Notices.
(a) Any and all notices, demands, consents, approvals, offers, elections and
other communications required or permitted under this Agreement (collectively, "Notices") shall
be deemed given if in writing and the same shall be given by a nationally recognized overnight
delivery service, freight prepaid.
(b) All Notices required or permitted to be sent hereunder shall be deemed to
have been given for all purposes of this Agreement (i) if delivered by hand upon the date of receipt
or refusal, except that whenever under this Agreement a Notice is either received on a day which
is not a business day or is required to be delivered on or before a specific day which is not a
business day, the day of receipt or required delivery shall automatically be extended to the next
business day, (ii) if delivered or sent by registered or certified mail, upon the earlier of the
expiration of three (3) days after deposit in United States post office facilities properly addressed
with postage prepaid or acknowledgment of receipt or (iii) if delivered via overnight courier, on
the next business day after deposit with an overnight courier.
(c) All such Notices shall be addressed:
If to City, to:
City Manager
City of Miami
444 SW 2nd Avenue, 10t Floor
Miami, Florida 33130
With copies to:
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Director of Real Estate Asset Management
City of Miami
444 SW 2nd Avenue, 3rd Floor
Miami, Florida 33130
City Attorney
City of Miami
444 SW 2nd Avenue, 9th Floor
Miami, Florida 33130
If to Development Manager, to:
David Adler & Jonathan Raiffe
Adler Group
3150 SW 38th Avenue
Suite 530
Miami FL, 33146
With copies to:
Nancy Lash, Esquire and Ryan Bailine, Esquire
Greenberg Traurig, P.A.
333 SE 2nd Avenue, Suite 4400
Miami, FL 33131
(d) By Notice given as herein provided, the Parties hereto and their respective
successors and assigns shall have the right from time to time and at any time during the term of
this Agreement to change their respective addresses effective upon receipt by the other parties of
such Notice and each shall have the right to specify as its address any other address within the
United States of America.
6.4 Headings. The headings in this Agreement are for convenience only and shall not
be considered or referred to in resolving questions of interpretation or construction.
6.5 Pronouns. 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 person, persons, party or
parties may require.
6.6 Severability. If any clause or provision of this Agreement is illegal, invalid or
unenforceable under present or future laws effective during the term hereof, then such clause shall
be deemed to be deleted therefrom, and the remainder of this Agreement shall not be affected
thereby, and shall remain in full force and effect.
6.7 Assignment. Except for the approval in Section 1.5(i) of this Agreement, and the
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collateral assignment, and the attornment and subordination of this Agreement to the construction
lender(s) providing construction financing to the Development Management, or their affiliate, to
develop and construct the Developer Project, the rights of the Parties under this Agreement are
personal to the Parties and may not be assigned without the prior written consent of the other Party.
Any purported assignment in violation of the foregoing prohibition shall be void. This Agreement
shall be binding upon and enforceable against, and shall inure to the benefit of, the Parties hereto
and their respective legal representatives, successors and permitted assigns.
6.8 Binding Effect. This Agreement shall be binding upon and shall inure to the benefit
of the Parties hereto and their respective successors, heirs and assigns.
6.9 Governing Law; Venue; Attorneys' Fees. This Agreement is made pursuant to all
of the rights and obligations of the Parties hereto and all of the terms and conditions hereof shall
be construed in accordance with and governed by the laws of the State of Florida without giving
effect to conflicts of laws principles. Venue lies solely in Miami -Dade County, Florida. In the
event of any litigation or other legal proceeding between the Parties arising under this Agreement,
the non -prevailing party shall be responsible for all costs and expenses of the prevailing party,
including attorneys' fees and court costs, at both trial and appellate levels. Except as specifically
set forth herein, each Party shall be responsible for their respective attorneys' fees and costs.
6.10 Waiver. No consent or waiver, express or implied, by either Party to or of any
breach or default by the other Party in the performance of this Agreement shall be construed as a
consent or waiver to or of any subsequent breach or default in the performance by such other Party
of the same or any other obligation hereunder.
6.11 Time of Essence. Time is of the essence of this Agreement.
6.12 Trade Names. All trade names used in connection with the Land shall be and remain
the sole property of Development Manager, and City shall have no right to use such trade names;
provided however, City shall own all of the trade names for the City Project. The Development
Manager shall have the sole and absolute naming and/or branding rights with respect to the Project,
except City shall have the right to select the name for the City Project.
6.13 No Partnership or Joint Venture. Nothing contained in this Agreement shall
constitute or be construed to be or create a partnership or joint venture between City and
Development Manager.
6.14 Amendments. This Agreement may not be modified, altered or amended except
pursuant to a written instrument executed by City and Development Manager.
6.15 Agreement Not an Interest in Real Property. This Agreement shall not be deemed
at any time to be an interest in real estate or a lien of any nature against the Land. This Agreement
shall at all times be subject and subordinate to all mortgages on the Land which may now or
hereafter be outstanding. This Section shall be self -operative and no further instrument of
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subordination shall be required by any mortgagee. However, City and/or Development Manager
shall execute promptly any certificate or other document that any mortgagee may request as to the
subordination of this Agreement.
6.16 Counterparts. This Agreement may be executed in counterparts and all
counterparts shall be considered part of one Agreement binding on all Parties hereto.
6.17 Days. Unless specifically called out in this Agreement to the contrary, all
references to "days" shall refer to calendar days. If a date referenced in this Agreement falls on a
Saturday, Sunday or federal holiday, it shall be deemed to fall on the next business day.
6.18 Non -Discrimination. In the performance of its obligations under this Agreement,
Development Manager shall comply with the provisions of any federal, state or local law
prohibiting discrimination in housing on the grounds of race, color, sex, creed or national origin,
including, without limitation, (i) Title VI of the Civil Rights Act of 1964 (Public Law 88-362, 78
Stat. 241), and all requirements imposed by or pursuant to HUD regulations (24 C.F.R., Subtitle
A, Part 1) issued pursuant thereto, (ii) regulations issued pursuant to Executive Order 11063 and
(iii) Title VIII of the 1968 Civil Rights Act.
6.19 Jury Trial Waiver. TO THE FULLEST EXTENT NOT PROHIBITED BY
APPLICABLE LAW WHICH CANNOT BE WAIVED, EACH OF THE PARTIES
HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND IRREVOCABLY
WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION OR
PROCEEDING TO ENFORCE OR DEFEND ANY RIGHT, POWER, REMEDY OR
DEFENSE ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE
PROJECT, WHETHER SOUNDING IN TORT OR CONTRACT OR OTHERWISE, OR
WITH RESPECT TO ANY COURSE OR CONDUCT, COURSE OR DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY
RELATING TO THIS AGREEMENT; AND AGREES THAT ANY SUCH ACTION OR
PROCEEDING SHALL BE TRIED BEFORE A JUDGE AND NOT BEFORE A JURY.
EACH OF THE PARTIES HERETO FURTHER WAIVES ANY RIGHT TO SEEK TO
CONSOLIDATE ANY SUCH LITIGATION IN WHICH A JURY TRIAL HAS BEEN
WAIVED WITH ANY OTHER LITIGATION IN WHICH A JURY TRIAL CANNOT OR
HAS NOT BEEN WAIVED. FURTHER, EACH OF THE PARTIES HERETO HEREBY
CERTIFIES THAT NONE OF ITS REPRESENTATIVES, AGENTS OR ATTORNEYS
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT IT WOULD NOT, IN THE
EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO
JURY TRIAL PROVISION. EACH OF THE PARTIES HERETO ACKNOWLEDGES
THAT THE PROVISIONS OF THIS SECTION ARE A MATERIAL INDUCEMENT TO
THE ACCEPTANCE OF THIS AGREEMENT BY THE OTHER PARTY HERETO.
6.20 Drug Free Workplace. Development Manager shall at all times comply with, and
shall use its good faith efforts to cause its employees to at all times comply with, the Federal Drug
Free Workplace Act of 1988 or any regulations promulgated thereunder, including, without
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limitation, the regulations at 24 C.F.R. Part 24 (April 1, 1992).
6.21 Force Majeure. To the extent that the performance by either Party of any obligation
under this Agreement is actually prevented, delayed, retarded or hindered by a "Force Majeure
Event" (as hereinafter defined), and such Party promptly notifies the other Party of the existence
of such Force Majeure Event and identifies the same to the other Party as a Force Majeure Event,
then such Party's performance of such obligation shall be deferred by the lesser of (i) the period
of time in which performance is so prevented, delayed, retarded or hindered, or (ii) twelve (12)
months. "Force Majeure Event" refers to and includes any act of God or nature, an act of
terrorism or war, suspension of government operations, extraordinary closure of government
offices, general moratoria on development of the Project and other properties in the vicinity of the
Project, strikes, civil disturbance, labor troubles, labor or materials shortage, or any other cause
that is not within the reasonable control of Development Manager or City, specifically excluding
delays due to shortage or unavailability of funds or financial condition.
6.22 Confidentiality and Publicity.
(a) This Agreement is subject to the Florida Public Records Act, Chapter 119,
Florida Statutes. City agrees to not to disclose financial information regarding Development
Manager or other information marked or stamped as being proprietary or confidential by
Development Manager (such as, without limitation, general construction cost data, bank accounts
maintained by Development Manager, or information regarding other projects constructed,
developed, leased or managed by Development Manager) to any person or entity, except to the
extent permitted herein or to the extent such disclosure is necessary for City to comply with legal
process.
(b) Notwithstanding the foregoing, the Parties and their affiliates and
representatives may (i) issue press releases, (ii) make any other public announcements or
statements with respect to the transactions contemplated by this Agreement, and (iii) disclose the
name of Development Manager; provided, that, in each case, no such press releases or other public
announcements, statements or disclosure may disclose the terms of this Agreement without the
prior written approval of Development Manager; provided, further, prior to issuing any press
releases or other written public announcements or statements, City shall consult with Development
Manager upon the content and timing of any press release or other written public announcement
or statement and use good -faith efforts to include any reasonable comments from Development
Manager.
(c) To the extent allowed by law, Development Manager may disclose
information on a confidential basis to the direct and indirect beneficial owners of Development
Manager and its directors, officers, employees, attorneys, accountants, consultants, agents,
investors or potential investors in Development Manager, and Development Manager's lenders or
potential lenders to the extent (a) any such party needs to know such information in connection
with the development of the Project and (b) such party is subject to confidentiality obligations to
the disclosing party with respect to the information provided.
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6.23 Limitation of Liability. Notwithstanding anything to the contrary contained in this
Agreement or in any exhibits attached hereto, it is expressly understood and agreed by and between
the Parties hereto that no personal liability or personal responsibility of any sort with respect to
any obligation of Development Manager hereunder or any alleged breach by Development
Manager is assumed by, or shall at any time be asserted or enforceable against, Development
Manager's direct or indirect member(s), manager(s), officer(s), or any of their respective
shareholders, directors, officers, employees, agents, constituent partners, members, beneficiaries,
trustees, representatives or advisors.
6.24 Authority. Each Party represents to the other that it has the power and authority to
enter into this Agreement and that the person executing on its behalf has the power to do so and to
bind it to the terms of this Agreement.
6.25 Conflict. In the event of a conflict between this Agreement and the Term Sheet,
this Agreement shall govern and control.
6.26 Expert Resolution Process. All disputes regarding the matters described in Sections
1.1, 1.2, 1.5, 2.1, 3.1, 3.2 and 6.21 (individually, an "ERP Dispute" and collectively, the "ERP
Disputes"), shall be resolved in accordance with the expert resolution process described below in
the provisions of this Section 6.26 (the "ERP").
(a) 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.
(a) 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.
(b) 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.
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(c) 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.
(d) 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.
(e) For purposes of this Agreement, "Expert" means an independent nationally
recognized consulting or other 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.
6.27 Covenant of Good Faith. The Parties affirm, agree and represent that will employ
good faith and utilize fair dealing in the conduct all actions, undertakings and performance under
this Agreement.
6.28 Compliance with Federal, State and Local Laws. Development Manager
understands that agreements between private entities and local governments are subject to certain
laws and regulations, including laws pertaining to public records, conflict of interest, record
keeping, etc., and certain professional standards for the applicable professions assisting local
governments. City and Development Manager agree to comply with and observe all applicable
laws, codes, ordinances, and professional standards, as they may be amended from time to time.
Additionally, Development Manager agrees to require its employees, its agents, and its
subcontractors to comply with and observe all applicable laws, codes, ordinances, and professional
standards, as they may be amended from time to time.
24
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6.29 Further Assurances. In addition to the obligations required to be performed under
this Agreement by the parties, the parties shall perform from time to time such other acts, and shall
execute, acknowledge and/or deliver such other instruments, documents and/or other materials, as
may be reasonably required to consummate the transactions described in this Agreement.
6.30 Reaffirmation of Representations. Development Manager hereby reaffirms all of
the representations contained in the Response to the RFP and related solicitation documents.
6.31 Entire Agreement. This Agreement contains the final and entire agreement
between the Parties with respect to Development Manager's engagement hereunder. The Parties
shall not be bound by any terms, conditions, statements, warranties or representations, oral or
written, with respect to such engagement not contained in this Agreement.
[signature page follows]
25
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EXECUTION VERSION
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day
and year first above written.
DEVELOPMENT MANAGER:
LANCELOT MIAMI RIVER, LLC, a Florida
limited liability company
By:
Name:
Title:
CITY:
Attest: CITY OF MIAMI, a Florida municipal corporation
By:
City Clerk City Manager
Approved for legal form and sufficiency
for the use and benefit of the City
By:
Victoria Mendez, City Attorney
Approved as to Insurance:
By:
Ann Marie Sharpe, Director of Risk
Management
Approved As to Business Terms :
By:
Daniel Rotenberg, Director of Real Estate
and Asset Management
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EXHIBIT "A"
TERM SHEET
Term Sheet for the Site Selection, Design, Financing, Construction and Conveyance of
the new City of Miami Administration Building
This Term Sheet (the "Term Sheet") details the proposed terms and, conditions to
complete the site selection, design, permitting, financing, construction and conveyance of the
new City of Miami Administration building and parking facilities (collectively, "New
Facility", to be incorporated into a larger mixed -use project, consisting of two towers (one
tower containing not less than 300 residential dwelling units), ground -floor retail and
parking (the "Overall Project"), to be constructed on certain real property owned by
Developer (as defined below) being the area along the Miami River to the frontage along
SW 2nd Ave and SW 3rd street located adjacent to (and not including) the Miami Riverside
Center located at 444 SW 2nd Ave., Miami, Florida 33130 (the "Property") as further
discussed in this Term Sheet.
1. Parties.
1.1. City. City of Miami.
1.2. Developer. Lancelot Miami River, LLC, a Florida limited liability
company, an affiliate of Adler Development, LLC, a Florida limited
liability company, and/or its affiliates.
2. Incorporation of RFP. The terms and conditions of the City's Request for
Proposals RFP #15-16-009 and addenda thereto (collectively, the "RFP") are
incorporated into this Term Sheet. In the event of a conflict between, the RFP, this
Tenn Sheet, and the final negotiated Agreements (as defined below) between the
City and the Developer relating to the New Facility, the terms of this Term Sheet
and thereafter the Agreements shall govern.
3. Exclusive Engagement of Developer by City. In furtherance of the goals and
objectives of the RFP and this Term Sheet, the City hereby engages Developer, to,
inter alia, to be responsible for the design, permitting, financing, construction
and/or leasing of the New Facility on the Property. The City shall work exclusively
with the Developer in connection with the transactions and the subject matter
detailed in this Term Sheet and shall continue to work exclusively with the
Developer until completion of the New Facility; provided, however, the
Agreements shall include language giving the City reasonable rights to terminate
the relationship with Developer in the event that Developer (i) fails to secure the
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financing as described in Section 4.5 below within twenty eight (28) months from
the date of execution of the Agreements as defined in Section 6 below, or (ii) fails
to commence construction of the New Facility within thirty two (32) months from
the date of execution of the Agreements.
4. Location of New Facility. The New Facility will be developed on a portion of the
Property. Based on that certain appraisal of the Property prepared by Newmark
Knight Frank dated January 14, 2019, the portion of the Property necessary to
complete the New Facility has a value of $ 19,700,000.
5. New Facility. Based on direction from the City, the Developer will design and
develop the New Facility on the Property, together with the additional
improvements detailed above. The City anticipates that the New Facility will
contain 230,000 +/- usable square feet of space for the use by the City (using BOMA
measurement standards) with a minimum of a 15% core factor, plus a minimum
total of 1,000 parking spaces in a parking structure located at the Property of which
not less than 610 spaces shall be dedicated for use by employees and visitors of the
New Facility and the remaining 390 will be reserved in favor of the Overall Project.
The Agreements shall also contain a provision providing for mutually acceptable
parking sharing arrangement. The New Facility will also include ground floor
space (not included in the 230,000 square feet of space referenced above) that the
City intends to lease to third parties to derive additional revenue from the New
Facility. The City, the Developer and CBRE, acting as advisor to the City, forecast
annual revenue to the City through the lease of such space and other ancillary
income to approach $ 800,000. All references in this Term Sheet to the New
Facility shall include employee and visitor parking together, with any retail space
the City directs the Developer and the Developer's consultants to design and
construct.
6. New Facility Ownership/Structuring. The Developer may submit the Overall
Project to a condominium form of ownership in which case the New Facility will
be a condominium unit and the City will own fee simple title to said unit.
Alternatively, the Developer may elect to create separate parcels within the Overall
Project via a declaration, in which event the New Facility will be a separate parcel
and the City will own fee simple title to said parcel. The City shall also have fee
simple title to its dedicated portion of the parking structure to be mutually
determined upon finalization of the design and legal structure of ownership of the
Overall Project. In either case, the City and the Developer shall work together on a
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condominium declaration or similar declaration creating parcels, together with a
shared -use parking structure, all of which are financially and operationally
acceptable to the City. Notwithstanding anything to the contrary herein, the
existing parking facility for the MRC shall not be demolished before the shared
parking facility is operational and receives a Temporary Certificate of Occupancy.
7. New Facility Financing Terms. The New Facility will be leased to the City on the
terms and conditions set forth in a mutually acceptable New Facility Lease
Agreement (the "New Facility Lease"). Within One Hundred Twenty (120) days
after this Term Sheet is executed, the Developer shall provide the City with Two
(2) commitments from lenders, detailing the financing terms for the New Facility,
including but not limited to a date certain on which the City shall commence paying
rent.
8. New Facility Lease Term & Lease Payments. The New Facility Lease will be a
credit tenant lease, with a fully -amortizing thirty (30) year agreement, (the "New
Facility Lease Term"). Annual Lease payments from the City (as tenant) shall be
secured by a covenant to appropriate funds necessary to fund the City's financial
obligations under the New Facility Lease, etc. which shall be subject to approval by
the City Commission.
9. City's Option to Purchase the New Facility. The City shall have the right to
purchase the New Facility for an amount equal to the remaining unarortized
amount, together with any commercially reasonable defeasance or prepayment
penalties that may be incurred throughout the New Facility Lease Term or
extensions thereof. At the expiration of the initial thirty (30) year lease term, the
City will own the (i) building, condominium unit or parcel, as the case may be, (ii)
allocated parking and (iii) real property, the condominium unit or the parcel upon
which, or in which, the New Facility is constructed free and clear of any financial
encumbrances whatsoever.
10. New Facility Rent. The Annual Rent shall be determined by Market Conditions
based on a formula. Market Conditions shall include interest rates, the City's credit
rating, to the extent Developer is required to invest capital in order to obtain the
financing for the construction of the New Facility, a reasonable return on any
Developer equity, and a final development budget. Merely, by way of example of
the formula, using a 30-year fully -amortizing loan at a 4.6% interest rate and
$ 140MM construction budget, the Annual Rent payment for the New Facility
would be Eight Million Seven Hundred Thousand dollars ($8,700,000.00). The
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prior example is subject to change based on Market Conditions at the time of
closing.
11. Total Development Cost of the New Facility. "Total Development Cost of the
New Facility" shall be the sum of (i) the cost of any portion of the land upon which
the Overall Project is to be developed that is allocated to the City in connection with
the New Facility, (ii) the total of all soft and hard costs to design, permit, finance,
construct, complete and deliver the New Facility to the City pursuant to the
Agreements, including a Four (4%) percent development fee (calculated as Total
Development Costs less the cost of the land described in clause (i) above); and the
costs of (iii) all furniture, fixtures and equipment selected by the City and installed
in the New Facility. Developer estimates the Total Development Cost of the New
Facility, including the Purchase Price of the land is forecast to be One Hundred
Forty Million Dollars ($140,000,000). The Total Development Cost is also subject
to, and may be adjusted based on Market Conditions at the time of execution of the
New Facility Lease.
12. Arranging Capital for New Facility. Developer shall arrange for all financing
from the capital markets for 100% of the Total Development Cost and shall make
commercially reasonable efforts to bifurcate any overall financing for the Overall
Project so that the financing for the New Facility is a separate loan. If the Developer
is required to invest capital towards the Total Development Cost in order to secure
the most economically beneficial terms on behalf of the City, to develop the New
Facility, the Developer shall receive a reasonable return on any capital invested by
the Developer based on current market returns for similar projects (in any case not
to exceed a per annum return of 12%) and customary fees for any Developer -
backed guarantees required to obtain financing (not to exceed 2% of the amount
guaranteed).
13. Design and Construction of New Facility. Developer will design and construct
the New Facility substantially in accordance with the "Office Building Plan and
Description" set forth on pages 8 through 17 of Developer's response to the RFP
entitled Nexus Riverside Central, dated June 16, 2016. To the extent any
subsequent plans or construction drawings approved by the City vary from the plans
and descriptions set forth in the RFP, subsequent plans will prevail.
13.1. City Participation in Design Process. The City and the City's Project
Manager shall participate in the design process for the New Facility,
including the review and approval of conceptual, design, development, and
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construction documents. The City and Developer will agree to a submission,
review and approval mechanism for the New Facility in the Agreements,
together with a schedule detailing regular meetings between the City and
Developer which meetings shall take place (i) at least once every Thirty
(30) days prior to commencement of construction of the New Facility, and
(ii) thereafter, on an as -needed basis until the issuance of the CO for the New
Facility.
13.2. Cost. The hard costs of the New Facility will be determined by the
Developer (with the review and consultation with the City's Project
Manager) through a competitive process once the City approves the
construction plans and specifications for the New Facility. Developer shall
submit plans for the New Facility to not less than three (3) general
contractors that are reasonably acceptable to the City and the City's Project
Manager. The City and its Project Manager shall have the right to review all
bids received by the Developer and the City shall consult with the City's
Project Manager regarding the selection of the general contractor.
Developer and City's Project Manager shall select the general contractor
from one of the three described above.
13.3. Construction Schedule. As part of their bids, the general contractors will
provide a construction schedule for the New Facility.
13.4. Construction Contract. Developer will enter into a contract with the
selected general contractor for the construction of the New Facility. The
proposed construction contract shall be submitted to the City's Project
Manager for review prior to execution and the Project Manager may submit
comments to Developer. The selected contractor shall provide a payment
and performance bond for the full cost of construction in substantially the
form required by 255.05, Florida Statutes.
13.5. Operating, Maintenance and Capital Expenditure Costs. The New
Facility Lease shall be a so-called "bonded lease" with all costs and
expenses of operating, maintaining, repairing, insuring and replacing the
New Facility to be borne by the City upon the issuance of a final certificate
of occupancy for the New Facility.
13.6. Capital Replacement Reserve. Developer and City will agree on the
establishment of a reasonable capital replacement reserve that will be
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included in the City's New Facility Rent payment. Developer will hold the
reserve funds in escrow and will use the funds for replacement of capital
improvements to theNew Facility for the entirety of the New Facility Lease
Term. Upon either the City's purchase of the New Facility, or the City's
vacation of the New Facility, in the event the City elects not to own the New
Facility, any reserve funds then being held by the Developer, shall be paid
to the City, so long as the City is not in default under the New Facility Lease.
13.7. New Facility Project Manager. Within the Agreements, the City shall
designate an individual (referred to herein as the "City's Project Manager"
or the "Project Manager") who will act on behalf of the City in connection
with review and approval of plans and drawings, together with other aspects
relating to the design and construction of the New Facility. Such individual
shall be the main point of contact for Developer, and will be the City's
liaison with the Developer for the New Facility.
13.8. City Manager's Ability to Make Design Changes. The Agreements shall
grant the City Manager, or his/her designee, with authority to make any
changes to the plans/drawings on behalf of the City, so long as any individual
change will not have a financial impact to the City in excess of Two
Hundred Fifty Thousand ($250,000.00) dollars. For purposes of clarity, the
above financial threshold is on a per item or per change basis, and is not to
be construed or considered with the cost of other changes with respect to
the New Facility.
13.9. Remaining Development Rights. Developer shall retain all rights to
construct additional development projects on the Property, and/or to
transfer, to the extent permitted by the City's Code of Ordinances, such
additional development rights to the adjacent MRC parcel which the
Developer will enter into a long-term ground lease with a purchase option
to acquire, to the extent that such additional development projects do not
adversely or unreasonably impact the City's use of the New Facility. It is
anticipated that the Developer (or an affiliate) will develop 300 +/-
residential dwelling units together with ancillary on -site parking and retail
space on the Property, which development project will share parking with
the New Facility.
14. Predevelopment Activities and Costs. Developer shall prepare a detailed
development budget and schedule for the New Facility. As part of Developer's pre -
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development efforts following execution of this Term Sheet, Developer shall have
authority to enter into contracts with development consultants and design
professionals necessary for the planning and design of the New Facility. Developer
has allocated $150,000 to the foregoing predeveloprnent activities and expenses
("Predevelopment Budget"). The City agrees to credit Developer (on a dollar -for -
dollar basis) $150,000 against the Declaration of Restrictive Covenants between
River Tower, LLC and the City dated April 7, 2015 and recorded in Official records
Book 29173, Page 3365, Public Records of Miami -Dade County, Florida.
The development of the New Facility is related to a separate transaction between
the City and the Developer involving the City's administrative building, commonly
known as the MRC (the "MRC Transaction") The MRC Transaction was approved
in November 2018 by the City of Miami voters, at public referendum. All
predeveloprnent costs for the New Facility shall be included in the Total Development
Cost and will be financed through a credit tenant lease for the New Facility. In the
event the City elects not proceed to develop the New Facility, the City shall be
responsible for reimbursing Developer for an amount up to 50% of the actual
predevelopment expenses up to $1,810,000. By way of example, if the City does
not proceed with the project and Developer incurs actual predevelopment expenses
in the amount of $1,810,000 then the City would be responsible to reimburse
Developer for $905,000.00.
15. Documentation. The development and leasing of the New Facility, will require the
preparation and finalization of a series of definitive agreements, including but not
limited to a Development Agreement, and/or New Facility Lease, together with
other routine and customary financing and construction documents (collectively, the
"Agreements"), setting forth in detail the relationship of the parties, their
respective rights and obligations, the tinning of Developer's development and
delivery of the New Facility.
16. Execution of Agreements. The Agreements will be executed and delivered by the
City and Developer on or before the date that is Ninety (90) days after the
Agreements for the New Facility are approved by the City Commission, including
the expiration of all approval periods. The various Closings and Closing dates that
need to be identified in connection with the matters detailed in this Term Sheet will
be further defined in the Agreements between the parties.
17. Provision Required by City. The Agreements to which the City is a party must
include the following provisions:
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17.1. Limitation of Liability. The City's liability for any claim for injury or
damages will be subject to the limitations set forth in Section 768.28 of
the Florida Statutes. The City's sovereign immunity will not be waived or
abridged
17.2. No Delegation of Governmental Authority. Nothing in any of the
Agreements is intended to be a delegation of the City's governmental or
regulatory authority.
18. Brokers. Developer will be responsible for funding to CBRE the brokerage
commission set forth in the November 27, 2017 letter from the City of Miami to
CBRE, a copy of which has been provided to Developer. City and Developer agree
that the amount of the brokerage commissions will be included in the "Total
Development Cost" as that term is defined in the Agreements to be entered into by
the City and the Developer.
19. Term Sheet Not Comprehensive. This Term Sheet is not intended to be
comprehensive, nor shall it be interpreted as addressing every matter that may be
included in the Agreements. The contents of this Term Sheet will not limit the
parties from including any other provisions in the Agreements.
20. New Facility Term Sheet Subject to MRC Term Sheet. City and Developer
acknowledge that this New Facility Term Sheet shall not become effective until
such time as City and Developer execute a separate term sheet detailing the terms
and conditions to effect the disposition of the City of Miami's current
administration building, parking garage, and adjacent land parcel, identified by tax
folio numbers 01-4137-038- 0020 and 01-4137-038-0010 and commonly known
as the Miami Riverside Center.
21. Controlling Law. This Term Sheet (and the Agreements) shall be interpreted
under the laws of the State of Florida.
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Developer:
LANCELOT MIAIVII RIVER, LLC, a
Florida limited liability company
By:
Print Name:
Title:
City:
CITY OF MIAMI, a Florida
municipal corporation
By:
Attest:
Approved for legal form and sufficiency
for the use and benefit of the City
By:
ACTIVE 19930700v15
EXHIBIT "B"
THE LAND
(See Attached)
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DRAFT VERSION
EXHIBIT "C"
PROPOSAL AND RECOMMENDATION
Proposal and Recommendations submitted by Development Manager regarding the City Project's
concept, development strategy, architectural and design schedule guidelines
The Development Manager ("Lancelot"), proposes delivering to the City a turn -key economically viable, efficient,
and well- designed new City of Miami administration building ("New Facility") that meets the requirements of the
RFP including a minimum LEED Silver rating. Lancelot believes that the process of delivering the New Facility is a
collaborative one between and amongst the development team (i.e., Lancelot, design professionals, engineers,
consultants, and a general contractor) and the City. In executing that collaborative design -build -process, it is
Lancelot's intent to routinely involve and coordinate with the City (and its project manager), in the development
and design of the New Facility, with the goal of delivering, on -time, the City's New Facility.
While utilizing best building practices and innovative design and engineering, Lancelot plans to deliver the New
Facility as detailed herein:
The New Facility shall strive to comply with all of the functional and technical requirements of the RFP1.
The New Facility will be comprised of +/- 230,000 usable square feet of office space (using BOMA
measurement standards), as well +/- 700 parking spaces.
The base building shall be of sound and solid construction with facades of stucco, stone, glass, steel or other
permanent materials. The building design shall reflect the dignity and public service nature of its
governmental functions; it will appear welcoming to visitors and its architectural design shall fit contextually
in its immediate surroundings as they currently exist or as city development plans contemplate.
- Finished ceiling heights on typical office floors shall be no less than 9 feet. Finished ceiling height on the
ground floor shall be a greater height; the public hearing room shall have a ceiling height of no less than 12
feet.
- In order to maximize flexibility of workspace layout, spacing of any columns in workspace areas shall be 30
feet on center. Perimeter columns shall be spaced no less than 20 feet on center.
The building shall meet all requirements of the Miami 21 zoning code for the transect zone in which it is
located.
- The building shall meet all requirements of the Florida Building Code, including the provisions for High
Velocity Hurricane Zones that are incorporated by reference into the Miami -Dade County Building Code.
- The building shall be designed to attain a Silver rating in the LEED accreditation system (or equivalent)
administered by the U.S. The City will be provided an updated scorecard at the issuance of drawings at each
major design phase.
- Landscaping will use native species that can survive naturally in the Miami climate and shall consider storing
rain water on site during the rainy season for use in the dry season.
1 Unless modified at City's request.
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The building shall have full Wi-Fi, including coverage on any outdoor plaza or terrace, rooftop and public
spaces.
- The BUILDING will meet ADA accessibility requirements.
- The BUILDING shall include basic Furniture, Fixtures and Equipment (FF&E) for the following programmatic
requirements:
o Office furniture
o Workstation furniture Conference furniture
o Training room furniture
o Pantry equipment and furniture
o Public waiting area furniture.
The ground floor will provide a main pedestrian entrance into the lobby that in scale and design provides a
dignified and welcome entry portal as well as a common waiting area easily identified and accessible from
the main entrance.
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Methodology for Obtaining Building Permits and Government -Regulatory Approvals
With a history that spans over fifty years and three generations, Adler Group ("Lancelot") has developed industrial,
office, retail and residential units throughout the state of Florida. With this experience, comes knowledge,
experience and comfort in working with the Florida Building Code, Miami 21, and other permitting and
government -regulatory matters.
We pride ourselves on not only our familiarity with the permitting and regulatory processes, but in also our hiring
of the best of the best consultants who too have fluency with such processes, including a comprehensive
development of master plans, zoning approvals including review by the Urban Development Review Board
(UDRB), land subdivision/plat approvals, infrastructure approvals, construction permitting approvals, inspections
approvals, and obtaining certificates of occupancy.
We have also found that using the services of a private provider helps to expedite the plan review process,
obtaining a building permitl, and getting the building open for business. For example, under Florida Statute
553.791 a private provider is authorized to review and sign -off on the five main building disciplines (structural,
building, mechanical, electrical, and plumbing). Upon determining that the plans meet the code's requirements,
the private provider will prepare affidavits signed and sealed by professional engineers for each trade.
While the private provider reviews the plans, identical sets are submitted to the City of Miami to begin the review
process with outside agencies (i.e., Fire, DERM, Zoning, Public Works, Water and Sewer). Once approval from
these agencies has been obtained, plans are consolidated with the private provider's approved set and
resubmitted to the City along with affidavits for final approval.
During construction, the private provider, via its State of Florida licensed inspectors, will perform inspections as
required by the Florida Building Code2. And pursuant to the Florida Building Code, a registered professional
engineer will oversee (on a regular basis) the work being performed by the inspectors.
Prior to the commencement of construction, there will be a coordination meeting (generally on -site) with the
development team, the general contractor, and the private provider's project manager and inspectors. During this
meeting, the private provider's project manager will deliver the inspection log books, review the project schedule,
discuss inspection procedures and offer recommendations for the most effective and cost -saving approach re: the
inspections.
The private provider's inspectors will perform the required inspections and provide a detailed report of their
findings. A copy of the inspection report will be filed in the inspection log book and will be stored at the building
site and be made available for review by the City. Upon completion of all required inspections, private provider's
inspectors will prepare a certificate of compliance, signed and sealed by the engineer attesting that the building
construction, as inspected, complies with the approved plans and all applicable codes.
1 To obtain a formal building permit. approval from outside agencies (i.e., Fire, DERM, Zoning, Public Works, Water and
Sewer, etc.) is also required.
2 These inspections are typically performed by the City of Miami Building Department personnel.
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Construction Schedule Overviewl
The anticipated delivery date for the New Facility (i.e., the date the building will achieve substantial completion
by way of receiving and the final certificate of occupancy ("CO") is on or about March 31sY, 2023.
TASK DETAIL
START FINISH
DESIGN DEVELOPMENT
CONSTRUCTION DOCUMENTS
PERMITTING PROCESS
CONSTRUCTION PHASE
TEMPORARY CERTIFICATE OF OCCUPANCY / CITY MOVE -IN
7/1/19
10/1/19
1/1/20
9/1/20
1/31/23
9/30/19
3/31/20
8/31/20
3/31/22
3/30/23
SUBSTANTIAL COMPLETION (CERTIFICATE OF OCCUPANCY )
3/31/23
3/31/23
TOTAL PROJECT 7/1/19 3/31/23
1 This is tentative construction schedule based on information currently known to Development Manager and is therefore
subject to change and updates. As such. the construction schedule and dates herein represent the Development Manager's
commercially reasonable estimation of the construction schedule based on current information as to the scope and size of the
City's office building.
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Construction Budget Requirementsl
City of Miami Office
Pre -Construction Budget
Description Total
Architectural & Engineering
Permit Fees
Legal & Professional
General & Administrative
Development Fee
Contingency
1,240,000
100,000
100,000
100,000
120,000
300,000
TOTAL PRE -DEVELOPMENT COST 1,960,000
Financial Assumptions
City of Miami Office
Construction Budget
Building Square Feet
Construction Loan Rate
Construction Loan - LTC
Annual Rent 30 Years Fully Amortizing
Annual Escalation
TBD
100%
TBD
TBD
Office Tenant Improvements $ 75.00
Office SF 270,000
Retail SF 8,000
Total NSF 278,000
TOTAL LAND COSTS
Core, Shell, & Garage (Divisions 1-16)
Office TI's
Office FF&E
TOTAL
19,500,000
69,500,000
20,250,000
6,900,000
Per NSF
% TOTAL
70.14 14%
250.00 50%
75.00 5%
30.00 14%
TOTAL HARD COSTS 96,650,000 355.00 69%
Insurance 700,000 2.52 1%
Architectural & Engineering 3,500,000 12.59 3%
Permits & Impact Fees 2,000,000 7.19 1%
Legal & Professional 1,200,000 4.32 1%
Real Estate Consulting & Commissions 2,500,000 8.99 2%
Retail TI & Commissions 500,000 1.80 0%
General & Administrative 1,500,000 5.40 1%
Development Fee 4,632,000 16.66 3%
Contingency 7,250,000 26.08 5%
TOTAL SOFT COSTS
TOTAL DEVELOPMENT COST
INTEREST RESERVE (TBD, Based on City Financing)
23,782,000 85.55 17%
139,932,000 510.69 100%
1 As the formal construction budget will not be finalized until there is an executed GMP contract with the general contract
based on formal construction drawings, the figures herein represent the Development Manager's commercially reasonable
estimation of the construction budget based on current information as to the scope and size of the City's office building.
ACTIVE 19930700v15
EXHIBIT "D"
BUDGETS
(See Attached)
ACTIVE 19930700v15
DRAFT VERSION
EXHIBIT "E"
PREDEVELOPMENT BUDGET
(See Attached)
ACTIVE 19930700v15
DRAFT VERSION
DRAFT VERSION
EXHIBIT "F"
FORM OF PURCHASE AND SALE AGREEMENT
AGREEMENT OF SALE
THIS AGREEMENT OF SALE (this "Agreement") is made and entered into by and
between LANCELOT MIAMI RIVER, LLC, a Florida limited liability company, as seller
("Seller"), and CITY OF MIAMI, a municipal corporation of the State of Florida, 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 Development Agreement.
Assignment of Interests. Shall have the meaning ascribed to such term in Section 12.1.3.
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). Shall mean the earlier of (i) the date that is ten (10)
days following receipt of written documentation from the City of Miami Building Department
and/or the City of Miami Building Official confirming a master permit for the City Property (as
defined in the Development Agreement) will be issued upon payment of all required permit and
impact fees, and (ii) September 1, 2020, or such other date that is mutually agreed upon by
Purchaser and Seller in writing.
Closing Documents. Shall have the meaning ascribed to such term in Section 7.1.
Declaration. Shall mean that certain [Declaration of Covenants, Restrictions and
Easements for [ ]] to be dated and recorded in the Public Records of Miami -
Dade County, Florida prior to the Closing Date, as may be amended, modified and supplemented
from time to time, which will encumber the Overall Land and all of the improvements now or
hereinafter located thereon (collectively, the "Overall Property"), and shall contain various
easements, restrictions and covenants providing for the common use and maintenance of certain
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DRAFT VERSION
utilities, access, parking, recreational facilities and other areas of the Overall Property
(collectively, the "Shared Facilities") to ensure that, notwithstanding the multiple ownership of
the Overall Property, the common and shared infrastructure, services, utilities, access, parking and
other areas benefit all portions of the Overall Property intended to be served thereby.
Deed. Shall have the meaning ascribed to such term in Section 10.1.2.
Development Agreement. That certain Development Management & Construction
Agreement date as of June , 2019, between Seller and Purchaser.
Due Diligence Period. The period commencing on the Effective Date and ending at 5:00
P.M. Eastern Time on the date that is ninety (90) days after the Effective Date.
Earnest Money Deposit. The cash deposit delivered by Purchaser to Escrow Agent
pursuant to Section 3.1 below, together with all interest earned thereon, if any.
Effective Date. Shall mean the latest of the following dates: (a) the date this Agreement
is fully executed by Purchaser, and (b) the date this Agreement is fully executed by Seller.
Environmental Laws. All statutes, laws, ordinances, codes, regulations, rules, rulings,
orders, decrees, directives, policies and requirements by any federal, state or local governmental
authority regulating, relating to, or imposing liability or standards of conduct on or concerning
Hazardous Substances, public health and safety or the environment now or existing or hereafter
enacted or effective.
Escrow Agent. The Title Company or its agent.
Hazardous Substances. All hazardous waste, hazardous substances, hazardous
constituents, hazardous materials, hazardous chemicals, toxic substances, or related substances or
materials, whether solids, liquids or gases including, but not limited to, polychlorinated biphenyl
(commonly known as PCBs), asbestos, radon, urea formaldehyde, petroleum products (including
gasoline and diesel oil), spent solvents, sludge, ash, containers with hazardous waste residue, spent
solutions from manufacturing processes, pesticides, explosives, organic chemicals, inorganic
pigments and other similar substances, as each of the foregoing terms are defined under, or
regulated or governed by, any and all Environmental Laws including, but not limited to, (i) the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended,
42 U.S.C. S 9601 et seq., (ii) the Hazardous Materials Transportation Act, as amended, 49 U.S.C.
S 1801 et seq., (iii) the Resource, Conservation and Recovery Act of 1976, as amended, 42 U.S.C.
S 6901 et seq., (iv) the Clean Water Act, as amended, 33 U.S.C. S 1251 et seq., (v) the Toxic
Substances Control Act of 1976, as amended, 15 U.S.C. S 2601 et seq., (vi) the Clean Air Act, as
amended, 42 U.S.C. S 7401 et seq., or (vii) any so-called "superfund" or "superlien" law.
Land. That certain portion of the Overall Land, such portion of which as more particularly
depicted on Exhibit "A-2" 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
45
DRAFT VERSION
or proposed, in front of, abutting or adjoining the Land 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, together with any and all improvements located
thereon. Purchaser and Seller acknowledge and agree that prior to the expiration of the Due
Diligence Period, Purchaser, at Purchaser's sole cost and expense, shall obtain a boundary survey
of the depicted Land that (i) meets the minimum technical standards for the State of Florida, (ii)
includes Seller as a certified party and (iii) depicts an accurate legal description of the Land that is
reasonably acceptable to both Purchaser and Seller. If Purchaser and Seller cannot reasonably
agree upon the legal description of the Land prior to the expiration of the Due Diligence Period,
then this Agreement shall automatically terminate and the Earnest Money Deposit shall be
refunded to Purchaser and neither party shall have any further rights or obligations hereunder,
except those that survive termination.
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.
Legal Requirements. All laws, statutes, codes, acts, ordinances, orders, judgments,
decrees, injunctions, rules, regulations, Land Use Rights, licenses, authorizations, directions and
requirements of all federal, state and local governmental authorities, officials, agencies and
subdivisions of each thereof having jurisdiction which now or at any time prior to Closing may be
applicable to the Property or other use or operation thereof.
Must -Cure Items. Shall have the meaning ascribed to such term in Section 4.3.
Overall Land. The tracts or parcels of land located at 230 SW 3rd Street in the City of
Miami, Miami -Dade County, Florida, as more particularly described on Exhibit "A-1" attached
hereto.
Permitted Exceptions. Shall have the meaning ascribed to such term in Section 4.2.
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 Land; building permit plans, submitted to any local government authority in
connection with any development on the Land; 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 Land; and reports, peer review analysis,
and/or such other documentation related to any development on the Land.
Project. Shall mean a mixed -use project located at 230 SW 3rd Street in the City of Miami,
Miami -Dade County, Florida, and referred to as "Project" or such similar term in the Declaration.
Property. All of Seller's right, title, and interest in and to the Land, the Real Property, the
Land Use Rights, Plans and Specifications and all rights of Seller with respect to the foregoing
under the Declaration. Purchaser acknowledges and agrees that the Property comprises one or
more components of the Project and is subject to the covenants, conditions, restrictions, easements
46
DRAFT VERSION
and other terms and conditions of the Declaration. Given the integrated nature of the Project, the
Property shares certain Shared Facilities with other portions of the Project, and the owners and
users thereof, all as more particularly described in the Declaration. Notwithstanding any
provisions in this Agreement to the contrary, Purchaser and Seller expressly acknowledge and
agree that the Property does not include any portion of the building, improvements, structures
(including the exterior walls and roof of the building), systems, equipment or other property that
is or is deemed to be under the Declaration as part of the Developer Project (as defmed in the
Development Agreement), or the Shared Facilities. Further, the Property is conveyed subject to
the Declaration and to the rights of any other party in and to the Property pursuant to each of the
Declaration and the obligations, duties, and liabilities of the owner of the Property under the
Declaration, all of which are deemed to be Permitted Exceptions under this Agreement.
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) a person or entity that
is affiliated with any person or entity identified in clause (a), (b), (c) and/or (d) above.
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. All directors, officers, employees, representatives, agents,
or consultants of Purchaser.
Real Property. Shall mean the City Project (as defined in the Development Agreement),
including, without limitation, the City Facility (as defined in the Development Agreement), the
City Spaces (as defmed in the Development Agreement) and the portion(s) of additional retail
and/or office space to be owned by the Purchaser, or such similar terms as may be used in the
Declaration.
Seller -Related Party. Seller's members, directors, officers, employees, affiliates,
contractors, consultants, agents, and representatives.
Seller's Response. Shall have the meaning ascribed to such term in Section 4.1.
Service Contracts. Shall mean security, maintenance, landscaping, trash removal and any
other such service agreements (and any amendments, modifications or supplements thereto) with
respect to or affecting the Property or any portion thereof (if any).
Surviving Obligations. Shall have the meaning ascribed to such term in Section 4.1.
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DRAFT VERSION
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.
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.
SECTION 3: PURCHASE PRICE AND DEPOSIT
The purchase price for the Property shall be equal to Nineteen Million Five Hundred
Thousand and 00/100 Dollars ($19,500,000.00) (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 On the date that is three (3) business days after the Effective Date, Purchaser
delivered to Escrow Agent a deposit in the amount of One Thousand and 00/100 Dollars
($1,000.00) (together with any interest accrued thereon, the "Earnest Money Deposit"). The
Earnest Money 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 Earnest Money
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 twenty (20) business days of the Effective Date obtain a title commitment with respect to
the Real Property ("Title Commitment") issued by the Title Company and a new or updated
ALTA survey (or a survey meeting the minimum technical surveying standards for surveys in the
State of Florida) of the Property certified to Purchaser, Seller and the Title Company (and its
agent). No later than five (5) business days prior to the expiration of the Due Diligence Period
("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 and survey 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
48
DRAFT VERSION
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, 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 Earnest Money Deposit shall be
returned to Purchaser whereupon there shall be no further rights, obligations or liabilities between
the parties under this 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 Legal
Requirements; (ii) all current real estate taxes and assessments assessed against the Property and
not yet due and payable as of the Closing, subject to prorations for the calendar year in which
Closing occurs; (iii) the terms and conditions of the Declaration; and (iv) exceptions to title and
survey matters (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, and (y) resulting from the acts of Purchaser or Purchaser Representatives.
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 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.
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DRAFT VERSION
SECTION 5: PURCHASER'S DUE DILIGENCE AND INSPECTION RIGHTS
5.1 Documents to be Delivered by Seller. To the extent in Seller's possession or
reasonable control, Seller has delivered or cause to be delivered or otherwise made available to
Purchaser, each of the items (the "Submission Items") set forth on Exhibit "D" attached hereto.
Purchaser hereby acknowledges receipt of the Submission Items and that the Submission Items
were furnished without representation or warranty of any kind and on the express condition that
Purchaser has made its own independent verification of the accuracy, reliability and completeness
of such information and that Purchaser will not rely thereon.
5.2 Inspection of Property and Submission Items. Through the Closing Date,
Purchaser shall be provided with physical access to the Property at reasonable times and upon no
less than 24-hours' prior notice (which notice may be given by e-mail) to conduct, at Purchaser's
sole cost and expense, the physical inspections and environmental assessments of the Property
which Purchaser deems reasonably necessary to evaluate the physical condition of the Property
and suitability of the Property for Purchaser's intended use, provided that Purchaser shall not
conduct any Phase II environmental testing or soil or water sampling or other invasive -type testing
without Seller's prior consent, which consent Seller shall not unreasonably withhold, condition or
delay (collectively, the "Physical Inspections").
5.2.1 In exercising its rights to enter upon the Property, Purchaser shall permit a
representative of Seller to accompany Purchaser or Purchaser Representatives. In connection with
Purchaser's right to enter upon the Property as set forth in this Agreement, Purchaser agrees (i) not
to unreasonably interfere with the operation of the Property and (ii) to restore the Property to its
prior condition after the performance of any such inspections; provided, however, that Purchaser
will have no obligation to restore any damage to the extent caused by Seller's negligence or
intentional misconduct, to remediate any hazardous materials not placed on the Property by
Purchaser or Purchaser Representatives, or to repair or restore any latent condition merely
discovered by Purchaser or its consultants (so long as Purchaser or Purchaser's Representatives do
not exacerbate such condition once it has been discovered). The obligations of Purchaser pursuant
to this Section 5.2.1 shall survive the Closing or the earlier termination of this Agreement.
5.2.2 Prior to any entry on the Property pursuant to this Section, Purchaser or any
third party conducting the actual testing or Physical Inspections shall obtain and thereafter
maintain until the Closing or earlier termination of this Agreement (a) commercial general liability
insurance with coverages of not less than $1,000,000.00 for injury or death to any one person and
$2,000,000.00 for injury or death to more than one person and $1,000,000.00 with respect to
property damage, and (b) worker's compensation insurance for all of their respective employees
as required by applicable law. The insurance to be carried pursuant to this Section must be on an
occurrence basis. Prior to any entry onto the Property, Purchaser shall provide current certificates
of insurance evidencing such insurance coverage and naming Seller as an additional insured.
5.2.3 The parties expressly acknowledge and agree that Purchaser has the right,
for any or no reason, at any time on or before the expiration of the Due Diligence Period to
terminate this Agreement, in its sole and absolute discretion, by written notice to Seller, and upon
such termination, Escrow Agent shall immediately return the Earnest Money Deposit to Purchaser
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DRAFT VERSION
(without the necessity of providing any notice to Seller), whereupon there shall be no further rights,
obligations or liabilities between the parties, except as specifically set forth in this Agreement.
5.2.4 Purchase and Seller shall use good faith and commercially reasonable
efforts to approve the form and content of the Declaration prior to the date which is six (6) months
following the expiration of the Due Diligence Period, but in no event later than the Closing Date.
SECTION 6 SELLER'S REPRESENTATIONS, WARRANTIES AND COVENANTS
6.1 Seller's Representations. Seller represents, warrants and covenants to Purchaser,
on and as of the Effective Date and Closing Date as follows:
6.1.1 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 corporate/company
authorizations 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.
6.1.2 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.
6.1.3 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.
6.1.4 Litigation. There are no actions, suits, or proceedings pending or, to
Seller's actual knowledge, threatened in writing against Seller or 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 Legal Requirements applicable to the Property.
6.1.5 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.
6.1.6 No Undisclosed Contracts. Other than the Development Agreement and
the Declaration, 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
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DRAFT VERSION
of which will survive the Closing or would constitute an obligation upon Purchaser after the
Closing Date.
6.1.7 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.
6.1.8 Service Contracts. Seller shall cause all Service Contracts to be terminated
as of Closing at Seller's sole cost and expense.
6.1.9 Leases. There are no leases, licenses or other occupancy agreements, either
recorded or unrecorded, written or oral, in effect with respect to the Real Property.
6.1.10 Environmental. Seller has provided true, correct and materially complete
copies of all environmental reports related to the Property in Seller's possession or reasonable
control to Purchaser as part of the Submission Items. Except as may be set forth in the
environmental reports delivered as part of the Submission Items, to Seller's knowledge, there are
no Hazardous Substances on the Property and the Property is not in violation of any Environmental
Laws.
6.1.11 Taxes; Tax Appeals. To Seller's knowledge, the Real Property is not
subject to or affected by any special assessment for public improvements or otherwise, whether or
not presently a lien upon the Real Property, nor does Seller have knowledge of any pending special
assessment. There are no ongoing appeals with respect to taxes or special assessments on the
Property for any year.
6.1.12 Foreign Person. Seller is not a "foreign person" as defined by the Internal
Revenue Code, Section 1445.
6.1.13 Prohibited Person. Seller is not a Prohibited Person. To Seller's
knowledge, except for third -party persons who hold direct or indirect ownership interests in Seller,
none of Seller's affiliates or parent entities is a Prohibited Person.
6.2 Seller's Knowledge. For purposes of this Section 6, the phrase "Seller's actual
knowledge" or words of similar connotation shall mean only the current, actual conscious
knowledge, and not any implied, imputed or constructive knowledge, without any independent
investigation having been made or any implied duty to investigate, of Jonathan Raiffe, a Vice
President of Seller. Purchaser acknowledges that the foregoing individuals are named solely for
the purpose of defining and narrowing the scope of knowledge of Seller and not for the purpose of
imposing any liability or creating any duties running from such individuals to Purchaser.
Purchaser covenants that it will bring no action of any kind against the individuals related to or
arising out of the representations and warranties of Seller in this Agreement or the Closing
Documents.
6.3 Limitations on Seller's Representations and Survival. 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
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DRAFT VERSION
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 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.
6.4 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 7: PURCHASER'S REPRESENTATIONS AND WARRANTIES
7.1 Purchaser's Representations. Purchaser represents, warrants and covenants to
Seller, on and as of the Effective Date and Closing Date as follows:
7.1.1 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 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.
7.1.2 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 Purchaser is a party or by which Purchaser or any of Purchaser's assets is
bound.
7.1.3 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 Purchaser.
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7.2 Survival. The foregoing representations and warranties of Purchaser shall survive
Closing and delivery of the Deed for the Survival Period.
SECTION 8: NO REPRESENTATIONS OR
WARRANTIES BY SELLER; ACCEPTANCE OF PROPERTY "AS IS/WHERE IS"
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 Legal Requirements, 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.
Purchaser acknowledges that effective as of Closing, Purchaser shall be deemed to have examined,
reviewed and inspected all matters which in Purchaser's judgment bear upon the Property and its
value and suitability for Purchaser's purposes. 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. The provisions of this Section 8 shall survive Closing.
SECTION 9: OPERATIONS PENDING CLOSING
9.1 Management Prior to Closing. From and after the Effective Date, through and
including the Closing Date, (a) Seller shall maintain, manage, operate and insure the Property in
the customary course of business, and (b) Seller shall not make any material changes to or
alterations of the Property without Purchaser's prior written consent (which shall not be
unreasonably withheld, conditioned or delayed), except as contemplated in the Development
Agreement and the Declaration and for any repairs or replacements required due to life safety
issues (which repairs shall not require Purchaser's approval, but Seller shall notify Purchaser of
such repairs or replacements prior to undertaking same or as soon thereafter as reasonably
feasible).
9.2 Leasing. From and after the Effective Date, Seller shall not lease or rent space or
enter into any lease or agreements for occupancy of the Property or any portion thereof or
otherwise create any rights of occupancy or possession in the Property prior to Closing or the
termination of this Agreement, in each case without the prior written consent of Purchaser, which
consent may be withheld in Purchaser's sole and absolute discretion.
9.3 Service Contracts. Seller shall not enter into any new Service Contracts that
cannot be terminated as of Closing without penalty or cost to Purchaser, without the prior written
consent of Purchaser, which consent may be withheld in Purchaser's sole and absolute discretion.
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DRAFT VERSION
SECTION 10: 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 mail at the offices of 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.
10.1 Closing Generally.
10.1.1 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 Earnest Money Deposit (and making other
adjustments and prorations as provided herein) and the other items required of Purchaser under
this Agreement.
10.2 Closing Costs.
10.2.1 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.
10.2.2 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) the cost of any updated survey, (v) recording charges due in connection with any
mortgages or other financing documents entered into by Purchaser, and (vi) fifty percent (50%) of
the escrow charges charged by Escrow Agent.
10.2.3 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 10.2 shall survive the Closing.
SECTION 11: PRORATIONS AND CREDITS AT CLOSING
All prorations provided to be made "as of the Closing Date" shall each be made as of
12:01 A.M. local time on the Closing Date. In each proration set forth below, the portion thereof
allocable to periods beginning with the Closing Date shall be credited to Purchaser, or charged to
Purchaser, as applicable, at Closing or, in the case of allocations made after Closing, upon receipt
of such payments or invoice as of the Closing Date. Statements of prorations and other adjustments
shall be prepared by Seller in conformity with the provisions of this Agreement and submitted to
Purchaser for review and approval not less than five (5) business days prior to the Closing Date.
The following items shall, as applicable, be prorated between Purchaser and Seller or credited to
Purchaser or Seller.
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DRAFT VERSION
11.1 Property Taxes and Assessments. All non -delinquent water and sewer fees,
charges or rentals and ad valorem or general property taxes and assessments with respect to the
Real Property shall be prorated and apportioned on a per diem basis as of the Closing Date based
on the latest available tax information, taking into account the maximum allowable discount. Non -
delinquent assessments, special assessments and other periodic payments and charges levied by,
or payable to, any governmental agency or municipality, owners' association and/or pursuant to
any restrictive covenants, declaration(s) of covenants, conditions and restrictions or other similar
documents and title exceptions encumbering the Property shall be prorated on a per diem basis as
of the Closing Date.
11.2 Utility Expenses and Payments. Purchaser shall establish in its name accounts
for all utilities servicing the Property and shall be responsible for all billings thereon. To the extent
practicable (and if applicable), Seller shall cause meters for utilities to be read not more than one
(1) business day prior to the Closing Date. Seller and Purchaser agree to reasonably cooperate
with one another in transferring utility service and company accounts with respect to the Property
(if any).
11.3 Other Matters. Seller and Purchaser shall make such other adjustments and
apportionments as are expressly set forth in this Agreement.
11.4 Tax Protests. Seller shall own and hold all right, title and interest in and to and
shall control, all tax proceedings and appeals with respect to taxes assessed against the Property
for all tax years prior to the tax year in which the Closing occurs ("Prior Taxes"). Seller may
commence and/or continue the prosecution of any tax certiorari proceedings or tax protest
proceedings with respect to the Prior Taxes and take such related actions which Seller reasonably
deems appropriate in connection therewith. Purchaser shall own and hold all right, title and interest
in and to and shall control, all tax proceedings and appeals with respect to taxes assessed against
the Property for the tax year for the year of Closing. Purchaser shall in no event be responsible
for, and Seller hereby covenants and agrees to pay any taxes, penalties or other costs, assessments
or obligations resulting from an unsuccessful appeal of Prior Taxes. To the extent any such tax
appeal is outstanding as of the Closing Date and Seller has not paid the entire amount of the taxes
which are the subject of such appeal, the amount of the taxes not paid in connection with such
appeal (or such greater amount as may be required by Title Company to insure Purchaser's interest
in the Property without exception for any taxes other than real estate taxes for subsequent years)
shall be deposited in escrow with Escrow Agent pursuant to an escrow agreement, the terms of
which shall be negotiated and agreed to by Seller and Purchaser on or prior to the Closing Date.
Seller shall keep Purchaser apprised of Seller's progress with respect to any outstanding appeals
following Closing, pay all refunds due to Tenants pursuant to the terms of the Leases as a result of
such appeals and simultaneously provide evidence of such payment to Purchaser, which
obligations shall expressly survive the Closing hereunder.
11.5 Survival. The provisions of this Section 11 shall survive the Closing. In the event
final figures have not been reached on any of the adjustments, prorations or costs which are to be
adjusted at or prior to Closing pursuant to this Section 11, the parties shall close using adjustments
and prorations reasonably estimated by Seller and Purchaser, subject to later readjustment when
such final figures have been obtained. If more current information is not available, estimates shall
be based upon the prior operating history of the Property, as shown on the most recent bills or
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DRAFT VERSION
payments available. The parties hereto agree that they shall seek to determine the amounts of all
prorations and adjustments required hereunder on or before the Closing Date, if possible, and to
the extent not then obtainable, as soon as practicable thereafter.
SECTION 12: CONVEYANCES AND DELIVERIES
12.1 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:
12.1.1 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.
12.1.2 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.
12.1.3 Assignment of Interests . Seller shall assign to Purchaser, all of Seller's
interest in the Land Use Rights and Plans and Specifications, duly executed by Seller in the same
form as set forth in Exhibit "C" (the "Assignment of Interests").
12.1.5 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.
12.1.6 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.
12.1.7 Settlement Statement. Seller shall deliver a settlement statement
mutually agreeable to the parties.
12.1.8 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.
12.2 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:
12.2.1 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 pursuant to this Agreement and
any documents to be executed by Purchaser at the Closing.
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12.2.2 Assignment of Interests. Purchaser shall deliver a duly executed
counterpart of the Assignment of Interests.
12.2.3 Settlement Statement. Purchaser shall deliver a duly executed counterpart
of the approved settlement statement.
12.2.4 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.
12.3 Conditions Precedent.
12.3.1 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; (iii) the Title Company shall issue (or
shall be prepared and irrevocably and unconditionally committed to issue) the Title Policy; and
(iv) the Declaration has either been recorded in the Official Records of Miami -Dade County,
Florida, or has otherwise been delivered to Escrow Agent for recording in the Official Records of
Miami -Dade County, Florida at 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 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 Earnest Money 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 Seller under this Agreement, Purchaser may pursue any of its
remedies under Section 15.1.
12.3.2 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
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 Earnest Money 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.
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SECTION 13: 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:
If to Purchaser:
With copies to:
If to Escrow
Agent:
David Adler & Jonathan Raiffe
Adler Group
3150 SW 38th Avenue
Suite 530
Miami FL, 33146
Nancy Lash, Esquire and Ryan Bailine, Esquire
Greenberg Traurig, P.A.
333 SE 2nd Avenue, Suite 4400
Miami, FL 33131
City Manager
City of Miami
444 SW 2nd Avenue, 10th Floor
Miami, Florida 33130
Director of Real Estate Asset Management
City of Miami
444 SW 2nd Avenue, 3rd Floor
Miami, Florida 33130
City Attorney
City of Miami
444 SW 2nd Avenue, 9th Floor
Miami, Florida 33130
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DRAFT VERSION
SECTION 14: CONDEMNATION
If, prior to the Closing, action is initiated or is threatened to take a "material portion" of the
Property or Shared Facilities by eminent domain proceedings or by deed in lieu thereof, either
Purchaser or Seller may terminate this Agreement within thirty (30) days of such taking or
condemnation, in which case Purchaser shall be entitled to a return of the Earnest Money Deposit
and neither party shall have any further obligations hereunder other than the Surviving Obligations.
If this Agreement is not terminated in accordance with the preceding sentence, Seller and
Purchaser shall consummate the Closing, in which event all of Seller's assignable right, title and
interest in and to the award of the condemning authority with respect to the Property shall be
assigned to Purchaser at the Closing and there shall be no reduction in the Purchase Price. If, prior
to the Closing, action is initiated to take less than a "material portion" of the Property by eminent
domain proceedings or by deed in lieu thereof, Purchaser shall be obligated to purchase the
Property without reduction in the Purchase Price, and all of Seller's assignable right, title and
interest in and to the award of the condemning authority with respect to the Property shall be
assigned (or, as received, shall be delivered) to Purchaser at Closing. For purposes of this
Section 14.2, a "material portion" of the Property shall mean (i) more than 25% of the Land, in the
aggregate, or (ii) a condemnation that destroys or eliminates material access to the Land.
SECTION 15: 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 15 shall survive the Closing hereunder and any termination of this
Agreement.
SECTION 16: 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.
SECTION 17: DEFAULT/REMEDIES
17.1 Seller's Default/Purchaser's Remedies. If Seller should fail to consummate the
sale contemplated herein as a result of a default by Seller 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
(2) options: (i) terminate this Agreement, in which case Purchaser shall receive (a) a refund of the
Earnest Money Deposit and (b) 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, and thereafter neither party shall have any further rights or obligations
hereunder other than Surviving Obligations; 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 17.1 but specific
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DRAFT VERSION
performance as contemplated in this Section 17.1 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 incurred or made by Purchaser in connection with this
Agreement and otherwise resulting from Seller's failure to consummate the sale contemplated
herein.
17.2 Purchaser's Default/Seller's Remedies. If Purchaser should fail to consummate
the sale contemplated herein as a result of a default by Purchaser 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 Earnest Money 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. 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 Earnest Money Deposit represents a reasonable estimate of such damages
and is not intended as a penalty.
SECTION 18: 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 (including reasonable attorney's fees and court costs at trial and all appellate
levels) 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 19: GENERAL PROVISIONS
19.1 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.
19.3 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.
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19.4 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.
19.5 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.
19.6 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.
19.7 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.
19.8 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.
19.9 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.
19.10 Exhibits and Schedules. The Exhibits and Schedules referred in and attached to
this Agreement are incorporated herein in full by this reference.
19.11 Attorneys' 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,
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DRAFT VERSION
any action or proceeding brought by either party to enforce or interpret the terms of this
Agreement.
19.12 Time of the Essence. Time shall be of the essence in enforcing this Agreement.
19.13 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.
19.14 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.
19.15 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, 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.
19.16 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]
63
IN WITNESS WHEREOF, Seller and Purchaser have caused this Agreement to be
executed, as of the day and year first above written.
SELLER: LANCELOT MIAMI RIVER, LLC, a
Florida limited liability company
By:
Name:
Title:
Dated:
[Signatures Continue on Following Page]
PURCHASER:
Attest: CITY OF MIAMI, a Florida municipal corporation
By:
City Clerk City Manager
Dated: Dated:
Approved for legal form and sufficiency
for the use and benefit of the City
By:
Victoria Mendez, City Attorney
Dated:
Approved As to Business Terms :
By:
Daniel Rotenberg, Director of Real Estate
and Asset Management
Dated:
JOINDER BY ESCROW AGENT
Escrow Agent has executed this Agreement in order to confirm that Escrow Agent shall hold the
Earnest Money Deposit required to be deposited under this Agreement, in escrow, and shall
disburse the Earnest Money Deposit, pursuant to the provisions of this Agreement.
By:
Name:
Title:
EXHIBITS AND SCHEDULES
Exhibit "A-1" - Legal Description of the Overall Land
Exhibit "A-2" - Depiction of the Land
Exhibit "B" Form of Deed
Exhibit "C" - Form of Assignment of Interests
Exhibit "D" - Submission Items
EXHIBIT "A-1"
Legal Description of Overall Land
EXHIBIT "A-2"
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
[ ], a [ 1 (hereinafter called "Grantor"),
whose address is [ 1, and CITY OF MIAMI, a municipal
corporation of the State of Florida (hereinafter called "Grantee"), whose address is
[ l•
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:
Signed in the presence of the following
witnesses:
Print Name:
Print Name:
[ La
l
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 Assignment of Interests
ASSIGNMENT OF INTERESTS
THIS ASSIGNMENT OF INTERESTS (this "Assignment"), is made as of the day
of , 201, by and between [ ], a [ ],
hereinafter referred to as "Assignor," and CITY OF MIAMI, a municipal corporation of the State
of Florida, 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 that certain real property 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 of Sale dated as of , 20 entered into by Seller and
Purchaser, as subsequently 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 Land Use Rights, and the Plans and Specifications,
subject to the terms and conditions hereinafter set forth. Capitalized terms used herein without
defining 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 Land Use Rights, and the Plans and Specifications.
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 shall be governed by and construed in accordance with the internal laws
of the State of Florida, without reference to the conflicts of laws or choice of law provisions
thereof.
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.]
C-1
IN WITNESS WHEREOF, the parties hereto have executed this Assignment as of the date
first above written.
ASSIGNOR:
[ 1
By:
Name:
Title:
ASSIGNEE:
ATTEST: CITY OF MIAMI, a municipal corporation of
the State of Florida
By:
, City Clerk
Approved as to form and legal sufficiency
Name:
Title:
By:
Name:
Title:
C-2
Exhibit "A"
Legal Description of Property
A-1
DRAFT VERSION
EXHIBIT "D"
Submission Items
The following materials shall be provided by Seller with respect to the Property to the extent
such materials are in Seller's possession and/or reasonable control:
Existing Title Policy
CC&R's/REA's if applicable
Existing ALTA Survey
Seller's Insurance Certificates
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DRAFT VERSION
EXHIBIT "G"
INSURANCE REQUIREMENTS FOR A CERTIFICATE OF INSURANCE -
CONSTRUCTION REQUIREMENTS
I. Commercial General Liability OCIP/CCIP
A. Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence $25,000,000
General Aggregate Limit $25,000,000
Products/Completed Operations $25,000,000
Personal and Advertising Injury $Included
B. Endorsements Required
City of Miami listed as an additional insured
Contingent and Contractual Liability
Premises and Operations Liability
Primary Insurance Clause Endorsement
Explosion, Collapse and Underground Hazards
Completed Operations for 10 years
II. Business Automobile Liability
A. Limits of Liability
Bodily Injury and Property Damage Liability
Combined Single Limit
Any Auto
Including Hired, Borrowed or Non -Owned Autos
Any One Accident $ 10,000,000
B. Endorsements Required
City of Miami included as an Additional Insured
Worker's Compensation
Limits of Liability
Statutory -State of Florida
ACTIVE 19930700v15
DRAFT VERSION
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
IV. Umbrella Policy/Excess Liability
A. Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence $ 25,000,000
Aggregate $ 25,000,000
City of Miami listed as an additional insured
Coverage is excess over all applicable liability policies contained herein.
V. Payment and Performance Bond (Full Limit/Project Value)
City of Miami listed as an Obligee
VI. Pollution Liability
A. Limits of Liability
Each Occurrence $5,000,000
Policy Aggregate $5,000,000
City of Miami listed as a named insured
VII. 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
Flood Included
ACTIVE 19930700v15
DRAFT VERSION
City of Miami listed as an additional insured and loss payee
The above policies shall provide the City of Miami with written notice of cancellation or
material change from the insurer not less than (30) days prior to any such cancellation or
material change, or in accordance to policy provisions.
Companies authorized to do business in the State of Florida, with the following
qualifications, shall issue all insurance policies required above:
The company must be rated no less than "A-" as to management, and no less than "Class V"
as to Financial Strength, by the latest edition of Best's Insurance Guide, published by A.M.
Best Company, Oldwick, New Jersey, or its equivalent. All policies and /or certificates of
insurance are subject to review and verification by Risk Management prior to insurance
approval.
ACTIVE 19930700v15
DRAFT VERSION
EXHIBIT "H"
SUBCONTRACTORS' AND SUB -SUBCONTRACTORS' INSURANCE
REQUIREMENTS
To be agreed to by the Parties after the Effective Date.
ACTIVE 19930700v15
DRAFT VERSION
EXHIBIT "I"
ESTOPPEL CERTIFICATE
(Note: This form subject to amendments based on the requirements of the City Attorney)
RE: Development Management & Construction Agreement 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 the Project to be developed on the
Land located in the City of Miami, Miami -Dade County.
Ladies and Gentlemen:
The undersigned hereby provides the information below pursuant to Section 6.1 of the
Agreement. 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 [Developer][City].
2. To the best of the [Developer's] [City's] knowledge, the [Developer] [City] 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 any Party under the Agreement against the other Party, and there exist no events that would
constitute a basis for any such offset, counterclaim, or defense against any Party 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:
4. This certificate is made for the benefit of (and may be relied upon by) the
[Developer] [City], you and your successors and assigns, and shall be binding upon the
ACTIVE 19930700v15
DRAFT VERSION
[Developer][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 any Lender or any
assignee thereof. The person signing this certificate on behalf of the [Developer] [City] has been,
and is, duly authorized to do so and has been, and is, duly authorized to bind the [Developer][City]
to the terms hereof.
[Signature page follows]
ACTIVE 19930700v15
This certificate has been executed as of the
day of
CITY:
2
DRAFT VERSION
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:
ACTIVE 19930700v15