HomeMy WebLinkAbout25341AGREEMENT INFORMATION
AGREEMENT NUMBER
25341
NAME/TYPE OF AGREEMENT
5215 FLAGLER STREET, LLC
DESCRIPTION
GROUND LEASE/FLAGLER VILLAS DEVELOPMENT OF
AFFORDABLE ELDERLY RENTAL HOUSING PROJECT FOR
LOW-INCOME SENIORS/FILE ID: 13650/R-23-0188/MATTER
ID: 23-480K/#17
EFFECTIVE DATE
December 10, 2024
ATTESTED BY
TODD B. HANNON
ATTESTED DATE
12/10/2024
DATE RECEIVED FROM ISSUING
DEPT.
12/18/2024
NOTE
DOCUSIGN AGREEMENT BY EMAIL
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CITY OF MIAMI
DOCUMENT ROUTING FORM
ORIGINATING DEPARTMENT: Community and Economic Development
DEPT. CONTACT PERSON: Maria T Ason MATTER # 23-480K X. Alban
NAME OF OTHER CONTRACTUAL PARTY/ENTITY: 5215 Flagler Street, LLC
IS THIS AGREEMENT A RESULT OF A COMPETITIVE PROCUREMENT PROCESS? ❑ YES ® NO
TOTAL CONTRACT AMOUNT: $ 0 FUNDING INVOLVED? ❑ YES ® NO
TYPE OF AGREEMENT:
❑ MANAGEMENT AGREEMENT
❑ PROFESSIONAL SERVICES AGREEMENT
❑ GRANT AGREEMENT
❑ EXPERT CONSULTANT AGREEMENT
❑ LICENSE AGREEMENT
❑ PUBLIC WORKS AGREEMENT
❑ MAINTENANCE AGREEMENT
❑ INTER -LOCAL AGREEMENT
® LEASE AGREEMENT
❑ PURCHASE OR SALE AGREEMENT
OTHER: (PLEASE SPECIFY): Execution of a round lease agreement.
COMMISSION APPROVAL DATE: 9/26/2024 FILE ID: 16635 ENACTMENT NO.: R-24-0373
IF THIS DOES NOT REQUIRE COMMISSION APPROVAL, PLEASE EXPLAIN:
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PLEASE PRINT AND SIGN
APPROVAL BY DEPARTMENTAL DIRECTOR
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Arthur I4oriega V
RECEIVED BY CITY MANAGER
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1 ONE ORIGINAL TO CITY CLERK,
2) ONE COPY TO CITY ATTORNEYS. OFFICE,
3) REMAINING ORIGIN AL(S) TO ORIGINATING
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PLEASE ATTACH THIS ROUTING FORM TO ALL DOCUMENTS THAT REQUIRE EXECUTION BY
THE CITY MANAGER
GROUND LEASE
(Flagler Villas)
This Ground Lease (this "Ground Lease" or "Lease", as applicable) is made as of
10 , 2024 (the "Effective Date"), between CITY OF MIAMI, a Florida municipal
corporation ("Landlord" or "City", as applicable), and 5215 FLAGLER STREET, LLC, a Florida
limited liability company ("Tenant").
PREAMBLE
A. City is the owner of certain real property located at 5215 West Flagler Street, City
of Miami, Miami -Dade County, Florida, and described on Exhibit "A" attached hereto and made
a part hereof (the "Premises"), which City desires to have developed with the use of private and/or
public funds.
B. Tenant has proposed to newly construct on the site approximately 60 affordable
housing units, each of which shall be elderly, project -based Section 8 units, to be known as "Flagler
Villas" that will increase supply of rental housing units for low-income, family, elderly, disabled,
special needs or other population and uses acceptable to the City (the "Project"), on the Premises.
C. On April 27, 2023, the Miami City Commission duly adopted its Resolution No.
R-23-0188 (the "Resolution"), approving the lease by the City, as Landlord, of the Premises to
Tenant in accordance with the terms set forth in this Ground Lease, a copy of which is attached
and incorporated herein as Exhibit "E".
LEASE
In consideration of the foregoing preamble, mutual covenants and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, Landlord and Tenant,
with the intent to be legally bound, hereby agree as follows:
ARTICLE I- GRANT OF LEASED PREMISES; TERM; TITLE
1.01 Grant of Leased Premises. Landlord hereby grants and demises the Premises to
Tenant to be effective as of the Effective Date and to have and to hold for a term commencing on
the Effective Date and expiring on the ninety-ninth (99th) anniversary thereof (the "Lease Term"),
unless sooner terminated as provided herein. Landlord shall deliver exclusive possession of the
Premises to the Tenant on the Effective Date.
1.02 Premises. The Premises consists of those certain tracts or parcels of land located
at 5215 West Flagler Street, Miami, Florida as more particularly described in Exhibit "A" attached
hereto and incorporated herein, together with all appurtenances, easements and rights of way
related thereto and the improvements, if any, thereon.
1.03 Title Matters. Tenant shall have the right to order a title insurance commitment on
the Premises, within the ninety (90) calendar days following the Effective Date. In the event the
title insurance commitment shall reflect encumbrances or other conditions impairing marketable
title ("Defects"), or if any update or continuation of the title insurance commitment obtained by
Tenant before the Commencement Date in connection with its construction financing or equity
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syndication reveals any new Defects, then, Landlord, upon notification of the Defects, shall
immediately and diligently proceed to cure same and shall have a reasonable time within which to
cure the Defects. If, after the exercise of all reasonable diligence, Landlord is unable to clear the
Defects, then Tenant may accept the Defects or Tenant may terminate the Lease and the parties
shall be released from further liability.
1.04 Construction of hmprovements. The Project shall be constructed in accordance with
requirements of all laws, ordinances, codes, orders, rules and regulations (collectively "Applicable
Laws") of all governmental entities having jurisdiction over the Project (collectively
"Governmental Authorities"), including, but not limited to, the City, Miami -Dade County, the
State of Florida, and the United States Department of Housing and Urban Development ("HUD").
Tenant shall apply for and prosecute, with reasonable diligence, all necessary approvals, permits
and licenses required by applicable Governmental Authorities for the construction, development,
zoning, use and occupation of the Project. The City agrees to reasonably cooperate with and
publicly support Tenant's effort to obtain such approvals, permits and licenses, provided that such
approvals, permits and licenses shall be obtained at Tenant's sole cost and expense.
(a) Construction of the Project shall be performed in a good and workmanlike
manner and in conformity with all Applicable Laws.
(b) It is understood that a material inducement for the City entering into this
Lease is the expectation, agreement and requirement that the Premises, will include the
Improvements, during the entire Term, consisting of approximately sixty (60) multifamily
residential units as more fully described and/or depicted on Exhibit B.
(c) Landlord and Tenant agree that Tenant shall be accorded all benefits and
burdens of ownership of the Premises for as long as this Lease shall remain in effect. At all times
during the term of this Lease, the Improvements shall be owned by the Tenant and, during the
term, the Tenant alone shall be entitled to all of the tax attributes of ownership including, without
limitation, the right to claim depreciation or cost recovery deductions, the right to claim housing
tax credits described in Section 42 of the Internal Revenue Code of 1986, as amended (the "Code")
and the right to amortize capital costs and to claim any other federal tax benefits attributable to the
Improvements.
(d) Tenant, on behalf of the Landlord and as part of the Project, is undertaking
the environmental remediation of the Premises.
1.05 Low -Income Housing Tax Credits. The Project is, or will be, subjected to and
benefited by the terms and conditions of the low-income housing tax credit requirements as set
forth in the Code, and as required by HUD or the Florida Housing Finance Corporation ("FHFC")
during the appropriate extended use period.
1.06 Closing on Construction Financing. Subject to Unavoidable Delays, in the event
Tenant shall not close on the construction financing, including syndication of the housing tax
credits, by December 31, 2025, either party shall have the right to terminate this Lease (and such
event shall not be deemed an Event of Default) and Landlord and Tenant shall have no further
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obligation to each other under this Lease, except as to such matters as expressly survive
termination, by delivering written notice to the other party.
1.07 Unavoidable Delays. Other than Tenant's obligation to pay any amounts due to
Landlord provided for in this Lease or to maintain all insurance required by this Lease, the party
obligated to perform under this Lease shall not be required to perform and shall be entitled to a
reasonable extension of time because of its inability to meet an obligation or a time frame or
deadline specified in this Lease, where such failure or inability to perform is caused by an
Unavoidable Delay. "Unavoidable Delays" shall mean delays not caused by and beyond the
control of a party required to perform, such as delays due to strikes; a natural catastrophe, such as
an earthquake, hurricane, flood or tornado, that could not have been prevented; fires; enemy action;
civil disturbance; sabotage; restraint by court or public authority; litigation or formal
administrative challenges by third parties to the execution or performance of this Lease or the
procedures leading to its execution or to the process of entitlement for the Premises; pandemic or
epidemic or related governmental shutdown or slowdown affecting the Tenant's ability to obtain
entitlements, permits, approvals or any required consents, or to assemble a capable workforce for
the commencement or completion of Construction or to obtain materials or services; or
moratoriums. Notwithstanding anything in this Lease to the contrary, if a party shall be delayed
in the performance of any act required under this Lease by reason of any Unavoidable Delay, and
the party then provides notice of the Unavoidable Delay to the other party within ten (10) calendar
days after its occurrence, performance of the act shall be excused for the period of the delay and
the period for the performance of the act shall be extended for a reasonable period, in no event to
exceed the period equivalent to the period of the delay.
ARTICLE II- REPRESENTATIONS AND WARRANTIES
2.01 Landlord's Representations and Warranties. Landlord hereby represents and
warrants to Tenant as follows:
(a) Title. Landlord owns fee simple, good and marketable title to the land
underlying the Premises and there are no mortgages or other encumbrances affecting Landlord's
fee simple title to the Premises.
(b) Landlord and Approvals. (i) Landlord has full right, power, and authority
to make, execute, deliver, and perform its obligations under this Ground Lease; (ii) Landlord has
obtained and received all required and necessary consents and approvals to enter into this Ground
Lease with Tenant, including the adoption of the Resolution by the Miami City Commission,
which Resolution remains in full force and effect and has not been rescinded or amended in any
manner adverse to Tenant; and (iii) the entry by Landlord into this Ground Lease with Tenant and
the performance of all of the terms, provisions, and conditions contained herein does not and will
not, violate or cause a breach or default under any agreement or obligation to which Landlord is a
party or by which it is bound.
(c) Assessments. There are no unpaid special assessments of which Landlord
has received notice for sewer, sidewalk, water, paving, gas, electrical, or utility improvements or
other capital expenditures, matured or unmatured, affecting the Premises.
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(d) Contractual Obligations. Landlord is not obligated under any contract, lease
or agreement, materially affecting the ownership, use, operation, management, maintenance, or
lease of the Premises.
(e) Full Disclosure. No representation, statement, or warranty by Landlord
contained in this Ground Lease or in any exhibit attached hereto contains or will contain any untrue
statement of a material fact or omits a material fact necessary to make the statement of fact therein
recited not misleading.
(f) Litigation. There is no action, suit, litigation, or proceeding pending or to
Landlord's knowledge, threatened against Landlord that could prevent or impair Landlord's entry
into this Ground Lease or performance of its obligations hereunder.
(g) Environmental. There are, to the actual knowledge of Landlord, no
Hazardous Substances located in, on or under the Premises except as previously disclosed in
writing by Landlord to Tenant. For the purposes hereof "Hazardous Substances" includes any
substances, chemicals, materials or elements that are prohibited, limited or regulated by any and
all federal, state or commonwealth, and local laws, regulations, statutes, codes, rules, resolutions,
directives, orders, executive orders, consent orders, guidance from regulatory agencies, policy
statements, judicial decrees, standards, permits, licenses and ordinances, or any judicial or
administrative interpretation of, any of the foregoing, pertaining to the protection of land, water,
air, health, safety or the environment whether now or in the future enacted, promulgated or issued
(the "Environmental Laws"), or any other substances, chemicals, materials or elements that are
defined as "hazardous" or "toxic," or otherwise regulated under the Environmental Laws, or that
are known or considered to be harmful to the health or safety of occupants or users of the Premises.
The term Hazardous Substances shall also include, without limitation, any substance, chemical,
material, or element (i) defined as a 'hazardous substance' under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 (42 USC §§ 9601, et seq.), as
amended by the Superfund Amendment and Reauthorization Act of 1986, and as further amended
from time to time and regulations promulgated thereunder; (ii) defined as a "regulated substance"
within the meaning of Subtitle I of the Resource Conservation and Recovery Act (42 USC §6991-
6991 i), as amended from time to time and regulations promulgated thereunder; (iii) designated as
a "hazardous substance" pursuant to Section 311 of the Clean Water Act (33 USC § 1321), or listed
pursuant to Section 307 of the Clean Water Act (33 USC § 1317); (iv) defined as "hazardous,"
"toxic," or otherwise regulated under any Environmental Laws adopted by the state in which the
Premises are located, or its agencies or political subdivisions; (v) which is petroleum, petroleum
products or derivatives or constituents thereof, (vi) which is asbestos or asbestos -containing
materials; (vii) the presence of which requires notification, investigation or remediation under any
Environmental Laws or common laws; (viii) the presence of which on the Premises causes or
threatens to cause a nuisance upon the Premises or to adjacent properties or poses or threatens to
pose a hazard to the health or safety of persons on or about the Premises; (ix) the presence of which
on adjacent properties would constitute a trespass by the owner; (x) which is urea formaldehyde
foam insulation or urea formaldehyde foam insulation -containing materials; (xi) which is lead -
based paint or lead -based paint -containing materials; (xii) which are polychlorinated biphenyls or
polychlorinated biphenyl -containing materials; (xiii) which is radon or radon -containing or
producing materials; or (xiv) which by any laws of any governmental authority requires special
handling in its collection, storage, treatment or disposal. Notwithstanding any contrary provision
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of this paragraph (g), the term Hazardous Substances shall not apply to such substances that would
otherwise meet such definition as long as (i) the use of such substance in, on or under the Premises
is in compliance with all Environmental Laws and (ii) such substance is used in de minimis
quantities incidental to the operation of the Premises.
2.02 Tenant's Representations and Warranties. Tenant hereby warrants and represents
to Landlord as follows:
(a) Existence. Tenant is a limited liability company existing under the laws of
the State of Florida.
(b) Authority. Tenant (i) has the power and authority to own its properties and
assets, to conduct its business as presently conducted and to execute, deliver, and perform its
obligations under this Ground Lease and (ii) has obtained all company authorizations and
approvals which are necessary for it to execute, deliver, and perform its obligations under this
Ground Lease.
(c) Binding Obligation. This Ground Lease has been duly and validly executed
and delivered by Tenant and constitutes a legal, valid, and binding obligation of Tenant
enforceable in accordance with its terms.
(d) Litigation. There is no pending or, to the best of Tenant's knowledge,
threatened investigation, action, or proceeding by or before any court, any governmental entity or
arbitrator which (i) questions the validity of this Ground Lease or any action or act taken or to be
taken by Tenant pursuant to this Ground Lease or (ii) is likely to result in a material adverse change
in the authority, property, assets, liabilities or condition, financial or otherwise, of Tenant which
will materially impair its ability to perform its obligations hereunder.
(e) Full Disclosure. No representation, statement, or warranty by Tenant
contained in this Ground Lease or in any exhibit attached hereto contains any untrue statement of
a material fact or omits a material fact necessary to make such statement of fact therein not
misleading.
ARTICLE III — RENT
3.01 Ground Rent. Tenant shall pay to Landlord a one-time payment of base rent ("Base
Rent") for the Lease Term in the amount of One Hundred Dollars ($100.00), to be delivered to
Landlord by Tenant on the Effective Date. Tenant acknowledges and agrees that the construction
of affordable housing on the Premises is a material inducement for Landlord to offer the Premises
on the terms set forth herein to Tenant, and but for Tenant's promise to provide such housing the
terms contained herein would not be offered.
3.02 Payments by Tenant. Other than as expressly set forth in this Ground Lease,
commencing on the Commencement Date, all costs, expenses, liabilities, charges or other
deductions whatsoever with respect to the Premises and the Improvements or with respect to any
interest of Landlord in the Premises, the Improvements, or this Ground Lease shall be the
responsibility of Tenant.
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3.03 Control and Liabilities. Landlord acknowledges and agrees that Landlord is and
shall be, at all times prior to the Effective Date, in use, control and occupancy of the Premises and
all improvements located thereon. In connection with the foregoing, Landlord further
acknowledges and agrees that Landlord is responsible for maintaining, repairing, securing,
supervising and managing the Premises, including with respect to any third parties (e.g., tenants)
located in the Premises. All debts, obligations and liabilities arising prior to the Commencement
Date in the course of business of the Premises or otherwise in connection with the use, occupancy
or operation thereof (including, but not limited to, all such liabilities for utilities, taxes and other
costs and expenses related to the Premises; all such liabilities under or with respect to
Environmental Laws or claims; all such liabilities under or with respect to any personal injury
claims; and any and all obligations related to the operation, maintenance, repair, security,
supervision and management of the Premises) are and shall be the obligation of Landlord, and
Tenant shall not be liable or otherwise responsible for any such debts, obligations or liabilities or
have any duties to the Landlord or any third parties with respect to the use, occupancy or operation
of the Premises.
ARTICLE IV- TAXES, OPERATING EXPENSES,
INSURANCE REQUIREMENTS, AND RESTORATION
4.01 Taxes. Tenant will pay any payments in lieu of real estate taxes, any real estate
taxes and personal property taxes and assessments assessed, levied, confirmed, or imposed on the
Premises or the Improvements during the Lease Term whether or not now customary or within the
contemplation of Landlord and Tenant. Tenant will pay all real estate transfer taxes that are
required in connection with this Ground Lease. Landlord shall pay all local, state, or federal net
income taxes assessed against Landlord, including but not limited to all sale and use taxes imposed
by the state of Florida on the payment due under this Ground Lease; local, state, or federal capital
levy of Landlord; or sales, excise, franchise, gift, estate, succession, inheritance, or transfer taxes
of Landlord. Landlord shall have the obligation to: (i) cause any tax bills related to the Premises
or Improvements to be sent directly to Tenant or (ii) provide copies of all bills directly to Tenant
promptly after receipt.
4.02 Operating Expenses.
(a) Tenant's Obligation. Beginning on the Effective Date and continuing until
the expiration of the Lease Term or earlier termination of this Ground Lease, Tenant will pay or
cause to be paid directly to the providers of such services all costs and expenses attributable to or
incurred in connection with the ownership, use, leasing, occupancy, operation, maintenance, and
repair of the Premises and the Improvements including without limitation (i) all energy sources for
the Improvements, such as propane, butane, natural gas, steam, electricity, solar energy, and fuel
oil; (ii) all water, sewer and trash disposal services; (iii) all maintenance, repair, replacement and
rebuilding of the Improvements including, without limitation, all mechanical, electrical, HVAC,
telecommunications and security systems within the Improvements, and all structural and non-
structural components of the Improvements, both interior and exterior; (iv) all landscaping,
maintenance, repair and striping of all parking areas of the Improvements; (v) all insurance
premiums relating to the Premises, including fire and extended coverage, public liability insurance,
rental insurance and all risk insurance; and (vi) the costs and expenses of all capital improvements
or repairs (whether structural or non-structural) required to maintain the Improvements in good
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order and repair or required by any Governmental (or quasi -governmental) Authority having
jurisdiction over the Premises and the Improvements.
(b) Permits and Licenses. Tenant will also procure, or cause to be procured any
and all necessary permits, licenses, or other authorizations required for the installation and
maintenance of wires, pipes, conduits, equipment, and appliances for use in supplying any such
service to and upon the Premises and the Improvements. Landlord, upon request of Tenant, and
at the sole expense and liability of Tenant, will join with Tenant in any application required for
obtaining or continuing any such services.
4.03 Insurance. Beginning on the Effective Date and continuing until the expiration or
earlier termination of the Term, Tenant shall maintain and keep in force insurance, as applicable,
naming Landlord as an additional insured in the type and for the amounts specified on Exhibit C
which types and amounts may be adjusted from time to time by Landlord in its reasonable
discretion. All public liability, property damage liability, and casualty policies maintained by
Tenant will be written as primary policies, not contributing with and not secondary to insurance
coverage that Landlord may carry. If Tenant fails to maintain such insurance, at its election, and
upon five (5) calendar days' notice to Tenant, Landlord may, but shall not be obligated to, procure
such insurance as may be necessary to comply with the insurance requirements of this Section
4.03, and Tenant shall repay to Landlord as Additional Rent the cost of such insurance. Tenant
shall furnish to Landlord certificates of insurance which shall state that a thirty (30) calendar day
notice of prior cancellation or change will be provided to Landlord.
4.04 Restoration.
(a) If the Improvements shall be damaged or destroyed in whole or in part,
Tenant shall give prompt notice thereof to Landlord. The net amount of all insurance proceeds
received by Tenant with respect to such damage or destruction, after deduction of the reasonable
costs and expenses incurred by Landlord in collecting the same (the "Net Proceeds"), shall, subject
to the terms of any Permitted Leasehold Mortgage, be disbursed by Landlord in accordance with
the terms and conditions set forth herein to pay for the costs and expenses of the Restoration
(defined below), provided that (i) no Event of Default (defined below) has occurred and remains
uncured under this Ground Lease, (ii) except as otherwise agreed to by Landlord and subject to
the terms of any Permitted Leasehold Mortgage, Tenant proceeds promptly after the insurance
claims are settled with the restoration, replacement, rebuilding or repair of the Improvements as
nearly as possible to the condition the Improvements were in immediately prior thereto (the
"Restoration"), (iii) the Restoration shall be done in compliance with all Applicable Laws, (iv) all
costs and expenses incurred by Landlord in connection with making the Net Proceeds available
for the Restoration, including, without limitation, reasonable counsel fees and inspecting engineer
fees incurred by Landlord, shall be paid out of the Net Proceeds, (v) Landlord, in its reasonable
discretion, shall have determined that the Restoration is in its best interest, provided that Landlord
hereby acknowledges and agrees that Restoration of the Project is in Landlord's best interest during
the initial fifteen (15) years of the tax credit compliance period pursuant to Section 42 of the Code,
and (vi) Tenant deposits sufficient additional funds which, when added to the Net Proceeds, will
pay for the costs and expenses of the Restoration. Tenant shall not be excused from repairing or
maintaining the Premises and/or Improvements as provided in this Section or restoring all damage
or destruction to the Premises and/or Improvements, regardless of whether or not there are
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insurance proceeds available to Tenant or whether any such proceeds are sufficient in amount, and
the application or release by Landlord of any insurance proceeds shall not cure or waive any default
or notice of default under this Ground Lease or invalidate any act done pursuant to such default or
notice of default.
(b) Net Proceeds Held in Trust. Subject to the terms of any Permitted
Leasehold Mortgage as to the holding and disbursement of the Net Proceeds, the Net Proceeds
shall be held in trust by Landlord and shall be paid by Landlord to, or as directed by, Tenant from
time to time during the course of the Restoration upon the written request of Tenant if the work
for which payment is requested has been done in a good and workmanlike manner and substantially
in accordance with the plans and specifications thereof, if any, and (i) either no mechanics' or other
liens or encumbrances on the Premises arising out of the Restoration exist or any such liens or
encumbrances have been stayed, discharged or bonded, and (ii) the balance of the Net Proceeds
plus the balance of any deficiency deposits given by Tenant to Landlord pursuant to the provisions
of this paragraph hereinafter set forth shall be sufficient to pay in full the balance of the cost of the
Restoration.
(c) Disbursement of Net Proceeds. Subject to the terms of any Permitted
Leasehold Mortgage, notwithstanding anything to the contrary contained herein, if the Net
Proceeds shall be less than $500,000.00, the Net Proceeds shall be disbursed directly to Tenant for
payment of costs of Restoration, and the Landlord shall not be entitled to hold or disburse such
Net Proceeds.
(d) Discretion of Landlord. Landlord shall not be entitled to share in the
proceeds of any insurance policy except as specifically set forth herein and Landlord further
acknowledges that any and all excess insurance proceeds after all disbursements for the
Restoration have been completed shall belong to Tenant.
ARTICLE V- USE OF PREMISES; COVENANTS RUNNING WITH THE LAND
5.01 Permitted Use. During the Lease Term, or such lesser period as may be permitted
by law, Tenant will continuously set aside sixty (60) units located on the Premises as new
affordable rental housing units in compliance with Section 42 of the Code and any requirements
of HUD and the FHFC, and Tenant shall continuously use and operate all units in a manner which
strictly satisfies the requirements of this Ground Lease.
5.02 Compliance with Laws. Tenant shall not use, occupy, suffer or permit any portion
of the Premises to be used or occupied in violation of any Applicable Law, certificate of
occupancy, or other governmental requirement. Tenant will comply with all Applicable Laws and
all rules, orders, regulations, and requirements of the board of fire underwriters or insurance
service office, or any other similar body, having jurisdiction over the Premises and Improvements.
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5.03 Special Provisions Relating to Compliance with Environmental Laws.
(a) Tenant's Environmental Covenants. Without limitation of any of Tenant's
other covenants, agreements and obligations under this Ground Lease, Tenant hereby specifically
covenants and agrees to fulfill the responsibilities set forth below with respect to environmental
matters:
(i) Tenant shall comply with all Environmental Laws applicable to
Tenant relative to the Premises and Improvements. Tenant shall identify, secure, and maintain all
required governmental permits and licenses as may be necessary for the Premises and
Improvements, or otherwise required by Tenant's activities. Tenant shall maintain such permits
and licenses in effect and shall renew them in a timely manner, and Tenant shall comply and use
reasonable efforts to cause all third parties to comply with the terms of such permits and licenses.
All Hazardous Substances present, handled, generated or used by Tenant on the Premises will be
managed, transported and disposed of in a lawful manner.
(ii) Tenant shall provide Landlord with copies of all forms and other
information concerning any releases, spills or other incidents relating to Hazardous Substances or
any violations of Environmental Laws promptly upon the discovery of such releases, spills, or
incidents.
(b) Landlord's Environmental Covenants. Without limitation of any of
Landlord's other covenants, agreements, and obligations under this Ground Lease, Landlord
hereby specifically covenants and agrees to provide Tenant with copies of all forms and other
information concerning any releases, spills, or other incidents relating to Hazardous Substances or
any violations of Environmental Laws with respect to the Premises of which Landlord has actual
knowledge.
5.04 Tenant's Environmental Indemnity. Tenant covenants and agrees to indemnify,
defend, and hold Landlord free and harmless from and against any and all losses, liabilities,
penalties, claims, fines, litigation, demands, costs, judgments, suits, proceedings, damages,
disbursements, or expenses (including reasonable attorneys' fees) which may at any time be
imposed upon, reasonably incurred by, or asserted or awarded against Landlord in connection with
or arising from:
(a) the existence of any Hazardous Substances which are first placed on, in, or
under all or any portion of the Premises during the Lease Term except to the extent so placed by
Landlord; or
(b) any violation of any Enviromnental Laws by Tenant at or relating to the
Premises which does not arise out of conditions existing prior to the Commencement Date. The
provisions of this Section 5.04 shall survive the expiration or early termination of this Ground
Lease.
5.05 Responsibility of Landlord. Landlord shall not be responsible under this Ground
Lease for any claims, losses, damages, liabilities, fines, penalties, charges, administrative and
judicial proceedings and orders, judgments, remedial action requirements, enforcement actions of
any kind, and all costs and expenses incurred in connection therewith, arising out of (i) any activity
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by Tenant or its agents or contractors carried on or undertaken on or off the Premises following
the Commencement Date in connection with the handling, treatment, removal, storage,
decontamination, cleanup, transport or disposal of any Hazardous Substances located or present
on or under the Premises (except to the extent of any activity carried on or undertaken solely by
or contracted for by Landlord or its agents and except to the extent that any Hazardous Materials
are located or present on or under the Premises prior to the Commencement Date); or (ii) the failure
of Tenant or its agents or contractors following the Commencement Date to comply with any
Environmental Laws relating to the handling, treatment, presence, removal, storage,
decontamination, cleanup, transportation or disposal of Hazardous Substances into, on, under or
from the Premises whether or not such failure to comply was known or knowable, discovered or
discoverable following the Commencement Date.
5.06 Restrictions Applicable to the Premises and the Improvements.
(a) The provisions of this Section 5.06 are intended to create a covenant running
with the land and shall be binding upon Landlord and Tenant and each of their respective
successors and assigns and all subsequent owners of the Premises and the Improvements,
including, without limitation, any entity which succeeds to Tenant's interest in the Premises and
the Improvements.
(b) Tenant shall not execute any agreement, lease, conveyance or other
instrument whereby the Premises and Improvements or any part thereof is restricted upon the basis
of race, color, creed, religion, ancestry, national origin, handicap, age, sex, or marital status in the
sale, lease, rental, use, or occupancy of the Premises and the Improvements.
(c) Tenant shall not discriminate in the use, sale, lease, or occupancy of the
Premises and the Improvements against any person upon the basis of race, color, creed, religion,
ancestry, national origin, handicap, age, sex, or marital status.
(d) Tenant shall comply with all State, Federal and local laws, rules, and
regulations in effect from time to time, prohibiting discrimination or segregation by reason of race,
color, creed, religion, ancestry, national origin, handicap, age, sex, or marital status in the sale,
lease, use, or occupancy of the Premises and the Irnprovernents.
5.07 Indemnification. Tenant shall indemnify, defend, save and hold Landlord and its
officers, officials, agents and employees (collectively with Landlord, the "Landlord Parties")
harmless from and against any and all claims, actions, damages, losses, liabilities, costs and
expenses (including court costs, attorneys' fees, and cost of claim processing, investigation and
litigation) arising out of or in connection with (a) any breach of this Ground Lease by Tenant,
(b) any violation, or alleged violation by Tenant, its affiliates, joint venture partners, agents or
employees of any of them or anyone for whose acts they may be liable (collectively with Tenant,
the "Tenant Parties") of state, federal, or local law, rule or regulation; (c) any bodily injury,
sickness, disease or death, or injury to or destruction of tangible property including the loss of use
resulting therefrom, arising out of or related to the occupancy and/or use of the Premises by any
one or more of the Tenant Parties. Such indemnity shall apply to any such claim, action, damage,
loss, liability, cost or expense caused in whole or in part by any act or omission (negligent or
otherwise) by any one or more of the Tenant Parties, regardless of whether or not it is caused in
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part by the Landlord Parties indemnified hereunder unless caused by the negligence or willful
misconduct of the Landlord Parties or a failure to act by the Landlord Parties when a duty to act is
present. It is the specific intention of the parties that the Landlord Parties shall, in all instances,
except for claims arising solely from the negligent or willful acts or omissions of the Landlord
Parties, be indemnified by Tenant from and against any and all claims described in this Section
5.07. It is agreed that Tenant will be responsible for primary loss investigation, defense and
judgment costs where this indemnification is applicable. In consideration for the use and
occupancy of the Premises, Tenant agrees to waive all rights of subrogation against the Landlord
Parties for losses arising from the use, occupancy or condition of the Premises.
5.08 Survival. This Article V shall survive the expiration or early termination of this
Ground Lease.
ARTICLE VI- CONVEYANCES, ASSIGNMENTS AND TRANSFERS
6.01 Consent. This Lease shall be binding upon and inure to the benefit of the successors
and assigns of Landlord and Tenant, except that other than as specifically set forth herein Tenant
may not assign or sublet its interest in this Ground Lease without the prior written consent of
Landlord, which Landlord my withhold in its sole discretion, and, if required under the terms of
any Permitted Leasehold Mortgage, any Permitted Leasehold Mortgagee. Any attempted transfer
without such consent shall be null and void.
6.02 Prohibited Transfers. Tenant agrees for itself and its successors and assigns in
interest hereunder that it will not, other than in accordance with the granting of liens under
Permitted Leasehold Mortgages: (1) assign this Ground Lease or any of its rights under this Ground
Lease as to all or any portion of the Premises, or (2) make or permit any voluntary or involuntary
total or partial sale, lease, assignment, conveyance, mortgage, pledge, encumbrance, or other
transfer of any or all of the Premises, or the occupancy or use thereof, other than in accordance
with this Ground Lease (including but not limited to (i) any sale at foreclosure (other than by a
Permitted Leasehold Mortgagee) or by the execution of any judgment of any or all of Tenant's
rights hereunder, (ii) assignment in lieu of foreclosure or (iii) any Transfer by operation of law),
without first obtaining Landlord's express written consent thereto; provided, however, that Tenant
may, upon reasonable prior notice to Landlord but without first obtaining Landlord's consent,
convey or dedicate land for use as streets, alleys, or other public rights -of -way, and make grants
and easements for the establishment, operation and maintenance of public utilities.
6.03 Additional Restrictions on Transfers. In addition to the transfers described in
Section 6.02, no transfer, conveyance, or assignment shall be made, without the prior written
approval of Landlord, of: (1) any interest of a managing member (any such interest being referred
to as a "Controlling Interest") of Tenant; or (2) a Controlling Interest in any entity that has a
Controlling Interest in Tenant (each of such transfers, conveyances and assignments, together with
the transfers described in Section 6.02, is hereafter referred to as a "Transfer"). Landlord agrees
that it will not unreasonably withhold, delay, or condition a request by Tenant for consent to an
internal reorganization of the corporate structure of Tenant or any of the members of Tenant.
Furthermore, the non -managing member of Tenant may remove any managing member of Tenant
without Landlord consent in accordance with the terms of Tenant's Operating Agreement.
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6.04 No Remedy for Unauthorized Transferee. Any person to whom any Transfer is
attempted without such consent shall have no claim, right, or remedy whatsoever hereunder against
Landlord, and Landlord shall have no duty to recognize any person claiming under or through the
same.
6.05 Permitted Transfers. Notwithstanding anything in this Ground Lease to the
contrary, by its execution of this Ground Lease, Landlord is deemed to have consented to any lease
of a new housing rental unit to a tenant.
6.06 Subsequent Assignment. Landlord's consent to one conveyance, assignment, or
transfer will not waive the requirement of its consent to any subsequent conveyance, assignment,
or transfer.
6.07 Request for Consent. If Tenant requests Landlord's consent to a specific
conveyance, assignment, or Transfer, Tenant shall provide to Landlord (a) the name and address
of the proposed person or entity; (b) a copy of all proposed conveyance, assignment, or transfer
instruments and other legal agreements involved in effecting a transfer; (c) satisfactory information
about the nature, business, and business history of the proposed person or entity; (d) banking,
financial, or other credit information, and references about the proposed person or entity sufficient
to enable Landlord to detennine the financial responsibility and qualifications of the proposed
person or entity; (e) an instrument in writing satisfactory to Landlord and in recordable form
wherein the proposed transferee expressly assumes all of the obligations of the transferor; and (f)
satisfactory evidence that the transferee will comply with such other conditions as Landlord may
determine are necessary to achieve and safeguard the purposes of this Ground Lease.
6.08 Documentation of Assignment. Upon the granting of any consent by Landlord with
respect to a conveyance, assignment, or transfer by Tenant, this Ground Lease shall be binding
upon and inure to the benefit of Landlord, the assignee, and their respective successors and
permitted assigns.
6.09 Permitted Leasehold Mortgages. Neither Tenant nor any permitted successor in
interest to the Premises or any part thereof shall, without the prior written consent of Landlord in
each instance, engage in any financing or any other transaction creating any mortgage or other
encumbrance or lien upon the Premises, whether by express agreement or operation of law, or
suffer any encumbrance or lien to be made on or attach to the Premises, except for leasehold
mortgages securing construction, interim or permanent financing and refinancing of Tenant's
leasehold interest in the Premises (the "Permitted Leasehold Mortgages"). With respect to the
Permitted Leasehold Mortgages, the following provisions shall apply:
(a) When giving notice to Tenant with respect to any Event of Default, the
Landlord will also send a copy of such notice to (i) each equity investor holding an interest in
Tenant, and their respective successors and/or assigns (each, an "Investor ") and (ii) the holder of
each Permitted Leasehold Mortgage (each a "Permitted Leasehold Mortgagee"), provided that
each such Investor or Permitted Leasehold Mortgagee shall have delivered to Landlord in writing
a notice naming. itself as an Investor or the holder of a Permitted Leasehold Mortgage and
registering the name and post office address to which all notices and other communications to it
may be addressed.
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(b) Each Permitted Leasehold Mortgagee and the Investor shall be permitted,
but not obligated, to cure any Event of Default under this Ground Lease within the same period of
time specified for Tenant to cure such default, or such longer time as is permitted in Section
6.09(d), below. No notice by Landlord to Tenant of an Event of Default under this Ground Lease
shall be effective unless Landlord has given written notice to each Investor and each Permitted
Leasehold Mortgagee whose notice information has been provided to Landlord. Tenant authorizes
the Investor and each Permitted Leasehold Mortgagee to take any such action at such parry's option
and does hereby authorize entry upon the Premises for such purpose. Additionally, Tenant may
delegate irrevocably to any Permitted Leasehold Mortgagee the authority to exercise any or all of
Tenant's rights hereunder, including, but not limited to the right of Permitted Leasehold Mortgagee
to participate (in conjunction with or to the exclusion of Tenant) in any proceeding, arbitration or
settlement involving condemnation or eminent domain affecting Tenant's leasehold interest in the
Premises, but no such delegation shall be binding upon Landlord unless and until either Tenant or
the Permitted Leasehold Mortgagee in question shall give to Landlord a true copy of a written
instrument effecting such delegation, in form required for recording. Any provision of this Ground
Lease that gives Permitted Leasehold Mortgagee the privilege of exercising a particular right of
Tenant hereunder on condition that Tenant shall have failed to exercise such right shall not be
deemed to diminish any privilege that Permitted Leasehold Mortgagee may have, by virtue of a
delegation of authority from Tenant, to exercise such right without regard to whether or not Tenant
shall have failed to exercise such right.
(c) Landlord agrees to accept payment or performance by any Permitted
Leasehold Mortgagee or the Investor as though the same had been done by Tenant.
(d) In the case of an Event of Default other than in the payment of money, and
provided that a Permitted Leasehold Mortgagee has commenced to cure the default and is
proceeding with due diligence to cure the default, Landlord will refrain from terminating this
Ground Lease for a reasonable period of time (not to exceed one hundred twenty (120) calendar
days from the date of the notice of default) within which time the Permitted Leasehold Mortgagee
may either (i) obtain possession of the Premises (including possession by receiver); (ii) institute
foreclosure proceedings and complete such foreclosure; or (iii) otherwise acquire Tenant's interest
under this Ground Lease. The Permitted Leasehold Mortgagee shall not be required to continue
such possession or continue such foreclosure proceedings if the default which was the subject of
the notice shall have been cured.
(e) Any Permitted Leasehold Mortgagee or other acquirer of Tenant's leasehold
estate and interest in this Ground Lease pursuant to foreclosure, an assignment in lieu of
foreclosure or other proceedings, any of which are permitted without Landlord's consent, may,
upon acquiring Tenant's leasehold estate and interest in this Ground Lease, without further consent
of Landlord, sell and assign the leasehold estate and interest in this Ground Lease on such terns
and to such persons and organizations as are acceptable to such Permitted Leasehold Mortgagee
or acquirer and thereafter be relieved of all obligations under this Ground Lease, provided such
assignee has delivered to Landlord its written agreement to be bound by all of the provisions of
this Ground Lease.
(f) In the event of a termination of this Ground Lease prior to its stated
expiration date, Landlord will enter into a new lease for the Premises with the Permitted Leasehold
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Mortgagee (or its nominee) ("Replacement Tenant"), for the remainder of the Lease Term,
effective as of the date of such termination (the "New Lease"), at the same Base Rent and
Additional Rent and subject to the same covenants and agreements, terms, provisions, and
limitations herein contained, provided that:
(i) Landlord receives the Permitted Leasehold Mortgagee's written
request for such New Lease within thirty (30) calendar days from the date of such termination and
notice thereof by Landlord to the Permitted Leasehold Mortgagee (including an itemization of
amounts then due and owing to Landlord under this Ground Lease), and such written request is
accompanied by payment to Landlord of all amounts then due and owing to Landlord under this
Ground Lease and, within ten (10) calendar days after the delivery of an accounting therefor by
Landlord, pays any and all costs and expenses, including reasonable counsel fees, court costs, and
disbursements made by Landlord in connection with any such default and termination as well as
in connection with the execution and delivery of the New Lease, less the net income collected by
Landlord from the Premises subsequent to the date of termination of this Ground Lease and prior
to the execution and delivery of the New Lease, any excess of such net income over the aforesaid
sums and expenses to be applied in payment of the Base Rent and Additional Rent thereafter
becoming due under the New Lease; and
(ii) Upon the execution and delivery of the New Lease at the time
payment is made in (i) above, all subleases which thereafter may have been assigned and
transferred to Landlord shall thereupon be assigned and transferred without recourse by Landlord
to Replacement Tenant.
(iii) Notwithstanding the foregoing, the New Lease shall be subject to
the liens of the Permitted Leasehold Mortgages which existed immediately prior to the termination
of this Ground Lease (other than that of Replacement Tenant) and, further, shall not impact the
rights, priorities and interests of the Permitted Leasehold Mortgagees set forth therein.
If at the time of termination of this Ground Lease prior to its stated expiration date there exists
more than one Permitted Leasehold Mortgagee, then references to the "Permitted Leasehold
Mortgagee" in this subsection (f) shall apply to the Permitted Leasehold Mortgagee then holding
the senior mortgage encumbering the Premises (the "Senior Mortgage").
(g) At no time shall Landlord's fee title in the Premises, or Landlord's interest
in the Ground Lease be subordinated in any manner to the interests of any Permitted Mortgagee
or any person claiming by or through Tenant. Landlord shall reasonably consider such
amendments to this Lease as may be reasonably requested by any Permitted Leasehold Mortgagee,
provided that such amendments do not increase, or in the sole opinion of the Landlord,
unreasonably alter the obligations of Landlord under this Lease.
6.10 Tenant's Investor. On or about the Commencement Date, the Tenant's equity
Investor (together with its successors and assigns) will be admitted as a member of the Tenant.
(a) Cure Rights. Notwithstanding anything to the contrary contained in this
Lease, Landlord shall not exercise any of its remedies hereunder without having given notice of
the Event of Default or other breach or default to the Investor (following the admission of the
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Investor) simultaneously with the giving of notice to Tenant. The Investor shall have the same
cure period after the giving of a notice as provided to Tenant, plus an additional period of thirty
(30) calendar days. If the Investor elects to cure the Event of Default or other breach or default,
Landlord agrees to accept such performance as though the same had been done or performed by
Tenant.
(b) Investor. Notwithstanding anything to the contrary contained in this Lease,
following the admission of the Investor, the Investor shall be deemed. a third -party beneficiary of
the provisions of this Section for the sole and exclusive purpose of entitling the Investor to exercise
its rights to notice and cure, as expressly stated herein. The foregoing right of the Investor to be a
third -party beneficiary under the Lease shall be the only right of Investor (express or implied) to
be a third -party beneficiary hereunder.
(c) New Manager. Notwithstanding anything to the contrary contained in this
Lease, Landlord agrees that it will take no action to effect a termination of the Lease by reason of
any Event of Default or any other breach or default without first giving to the Investor reasonable
time, not to exceed thirty (30) calendar days, to replace Tenant's manager and cause the new
manager to cure the Event of Default or other breach or default; provided, however, that as a
condition of such forbearance, Landlord must receive notice from the Investor of the substitution
of a new manager of Tenant within thirty (30) calendar days following Landlord's notice to Tenant
and the Investor of the Event of Default or other breach or default, and Tenant, following such
substitution or admission of the new manager, shall thereupon proceed with due diligence to cure
such Event of Default or other breach or default as soon as reasonably possible. In no event,
however, shall Landlord be required to engage in the forbearance described in this Section for a
period longer than three (3) months, regardless of the due diligence of the Investor or the new
manager.
(d) Tax Credit Compliance Period. For the 15-year tax credit compliance
period, the Landlord and the Tenant shall not agree between themselves to any material
amendment, modification or supplement to this Lease negatively impacting tax credit compliance
without the prior written consent of the Investor, which consent will not be unreasonably delayed,
conditioned or withheld.
6.11 Estoppel Certificates. Each party hereto shall, at any time and from time to time
within thirty (30) calendar days after being requested to do so by the other party and/or any
Permitted Leasehold Mortgagee in writing, execute, acknowledge, and address and deliver to the
requesting party not more than twice per calendar year (or, at the latter's request, to any existing
or prospective Permitted Leasehold Mortgagee, transferee or other assignee of the requesting
party's interest in the Premises or under this Ground Lease which acquires such interest in
accordance with this Ground Lease) a certificate in recordable form:
(a) Certifying (i) that this Ground Lease is unmodified and in full force and
effect (or, if there has been any modification thereof, that it is in full force and effect as so modified,
stating therein the nature of such modification); (ii) that Tenant has accepted possession of the
Premises, and the date on which the Lease Term commenced; (iii) confirmation that Base Rent or
Additional Rent, including prepaid payments, and other charges arising hereunder have been paid;
(iv) any credit due to Tenant hereunder; (v) as to whether, to the best of such party's knowledge,
15
information and belief, the requesting party is then in default in performing any of its obligations
hereunder (and, if so, specifying the nature of each such default); and (vi) as to any other fact or
condition reasonably requested by the requesting party; and
(b) Acknowledging and agreeing that any statement contained in such
certificate may be relied upon by the requesting party and any such other addressee.
6.12 Pennitted Corporate Transfers. Notwithstanding anything to the contrary set forth
elsewhere in this Ground Lease, Tenant may, subject to receipt of Landlord's prior written consent
(which consent shall not be unreasonably withheld, conditioned or delayed) and compliance with
any applicable restrictions, assign all or part of this Ground Lease, or sublease all or a part of the
Premises, to:
(a) any entity which has the power to direct Tenant's management and
operation, or any corporation whose management is controlled by Tenant; or
(b) any entity a majority of whose voting equity is owned by Tenant; or
(c) any entity in which or with which Tenant, its successors or assigns, is
merged or consolidated, in accordance with applicable statutory provisions for merger or
consolidation, so long as the liabilities of the entities participating in such merger or consolidation
are assumed by the entity surviving such merger or created by such consolidation.
ARTICLE VII- MAINTENANCE AND REPAIR
7.01 Tenant's Obligations. Tenant will, at its sole cost and expense, maintain the
Premises and the Improvements and make repairs, restorations, and replacements to the
Improvements, including without limitation the landscaping; heating, ventilating, air conditioning,
mechanical, electrical, elevator, and plumbing systems and other systems for the furnishing of
utilities or services to the Premises, structural roof, walls, and foundations; and the fixtures and
appurtenances as and when needed to preserve them in good working order and condition, and
regardless of whether the repairs, restorations, and replacements are ordinary or extraordinary,
foreseeable or unforeseeable, capital or non -capital, or the fault or not the fault of Tenant, its
agents, employees, invitees, visitors, and contractors. All such repairs, restorations, and
replacements will be in quality and class equal to or better than the original work or installations.
7.02 No Obligation of Landlord. Landlord shall not be required to perfonn or to pay for
any maintenance, or make or pay for any repairs, replacements or improvements of any kind
whatsoever to the Premises or the Improvements or any part thereof during the Lease Term,
regardless of the cause necessitating any such maintenance, repairs, replacements, or
improvements, in recognition that this Ground Lease shall be net in all respects to Landlord.
Tenant expressly waives the right to make repairs at the expense of Landlord as may be provided
in any statute, law, or ordinance in effect as of the Effective Date.
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ARTICLE VIII- LIENS
8.01 No Liens. Nothing contained in this Lease shall be construed as consent by the
City to subject the estate of the City to liability under the Construction Lien Law of the State of
Florida, it being expressly understood that City's estate shall not be subject to such liability. Tenant
shall not have any right, authority, or power to bind Landlord, the Premises or any other interest
of Landlord in the Premises and will pay or cause to be paid all costs and charges for work done
by it or caused to be done by it, in or to the Premises, for any claim for labor or material or for any
other charge or expense, lien or security interest incurred in connection with the development,
construction or operation of the hnprovements or any change, alteration or addition thereto.
Tenant shall not permit to remain any encumbrances of the Improvements, except the Permitted
Leasehold Mortgages. Further, Tenant agrees to indemnify, defend and save City harmless from
and against any damage or loss incurred by City as a result of any such construction lien. Tenant
shall comply with all laws which provide for the waiver of liens which may arise under any
contract for labor or materials for the Improvements and Tenant shall comply with the
requirements of Chapter 713, Florida Statutes, regarding the filing of a Notice of Commencement
prior to the commencement of any work at the Premises to construct the Improvements or
otherwise improve the Premises. Landlord agrees to execute, or join in the execution of, any such
Notice of Commencement and any amendment or termination thereof. Tenant will comply in all
respects with the requirements of Chapter 713, Florida Statutes regarding proper payments to and
obtaining partial and final releases from all contractors, subcontractors, material suppliers and
other parties who have given notices to owner or may be otherwise entitled to file liens against the
Premises. NOTICE IS HEREBY GIVEN THAT LANDLORD SHALL NOT BE LIABLE FOR
ANY LABOR, SERVICES, OR MATERIALS FURNISHED OR TO BE FURNISHED TO
TENANT OR TO ANYONE HOLDING ANY OF THE PREMISES THROUGH OR UNDER
TENANT, AND THAT NO MECHANICS' OR OTHER LIENS FOR ANY SUCH LABOR,
SERVICES, OR MATERIALS SHALL ATTACH TO OR AFFECT THE INTEREST OF
LANDLORD IN AND TO ANY OF THE PREMISES. PURSUANT TO FLORIDA STATUTES
SECTION 713.10(2) (a), TENANT HEREBY ACKNOWLEDGES RECEIPT OF NOTICE
THAT THE INTEREST OF LANDLORD IN THE PREMISES SHALL NOT BE SUBJECT TO
LIENS FOR IMPROVEMENTS MADE BY TENANT. TENANT FURTHER
ACKNOWLEDGES AND AGREES THAT THE PROVISIONS OF FLORIDA STATUTES
SECTION 713.10(2)(a) STATE THAT TENANT SHALL NOTIFY ANY CONTRACTOR
MAKING ANY SUCH IMPROVEMENTS, AND THAT THE KNOWING OR WILLFUL
FAILURE OF TENANT TO PROVIDE SUCH NOTICE TO ITS CONTRACTOR SHALL
RENDER THE CONTRACT BETWEEN TENANT AND ITS CONTRACTOR VOIDABLE AT
THE OPTION OF THE CONTRACTOR. LANDLORD SHALL BE PERMITTED TO POST
ANY NOTICES ON THE PREMISES REGARDING SUCH NON -LIABILITY OF
LANDLORD.
ARTICLE IX— SURRENDER
9.01 Expiration of Lease Tern. Upon the expiration of the Lease Term or sooner
termination of this Ground Lease, Tenant will surrender the Premises and the Improvements in the
condition set forth in Section 8.01. Tenant may not remove from the Premises any fixtures,
equipment, or furniture without the approval of Landlord except in the ordinary course of business
and for replacements or repair. Tenant expressly waives to Landlord the benefit of any law now
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in force or hereafter adopted requiring notice to vacate the Premises at the end of the Lease Term,
and Tenant covenants and agrees to give up quiet and peaceful possession and to surrender the
Premises together with all the Improvements thereon and appurtenances upon expiration of the
Lease Term or earlier termination of this Ground Lease without further notice from Landlord.
Tenant acknowledges and agrees that upon the expiration of the Lease Term or sooner termination
of this Ground Lease any and all rights and interests it may have either at law or in equity to the
Premises and Improvements shall immediately cease.
ARTICLE X- CASUALTY; CONDEMNATION
10.01 Damage or Destruction. Tenant shall give prompt written notice to Landlord after
the occurrence of any fire, earthquake, act of God, or other casualty to or in connection with the
Premises or the Improvements or any portion thereof (each a "Casualty"). Except as otherwise
agreed to by Landlord and subject to the provisions of the Permitted Leasehold Mortgages, if
during the Lease Term, the Premises or the Improvements shall be damaged or destroyed by
Casualty, and Landlord and all Permitted Leasehold Mortgagees shall have consented to release
the Net Proceeds to Tenant (if consent of a Permitted Leasehold Mortgagee is required under its
Permitted Leasehold Mortgage), Tenant shall repair or restore the Premises or the Improvements
as nearly as possible to the condition the Premises or the Improvements were in immediately prior
thereto. Notwithstanding the foregoing, Landlord consent shall not be required for the release of
the Net Proceeds to Tenant provided the requirements for Restoration as set forth in Section 4.04
are satisfied. Upon the occurrence of any such Casualty, Tenant, promptly and with all due
diligence, shall apply for and collect all applicable insurance proceeds recoverable with respect to
such Casualty. After payment of the Net Proceeds for the repair or restoration of the Premises and
the Improvements, any excess sums remaining shall be paid to or retained by Tenant.
10.02 Condemnation.
(a) Taking. If, by exercise of the right of eminent domain or by conveyance
made in response to the threat of the exercise of such right (in either case a "Taking"), all of the
Premises are taken, or if so much of the Premises are taken that Tenant believes the Premises
cannot be used by Tenant for the purposes for which they were used immediately before the
Taking, then this Ground Lease shall terminate on the earlier of the vesting of title to the Premises
in the condemning authority, or the taking of possession of the Premises by the condemning
authority.
(b) Condemnation Award. Subject to the terms of the Permitted Leasehold
Mortgages, Landlord and Tenant agree that, in the event of a Taking that does not result in the
termination of this Ground Lease pursuant to subsection (a) above, this Ground Lease shall
continue in effect as to the remainder of the Premises, and the net amounts owed or paid to
Landlord or pursuant to any agreement with any condemning authority which has been made in
settlement of any proceeding relating to a Taking, less any costs and expenses incurred by Landlord
in collecting such award or payment (the "Net Condemnation Award") will be disbursed in
accordance with subsection (d) below to Landlord and/or Tenant. Tenant shall have the right to
participate in negotiations of and to approve any such settlement with a condemning authority
(which approval shall not be unreasonably withheld).
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(c) Temporary Taking. If there shall be a temporary Taking with respect to all
or any part of the Premises or of Tenant's interest in this Ground Lease, then the Lease Term shall
not be reduced and Tenant shall continue to pay in full all rents, impositions and other charges
required herein, without reduction or abatement thereof at the times herein specified.
(d) Subject to the terms of the Permitted Leasehold Mortgages, if there is a
complete or partial Taking which affects only the use of the Premises during the Lease Term,
Tenant shall be entitled to receive and retain the Net Condemnation Award. Subject to the terms
of the Permitted Leasehold Mortgages, if there is a complete or partial Taking which affects the
use of the Premises after the Lease Term, the Net Condemnation Award shall be apportioned
between Tenant and Landlord based on the ratio of the remaining term hereof and the remaining
expected useful life of the Premises following the expiration of the Lease Tenn.
(e) Subject to the terms of the Permitted Leasehold Mortgages, notwithstanding
any provision herein to the contrary, Landlord shall be entitled to receive and retain any portion of
the Net Condemnation Award apportioned to the land upon which the Improvements are located.
ARTICLE XI- QUIET ENJOYMENT
11.01 Quiet Enjoyment. So long as there is no ongoing Event of Default (beyond any
applicable notice and/or cure period), Tenant's possession of the Premises will not be disturbed by
Landlord, its successors and assigns.
11.02 Landlord's Right of Inspection. Notwithstanding Section 11.01 above, Landlord,
in person or through its agents, upon reasonable prior notice to Tenant, shall have the right to enter
upon the Premises for purposes of reasonable inspections performed during reasonable business
hours in order to assure compliance by Tenant with its obligations under this Ground Lease.
ARTICLE XII- DEFAULT; REMEDIES
12.01 Landlord's Right to Perform.
(a) Landlord's Option. If Tenant fails to pay when due amounts payable under
this Ground Lease or to perform any of its other obligations under this Ground Lease within the
time permitted for its performance, then Landlord, after ten (10) calendar days' prior written notice
to Tenant without waiving any of its rights under this Ground Lease, may (but will not be required
to) pay such amount or perform such obligation. All amounts so paid by Landlord and all costs
and expenses incurred by Landlord in connection with the performance of any such obligations
will be payable by Tenant to Landlord on demand and shall constitute Additional Rent (as defined
in Section 12.01(b)).
(b) Additional Rent. Any and all payments that Tenant is required to make
hereunder to or for the benefit of Landlord including expenditures to operate, repair and maintain
the Premises and the Improvements shall be deemed to be "Additional Rent". All such
Additional Rent shall be payable in accordance with the provisions of the Sections of this Ground
Lease specifying the payment of such Additional Rent and shall be subject to the notice and cure
rights provided in Section 12.02(a). The Base Rent and the Additional Rent payable hereunder
shall be deemed "Rents" reserved by Landlord, and any remedies now or hereafter given to
19
Landlord under the laws of the State of Florida for collection of the Rents shall exist in favor of
Landlord, in addition to any and all other remedies specified in this Ground Lease.
12.02 Events of Default. The occurrence of any of the following events shall constitute
an "Event of Default" by Tenant:
(a) Tenant defaults in the due and punctual payment of Base Rent and/or
Additional Rent, and such default continues for thirty (30) calendar days after written notice from
Landlord;
(b) Tenant vacates or abandons the Premises (except by reason of Casualty or
Taking, as more particularly set forth in Article 10 above) or any substantial part thereof for a
period of more than thirty (30) consecutive days;
(c) This Ground Lease, the Premises or the Improvements or any part thereof
are taken upon execution or by other process of law directed against Tenant, or are taken upon or
subjected to any attachment by any creditor of Tenant or claimant against Tenant, and such
attachment is not discharged or stayed within ninety (90) calendar days after its levy. Tenant shall
notify Landlord in writing of its action to either satisfy or contest the levy and, if contested, of the
matter's status on a monthly basis until concluded. If Tenant shall fail to cause such levy to be
discharged within the period aforesaid, then, in addition to any other right or remedy, Landlord
may, but shall not be obligated to, discharge the same either by paying the amount claimed to be
due or by procuring the discharge of such lien by deposit or by bonding. Any amount so paid by
Landlord and the costs and expenses incurred by Landlord in connection therewith, shall be
payable by Tenant and shall be paid by Tenant to Landlord on demand as Additional Rent
hereunder;
(d) Tenant makes any sale, conveyance, assignment or transfer in violation of
this Ground Lease;
(e) Tenant violates, breaches or fails to comply with any of the other material
agreements, terms, covenants, or conditions which this Ground Lease requires Tenant to perform
(and where such failure to comply is not otherwise specifically addressed in this Section 12.02),
and such violation, breach or failure continues for a period of thirty (30) calendar days after notice
by Landlord to Tenant; provided that if the nature of the breach is such that it cannot be cured by
Tenant within the period of thirty (30) calendar days, Tenant shall not be deemed in default of this
Ground Lease if Tenant commences the curing of such default within such period of thirty (30)
calendar days and prosecutes in good faith the curing of same continuously thereafter until the
same is, in fact, cured, but in no event shall the cure period be extended later than one hundred
twenty (120) calendar days after the notice from Landlord to Tenant;
(f) Tenant shall file a voluntary petition in bankruptcy or a voluntary petition
seeking reorganization or to effect a plan or an arrangement with or for the benefit of Tenant's
creditors;
(g) Tenant shall apply for or consent to the appointment of a receiver, trustee,
or conservator for any portion of Tenant's property or such appointment shall be made without
Tenant's consent and shall not be removed within ninety (90) calendar days; or
20
12.03 Remedy.
(a) If any one or more Events of Default set forth in Section 12.02 occurs, then
Landlord may terminate this Ground Lease by written notice to Tenant of its intention to terminate
this Ground Lease on the date of such notice or on any later date specified in such notice, and, on
the date specified in such notice, Tenant's right to possession of the Premises and the
Improvements will cease and the estate conveyed by this Ground Lease shall revest in Landlord;
provided that such revesting of the estate and the reentry by Landlord shall be subject to and limited
by, and shall not defeat, render invalid or limit in any way the lien of any Permitted Leasehold
Mortgage.
(b) So long as the Investor, and any of its successors or assigns, remains the
investor member of the Tenant or any Permitted Leasehold Mortgage remains outstanding,
Landlord shall not be permitted to exercise any right or remedy against Tenant, where the
circumstance giving rise to each right or remedy resulted from an act or omission of Landlord or
where the same would cause a default under any of the loan documents to which Tenant or the
Premises is subject or the Tenant's Operating Agreement without the prior written consent of
Investor and the holder of any Permitted Leasehold Mortgage.
ARTICLE XIII
UTILITIES; REPAIR AND RELOCATION OF UTILITIES
13.01 Tenant agrees that any and all utility accounts with respect to the Premises shall be
in the name of Tenant. From and after the Commencement Date, under no circumstance
whatsoever, shall City be responsible for any utilities on the Premises, including, but not limited
to, the installation, maintenance, initial cost or fee or any on -going charges or fees. Tenant agrees
to pay any and all such utilities relating to the Premises in a timely manner, so as to avoid any
encumbrance on the Premises. Tenant, at its sole cost and expense and with the prior written
approval of the appropriate utility, agrees to maintain and repair, replace and relocate as necessary,
utility facilities within the Premises required for the operation of the Premises and all existing and
future Improvements, subject to the following conditions:
(a) Such activity does not materially or adversely interfere with City's
operations on any property outside the boundaries of the Premises; and
(b) Tenant complies with the provisions of all permits which have been issued
and are affected by such repair and relocation.
13.02 Tenant agrees to grant to City and any public utility company, pursuant to separate
instruments, non-exclusive perpetual easements for the installation, operation, maintenance,
repair, replacement, relocation, and removal of utility lines and facilities (together with access
incidental to such activities) such as water lines, fire lines, gas mains, electrical power lines,
telephone lines, cable and internet services, storm and sanitary sewers and other utility lines and
facilities (collectively, "Utility Facilities"), and such other easements as City or such public utility
companies may reasonably require from time to time, and shall provide notice to City, as described
in this Lease, prior to making such grants. All such easements shall be over, under and across: (i)
those portions of the Premises shown on the approved plans and specifications for the Project; or
21
(ii) such other locations on the Premises as may be requested by City or such public utility
companies from time to time, so long as such locations are reasonably acceptable to Tenant,
considering, among other things, whether such locations cause unreasonable interference with the
construction, use and operation of the Project or undue expense to Tenant. The instruments
granting such easements shall provide, among other things, that the grantee(s) shall not exercise
their rights in such a manner as would cause unreasonable interference with the construction, use
and operation of the Project.
ARTICLE XIV
SIGNAGE
Tenant shall have the exclusive right to construct, operate, and display onsite and offsite
premise signage on the interior, exterior or other portions of the Premises as Tenant deems
necessary and desirable so long as such signage complies with Applicable Laws and is approved
by the City in advance, which approval will not be unreasonably withheld, conditioned or delayed.
ARTICLE XV
MISCELLANEOUS
15.01 No Brokers. Neither Landlord nor Tenant has dealt with any broker or finder with
regard to the Premises or this Ground Lease. Tenant will indemnify, defend, and hold Landlord
harmless from and against any loss, liability and expense (including reasonable attorneys' fees and
court costs) arising out of claims for fees or commissions in connection with this Ground Lease.
15.02 Access. Tenant agrees to grant a right of access to Landlord, HUD, the Comptroller
General of the United States, or any of their duly authorized representatives, with respect to any
books, documents, papers, or other records related to this Ground Lease in order to make audits,
examinations, excerpts, and transcripts.
15.03 Recordation. Tenant shall record a Memorandum of this Ground Lease in the
appropriate office of public record of Miami -Dade County, Florida. Said Memorandum of Ground
Lease shall be approved by the Landlord prior to recordation. At the expiration of the Lease Term
or earlier termination of this Ground Lease, Tenant shall execute a quit claim or other document
reasonably requested by Landlord to confirm the termination of its interest in this Ground Lease.
If Tenant refuses to do so within ten (10) calendar days after receipt of a request from Landlord,
Landlord may unilaterally record a notice of termination of this Ground Lease.
15.04 Time of Essence. Time is of the essence of each and every provision of this Ground
Lease.
15.05 No Waiver. No waiver of any condition or agreement in this Ground Lease by
either Landlord or Tenant will imply or constitute a further waiver by such party of the same or
any other condition or agreement. No act or thing done by Landlord or Landlord's agents during
the Lease Term will be deemed an acceptance of a surrender of the Premises, and no agreement to
accept such surrender will be valid unless in writing signed by Landlord. No payment by Tenant,
nor receipt from Landlord, of a lesser amount than the Rent or other charges stipulated in this
Ground Lease will be deemed to be anything other than a payment on account of the earliest
stipulated Rent. No endorsement or statement on any check, or any letter accompanying any check
22
or payment as Rent, will be deemed an accord and satisfaction. Landlord will accept such check
for payment without prejudice to Landlord's right to recover the balance of such Rent or to pursue
any other remedy available to Landlord. If this Ground Lease is assigned, or if the Premises or
any part of the Premises are sublet or occupied by anyone other than Tenant, Landlord may collect
rent from the assignee, subtenant, or occupant and apply the net amount collected to the Rent
reserved in this Ground Lease. No such collection will be deemed a waiver of the covenant in this
Ground Lease against assignment and subletting, or the acceptance of the assignee, subtenant, or
occupant as Tenant, or a release of Tenant from the complete performance by Tenant of its
covenants in this Ground Lease.
15.06 Joint and Several Liability. If Tenant is composed of more than one signatory to
this Ground Lease, each signatory will be jointly and severally liable with each other signatory for
payment and performance according to this Ground Lease.
15.07 Captions, Exhibits, Gender, Etc. The captions inserted in this Ground Lease are
only for convenience of reference and do not define, limit, or describe the scope or intent of any
provisions of this Ground Lease. The Exhibits to this Ground Lease are incorporated into the
Ground Lease. Unless the context clearly requires otherwise, the singular includes the plural, and
vice versa, and the masculine, feminine, and neuter adjectives include one another.
15.08 Entire Agreement. This Ground Lease and Exhibits hereto contain the entire
agreement between Landlord and Tenant with respect to its subject matter and may be amended
only by subsequent written agreement between them. Except for those that are specifically set
forth in this Ground Lease, Landlord or Tenant has made no representations, warranties, or
agreements to one another with respect to this Ground Lease.
15.09 Amendment. This Ground Lease may be amended only by a written document
signed by Landlord and Tenant, with the written consent of the managing member of Tenant and
each Permitted Leasehold Mortgagee. No amendment shall impair the obligations of Tenant to
develop and operate the project in accordance all applicable requirements.
15.10 Severability. If any provision of this Ground Lease is found by a court of competent
jurisdiction to be illegal, invalid, or unenforceable, the remainder of this Ground Lease will not be
affected, and in lieu of each provision which is found to be illegal, invalid, or unenforceable, there
will be added as a part of this Ground Lease a provision as similar to such illegal, invalid, or
unenforceable provision as may be possible and be legal, valid, and enforceable.
15.11 Notices. Any notice, request, demand, consent, approval, or other communication
required or permitted under this Ground Lease shall be in writing and shall be given by either (a)
hand -delivery, (b) first class, certified or registered mail return receipt requested (postage prepaid),
(c) reliable overnight commercial courier, or (d) electronic mail, telecopy or other means of
electronic transmission, if confirmed promptly by any of the methods specified in clauses (a), (b)
and (c) of this sentence to the other party at its address set forth below. Notice by telecopy or other
means of electronic transmission shall be deemed to have been given and received when sent.
Notice by overnight courier service shall be deemed to have been given and received upon
delivery. A party may change its address by giving written notice to the other parties as specified
herein.
23
If to Landlord:
City of Miami
Department of Housing and Community
Development
14 NE 1st Avenue, 2nd Floor
Miami, Florida 33132
Attn: Victor Turner, Director
Phone: (305) 416-1999
With a copy to:
Office of the City Attorney
444 S.W. 2nd Avenue, 9th Floor
Miami, Florida 33130
Attn: George K. Wysong III
E-mail: law@miamigov.com
Phone: (305) 416-1800
If to Tenant:
5215 Flagler Street, LLC
2850 Tigertail Avenue, Suite 800
Miami, Florida 33133
Attn: Albert Milo, Jr.
E-mail: amilo@relatedgroup.com
With a copy to:
Stearns Weaver Miller Weissler Alhadeff &
Sitterson, P.A.
150 West Flagler Street, Suite 2200
Miami, FL 33130
Attn: Brian J. McDonough, Esq.
E-mail: BMcDonough@stearnsweaver.com
Phone: (305) 789-3350
15.12 Attorneys' Fees. If Landlord and Tenant litigate any provision of this Ground Lease
or the subject matter of this Ground Lease, the parties will pay their respective attorneys' fees
and court costs incurred by it in connection with such litigation. Payment of any litigation cost or
expense is subject to HUD's approval if such approval is required by HUD. Settlement of any
such litigation is subject to HUD's approval if such approval is required by HUD.
15.13 Waiver of Jury Trial. Landlord and Tenant may waive trial by jury in any action,
proceeding, or counterclaim brought by either of them against the other on all matters arising out
of this Ground Lease or the use and occupancy of the Premises.
15.14 Governing Law. This Ground Lease shall be governed by the law and construed in
accordance with the laws of the State of Florida, without regard to principles of conflict of laws
and with respect to any dispute hereunder, jurisdiction and venue shall lie exclusively with the
courts of Miami -Dade County, Florida.
15.15 Anti -Human Trafficking. The Tenant confirms and certifies that it is not in violation
of Section 787.06, Florida Statutes, and that it does not and shall not use "coercion" for labor or
services as defined in Section 787.06, Florida Statutes. The Tenant shall execute and submit to the
City an Affidavit, of even date herewith, in compliance with Section 787.06(13), Florida Statutes,
attached an incorporated herein as Exhibit "D".
15.16 Binding Effect. This Ground Lease will inure to the benefit of, and will be binding
upon, Landlord's successors and assigns except as otherwise provided in this Ground Lease. This
Ground Lease will inure to the benefit of, and will be binding upon, Tenant's successors and
assigns so long as the succession or assignment is permitted pursuant to the terms of this Ground
Lease.
24
15.17 Effect of Exhibits. Each and every exhibit referred to or otherwise mentioned in
this Ground Lease is attached to this Ground Lease is and shall be construed to be made a part of
this Ground Lease by such reference or other mention at each point at which such reference or
other mention occurs, in the same manner and with the same effect as if each exhibit were set forth
in full at length every time it is referred to and otherwise mentioned.
15.18 Cumulative Rights. Except as expressly limited by the terns of this Ground Lease,
all rights, powers, and privileges conferred hereunder shall be cumulative and not restrictive of
those provided at law or in equity.
15.19 Relationship of Parties, Limited Third Party Beneficiary. The parties hereto
expressly declare that, in connection with the activities and operations contemplated by this
Ground Lease, they are neither partners nor joint venturers, nor does a principal -agent relationship
exist between them. Notwithstanding anything to the contrary set forth elsewhere in this Ground
Lease, the managing member of Tenant and the Permitted Leasehold Mortgagees shall be deemed
a third -party beneficiary with respect to all notice, cure, default, modification, amendment,
casualty, and condemnation provisions herein to the extent such provisions expressly apply to such
parties.
15.20 Non -Merger. Except upon expiration of the Lease Tern or upon termination of
this Ground Lease pursuant to an express right of termination set forth herein, there shall be no
merger of either this Ground Lease or Tenant's estate created hereunder with the fee estate of the
Premises or any part thereof by reason of the fact that the same person may acquire, own or hold,
directly or indirectly, (a) this Ground Lease, Tenant's estate created hereunder or any interest in
this Ground Lease or Tenant's estate (including the Improvements), and (b) the fee estate in the
Premises or any part thereof or any interest in such fee estate (including the Improvements), unless
and until all persons, including any assignee of Landlord, having an interest in (i) this Ground
Lease or Tenant's estate created hereunder, and (ii) the fee estate in the Premises or any part
thereof, shall join in a written instrument effecting such merger and shall duly record the same.
15.21 Counterparts. This Agreement may be executed in counterparts and all such
counterparts shall be deemed to be originals and together shall constitute but one and the same
instrument.
[SIGNATURE PAGE FOLLOWS]
25
SIGNATURE PAGE
TO GROUND LEASE
(Flagler Villas)
IN WITNESS WHEREOF, the parties have executed this Ground Lease as of the Effective
Date.
ATTEST:
By:
Todd B. �]
Date:
APPROVED AS
REQUIREME
By:
-Marie
irector of
EAND
ha e
isk Management
APPOVED AS TO DEPARTMENTAL
REQ IREMENTS:
By:
Victor Turner
Director of the Department of Housing
and Community Development
LANDLORD:
CITY OF MIAMI,
corporation
By:
Arthur Norie
orida municipal
V, City Manager
APPROVED AS TO FORM CORRECTNESS:
By
Georg K. Wysong I
hitye-
City Attorney
XEA
ot3—W0k,
TENANT:
5215 FLAGLER STREET, LLC, a Florida
limited liability company
By: 5215 Flagler Street Manager, LLC, a
Florida limited liability, its manager
By:
Tony Del Pozzo; Vice President
26
EXHIBIT A
LEGAL DESCRIPTION OF PREMISES
LOTS 15, 16, 17, 18, 19, 20, 21 AND 22 OF COLSKY'S RE -SUBDIVISION, ACCORDING TO
THE PLAT THEREOF, AS RECORDED IN PLAT BOOK 13, AT PAGE 16, OF THE PUBLIC
RECORDS OF DADE COUNTY, FLORIDA.
EXHIBIT "A"
EXHIBIT B
IMPROVEMENTS
The Project will consist of one, six -story mid -rise building with approximately sixty (60)
one bedroom units and thirty (30) surface parking space. The ground floor will include resident
amenities.
EXHIBIT `B"
EXHIBIT C
INSURANCE REQUIREMENTS
Exhibit C-1: INSURANCE REQUIREMENTS CONSTRUCTION PHASE FLAGLER
VILLAS
I. Commercial General Liability
A. Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence $1,000,000
General Aggregate Limit $ 2,000,000
Products/Completed Operations $ 1,000,000
Personal and Advertising Injury $1,000,000
B. Endorsements Required
City of Miami listed as an Additional Insured
Contingent and Contractual Liability
Explosion, Collapse and Underground Hazard
Primary Insurance Clause Endorsement
Extended Completed Operations Endorsement proving 3 years
coverage extension following project completion, including City as
additional insured
Including Crane and Rigging Liability, as applicable
II. Business Automobile Liability
A. Limits of Liability
Bodily Injury and Property Damage Liability
Combined Single Limit
Any Auto
Including Hired, Borrowed or Non -Owned Autos
Any One Accident $ 1,000,000
B. Endorsements Required
City of Miami included as an additional insured
EXHIBIT "C"
III. Worker's Compensation
Limits of Liability
Statutory -State of Florida
Waiver of subrogation
Employer's Liability
A. Limits of Liability
$1,000,000 for bodily injury caused by an accident, each accident.
$1,000,000 for bodily injury caused by disease, each employee
$1,000,000 for bodily injury caused by disease, policy limit
IV. Umbrella Policy
A. Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence $ 5,000,000
Aggregate $ 5,000,000
City of Miami listed as an additional Insured. Coverage is excess follow form
over all liability polices contained herein.
VI. Payment and Performance Bond $TBD
City of Miami listed as Obligee
VII. Builders' Risk
Causes of Loss: All Risk -Specific Coverage Project Location
Valuation: Replacement Cost
Deductible: $250,000 All other Perils
$1,000,000 Water Damage
5% maximum on Wind/Hail, Earth Movement and Flood
City of Miami listed as loss payee
A. Coverage Extensions: As provided by carrier
EXHIBIT "C"
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.
EXHIBIT "C"
Exhibit C-2: INSURANCE REQUIREMENTS TENANT FLAGLER VILLAS
I. Commercial General Liability
A. Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence $1,000,000
General Aggregate Limit $ 2,000,000
Products/Completed Operations $ 1,000,000
Personal and Advertising Injury $1,000,000
B. Endorsements Required
City of Miami listed as an additional insured
Contingent and Contractual Liability
Premises and Operations Liability
Primary Insurance Clause Endorsement
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 $ 300,000
B. Endorsements Required
City of Miami included as an Additional Insured
III. Worker's Compensation
Limits of Liability
Statutory -State of Florida
Waiver of subrogation
Employer's Liability
A. Limits of Liability
EXHIBIT "C"
$100,000 for bodily injury caused by an accident, each accident.
$100,000 for bodily injury caused by disease, each employee
$500,000 for bodily injury caused by disease, policy limit
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.
EXHIBIT "C"
Exhibit C-3: INSURANCE REQUIREMENTS OPERATIONS PHASE FLAGLER
VILLAS
I. Commercial General Liability
A. Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence $1,000,000
General Aggregate Limit $ 2,000,000
Products/Completed Operations $ 1,000,000
Personal and Advertising Injury $1,000,000
B. Endorsements Required
City of Miami listed as additional insured
Contingent and Contractual Liability
Premises and Operations Liability
Primary Insurance Clause Endorsement
Hired and Non Owned Auto Endorsement
II. Worker's Compensation
Limits of Liability
Statutory -State of Florida
Waiver of subrogation
Employer's Liability
A. Limits of Liability
$1,000,000 for bodily injury caused by an accident, each accident.
$1,000,000 for bodily injury caused by disease, each employee
$1,000,000 for bodily injury caused by disease, policy limit
ARTICLE XVI
III. PROPERTY
Commercial Property Insurance covering the Building and Business Personal Property owned by
Flagler Villas. Commercial property insurance shall, at a minimum, cover the perils insured under
the ISO Special Causes of Loss Special Form (CP 10 30), or a substitute form providing equivalent
coverages written on an All Risk or Direct Physical Loss or Damage basis with no coinsurance,
including wind and named storm coverage and hail not to exceed 5% deductible depending on
EXHIBIT "C"
market conditions, along with earth movement and flood. Coverage should be included for debris
removal, and demolition and increased cost of construction that are caused by legal requirements
regulating the construction or repair of damaged facilities or subject property, including an
ordinance and law endorsement, in an amount of not less than the replacement cost of the property
insured and leasehold improvements (exclusive of foundation and excavation costs), trade fixtures
and floor coverings. In addition, the policy should afford coverage for sprinkler leakage, extended
coverage including vandalism and malicious mischief, as well as coverage for business income
relative to loss of rents, along with boiler and machinery coverage, if applicable. The amount of
insurance shall equal the full estimated replacement cost of all real and business personal property
owned by Flagler Villas.
The City shall be included as loss payees under the commercial property insurance.
IV. Umbrella Liability
Each Occurrence
Policy Aggregate
$2,000,000
$2,000,000
Excess Follow form over the general liability and auto policies.
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.
EXHIBIT "C"
EXHIBIT D
ANTI -HUMAN TRAFFICKING
AFFIDAVIT
1. The undersigned affirms, certifies, attests, and stipulates as follows:
a. The entity/individual is a nongovernmental entity authorized to transact business
in the State of Florida (hereinafter, "nongovernmental entity").
b. The nongovernmental entity is either executing, renewing, or extending a contract
(including, but not limited to, any amendments, as applicable) with the City of
Miami ("City") or one of its agencies, authorities, boards, trusts, or other City
entity which constitutes a governmental entity as defined in Section 287.138(1),
Florida Statutes (2024).
c. The nongovernmental entity is not in violation of Section 787.06, Florida Statutes
(2024), titled "Human Trafficking."
d. The nongovernmental entity does not use "coercion" for labor or services as
defined in Section 787.06, Florida Statutes (2024).
2. Under penalties of perjury, pursuant to Section 92.525, Florida Statutes, I declare the
following:
a. I have read and understand the foregoing Anti -Human Trafficking Affidavit and
that the facts, statements and representations provided in Section 1 are true and
correct.
b. I am an officer, a representative, or individual of the nongovernmental entity
authorized to execute this Anti -Human Trafficking Affidavit.
FURTHER AFFIANT SAYETH NAUGHT.
Nongovernmental Entity/Individual:
Tony Del Pozzo
Name: Vice President
Signature: QJ
YG
Office Address: 2 0 5 c 'fly tt 1 A (r-ZfV , 51,,t -f e_ VCD
/14i r,J41►) FL - - l 3 3
C
Email Address: /�0 �i'+�lq rrw�i• Main Phone Number: OS �p�' 7I60
t?`
S I S l ��ceX sue— LC—C
Title: VI 143'r-e8e cien+-
EXHIBIT "D"
oi OF
0
R `�
EXHIBIT E
CITY OF MIAMI RESOLUTION NO.
R-23-0188
City of Miami
Resolution R-23-0188
Legislation
City Hall
3500 Pan American Drive
Miami, FL 33133
www miamigov com
File Number: 13650 Final Action Date: 4/27/2023
A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S),
BY A FOUR -FIFTHS (4/5THS) AFFIRMATIVE VOTE, AFTER AN ADVERTISED
PUBLIC HEARING, RATIFYING, APPROVING, AND CONFIRMING THE CITY
MANAGER'S FINDING, ATTACHED AND INCORPORATED AS ATTACHMENT
"B," THAT COMPETITIVE NEGOTIATION METHODS AND PROCEDURES
ARE NOT PRACTICABLE OR ADVANTAGEOUS FOR THE CITY OF MIAMI
("CITY") PURSUANT TO SECTIONS 29-B(A) OF THE CHARTER OF THE CITY
OF MIAMI. FLORIDA, AS AMENDED ("CITY CHARTER"), AND SECTION 18-
182(C) OF THE CODE OF THE CITY OF MIAMI, FLORIDA, AS AMENDED
("CITY CODE"): WAIVING THE REQUIREMENTS FOR SAID PROCEDURES:
AUTHORIZING THE CITY MANAGER TO EXECUTE A NINETY NINE (99)
YEAR GROUND LEASE AGREEMENT ('LEASE"), BETWEEN THE CITY OF
MIAMI ("CITY") AND 5215 FLAGLER STREET, LLC: ("DEVELOPER") ON THE
CITY -OWNED PARCEL OF LAND LOCATED AT 5215 WEST FLAGLER
STREET, MIAMI, FLORIDA, AS MORE PARTICULARLY DESCRIBED IN
ATTACHMENT "A," ATTACHED AND INCORPORATED, FOR THE
DEVELOPMENT OF AFFORDABLE ELDERLY RENTAL HOUSING PROJECT
FOR LOW-INCOME SENIORS; FURTHER AUTHORIZING THE CITY
MANAGER TO NEGOTIATE AND EXECUTE ANY AND ALL NECESSARY
DOCUMENTS, INCLUDING AMENDMENTS, EXTENSIONS, AND
MODIFICATIONS, ALL IN FORMS ACCEPTABLE TO THE CITY ATTORNEY;
SUCH LEASE SUBJECT UPON SUCCESSFUL REMEDIATION OF EXISTING
ENVIRONMENTAL CONDITIONS.
SPONSOR(S): Commissioner Manolo Reyes
WHEREAS, on June 10, 2021, pursuant to City of Miami ("City") Resolution No. 21-
0229, the City Commission authorized the purchase of the property located 5215 West Flagler
Street, Miami, Florida, as legally described in Attachment "A," attached and incorporated
("Parcel"). in the amount of One Million, Five Hundred Five Thousand and 00/100 Dollars
($1,505,000.00) using Miami Forever Limited Ad Valorem Bonds funds ("MFB Funds"); and
WHEREAS, on February 2, 2023, 5215 Flagler Street, LLC, submitted to the City a
Letter of Request for the development of affordable rental housing project for low-income
seniors ("Project"), and
WHEREAS, the proposed Project is contingent upon successful remediation of existing
environmental conditions on the Parcel and an award of thirty-eight (38) Project -based
Vouchers by Miami -Dade County; and
WHEREAS, 5215 Flagler Street, LLC ("Developer"), is a Florida limited liability company
created for the development of the Project: and
City of Miami
Page 1 of 3 File ID: 13650 (Revision:) Printed On: 5/8/2023
EXHIBIT "E"
File ID: 13650 Enactment Number: R-23-0188
WHEREAS, Related Urban (RUDG, LLC) is the parent company of Developer and
RUDG, LLC has completed various affordable housing developments within the City and
currently has others at various stages of construction and is currently in good standing with the
City; and
WHEREAS, it is the intent of the Developer and the City for the Project to be developed
as an affordable rental housing project for low-income seniors on the Parcel under a ninety-nine
(99) years ground lease ("Lease"); and
WHEREAS, on March 28, 2023, the City's Housing and Commercial Loan Committee
approved awarding One Million, Seven Hundred Thousand and 00/100 Dollars ($1,700,00.00) in
HOME Investment Program Partnership funds and Three Million, Nine Hundred Thousand and
00/100 Dollars ($3,900,000.00) in MFB Funds for the Development of the Project; and
WHEREAS, Section 29-B(a) of the City Charter allows for the conveyance or disposition
of City -owned property for the implementation of projects which are intended to benefit persons
or households with low and/or moderate income; and
WHEREAS, the City shall require the following in order to lease the Parcel to the
Developer: (i) evidence satisfactory to the Director of the Department of Housing and
Community Development ("Director") that financial commitments from the lender or lenders
have been received; (ii) any mortgages obtained by the Developer on the Parcel(s) will be
subject to the approval of the Director; and (iii) the closing of the lease agreement occurs
simultaneously with the closing of the construction financing by the lender(s), if any; and
WHEREAS, the approval of the Lease shall be subject to compliance with all applicable
federal, State of Florida, and local laws, rules, regulations, or restrictions; upon successful
remediation of existing environmental conditions; and the negotiation and execution of any other
necessary documents all in form(s) acceptable to the City Attorney, for the purposes stated
herein and in furtherance of the Project;
NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF
MIAMI, FLORIDA:
Section 1. The recitals and findings contained in the Preamble to this Resolution are
adopted by reference and incorporated as if fully set forth in this Section.
Section 2. By a four -fifths (4/5ths) affirmative vote, after an advertised public hearing, the
City Manager's determinations, findings, and recommendations, attached and incorporated as
Attachment "B," pursuant to Sections 29-B(a) of the City Charter are ratified, approved, and
confirmed and the City Commission hereby waives the requirements for said procedures.
Section 3. The City Manager is authorized' to negotiate and execute a ninety-nine (99)
years ground lease agreement, between the City and 5215 Flagler Street, LLC, for the city -
owned parcel of land located at 5215 West Flagler Street, Miami, Florida, as legally described in
Attachment "A," attached and incorporated, for the development of an affordable elderly rental
housing project for low-income seniors.
1 The herein authorization is further subject to compliance with all legal requirements that may be
imposed, including but not limited to those prescribed by applicable City Charter and City Code
provisions.
City of Miami Page 2 of 3 File ID: 13650 (Revision:) Printed on: 5/8/2023
EXHIBIT "E"
File ID: 13650 Enactment Number: R-23-0188
Section 4. The City Manager is further authorized' to negotiate and execute any and all
other necessary documents, all in forms acceptable to the City Attorney, for the purposes stated
herein.
Section 5. This Resolution shall become effective immediately upon its adoption and
signature of the Mayor.2
APPROVED AS TO FORM AND CORRECTNESS:
EXHIBIT "E"