HomeMy WebLinkAboutBack-Up DocumentsGROUND LEASE
SG LITTLE HAVANA
This Ground Lease (this "Ground Lease" or this "Lease") is made as of
, 2026 (the "Effective Date"), between CITY OF MIAMI, a Florida municipal corporation
("Landlord" or "City", as applicable), and SG Little Havana, LLC, a Florida limited liability
company ("Tenant").
PREAMBLE
A. City is the owner of certain real property located at outhwest 8 Street, City
of Miami, Miami -Dade County, Florida, and described on Exhib. attached hereto and made
a part hereof (the "Premises"), which City desires to have dev 'th the use of private and/or
public funds.
B. Tenant has proposed to newly construc e site (i) appro tely 120 affordable
housing units, each of which shall be elderly, affor nits, to be known a Little Havana"
that will increase supply of rental housing units for w-income, amily, elderl ,,bled, special
needs or other population; and (ii) other ancillary and complimen uses (the "P ct"), on the
Premises as further described in Sections 1.04(b) and 1.09 herein..
C. On December 11, 2029 the Miami City Commission duly adopted its Resolution
No. R-25-0519 (the "Resolution"), approving the lease by the City, as Landlord, of the Premises
to Tenant in accordance with the terms st.forth in this Ground Leas
LEASE
In consideration of the foregoing preamble, mutual covenants and other good and valuable
consideration, the i ceipt 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 LEPREMISES; TERM; TITLE
1.01 Grant of Leased Premises. Landlord shall deliver exclusive possession of the
Premises (free and clear of all tenants and squatters) to Tenant on the date Tenant closes on its
construction financing (the "Commencement Date"), and the Lease Term shall commence on such
Commencement Date and shall expire on the 99th anniversary thereof, (the "Initial Term
Expiration Date"), unless earlier terminated or extended as provided for herein. The Initial Term
of this Lease may be extended for an additional term of ninety-nine (99) years from the Initial
Term Expiration Date (the "Extended Term") at the request of Tenant with the approval of the
Miami City Commission or successor governmental entity (the "Commission"), not to be
unreasonably withheld if Tenant is still operating the Premises as required by this Lease. The
Initial Term and Extended term are collectively referred to herein as the "Term" or the "Lease
Term". Tenant may request Landlord agree to extend the Initial on the same terms and conditions
as set forth in this Lease, with the approval of the Commission, at any time within twenty (20)
years of the Initial Term Expiration Date by written notice to Landlord.
1.02 Premises. The Premises consists of those certain tracts or parcels of land located
at 1357 Southwest 8 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) days following the Effective Date or earlier at its option. 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 syndication reveals any new Defects, then, Landlord, upon
shall immediately and diligently proceed to cure same and shall
which to cure the Defects. If, after the exercise of all reasonabl
clear the Defects, then Tenant may accept the Defects or Ten
parties shall be released from further liability.
1.04 Construction of Improvements. The Pr
requirements of all laws, ordinances, codes, orders
Laws") of all governmental entities havi
"Governmental Authorities"), including, but no
tification of the Defects,
reasonable time within
ence, Landlord is unable to
rminate the Lease and the
hall be construe 'n accordance with
and regulations (colt- -ly "Applicable
risdiction ver the Pro (collectively
ted to, thity, Miami -Da - County, the
State of Florida, and the United States Department o fusing and Urban Development ("HUD").
Tenant shall apply for and prosecute, yith reasonable ditgence, all necessary approvals, permits
and licenses required by applicable G vernmental Authorities for the construction, development,
zoning, use and occupation of the Project. The City agrees to cooperate with and publicly support
Tenant's effort to obtain such approvals, permits and licenses, provided that such approvals,
permits and licenses shall be-@tained 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 (i) approximately one hundred twenty (120)
multifamily residential units as more fully described and/or depicted on Exhibit B; (ii) any
permitted ancillary uses as described herein; and (iii) such other uses as may be approved during
the Term (collectively, the " Improvents") By way of clarification and notwithstanding any other
provision of this Ground Lease, at all times during the Lease Term, Tenant shall be deemed the
owner of all Improvements, but such ownership shall automatically revert to Landlord upon
expiration or earlier termiyation of this Lease as permitted herein.
(c) dlord and Tenant agree that Tenant shall be accorded all benefits and
burdens of ownership o 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.
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1.05 Pre -Commencement Cooperation; Permits and Financing. From and after the
Effective Date and prior to the Commencement Date, Landlord shall reasonably cooperate and
shall not unreasonably withhold, condition, or delay its cooperation with Tenant in connection
with Tenant's efforts to obtain all zoning approvals, site plan approvals, permits (including,
without limitation, building permits), utility approvals, variances, waivers, and other governmental
approvals necessary or desirable to develop, finance, and construct the Project, including those
required to obtain and close Tenant's construction loan, tax-exempt bond financing, and low-
income housing tax credit equity.
Such cooperation shall include, without limitation, executing an
reasonable timeframe such owner affidavits, applications, ce
joinders, consents, estoppel statements, and other documen
applicable Governmental Authorities, construction lend on
equity investors in connection with the permitting, e ent,
No cooperation provided pursuant to this subse
possession of the Premises, (ii) commence the Le
shall be de
Term, or
final plans or specifications. Landlord shall not be required to
re c
d issuer
and financ
ering in a commercially
acknowledgments,
arily required by
dit enhancers, or
the Project.
ed to (i) cons
obligate Landlo
cur out-of-pocket costs, waive
delivery of
to approve
governmental or sovereign protections, or take any action prohibited by Applicable Law.
1.06 Low -Income Housin T redits. The Project is,or will be, subjected to and
benefited by the terms and conditions of low-income housing tax credit requirements as set
forth in the Code, and as required bHUD o e Florida Housing Finance Corporation during the
appropriate extended use period.
1.07 Clostg 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 Detrember 31, 2029, either party shall have the right to terminate this Lease (and such
event shall be deemed an Event of Default) and Landlord and Tenant shall have no further
obligation to each other under this Lease, except as to such matters as expressly survive
term' en, by delivering written noticeto the other party.
1. b Unavoidable Delays. Other than Tenant's obligation to pay any amounts due to
Landlord prfor in this ase or to maintain all insurance required by this Lease, the party
obligated to pe 1 und Lease shall not be required to perform and shall be entitled to a
reasonable extensi e 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 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
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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 days after its occurrence (or such later date
if the Unavoidable Delay affects the ability to provide timely notice), 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.
1.09 Ancillary Uses. Notwithstanding anything to the contr$ontained in this Ground
Lease, Tenant shall have the right to include within the Project certain ancillary uses that are
customarily incidental and complementary to residential affor' ` e housing developments,
including without limitation retail, service, entertainmentmmu : erving, or office uses,
provided that such uses (i) are permitted under Applic
residential character of the Project, and (iii) are con
Project.
aw, (ii) do
with the overa
aterially impair the
lic purpose of the
1.10 Early Access. Notwithstanding an ping to the contrary contained this Ground
Lease, Landlord shall permit Tenant and its agents, colisultants, contractors, engineers, architects,
environmental professionals, surveyors, lenders, investors, and other authorized representatives to
enter upon the Premises prior to the Commencement Dat e "Early Access Period") for the
limited purpose of performing due diligence and pre -develop activities related to the Project,
as further described in and subject to that certain Holi. nd Site Access Agreement
between Landlord and Tenant (the" Site Access Agreement"),°ac ed hereto as Exhibit D. In the
event of any conflict between this Section and the Site Access Agreement, the Site Access
Agreement shall control.
Such permitted activities may include, without limitation, environmental testing, geotechnical
investigations, subsurface and soil testing, including invasive testing such as soil borings and
installation oftnporary monitoring wells, to textent customarily required, surveying,
inspections, analyses, assessment_ monitoring, utility investigations, and other non-invasive or
minimally invasive testing and sts customarily conducted in connection with the
development of affordable housing projects of similar scope and nature (collectively, "Due
Diligence tivities").
Early access all not constdelivery of possession of the Premises, shall not commence the
Lease Term, and shall not gi rise to any obligation to pay Rent or Additional Rent. All Due
Diligence Activities Tenant chooses to have performed shall be at Tenant's sole cost and
expense.
Tenant shall restore the Premises to substantially the same condition existing prior to such entry,
reasonable wear and tear and de minimis disturbance excepted, and shall comply with all
Applicable Laws in the performance of such Due Diligence Activities. Tenant shall indemnify,
defend, and hold Landlord harmless from and against any claims, losses, liabilities, costs, or
damages arising from Tenant's exercise of early access rights.
ARTICLE II- REPRESENTATIONS AND WARRANTIES
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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 Grou. • Lease; (ii) Landlord has
obtained and received all required and necessary consents and appro enter into this Ground
Lease with Tenant, including the adoption of the Resolution • Miami City Commission,
which Resolution remains in full force and effect and has no cinded or amended in any
manner adverse to Tenant; and (iii) the entry by Landlord i s s • Lease with Tenant and
the performance of all of the terms, provisions, and con ' ' n containeein does not and will
not, violate or cause a breach or default under any ag t or obligation hich Landlord is a
party or by which it is bound.
(c) Assessments. There are no unpaid spe • sessments of which Landlord
has received notice for sewer, sidewalk, water, paving, gas, el ical, or utility improvements or
other capital expenditures, matured or unmatured, affecting the Premises.
(d) Contractual Obligations. Landlord is not o: igated under any contract, lease
or agreement, materially affecting the ownership, use, operation anagement, maintenance, or
lease of the Premises.
(e) •isc :sure. No representation, statement, or warranty by Landlord
contained in this Gr• ease or in any exhibit attached hereto contains or will contain any untrue
statement of a mate . ct or omi material fact cessary to make the statement of fact therein
recited not misleading.
Landlord's knowle
into this Ground Lease
(g)
There is no ac on, suit, litigation, or proceeding pending or to
ainst Landlord that could prevent or impair Landlord's entry
of its obligations hereunder.
Envi a . mental. There are, to the actual knowledge of Landlord, no
Hazardous tances located in, on or under the Premises except as previously disclosed in
writing by La d 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,
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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-
6991i), 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 adoptby the state in which the
Premises are located, or its agencies or political subdivisions; (v) is petroleum, petroleum
products or derivatives or constituents thereof, (vi) which is tos or asbestos -containing
materials; (vii) the presence of which requires notification, in i or remediation under any
Environmental Laws or common laws; (viii) the presenc hiche Premises causes or
threatens to cause a nuisance upon the Premises or to a nt properti u-. 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 bany laws of any governmental authority requires special
handling in its collection, storage, treatment or disposal. Notwithstanding any contrary provision
of this paragraph (g), the term Hazardous Substances shall not app to such substances that would
otherwise meet such definition as long as (i) the use of such subst 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) Exi Tenant is a ited 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, nduct its business, as prntly conducted and to execute, deliver, and perform its
obligation . er this Ground Lease and (ii) has obtained all company authorizations and
approvals w .re necessary for it to execute, deliver, and perform its obligations under this
Ground Lease.
(c) ding 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
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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- . ayment of base rent ("Base
Rent") for the Lease Term in the amount of One Hundred D. 100.00), to be delivered to
Landlord by Tenant on the Effective Date. Tenant acknowl . an. ees that the construction
of affordable housing on the Premises is a material induce for Lanto offer the Premises
on the terms set forth herein to Tenant, and but for Tenant's promise to p e such housing the
terms contained herein would not be offered.
3.02 Payments by Tenant. Other tha expressly spet forth in this und Lease,
commencing on the Commencement Date, all c expenses, liabilities, charges or other
deductions whatsoever with respect to e Premises an the Improvements or with respect to any
interest of Landlord in the Premise provemenn this Ground Lease shall be the
responsibility of Tenant.
3.03 Control and Liabilities. Landlord acknowledges aragrees that Landlord is and
shall be, at all times prior to the Commencement Date, in use,a 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; e Landlord or any third parties with respect to the use, occupancy or operation
of the Premises.
TICLE 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
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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. During the Lease Te ant will pay or cause to
be paid directly to the providers of such services all costs and ex ► attributable to or incurred
in connection with the ownership, use, leasing, occupancy, o maintenance, and repair of
the Premises and the Improvements including without li energy sources for the
Improvements, such as propane, butane, natural gas, ste e ectricity, energy, and fuel oil;
(ii) all water, sewer and trash disposal services; (ii maintenance, r replacement and
rebuilding of the Improvements including, witho tation, all mechanica -ctrical, HVAC,
telecommunications and security systems with' Improve ts, and all s al and non-
structural components of the Improvements, bo tenor xterior; (iv) a andscaping,
maintenance, repair and striping of all parking areas of . e mprovements; (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 -;,°,senses of all capital improvements
or repairs (whether structural or non-structural) required to ain the Improvements in good
order and repair or required by any Governmental (or _quasi-_ mental) Authority having
jurisdiction over the Premises -and the Improvements.
(b) its and Licenses. t will also procure, or cause to be procured any
and all necessary 4pie�its, licenses, or other thorizations 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 exlMnse and liability of Tenant, will join with Tenant in any application required for
obtaining or continuing any sucervices.
03 Insurance. Beginn the Effective Date and continuing until the expiration or
earlier termination of the Lease Te , 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
Exhibits C1 (Insurance Requirements — Vacant Land and Due Diligence), C2 (Insurance
Requirements — Construction Phase), and C3 (Insurance Requirements — Completed
Improvements), respectively. Specifically, for so long as the Premises remain vacant land, Tenant
shall maintain the insurance coverage described in Exhibit Cl (Insurance Requirements — Vacant
Land). During the period of construction of the Improvements, Tenant shall maintain the insurance
coverage described in Exhibit C2 (Insurance Requirements — Construction Phase). Upon
completion of the Improvements, Tenant shall maintain the insurance coverage described in
Exhibit C3 (Insurance Requirements — Completed Improvements), which shall replace the
Builder's Risk insurance without any lapse in coverage.
All public liability or casualty policies maintained by Tenant will be written as primary policies,
not contributing with and not secondary to insurance coverage that Landlord may carry. The City
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shall have the right, no more than once in any twelve (12)-month period, to revisit the insurance
requirements under this Ground Lease and may request reasonable changes to such insurance
requirements to the extent warranted by then -current market conditions and to the extent such
changes are customary and commonly available for properties similar in type, size, use, and
location to the Premises and Improvements, provided that the City delivers not less than ninety
(90) days' prior written notice to Tenant of any such requested changes and further provided that
the City is making similar requests of other comparably situated tenants where it has the right to
do so. If Tenant fails to maintain such insurance, at its election, and upon five (5) days' notice to
Tenant, Landlord may, but shall not be obligated to, procure such ins nce 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)-day notice of prior c
provided to Landlord. Tenant further agrees to require its ctracto
applicable liability policies during the construction peri rsuant to
4.04 Restoration.
ellation or change will be
ist the Landlord on all
t C2.
(a) If the Improvements shall be damage. .estroyed in w or in part,
Tenant shall give prompt notice thereof to Landlord. The , mount of all insurance proceeds
received by Tenant with respect to suchdamage or destruction, after deduction of the reasonable
costs and expenses incurred by Landlo 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 xpenses of the Restoration
(defined below), provided that (i) no Event of Default (defined beli'lw) has occurred and remains
uncured under this Ground Lease, (ii) except as otherwise agreed to by Landlord and subject to
the terms of any Per . ' + Leasehold Mortgage, Tenant proceeds promptly after the insurance
claims are settled with e 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 convection with making the Net Proceeds available
for the Restoration, including, without limitation, reasonable counsel fees and inspecting engineer
fees 'ncurred by Landlord, shall be paid out of the Net Proceeds, (v) Landlord, in its reasonable
disc , shall have determined that thg 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) Tenaosits sufficient additional funds which, when added to the Net Proceeds, will
pay for the cost 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 Vremises and/or Improvements, regardless of whether or not there are
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.
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
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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.
(b) Disbursement of Net Proceeds. Subject to t' terms of any Permitted
Leasehold Mortgage, notwithstanding anything to the contrary coed herein, if the Net
Proceeds shall be less than $500,000.00, the Net Proceeds shall . ~ .ursed directly to Tenant for
payment of costs of Restoration, and the Landlord shall not . to hold or disburse such
Net Proceeds.
(c) Discretion of Landlord. L shall not be e -d to share in the
proceeds of any insurance policy except as spe ' y set forth herein a .ndlord further
acknowledges that any and all excess insur nce proceeds er all disbu -nts for the
Restoration have been completed shall belong to Tenant.
(d) Permitted Leasehold Mortgagee Iterests; Bond. By way of clarification
and notwithstanding any other provisi n of this Ground Lea ') Landlord's interest in and rights
regarding the proceeds of any insurance policy or Tenant's • -mnation award and control of
any rebuilding or repair process involving same are all-fullmpletely subordinate to all
rights of all Permitted Leasehold Mortgagees; .
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 no less than 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 Florida Housing Finance Corporation ("FHFC"), and Tenant shall
continuously use and operate all units in a manner which strictly satisfies the requirements of this
Groease. Tenant shall have the right to modify the number and type of units located on the
Premiss long as no less than sixty (60) affordable rental units are built, to the extent permitted
to do so - Landlord, HUD and FHFC. The Project may be used for affordable residential
purposes anuch ancillary uses as permitted pursuant to the Preamble and Section 1.04(b)
and 1.09 above .Ai HUD and FHFC, and for such uses as otherwise approved by Landlord during
the Lease Term and such other uses shall not be deemed a violation of any residential use
restriction set forth in 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.
5.03 Special Provisions Relating to Compliance with Environmental Laws.
10
(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 and environmental permits and licenses as may be necessary for the
Premises and Improvements, or otherwise required by Tenant's activi ',-s. Tenant shall maintain
such permits and licenses in effect and shall renew them in a ti anner, and Tenant shall
comply and use reasonable efforts to cause all third parties to •ly with the terms of such
permits and licenses. All Hazardous Substances present, han. -rated or used by Tenant on
the Premises will be managed, transported and disposed of awf ner.
(ii) Tenant shall provide Landlord with copies
information concerning any releases, spills or othepncidents relating to Haz
any violations of Environmental Laws promptly }upon the disc cry of such
incidents.
1 forms and other
Substances or
es, spills, or
(b) Landlord's Environmental Covenants. Without limitation of any of
Landlord's other covenants, agreements, and obligations ' • er this Ground Lease, Landlord
hereby specifically represents and warrants that prior to prov ' enant with copies of all (if any)
forms and other information concerning any released spill , other incidents relating to
Hazardous Substances or a olations of Environmental Laws respect to the Premises of
which Landlord has actu n e.
5.04 Tenant's nvironmental Indemnity. Tenant covenants and agrees to indemnify,
defend, and hold Landlord free and harmless f and against any and all losses, liabilities,
penalties, claims, fines, litigation, demands, co judgments, suits, proceedings, damages,
disbursements, or expenses (including reason_ 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:
ili
(a) the existencehy 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
AF
(b .ny violation of any Environmental Laws by Tenant at or relating to the
Premises which does not arise out of conditions existing prior to the Commencement Date.
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
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
11
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 A s .licable to the Premises and the Im . . ents.
(a) The provisions of this Section 5.06 are
with the land and shall be binding upon Landlord and
successors and assigns and all subsequent owners o,
including, without limitation, any entity which succ
the Improvements.
Pr
Ten
e
mise
ant's inter
create a covenant running
ach of their respective
the Improvements,
• the Premises and
(b) Tenant shall not execute any agreem4 lease, conve e or other
instrument whereby the Premises and Improvements oar 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 anith; � .rovements.
(c) Tenant shall not discriminate inr4 e use, - lease, or occupancy of the
Premises and the Improveme s against any person upon the bzsi race, color, creed, religion,
ancestry, national origin, ge, sex, or marital status.
(d) ant 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 aid the Improvements. Tenant represents and warrants to
Landlord that Tenant shall comply with §§ 18-T88, 18-189, 18-190, 18-191, and § 2-778 of the
Code, each to the extent applicable and as may be amended, all of which are incorporated herein
by `` ce as though fully set forth herein.
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 alged 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
12
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
Ground Lease.
Survival. This Article V shall survive the expiration or early termination of this
ARTICLE VI- CONVEYANCES, ASSIG MENTS AND T NSFERS
6.01 Consent. This Agreement shall be
successors and assigns of Landlord and Tena
herein Tenant may not assign or sublet its interes
consent of Landlord and, if required under the term
ng upon and inure ' e benefit of the
ept that of r than as splly set forth
is Gro ease without t rior written
any
Permitted Leasehold Mortgagee. Any attempted transfer without such consent shall be null and
void.
itted Leasehold Mortgage, any
6.02 Prohibited Transfers. Tenant agrees for itself and its successors and assigns in
interest hereunder that it wi not, other than in accordance with the granting of liens under
Permitted Leasehold Mortgages: (1) assign this Growl 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, or (ii) 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 withoutfirst obtaining Landlord's consent, convey or dedicate land for use as
streets, alleys, or other public rights-ofay, and make grants and easements for the establishment,
operation and maintenance of blic utilities.
st
6.03 Additional Re
•ctions 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.
13
Notwithstanding any other provision of this Ground Lease, wherever Landlord's consent is
required under this Article 6, such consent shall not be unreasonably withheld, conditioned, or
delayed.
Notwithstanding anything to the contrary contained in this Ground Lease, no Transfer and no
Event of Default shall be deemed to occur as a result of (i) the death or incapacity of any
individual member, manager, or owner of a direct or indirect interest in Tenant,
6.04 No Remedy for Unauthorized Transferee. Any perso . to whom any Transfer is
attempted without Landlord's consent (when such consent is requir= ein) shall have no claim,
right, or remedy whatsoever hereunder against Landlord, and ord shall have no duty to
recognize any person claiming under or through the same.
6.05 Permitted Transfers. Notwithstanding
contrary, by its execution of this Ground Lease,
consented to: (i) any lease of a new housing rental
to an end user thereof;
t mg in t
Ord is automat
a tenant; (ii) any le
round Lease to the
deemed to have
ancillary space
6.06 Subsequent Assignment. Landlord's e ' one conveyance, assignment, or
transfer will not waive the requirement its consent t• bsequent conveyance, assignment,
or transfer.
6.07 Request for Consent. Iff Tenant requests .rd's consent to a specific
conveyance, assignment, or Transfer, Tenant shall provide to an. •rd (a) the name and address
of the proposed person or entity; (b) a copypof all proposed eyance, 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 determine the financial responsibility and qualifications of the proposed
person or entity; (e) an instrument in writing sasatisfactory 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 has the capacity to perform as required by this Ground
LeaMIL
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 he 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"), which Permitted
14
Leasehold Mortgages shall not require any consent or approval of Landlord. 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 Permitte. easehold Mortgage and
registering the name and post office address to which all notices . . er communications to it
may be addressed.
(b) Each Permitted Leasehold Mortgag- . th- -stor shall be permitted,
but not obligated, to cure any Event of Default under thi o i nd Lease in the same period of
time specified for Tenant to cure such default, or suc r time as is pe • d elsewhere in this
Ground Lease. No notice by Landlord to Tenant o vent of Default und- . Ground Lease
shall be effective unless Landlord has given w ' notice to e h Investor . r . h Permitted
Leasehold Mortgagee whose notice information h een prov o Landlord. Te t authorizes
the Investor and each Permitted Leasehold Mortgagee to take such action at such party'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
to participate (in conjunction with or to the exclusion o'enant
settlement involving condemnation or eminent domain affecti
Premises, but no such delegation shall be bidding up6n Lan
ermitted Leasehold Mortgagee
y proceeding, arbitration or
ants leasehold interest in the
nless and until either Tenant or
the Permitted Leasehold Mortgagee in question shall give to Landlord a true copy of a written
instrument effectin delegation, in form required for recording. Any provision of this Ground
Lease that gives Pe d Leasehold Mortgagee the privilege of exercising a particular right of
Tenant hereunder on con d ition t Tenant shall have failed to exercise such right shall not be
deemed to diminish any privilege that PermittecLeasehold 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 ritht.
(c) Landlord agreto accept payment or performance by any Permitted
Leasehold Mortgagee or the Investor as though the same had been done by Tenant.
(d) Each Permitted Leasehold Mortgagee of whom Landlord has notice shall
have the cure rights granted to the Investor pursuant to Section 6.10(a) below and, in addition, 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) 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.
15
(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 terms
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 Pr with the Permitted Leasehold
Mortgagee (or its nominee) ("Replacement Tenant"), f rem er of the Lease Term,
effective as of the date of such termination (the "N ease"), at ame Base Rent and
Additional Rent and subject to the same covena agreements, provisions, and
limitations herein contained, provided that:
(g) Landlord receives the Perm Lease ortgagee's written request for
such New Lease within thirty (30) days from the da e of su rmination and notice thereof by
Landlord to the Permitted Leasehold Mortgagee (including an itemization of amounts then due
and owing to Landlord under this Grand Lease), and such ritten request is accompanied by
payment to Landlord of all amounts then due and owing to Land under this Ground Lease and,
within twenty (20) days after the delivery of an accounting therefor y Landlord, pays any and all
costs and expenses, including reasonable counsel fees, court cost ,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 subseque to the date of termination of this Ground Lease and prior to the execution and
delivery of the New Lease, any excess ef such net income over the aforesaid sums and expenses
to be applied in payment of the Base Reditional Rent thereafter becoming due under the
New Lease; and
ma
Landlo
Replacem
Not4111
wi tanding 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.
(h) Upon the execution and delivery of the New Lease at the time payment is
above, all subleases which thereafter may have been assigned and transferred to
all thereupon be assi d and transferred without recourse by Landlord to
enant.
Notwithstanding the foregoing and to the extent permitted by Section 42 of the Code, the deadline
to complete construction of the Improvements set forth in Section 1.06 shall be extended for such
period of time as may be reasonably required by the Permitted Leasehold Mortgagee or its nominee
to complete construction. 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
16
"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").
(j) 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 before the Commenc- Date, the Tenant's equity
Investor, (together with its successors and assigns) may be ad .' a member of the Tenant.
(a) Cure Rights. Notwithstanding a 1 g to the ary contained in this
Lease, Landlord shall not exercise any of its remedie -under withou 'ng given notice of
the Event of Default or other breach or default t• ' vestor (following • dmission of the
Investor) simultaneously with the giving of no . Tenant. e Investor sh. .ve the same
cure period after the giving of a notice as provi . o Tenant an additional od of thirty
(30) days. If the Investor elects to cure the Event of Defaul ther breach or default, Landlord
agrees to accept such performance as though the same had been done or performed by Tenant.
(b) Investor. Notwithstanding anything t
following the admission of the Investor, the Investor shall be
the provisions of this Section r the sole and exclusive purpos
its rights to notice and cure, as expressly stated herein: The
ontrary contained in this Lease,
a third -party beneficiary of
tling the Investor to exercise
ing 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. Notwithstag anything to the contrary contained in this
Lease, Landlord agrees that it will take7n 'Oaction 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, exceed thirty (30) days, to replace Tenant's manager]and cause the new manager to
cur vent of Default or other br h or default; provided, however, that as a condition of such
forbea : nce, Landlord must receive no e from the Investor of the substitution of a new manager
of Tenant within thirty (30) days following Landlord's notice to Tenant and the Investor of the
Event of Def or other breach or default, and Tenant, following such substitution or admission
of the new man shall thereupon proceed with due diligence to cure such Event of Default or
other breach or d t 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 initial 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.
17
6.11 Estoppel Certificates. Each party hereto shall, at any time and from time to time
within ten (10) days after being requested to do so by the other party and/or any Permitted
Leasehold Mortgagee or Investor 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 unmosliked and in full force and
effect (or, if there has been any modification thereof, that it is in full forc , d 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) as to the dates to which any
Base Rent or Additional Rent and other charges arising hereunder hav
amount of any prepaid Base Rent or Additional Rent or any credit due
to whether, to the best of such party's knowledge, information and belief,
then in default in performing any of its obligation under (and, if so, spe
each such default); and (vi) as to any other fact o ition reaso bly requeste
party; and
een paid; (iv) as to the
ant hereunder; (v) as
equesting party is
g the nature of
e requesting
(b) Acknowledging and agreeing that'ny statement contained in such
certificate may be relied upon by the requesting party and any such other addressee.
6.12 Permitted Corporate Transfers. Notwithstanding anything to the contrary set forth
elsewhere in this Ground Lese, Tenant may, subject to receipt of Landlord's prior written consent
(which consent shall not e unreasonably withheld, conditioned or delayed) and compliance with
any applicable restric assign r part of this Ground Lease, or sublease all or a part of the
Premises, to:
(a) any entity which has the pwer 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 ich 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 ntity iving such merger or created by such consolidation.
ICLE 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
18
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 perform 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 L. •lord as may be provided
in any statute, law, or ordinance in effect as of the Commencement
ARTICLE VIII- LIENS
8.01 No Liens. Tenant shall not have any rig. a a ority, . er to bind Landlord,
the Premises or any other interest of Landlord in the ' es and will pa ause to be paid all
costs and charges for work done by it or caused t► one by it, in or to ' emises, for any
claim for labor or material or for any other char = . expense, li or security i` erest incurred in
connection with the development, construction or operation ofImprovements or any change,
alteration or addition thereto. Tenant shall not pemit to remain any encumbrances of the
Improvements, except the Permitted Leasehold Mortgages. Tenant shall comply with all laws
which provide for the waiver of lienshich 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 com niencement of any work at the
Premises to construct the Improvements or otherwise improv hei`remises. Landlord agrees to
execute, or join in the execution of, any such Notice of CorMhcement 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 LA > u i RD SHALL NOT BE LIABLE FOR ANY LABOR, SERVICES, OR
MATE LA S FURNISHED OR TO BE FURNISHED TO TENANT OR TO ANYONE
HO ' ANY O HE PREMISES THROUGH OR UNDER TENANT, AND THAT NO
ME ICS' OR OT IENS FOR ANY SUCH LABOR, SERVICES, OR MATERIALS
SHAL ACH TO OR FECT THE INTEREST OF LANDLORD IN AND TO ANY OF
THE PR S. PURSUANT TO FLORIDA STATUTES SECTION 713.10(2) (a), TENANT
HEREBY OWLEDGES RECEIPT OF NOTICE THAT THE INTEREST OF
LANDLORD THE PREMISES SHALL NOT BE SUBJECT TO LIENS FOR
IMPROVEMENTS MADE BY TENANT. TENANT FURTHER ACKNOWLEDGES AND
AGREES THAT TH4 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.
19
ARTICLE IX— SURRENDER
9.01 Expiration of Lease Term. Upon the expiration of the Lease Term or sooner
termination of this Ground Lease as permitted herein or by operation of law, Tenant will surrender
the Premises and the Improvements in the condition set forth in Section 9.01. 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 in force or hereafter adopted requiring notice to vacate the
Premises at the end of the Lease Term, and Tenant covenants and ees to give up quiet and
peaceful possession and to surrender the Premises together with all provements thereon and
appurtenances upon expiration of the Lease Term or earlier t- ' .tion of this Ground Lease
without further notice from Landlord. Tenant acknowledges •-s that upon the expiration
of the Lease Term or sooner termination of this Ground L11 rights and interests it
may have either at law or in equity to the Premises andovements s mediately cease.
ARTICLE X- CASUALT NDEMNATION
10.01 Damage or Destruction. Tenant shall give prom ritten notice to ` andlord 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 td= 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 shill have consented to release
the Net Proceeds to Tenant (if consent of a Permitted Leaseh ilrtgagee is required under its
Permitted Leasehold Mortgage), Tenant shall repair or restoiPremises or the Improvements
as nearly as possible to the condition the Premises or the Improvements were in immediately prior
thereto. Notwithsty riding 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.
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
20
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).
(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 Leas hen the Lease Term shall
not be reduced and Tenant shall continue to pay in full all rents, '.itions and other charges
required herein, without reduction or abatement thereof at the ti ► •rein specified.
(d) Subject to the terms of all Permitte . sehortgagees, if there is a
complete or partial Taking which affects only the use - Premise ing the Lease Term,
Tenant shall be entitled to receive and retain the Net mnation Awa bject to the terms
of the Permitted Leasehold Mortgages, if there is`'co plete or partial Take ich affects the
use of the Premises after the Lease Term, the Net Condemnation Award sha apportioned
between Tenant and Landlord based on the ratio of the remaining term hereof an. ` e remaining
expected useful life of the Premises following the expiration oche Lease Term. shall be entitled
to receive and retain the condemnation award for it remainderman interest, all in accordance with
applicable law.
(e) Subject to the terms of the Permitted Leasehold Mortgages, notwithstanding
any provision herein to the contrary, Landlorhall e entitled to receive and retain any portion of
the Net Condemnation Award apportioned is - uponhich the Improvements are located.
•
ARTICLE XI- Q h' "T ENJOYMENT
11.01 Quiet Enjoyment. So long as there 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.
02 Landlord's Right of Inspection. Notwithstanding Section 11.01 above, Landlord,
in per through its agents, upon reasonable prior notice to Tenant, shall have the right to enter
upon the 's ises for purposes of reasonable inspections performed during reasonable business
hours in or. assure compliance by Tenant with its obligations under this Ground Lease.
ARTICLE XII- DEFAULT; REMEDIES
w
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) 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
21
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 Additio i Rent payable hereunder
shall be deemed "Rents" reserved by Landlord, and any remedi or hereafter given to
Landlord under the laws of the State of Florida for collection o ' ents shall exist in favor of
Landlord, in addition to any and all other remedies specified •- •und Lease.
12.02 Events of Default. The occurrence of a
an "Event of Default" by Tenant:
(a) Tenant defaults in the
Additional Rent, and such default continues for th
e follo
d punctua
0) day
(b) Tenant vacates or abandons the
Taking, as more particularly set fortlin Article 10 abo
period of more than thirty (30) consecutive days—
(c) This Ground Lease,
are taken upon execution orr'by other proces
vents shall constitute
ayment of Rent and/or
written notice Landlord;
except by reason of Casualty or
any substantial part thereof for a
Premises or the Im. .vements or any part thereof
f law directedtist Tenant, or are taken upon or
subjected to any attachment by any creditor of
attachment is not discharged, bonded or stayed
notify Landlord in Writing of its action to either s
matter's status on a monthly basis until conclude
discharged within the period aforesaid, then, i
Tenant or claimant against Tenant, and such
in ninety (90) days after its levy. Tenant shall
y or contest the levy and, if contested, of the
Tenant shall fail to cause such levy to be
ition 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 o by procuring the discharge of such lien by deposit or by bonding. Any amount so paid by
Lan and the costs and expenses incurred by Landlord in connection therewith, shall be
payab Tenant and shall be paid by Tenant to Landlord on demand as Additional Rent
hereunde
(d) Tenant makes any sale, conveyance, assignment or transfer in violation of
this Ground Lease; rovided that, if such conveyance was of an indirect equity interest in Tenant,
then Tenant shall b ed to five (5) days written notice and opportunity to reverse such
conveyance before it b comes and Event of Default hereunder;
(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) 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) days, Tenant shall not be deemed in default of this Ground
22
Lease if Tenant commences the curing of such default within such period of thirty (30) 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) 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; or
(g) Tenant shall apply for or consent to the appo nt of a receiver, trustee,
or conservator for any portion of Tenant's property or such ap ent shall be made without
Tenant's consent and shall not be removed within ninety (90)
12.03 Remedy.
(a) If any one or more Events of It set forth in Secti. .02 occurs, then
Landlord may terminate this Ground Lease by w itte otice to Tenant of its int- to terminate
this Ground Lease on the date of such notice or on any later date specified in such ce, and, on
the date specified in such notice, Tenant's right to posssion 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 b lord shall be subject to and limited
by, and shall not defeat, render invalid or limit in any way 'en of any Permitted Leasehold
Mortgage.
(b) Notwithstanding anything in tCs Le he contrary, the Landlord shall
not terminate this Ground Lease so long as the Investor remains a member of the Tenant or any
Permitted Leasehold Mortgage remains outstanding. So long as the Investor, and any of its
successors or assigns, remains a member of the Tenant or any Permitted Leasehold Mortgage
remains outstanding, Landlord shall standstill and not exercise any of its rights or remedies under
this Ground Lease, other than to specifically enforce the Tenant's obligations hereunder, and this
Ground ase shall not be terminated without tie prior written consent of the Investor and any
holde ' ermined Leasehold Mortgage. So long as the Investor, and any of its successors or
assi emains the investor member of the Tenant or any Permitted Leasehold Mortgage remains
outst. Landlord shall not be perpitted to exercise any right or remedy against Tenant, where
the circu ce giving rise to each right or remedy resulted from an act or omission of Landlord
or where the - would cause a default under any of the loan documents to which Tenant or the
Premises is su -° or the Tenant's Operating Agreement without the prior written consent of
Investor and the holder of any Permitted Leasehold Mortgage.
(c) Notwithstanding any provision in this Ground Lease to the contrary, the City
retains the absolute right, at its sole discretion subject to Applicable Law, to initiate legal
proceedings to specifically enforce the performance of the terms and conditions of this Ground
Lease. This right is preserved irrespective of whether the Investor, or any of its successors or
assigns, continues to be a member of the Tenant, or whether any Permitted Leasehold Mortgage
remains in effect.
23
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 or its permitted subtenants. 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 - tion of the Premises and all
existing and future Improvements, subject to the following co
(a) Such activity does not materi e advers- terfere with City's
operations on any property outside the boundaries of emises; and
(b) Tenant complies with the sions of all ermits whic - 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 perpetualleasements for the installation, operation, maintenance,
repair, replacement, relocation, and removal oflity 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 intnet services, storm and sanitary seers 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 Lase, 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 (ii) such other locations on the Premises as may be requested by City or such public
utility companies from time to time, so long ash 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 hall provide, among other things, that the grantee(s) shall not exercise
their rights in such a mann woultause unreasonable interference with the construction, use
and operation of the Project.
ARTICLE XIV
SIGNAGE
Tenant shall h. • 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.
24
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. Both Landlord and Tenant will indemnify, defend,
and hold the other 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 La
General of the United States, or any of their duly authorized re
books, documents, papers, or other records related to this Gr
examinations, excerpts, and transcripts, upon reasonable no
hours, and limited to books and records reasonably relato omplia
the Comptroller
atives, with respect to any
e in order to make audits,
during normal business
an h this Ground Lease.
15.03 Recordation. Landlord and Tenant s record a Memoran. ► 'f Ground Lease
in the appropriate office of public record of Miami-D de County lorida. At the expiration of the
Lease Term or earlier termination of this Ground Lease, Tena 1 execute a quit claim or other
document reasonably requested by Landlord to confirm th rmination of its interest in this
Ground Lease and the Improvements.
of a request from Landlord, Landlord
Lease.
15.04 Time of Esse
expressly stated in this G
enant refuses to do so within ten (10) days after receipt
erally record aiotice of termination of this Ground
Time is of the essence only with respect to those obligations
15.05 No N" r. No wa °Q° of any dition or agreement in this Ground Lease by
either Landlord or enant will im y or constitute a further waiver by such party of the same or
any other condition or agreement. No act or thing dne 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
Gro ease will be deemed to be anything other than a payment on account of the earliest
stipula ed Rent. No endorsement or stment on any check, or any letter accompanying any check
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.
25
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 th• - that are specifically set
forth in this Ground Lease, Landlord or Tenant has made no r ntations, warranties, or
agreements to one another with respect to this Ground Lease.
15.09 Amendment. This Ground Lease may be ended only by a written document
signed by Landlord and Tenant, with the written conse t e managing member of Tenant and
each Permitted Leasehold Mortgagee. No amendm 11 impair the obligations of Tenant to
develop and operate the project in accordance all ap ble requirements.
15.10 Severability. If any provision of this Ground Leas found by a coin' 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 b-legal, valid, ..� d enforceable.
15.11 Notices. AnyQtice, request, demand, consent,_ ap. ,.val, or other communication
required or permitted under this Ground Lease shall be in writingand shall be given by either (a)
hand -delivery, (b) relia vemight commercial courier, or (c) electronic mail, telecopy or other
means of electronic trap ission, if confirmed promptly by any of the methods specified in clauses
(a) or (b) 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
heren
If to Landlord: If to Tenant:
City of Miami
Department of Community Development
444 S.W. 2nd Avenue, 9th Floor
Miami, Florida 33130
Attn: Victor Turner
Phone: (305) 416-1978
26
SG Little Havana, LLC
2901 Florida Avenue, Suite 806
Coconut Grove, Florida 33133
Attn: Richard Swerdlow, General Counsel
Phone: (954) 401-5100
With a copy to:
Office of the City Attorney
444 S.W. 2nd Avenue, 9th Floor
Miami, Florida 33130
Attn: George K. Wysong
Phone: (305) 416-1800
With a copy to:
SJM Partners
11890 Sunrise Valley Drive, Suite 554
Rest°On, Virginia 20191
Attn: Stephen Garchik
Phone: (703) 517-7004
15.12 Attorneys' Fees. If Landlord and Tenant litigate an
or the subject matter of this Ground Lease, the unsuccessful liti
all reasonable attorneys' fees and court costs incurred by i
Payment of any litigation cost or expense is subject to HUD •rova
by HUD. Settlement of any such litigation is subjec�HUD's app
required by HUD.
ion of this Ground Lease
pay the successful litigant
tion with such litigation.
ch approval is required
if such approval is
15.13 Waiver of Jury Trial. Landlord and Tenant may ive trial by j
proceeding, or counterclaim brought by either of them against theRther on all ma
of this Ground Lease or the use and occupancy of the Premises.
any action,
s arising out
15.14 Governing Law. This round 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 venueall lie exclusively with the
courts of Miami -Dade Cou orida.
15.15 Bindin
upon, Landlord's s
Ground Lease will
assigns so long as the
Lease.
ct. This Ground LWwill inure to the benefit of, and will be binding
ors and assigns excepts otherwise provided in this Ground Lease. This
e to the benefit of, and will be binding upon, Tenant's successors and
ession or assi ment is permitted pursuant to the terms of this Ground
6 Effect of Exhibits. Each and every exhibit referred to or otherwise mentioned in
this : nd Lease is attached to this Ground Lease is and shall be construed to be made a part of
this G . ' Lease by such referenc other mention at each point at which such reference or
other men •ccurs, in the same manner and with the same effect as if each exhibit were set forth
in full at len_ . ery time it is referred to and otherwise mentioned.
15.17 Cutide Rights. Except as expressly limited by the terms 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.
15.18 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,
27
casualty, and condemnation provisions herein to the extent such provisions expressly apply to such
parties.
15.19 Non -Merger. Except upon expiration of the Lease Term 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),
Premises or any part thereof or any interest in such fee estate (inclu
and until all persons, including any assignee of Landlord, hay'
Lease or Tenant's estate created hereunder, and (ii) the fee
thereof, shall join in a written instrument effecting such me
15.20 Counterparts. This Agreement may
counterparts shall be deemed to be originals and
instrument.
(b) the fee estate in the
e Improvements), unless
interest in (i) this Ground
the Premises or any part
my record the same.
ecuted in cou arts, and all such
shall constitute b a e and the same
[SIGNATURE PAGE FOLLOWS]
c)%
28
SIGNATURE PAGE
TO GROUND LEASE
SG LITTLE HAVANA
IN WITNESS WHEREOF, the parties have executed this Ground Lease as of the Effective
Date.
ATTEST:
By:
Todd Hannon, City Clerk
Date:
LANDLORD:
CITY OF MIAMI, a Florida municipal
corporation
By:
James Reyes, Cit,4anager
APPROVED AS TO INSURANCE AND APPROVED AS TO FORM CORRECTNESS:
REQUIREMENTS:
By:
David Ruiz
George K. Wysong
Interim Director of Risk Manage ;� Attorney
APPROVED AS TO DEPARTMENTAL
REQUIREMENTS;
By:
Victor Turner
Director of the Department of Housing
Community Development
29
TENANT:
SG LITTLE HAVANA, LLC a Florida limited
liability company
By: SG Little Havana Manager, LLC
By:
chael Swerdlow
anager
30
EXHIBIT A
LEGAL DESCRIPTION OF PREMISES
FOLIO
LEGAL DESCRIPTION
01-4102-006-6450
LAWRENCE ESTATE LAND COS SUB PB 2-46 LOT 8 BLK 105 LOT SIZE
6650 SQ FT OR 20753-2772 0902 1 COC 23311-1672 04 2005 6
01-4102-006-6460
LAWRENCE ESTATE LAND COS SUB PB 2-46 LOT 9 BLK 105 LOT SIZE
6650 SQ FT OR 10526-0378 0879 4 OR 22566-4226 08 2004 6 COC
23311-1672 04 2005 6
01-4102-006-6470
LAWRENCE ESTATE LAND COS SUB PB 2-46 LOT 10 LESS R/W BLK 105
LOT SIZE 6519 SQ FT OR 15591-2851 0792 1 COC 23311-1672 04 2005 6
01-4102-006-6480
LAWRENCE ESTATE LAND COS SUB PB 2-46 LOTS 11 & 12 LESS ST &
LESS EXT AREA OF CURVE IN NE COR OF LOT 11 BLK 105 LOT SIZE12746
SQ FT OR 22179-0662 0304 6(2) COC 23311-1674 04 2005 6
01-4102-006-6490
PB 2-46 LAWRENCE ESTATE LAND COS SUB LOT 13 LESS S10FT BLK 105
LOT SIZE 6450 SQ FT OR 19759-2597/2598 07014 COC 23311-1674 04
2005 6
EXHIBIT "A"
EXHIBIT B
IMPROVEMENTS
EXHIBIT "B"
4fir
EXHIBIT Cl
INSURANCE REQUIREMENTS — VACANT LAND
CERTIFICATE OF INSURANCE
SG LITTLE HAVANA, LLC
Tenant shall obtain and keep in force during the Lease Term insurance policies (or binders)
evidencing the insurance coverages that meet the following requirements:
I. Commercial General Liability insuring Landlord and Tenant
out of the ownership, use, occupancy or maintenance of the
be in the amount of not less than:
A. Limits of Liability
Bodily Injury and Property Damage Liab
Each Occurrence
General Aggregate Limit
Products/Completed Operations
Personal and Advertising Injury
B. Endorsements Require
City of Miami, its officia
Contingent and Contractu
abili
Premises andierations Li. ty
Primary Insurance Cl use Endorsement
Hired and Non Ow uto Endorsement
ainst any liability arising
es. Such insurance shall
$ 1,000,000
$ 2,000,000
$ 1 00,000
0,000
sted as an additional insured
II. Worker's Compensation as required by Chapter 440, Florida Statutes.
A. Limits of Liability
Statutory -State of Florida
Waiver of subrogation
III.Employer's Liability r
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,Q00 for bodily injury caused by disease, policy limit
Letter may be provided, if less than (4) employees
IV. Umbrella Liability
Each Occurrence
Policy Aggregate
$1,000,000
$1,000,000
EXHIBIT "C"
City of Miami, its officials, employees and agents listed as additional insured.
Coverage is 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, e 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 e - ent. All policies and /or certificates of
insurance are subject to review and verific, by Risk agement prior to insurance
approval.
All insurance policies shall be
not be unreasonably denied.
'tted to the La d for approval, which approval shall
EXHIBIT C2
INSURANCE REQUIREMENTS — CONSTRUCTION PHASE
CERTIFICATE OF INSURANCE
SG LITTLE HAVANA, LLC
Tenant shall obtain and keep in force during the Lease Term the insurance policies (or
binders) evidencing the insurance coverages that meet the following requirements:
I. Commercial General Liability insuring Landlord and Tenant ¶ ainst any liability arising
out of the ownership, use, occupancy or maintenance of the es. Such insurance shall
be in the amount of not less than:
A. Limits of Liability
Bodily Injury and Property Damage Liab
Each Occurrence
General Aggregate Limit
Products/Completed Operations
Personal and Advertising Injury
B. Endorsements Required
$ 1,000,000
$ 2,000,000
$ 1 00,000
0,000
City of Miami, its officials, employe and ag- 'sted as an additional insured
Contingent and Contractual Liability
Explosion, Collapse and Underground Hazard
Primary Insurance Clause Eniorsement
Extended Completed Operations Endorsement providing
apple e statute of limitations
II. Business Auto le Liability
LimitrLiability ,
Combined Single Lim
Including Hired, Borrowed or Non -Owned Autos
Any One Accident $1,000,000
Endorsements Required
City ofMiami included as an additional insured
III.Worker's Compensation as required by Chapter 440, Florida Statutes.
B.
coverage per the
EXHIBIT "C"
A. Limits of Liability
Statutory -State of Florida
Waiver of subrogation
IV. Employer's Liability
A. Limits of Liability
$1,000,000 for bodily injury caused by an accident, ea ccident.
$1,000,000 for bodily injury caused by disease, eac. . oyee
$1,000,000 for bodily injury caused by disease, ' imit
V. Umbrella Liability
A. Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence $10,000,000
Policy Aggregate $10,000,000
City of Miami, its officials, emp is listecas additional insured.
Coverage is excess follow form o ciesce s ined herein.
VI. Payment and Performancond TBD
City of Miami Listed as a Co -Obligee tothe extent permitted by the Permitted Leasehold
Mortgagees, provided that, if such mortgagees do not require a payment and performance
bond then no such bond shall be required by Landlord.
V Comple Value Builder's Risk Insurance
A. Causes of All Ris Specific Coverage Project Location
Valuation: Reptacemen Cost
Deductible: $50,000 All other Perils
$50,000Water Damage
5% maximum on Wind/Hail, Earth Movement and Flood
City of Miami as loss payee, to the extent permitted by the Permitted Leasehold
Mortgagees.
Coverage Extensions: As provided by carrier
This coverage must be provided prior to the date any construction is commenced upon the
Premises.
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.
All insurance policies shall be submitted to the Landlord for approval, which approval shall
not be unreasonably denied.
4fir
EXHIBIT C3
INSURANCE REQUIREMENTS — COMPLETED IMPROVEMENTS
CERTIFICATE OF INSURANCE
SG LITTLE HAVANA, LLC
Tenant shall obtain and keep in force during the Lease Term the insurance policies (or
binders) evidencing the insurance coverages that meet the following requirements:
I. Commercial General Liability insuring Landlord and Tenant
out of the ownership, use, occupancy or maintenance of the
be in the amount of not less than:
A. Limits of Liability
Bodily Injury and Property Damage Liab
Each Occurrence
General Aggregate Limit
Products/Completed Operations
Personal and Advertising Injury
B. Endorsements Require
City of Miami, its officia
Contingent and Contractu
abili
Premises andierations Li. ty
Primary Insurance Cl use Endorsement
Hired and Non Ow uto Endorsement
ainst any liability arising
es. Such insurance shall
$ 1,000,000
$ 2,000,000
$ 1 00,000
0,000
sted as an additional insured
II. Worker's Compensation as required by Chapter 440, Florida Statutes.
A. Limits of Liability
Statutory -State of Florida
Waiver of subrogation
III.Employer's Liability r
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,Q00 for bodily injury caused by disease, policy limit
Letter may be provided, if less than (4) employees
IV. Property
A. Commercial Property Insurance covering the Building and Business Personal
Property owned by SG LITTLE HAVANA, LLC. Commercial property insurance
shall, at a minimum, cover the perils insured under the ISO Special Causes of Loss
EXHIBIT "C"
Special Form (CP 10 30), or a substitute form providing equivalent coverages
written on an All Risk or Direct Physical Loss or Damage basis with no
coinsurance, including wind and named storm coverage and hail not to exceed 5%
deductible depending on market conditions, along with 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 ndation and excavation
costs), trade fixtures and floor coverings. In addi ' e policy should afford
coverage for sprinkler leakage, extended cov including vandalism and
malicious mischief, as well as coverage for ti ' i t relative to loss of rents,
along with boiler and machinery coverage, i • icab e amount of insurance
shall equal the total estimated replace ost of all r- d business personal
property owned by SG LITTLE HAV , LLC.
The City of Miami shall be listed as losspayees under this policy, to the -` ' t permitted
by the Permitted Leasehold Mortgagees. '1110
V. Umbrella Liability
Each Occurrence
Policy Aggregate
City of Miami, i w ployee
Coverage is ; follow over th
VI. Intentionally Deleted
ents liste s additional insured.
neral liability and auto policies.
VII. Flood Insurance, to the extent that the Premises are founded to be within a flood
rd zone, in an amount not less than the full replacement value of the completed
velopment, or the maximum amount of coverage available through the National Flood
urance Program, whichever igreater. This policy must be provided at such time as the
• gs' walls and roof exists.
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.
All insurance policies shall be submitted to the Landlord for approval, which approval shall
not be unreasonably denied.