HomeMy WebLinkAbout26247AGREEMENT INFORMATION
AGREEMENT NUMBER
26247
NAME/TYPE OF AGREEMENT
5350 FLAGLER STREET, LLC
DESCRIPTION
GROUND LEASE/DEVELOPMENT OF AFFORDABLE ELDERLY
RENTAL HOUSING PROJECT/FILE ID: 19456/R-26-
0283/MATTER ID: 25-423K
EFFECTIVE DATE
ATTESTED BY
TODD B. HANNON
ATTESTED DATE
8/7/2026
DATE RECEIVED FROM ISSUING
DEPT.
8/7/2026
NOTE
DOCUMENT ROUTING FORM
CITY OF MIAMI
RUSH
ORIGINATING DEPARTMENT: Housing and Community Development
DEPT. CONTACT PERSON: Maria T Ason
NAME OF CONTRACTUAL PARTY/ENTITY: 5350 Flagler Street, LLC
IS THIS AGREEMENT TO BE EXPEDITED/RUSH:
TOTAL CONTRACT AMOUNT: $ 0.00
EXT. 1971
- YES 7 NO
FUNDING INVOLVED? YES J NO
TYPE OF AGREEMENT:
0 MANAGEMENT AGREEMENT ❑ PUBLIC WORKS AGREEMENT
0 PROFESSIONAL SERVICE AGREEMENT 0 MAINTENANCE AGREEMENT
❑ GRANT AGREEMENT 0 INTER -LOCAL AGREEMENT
0 EXPERT CONSULTANT AGREEMENT ❑ LEASE AGREEMENT
0 LICENSE AGREEMENT 0 PURCHASE OR SALE AGREEMENT
OTHER (PLEASE SPECIFY): Ground Lease 40111111111111111111111111111111111.111111MMENnimors
PURPOSE OF ITEM (DETAILED SUMMARY/ ADD ADDITONAL PAGES IF NECESSARY): Execute agreements
that will provide access to the Borrower for purposes of applying for additional funding for the development of the project.
19456
COMMISSION APPROVAL DATE: 10/09/2025 FILE ID:
IF THIS DOES NOT REQUIRE COMMISSION APPROVAL, PLEASE EXPLAIN:
ENACTMENT No.: elfigkiiii, R-26-0283
ROUTING INFORMATION
DATE
PLEASE PRINT AND SIGN /
/
APPROVAL BY DEPARTMENT DIRECTOR/
DESIGNEE
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PRINT: VICTOR TURNER/JOHN
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SIGNATURE: �/
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APPROVAL BY RISK MANAGEMENT
PRINT: DAVID RUIZ JD CPCU /`.
SIGNATURE:
APPROVAL BY CITY ATT�
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PRINT: GEORGE K. WYSONG
SIGNATURE: �Kl
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APPROVAL BY ASSISTANT CITY MANAGER
PRINT: ERICA PASCHAL DARLING
SIGNATURE:
APPROVAL BY DEPUTY CITY MANAGER
PRINT: NATASHA COL BROOK-WILLIAMS
SIGNATURE:
APPROVAL BY CITY MANAGER
b b ITO
PRINT: JAMES RE -E
SIGNAT •-
APPROVAL BY CITY CLERK
PRINT: TOD
SIGNATURE:
N` N
PLEASE ATTACH THIS ROUTING FORM TO ALL DOCUMENTS THAT REQUIRE
EXECUTION BY THE CITY MANAGER
GROUND LEASE
(Flagler Villas Phase Two)
This Ground Lease (this "Ground Lease" or "Lease", as applicable) is made as of
, 2026 (the "Effective Date"), between CITY OF MIAMI, a Florida municipal
corporation ("Landlord" or "City", as applicable), and 5350 FLAGLER STREET, LLC, a
Florida limited liability company ("Tenant").
PREAMBLE
A. City is the owner of certain real property located at 5350 West Flagler Street, City
of Miami, Miami -Dade County, Florida, and described on Exhibit "A" attached hereto and made
a part hereof (the "Premises"), which City desires to have developed with the use of private
and/or public funds.
B. Tenant has proposed to newly construct on the site approximately 98 affordable
housing units, each of which shall be elderly, to be known as "Flagler Villas Phase Two" that
will increase supply of rental housing units for low-income, family, elderly, disabled, special
needs or other population and uses acceptable to the City (the "Project"), on the Premises.
C. On February 27, 2025, the Miami City Commission duly adopted its Resolution
No. R-25-0062, and on June 25, 2026, the Miami City Commission adopted Resolution No.
R-26-0283 (collectively the "Resolution"), approving the lease by the City, as Landlord, of the
Premises to Tenant in accordance with the terms set forth in this Ground Lease, a copy of which
is attached and incorporated herein as Exhibit "E".
LEASE
In consideration of the foregoing preamble, mutual covenants and other good and
valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Landlord
and Tenant, with the intent to be legally bound, hereby agree as follows:
ARTICLE I- GRANT OF LEASED PREMISES; TERM; TITLE
1.01 Grant of Leased Premises. Landlord shall deliver exclusive possession of the
Premises to Tenant on the Effective Date; provided, however, the Commencement Date (as
defined herein) shall be the date of Financial Close, with "Financial Close" meaning the date on
which Tenant has secured debt and/or equity financing in an amount sufficient to fund the full
Project cost of developing, constructing, and fixturing the Premises as needed for the Project, as
evidenced by the execution and delivery of all definitive financing and/or equity contribution
agreements or other reliable evidence of the existence of all such funding necessary for the
Project in form and substance reasonably acceptable to the City (the "Commencement Date").
The Lease Term shall commence on such Commencement Date and shall expire on the 99th
anniversary thereof, unless earlier terminated as provided for herein.
1.02 Premises. The Premises consists of those certain tracts or parcels of land located
at 5350 West Flagler Street, Miami, Florida as more particularly described in Exhibit "A"
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attached hereto and incorporated herein, together with all appurtenances, easements and rights of
way related thereto and the improvements, if any, thereon.
1.03 Title Matters. Tenant shall have the right to order a title insurance commitment on
the Premises, within the ninety (90) calendar days following the Effective Date. In the event the
title insurance commitment shall reflect encumbrances or other conditions impairing marketable
title ("Defects"), or if any update or continuation of the title insurance commitment obtained by
Tenant before the Commencement Date in connection with its Financial Close or equity
syndication reveals any new Defects, then, Landlord, upon notification of the Defects, shall
immediately and diligently proceed to cure same and shall have a reasonable time within which
to cure the Defects. If, after the exercise of all reasonable diligence, Landlord is unable to clear
the Defects, then Tenant may accept the Defects or Tenant may terminate the Lease and the
parties shall be released from further liability.
1.04 Construction of Improvements. The Project shall be constructed in accordance
with requirements of all laws, ordinances, codes, orders, rules and regulations (collectively
"Applicable Laws") of all governmental entities having jurisdiction over the Project
(collectively "Governmental Authorities"), including, but not limited to, the City, Miami -Dade
County, the State of Florida, and the United States Department of Housing and Urban
Development ("HUD"). Tenant shall apply for and prosecute, with reasonable diligence, all
necessary approvals, permits and licenses required by applicable Governmental Authorities for
the construction, development, zoning, use and occupation of the Project. The City agrees to
reasonably cooperate with and publicly support Tenant's effort to obtain such approvals, permits
and licenses, provided that such approvals, permits and licenses shall be obtained at Tenant's
sole cost and expense.
(a) Construction of the Project shall be performed in a good and workmanlike
manner and in conformity with all Applicable Laws.
(b) It is understood that a material inducement for the City entering into this
Lease is the expectation, agreement and requirement that the Premises, will include the
Improvements, during the entire Term, consisting of approximately ninety eight (98) multifamily
residential units as more fully described and/or depicted on Exhibit B.
(c) Landlord and Tenant agree that Tenant shall be accorded all benefits and
burdens of ownership of the Premises for as long as this Lease shall remain in effect. At all
times during the term of this Lease, the Improvements shall be owned by the Tenant and, during
the term, the Tenant alone shall be entitled to all of the tax attributes of ownership including,
without limitation, the right to claim depreciation or cost recovery deductions, the right to claim
housing tax credits described in Section 42 of the Internal Revenue Code of 1986, as amended
(the "Code") and the right to amortize capital costs and to claim any other federal tax benefits
attributable to the Improvements.
1.05 Low -Income Housing Tax Credits. The Project is, or will be, subjected to and
benefited by the terms and conditions of the low-income housing tax credit requirements as set
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forth in the Code, and as required by HUD or the Florida Housing Finance Corporation
("FHFC") during the appropriate extended use period.
1.06 Closing on Construction Financing. Subject to Unavoidable Delays, in the event
Tenant shall not achieve Financial Close, including syndication of the housing tax credits, by
December 31, 2027, either party shall have the right to terminate this Lease (and such event shall
not be deemed an Event of Default) and Landlord and Tenant shall have no further obligation to
each other under this Lease, except as to such matters as expressly survive termination, by
delivering written notice to the other party.
1.07 Unavoidable Delays. Other than Tenant's obligation to pay any amounts due to
Landlord provided for in this Lease or to maintain all insurance required by this Lease, the party
obligated to perform under this Lease shall not be required to perform and shall be entitled to a
reasonable extension of time because of its inability to meet an obligation or a time frame or
deadline specified in this Lease, where such failure or inability to perform is caused by an
Unavoidable Delay. "Unavoidable Delays" shall mean delays not caused by and beyond the
control of a party required to perform, such as delays due to strikes; a natural catastrophe, such as
an earthquake, hurricane, flood or tornado, that could not have been prevented; fires; enemy
action; civil disturbance; sabotage; restraint by court or public authority; litigation or formal
administrative challenges by third parties to the execution or performance of this Lease or the
procedures leading to its execution or to the process of entitlement for the Premises; pandemic or
epidemic or related governmental shutdown or slowdown affecting the Tenant's ability to obtain
entitlements, permits, approvals or any required consents, or to assemble a capable workforce for
the commencement or completion of Construction or to obtain materials or services; or
moratoriums. Notwithstanding anything in this Lease to the contrary, if a party shall be delayed
in the performance of any act required under this Lease by reason of any Unavoidable Delay, and
the party then provides notice of the Unavoidable Delay to the other party within ten (10)
calendar days after its occurrence, performance of the act shall be excused for the period of the
delay and the period for the performance of the act shall be extended for a reasonable period, in
no event to exceed the period equivalent to the period of the delay.
ARTICLE II- REPRESENTATIONS AND WARRANTIES
2.01 Landlord's Representations and Warranties. Landlord hereby represents and
warrants to Tenant as follows:
(a) Title. Landlord owns fee simple, good and marketable title to the land
underlying the Premises and there are no mortgages or other encumbrances affecting Landlord's
fee simple title to the Premises.
(b) Landlord and Approvals. (i) Landlord has full right, power, and authority
to make, execute, deliver, and perform its obligations under this Ground Lease; (ii) Landlord has
obtained and received all required and necessary consents and approvals to enter into this
Ground Lease with Tenant, including the adoption of the Resolution by the Miami City
Commission, which Resolution remains in full force and effect and has not been rescinded or
amended in any manner adverse to Tenant; and (iii) the entry by Landlord into this Ground Lease
with Tenant and the performance of all of the terms, provisions, and conditions contained herein
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does not and will not, violate or cause a breach or default under any agreement or obligation to
which Landlord is a party or by which it is bound.
(c) Assessments. There are no unpaid special assessments of which Landlord
has received notice for sewer, sidewalk, water, paving, gas, electrical, or utility improvements or
other capital expenditures, matured or unmatured, affecting the Premises.
(d) Contractual Obligations. Landlord is not obligated under any contract,
lease or agreement, materially affecting the ownership, use, operation, management,
maintenance, or lease of the Premises.
(e) Full Disclosure. No representation, statement, or warranty by Landlord
contained in this Ground Lease or in any exhibit attached hereto contains or will contain any
untrue statement of a material fact or omits a material fact necessary to make the statement of
fact therein recited not misleading.
(f) Litigation. There is no action, suit, litigation, or proceeding pending or to
Landlord's knowledge, threatened against Landlord that could prevent or impair Landlord's entry
into this Ground Lease or performance of its obligations hereunder.
(g) Environmental. There are, to the actual knowledge of Landlord, no
Hazardous Substances located in, on or under the Premises. For the purposes hereof
"Hazardous Substances" includes any substances, chemicals, materials or elements that are
prohibited, limited or regulated by any and all federal, state or commonwealth, and local laws,
regulations, statutes, codes, rules, resolutions, directives, orders, executive orders, consent
orders, guidance from regulatory agencies, policy statements, judicial decrees, standards,
permits, licenses and ordinances, or any judicial or administrative interpretation of, any of the
foregoing, pertaining to the protection of land, water, air, health, safety or the environment
whether now or in the future enacted, promulgated or issued (the "Environmental Laws"), or
any other substances, chemicals, materials or elements that are defined as "hazardous" or "toxic,"
or otherwise regulated under the Environmental Laws, or that are known or considered to be
harmful to the health or safety of occupants or users of the Premises. The term Hazardous
Substances shall also include, without limitation, any substance, chemical, material, or element
(i) defined as a 'hazardous substance' under the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (42 USC §§ 9601, et seq.), as amended by the
Superfund Amendment and Reauthorization Act of 1986, and as further amended from time to
time and regulations promulgated thereunder; (ii) defined as a "regulated substance" within the
meaning of Subtitle I of the Resource Conservation and Recovery Act (42 USC §6991-6991i), 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 adopted by the state in which the
Premises are located, or its agencies or political subdivisions; (v) which is petroleum, petroleum
products or derivatives or constituents thereof, (vi) which is asbestos or asbestos -containing
materials; (vii) the presence of which requires notification, investigation or remediation under
any Environmental Laws or common laws; (viii) the presence of which on the Premises causes
or threatens to cause a nuisance upon the Premises or to adjacent properties or poses or threatens
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to pose a hazard to the health or safety of persons on or about the Premises; (ix) the presence of
which on adjacent properties would constitute a trespass by the owner; (x) which is urea
formaldehyde foam insulation or urea formaldehyde foam insulation -containing materials; (xi)
which is lead -based paint or lead -based paint -containing materials; (xii) which are
polychlorinated biphenyls or polychlorinated biphenyl -containing materials; (xiii) which is radon
or radon -containing or producing materials; or (xiv) which by any laws of any governmental
authority requires special handling in its collection, storage, treatment or disposal.
Notwithstanding any contrary provision of this paragraph (g), the term Hazardous Substances
shall not apply to such substances that would otherwise meet such definition as long as (i) the
use of such substance in, on or under the Premises is in compliance with all Environmental Laws
and (ii) such substance is used in de minimis quantities incidental to the operation of the
Premises.
2.02 Tenant's Representations and Warranties. Tenant hereby warrants and represents
to Landlord as follows:
(a) Existence. Tenant is a limited liability company existing under the laws of
the State of Florida.
(b) Authority. Tenant (i) has the power and authority to own its properties
and assets, to conduct its business as presently conducted and to execute, deliver, and perform its
obligations under this Ground Lease and (ii) has obtained all company authorizations and
approvals which are necessary for it to execute, deliver, and perform its obligations under this
Ground Lease.
(c) Binding Obligation. This Ground Lease has been duly and validly
executed and delivered by Tenant and constitutes a legal, valid, and binding obligation of Tenant
enforceable in accordance with its terms.
(d) Litigation. There is no pending or, to the best of Tenant's knowledge,
threatened investigation, action, or proceeding by or before any court, any governmental entity or
arbitrator which (i) questions the validity of this Ground Lease or any action or act taken or to be
taken by Tenant pursuant to this Ground Lease or (ii) is likely to result in a material adverse
change in the authority, property, assets, liabilities or condition, financial or otherwise, of Tenant
which will materially impair its ability to perform its obligations hereunder.
(e) Full Disclosure. No representation, statement, or warranty by Tenant
contained in this Ground Lease or in any exhibit attached hereto contains any untrue statement of
a material fact or omits a material fact necessary to make such statement of fact therein not
misleading.
ARTICLE III — RENT
3.01 Ground Rent. Tenant shall pay to Landlord a one-time payment of base rent
("Base Rent") for the Lease Term in the amount of One Hundred Dollars ($100.00), to be
delivered to Landlord by Tenant on the Effective Date. Tenant acknowledges and agrees that the
construction of affordable housing on the Premises is a material inducement for Landlord to offer
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the Premises on the terms set forth herein to Tenant, and but for Tenant's promise to provide
such housing the terms contained herein would not be offered.
3.02 Payments by Tenant. Other than as expressly set forth in this Ground Lease,
commencing on the Commencement Date, all costs, expenses, liabilities, charges or other
deductions whatsoever with respect to the Premises and the Improvements or with respect to any
interest of Landlord in the Premises, the Improvements, or this Ground Lease shall be the
responsibility of Tenant.
3.03 Control and Liabilities. Landlord acknowledges and agrees that Landlord is and
shall be, at all times prior to the Effective Date, in use, control and occupancy of the Premises
and all improvements located thereon. In connection with the foregoing, Landlord further
acknowledges and agrees that Landlord is responsible for maintaining, repairing, securing,
supervising and managing the Premises, including with respect to any third parties (e.g., tenants)
located in the Premises. All debts, obligations and liabilities arising prior to the Commencement
Date in the course of business of the Premises or otherwise in connection with the use,
occupancy or operation thereof (including, but not limited to, all such liabilities for utilities,
taxes and other costs and expenses related to the Premises; all such liabilities under or with
respect to Environmental Laws or claims; all such liabilities under or with respect to any
personal injury claims; and any and all obligations related to the operation, maintenance, repair,
security, supervision and management of the Premises) are and shall be the obligation of
Landlord, and Tenant shall not be liable or otherwise responsible for any such debts, obligations
or liabilities or have any duties to the Landlord or any third parties with respect to the use,
occupancy or operation of the Premises.
ARTICLE IV- TAXES, OPERATING EXPENSES,
INSURANCE REQUIREMENTS, AND RESTORATION
4.01 Taxes. Tenant will pay any payments in lieu of real estate taxes, any real estate
taxes and personal property taxes and assessments assessed, levied, confirmed, or imposed on
the Premises or the Improvements during the Lease Term whether or not now customary or
within the contemplation of Landlord and Tenant. Tenant will pay all real estate transfer taxes
that are required in connection with this Ground Lease. Landlord shall pay all local, state, or
federal net income taxes assessed against Landlord, including but not limited to all sale and use
taxes imposed by the state of Florida on the payment due under this Ground Lease; local, state,
or federal capital levy of Landlord; or sales, excise, franchise, gift, estate, succession,
inheritance, or transfer taxes of Landlord. Landlord shall have the obligation to: (i) cause any tax
bills related to the Premises or Improvements to be sent directly to Tenant or (ii) provide copies
of all bills directly to Tenant promptly after receipt.
4.02 Operating Expenses.
(a) Tenant's Obligation. Beginning on the Effective Date and continuing until
the expiration of the Lease Term or earlier termination of this Ground Lease, Tenant will pay or
cause to be paid directly to the providers of such services all costs and expenses attributable to or
incurred in connection with the ownership, use, leasing, occupancy, operation, maintenance, and
repair of the Premises and the Improvements including without limitation (i) all energy sources
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for the Improvements, such as propane, butane, natural gas, steam, electricity, solar energy, and
fuel oil; .(ii) all water, sewer and trash disposal services; (iii) all maintenance, repair, replacement
and rebuilding of the Improvements including, without limitation, all mechanical, electrical,
HVAC, telecommunications and security systems within the Improvements, and all structural
and non-structural components of the Improvements, both interior and exterior; (iv) all
landscaping, maintenance, repair and striping of all parking areas of the Improvements; (v) all
insurance premiums relating to the Premises, including fire and extended coverage, public
liability insurance, rental insurance and all risk insurance; and (vi) the costs and expenses of all
capital improvements or repairs (whether structural or non-structural) required to maintain the
Improvements in good order and repair or required by any Governmental (or
quasi -governmental) Authority having jurisdiction over the Premises and the Improvements.
(b) Permits and Licenses. Tenant will also procure, or cause to be procured
any and all necessary permits, licenses, or other authorizations required for the installation and
maintenance of wires, pipes, conduits, equipment, and appliances for use in supplying any such
service to and upon the Premises and the Improvements. Landlord, upon request of Tenant, and
at the sole expense and liability of Tenant, will join with Tenant in any application required for
obtaining or continuing any such services.
4.03 Insurance. Beginning on the Effective Date and continuing until the expiration or
earlier termination of the Term, Tenant shall maintain and keep in force insurance, as applicable,
naming Landlord as an additional insured in the type and for the amounts specified on Exhibit C
which types and amounts may be adjusted from time to time by Landlord in its reasonable
discretion. All public liability, property damage liability, and casualty policies maintained by
Tenant will be written as primary policies, not contributing with and not secondary to insurance
coverage that Landlord may carry. If Tenant fails to maintain such insurance, at its election, and
upon five (5) calendar days' notice to Tenant, Landlord may, but shall not be obligated to,
procure such insurance as may be necessary to comply with the insurance requirements of this
Section 4.03, and Tenant shall repay to Landlord as Additional Rent the cost of such insurance.
Tenant shall furnish to Landlord certificates of insurance which shall state that a thirty (30)
calendar day notice of prior cancellation or change will be provided to Landlord.
4.04 Restoration.
(a) If the Improvements shall be damaged or destroyed in whole or in part,
Tenant shall give prompt notice thereof to Landlord. The net amount of all insurance proceeds
received by Tenant with respect to such damage or destruction, after deduction of the reasonable
costs and expenses incurred by Landlord in collecting the same (the "Net Proceeds"), shall,
subject to the terms of any Permitted Leasehold Mortgage, be disbursed by Landlord in
accordance with the terms and conditions set forth herein to pay for the costs and expenses of the
Restoration (defined below), provided that (i) no Event of Default (defined below) has occurred
and remains uncured under this Ground Lease, (ii) except as otherwise agreed to by Landlord
and subject to the terms of any Permitted Leasehold Mortgage, Tenant proceeds promptly after
the insurance claims are settled with the restoration, replacement, rebuilding or repair of the
Improvements as nearly as possible to the condition the Improvements were in immediately prior
thereto (the "Restoration"), (iii) the Restoration shall be done in compliance with all Applicable
Laws, (iv) all costs and expenses incurred by Landlord in connection with making the Net
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Proceeds available for the Restoration, including, without limitation, reasonable counsel fees and
inspecting engineer fees incurred by Landlord, shall be paid out of the Net Proceeds, (v)
Landlord, in its reasonable discretion and subject to the terms of the loan documents of the
Senior Leasehold Mortgagee (as defined below), shall have determined that the Restoration is in
its best interest, provided that Landlord hereby acknowledges and agrees that Restoration of the
Project is in Landlord's best interest from the date hereof through the end of the initial fifteen
(15) years of the tax credit compliance period pursuant to Section 42 of the Code, and (vi)
Tenant deposits sufficient additional funds which, when added to the Net Proceeds, will pay for
the costs and expenses of the Restoration. Notwithstanding anything in the foregoing to the
contrary, the Landlord and the Tenant acknowledge and agree that said Restoration obligations
hereunder shall be limited to the availability of insurance proceeds and all proceeds of any fire,
hazard or other casualty insurance shall be paid to the Permitted Leasehold Mortgagee holding
the most senior Permitted Leasehold Mortgage, or an independent trustee acceptable to such
senior Permitted Leasehold Mortgagee (the "Senior Leasehold Mortgagee"), and shall, subject
to the Senior Leasehold Mortgagee loan documents, be applied to rebuild, repair, or reconstruct
the Improvements in accordance with the provisions of this Lease. If the insurance proceeds
received are insufficient to complete the Restoration, Tenant shall nonetheless use reasonable
best efforts to complete the Restoration, at Tenant's sole cost and expense, to the same condition
as existed prior to the casualty. In the event that it is not lawful or feasible to restore the
Improvements to substantially the same condition in which they existed prior to the occurrence
of such casualty, and provided that all Permitted Leasehold Mortgages are repaid in full and all
Permitted Leasehold Mortgagees consent in writing to the termination of this Lease, then Tenant
may terminate this Lease (as to the entire Premises and the Improvements or only to the portion
of the Premises and the Improvements affected by such casualty) by notice to Landlord, such
termination to be effective as of a date that is not less than thirty (30) calendar days after the date
of such notice to Landlord. In addition, Tenant and Landlord hereby agree that: (i) all Permitted
Leasehold Mortgagees shall be allowed to participate in the insurer's adjustment of losses and
resolution of any insurance claims, (ii) Landlord will receive no insurance proceeds until the
Improvements are restored and all Permitted Leasehold Mortgagees have been repaid in full, and
(c) all insurance proceeds remaining after Restoration is completed shall be applied in
accordance with the Senior Leasehold Mortgagee loan documents.
(b) Net Proceeds Held in Trust. Subject to the terms of any Permitted
Leasehold Mortgagee loan documents as to the holding and disbursement of the Net Proceeds,
the Net Proceeds shall be held in trust by Landlord and shall be paid by Landlord to, or as
directed by, Tenant from time to time during the course of the Restoration upon the written
request of Tenant if the work for which payment is requested has been done in a good and
workmanlike manner and substantially in accordance with the plans and specifications thereof, if
any, and (i) either no mechanics' or other liens or encumbrances on the Premises arising out of
the Restoration exist or any such liens or encumbrances have been stayed, discharged or bonded,
and (ii) the balance of the Net Proceeds plus the balance of any deficiency deposits given by
Tenant to Landlord pursuant to the provisions of this paragraph hereinafter set forth shall be
sufficient to pay in full the balance of the cost of the Restoration. Notwithstanding anything
contained in the foregoing, or otherwise in this Lease to the contrary, as long as the Tenant's
leasehold interest is encumbered by any Permitted Leasehold Mortgage, all insurance proceeds
from casualty insurance as provided herein shall be paid to and held by the Senior Leasehold
Mortgagee, or an insurance trustee selected by the Senior Leasehold Mortgagee pursuant to the
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terms of the Senior Leasehold Mortgagee loan documents. The Permitted Leasehold Mortgagees
shall have the right to -participate in adjustment of losses as to casualty insurance proceeds and
any settlement discussion relating to casualty or condemnation, and to approve any such final
adjustment or settlement.
(c) Disbursement of Net Proceeds. Subject to the terms of any Permitted
Leasehold Mortgage, notwithstanding anything to the contrary contained herein, if the Net
Proceeds shall be less than $500,000.00, the Net Proceeds shall be disbursed directly to Tenant
for payment of costs of Restoration, and the Landlord shall not be entitled to hold or disburse
such Net Proceeds. Notwithstanding anything contained herein to the contrary, all insurance
proceeds received with respect to any casualty shall be held by the Senior Leasehold Mortgagee
and distributed in accordance with the Senior Leasehold Mortgagee loan documents (so long as
any Senior Leasehold Mortgage is encumbering the Premises) or this Lease, as applicable.
(d) Discretion of Landlord. Landlord shall not be entitled to share in the
proceeds of any insurance policy except as specifically set forth herein and Landlord further
acknowledges that any and all excess insurance proceeds after all disbursements for the
Restoration have been completed shall belong to Tenant.
ARTICLE V- USE OF PREMISES; COVENANTS RUNNING WITH THE LAND
5.01 Permitted Use. During the Lease Term, or such lesser period as may be permitted
by law, Tenant will continuously set aside ninety-eight (98) units located on the Premises as new
affordable rental housing units in compliance with Section 42 of the Code and any requirements
of FHFC, and Tenant shall continuously use and operate all units in a manner which strictly
satisfies the requirements of this Ground Lease.
5.02 Compliance with Laws. Tenant shall not use, occupy, suffer or permit any
portion of the Premises to be used or occupied in violation of any Applicable Law, certificate of
occupancy, or other governmental requirement. Tenant will comply with all Applicable Laws
and all rules, orders, regulations, and requirements of the board of fire underwriters or insurance
service office, or any other similar body, having jurisdiction over the Premises and
Improvements.
5.03 Special Provisions Relating to Compliance with Environmental Laws.
(a) Tenant's Environmental Covenants. Without limitation of any of Tenant's
other covenants, agreements and obligations under this Ground Lease, Tenant hereby specifically
covenants and agrees to fulfill the responsibilities set forth below with respect to environmental
matters:
(i) Tenant shall comply with all Environmental Laws applicable to
Tenant relative to the Premises and Improvements. Tenant shall identify, secure, and maintain
all required governmental permits and licenses as may be necessary for the Premises and
Improvements, or otherwise required by Tenant's activities. Tenant shall maintain such permits
and licenses in effect and shall renew them in a timely manner, and Tenant shall comply and use
reasonable efforts to cause all third parties to comply with the terms of such permits and licenses.
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All Hazardous Substances present, handled, generated or used by Tenant on the Premises will be
managed, transported and disposed of in a lawful manner.
(ii) Tenant shall provide Landlord with copies of all forms and other
information concerning any releases, spills or other incidents relating to Hazardous Substances
or any violations of Environmental Laws promptly upon the discovery of such releases, spills, or
incidents.
(b) Landlord's Environmental Covenants. Without limitation of any of
Landlord's other covenants, agreements, and obligations under this Ground Lease, Landlord
hereby specifically covenants and agrees to provide Tenant with copies of all forms and other
information concerning any releases, spills, or other incidents relating to Hazardous Substances
or any violations of Environmental Laws with respect to the Premises of which Landlord has
actual knowledge.
5.04 Tenant's Environmental Indemnity. Tenant covenants and agrees to indemnify,
defend, and hold Landlord free and harmless from and against any and all losses, liabilities,
penalties, claims, fines, litigation, demands, costs, judgments, suits, proceedings, damages,
disbursements, or expenses (including reasonable attorneys' fees) which may at any time be
imposed upon, reasonably incurred by, or asserted or awarded against Landlord in connection
with or arising from:
(a) the existence of any Hazardous Substances which are first placed on, in, or
under all or any portion of the Premises during the Lease Term except to the extent so placed by
Landlord; or
(b) any violation of any Environmental Laws by Tenant at or relating to the
Premises which does not arise out of conditions existing prior to the Commencement Date. The
provisions of this Section 5.04 shall survive the expiration or early termination of this Ground
Lease.
5.05 Responsibility of Landlord. Landlord shall not be responsible under this Ground
Lease for any claims, losses, damages, liabilities, fines, penalties, charges, administrative and
judicial proceedings and orders, judgments, remedial action requirements, enforcement actions
of any kind, and all costs and expenses incurred in connection therewith, arising out of (i) any
activity by Tenant or its agents or contractors carried on or undertaken on or off the Premises
following the Commencement Date in connection with the handling, treatment, removal, storage,
decontamination, cleanup, transport or disposal of any Hazardous Substances located or present
on or under the Premises (except to the extent of any activity carried on or undertaken solely by
or contracted for by Landlord or its agents and except to the extent that any Hazardous Materials
are located or present on or under the Premises prior to the Commencement Date); or (ii) the
failure of Tenant or its agents or contractors following the Commencement Date to comply with
any Environmental Laws relating to the handling, treatment, presence, removal, storage,
decontamination, cleanup, transportation or disposal of Hazardous Substances into, on, under or
from the Premises whether or not such failure to comply was known or knowable, discovered or
discoverable following the Commencement Date.
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5.06 Restrictions Applicable to the Premises and the Improvements.
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(a) The provisions of this Section 5.06 are intended to create a covenant
running with the land and shall be binding upon Landlord and Tenant and each of their
respective successors and assigns and all subsequent owners of the Premises and the
Improvements, including, without limitation, any entity which succeeds to Tenant's interest in
the Premises and the Improvements.
(b) Tenant shall not execute any agreement, lease, conveyance or other
instrument whereby the Premises and Improvements or any part thereof is restricted upon the
basis of race, color, creed, religion, ancestry, national origin, handicap, age, sex, or marital status
in the sale, lease, rental, use, or occupancy of the Premises and the Improvements.
(c) Tenant shall not discriminate in the use, sale, lease, or occupancy of the
Premises and the Improvements against any person upon the basis of race, color, creed, religion,
ancestry, national origin, handicap, age, sex, or marital status.
(d) Tenant shall comply with all State, Federal and local laws, rules, and
regulations in effect from time to time, prohibiting discrimination or segregation by reason of
race, color, creed, religion, ancestry, national origin, handicap, age, sex, or marital status in the
sale, lease, use, or occupancy of the Premises and the Improvements.
5.07 Indemnification. Tenant shall indemnify, defend, save and hold Landlord and its
officers, officials, agents and employees (collectively with Landlord, the "Landlord Parties")
harmless from and against any and all claims, actions, damages, losses, liabilities, costs and
expenses (including court costs, attorneys' fees, and cost of claim processing, investigation and
litigation) arising out of or in connection with (a) any breach of this Ground Lease by Tenant,
(b) any violation, or alleged violation by Tenant, its affiliates, joint venture partners, agents or
employees of any of them or anyone for whose acts they may be liable (collectively with Tenant,
the "Tenant Parties") of state, federal, or local law, rule or regulation; (c) any bodily injury,
sickness, disease or death, or injury to or destruction of tangible property including the loss of
use resulting therefrom, arising out of or related to the occupancy and/or use of the Premises by
any one or more of the Tenant Parties. Such indemnity shall apply to any such claim, action,
damage, loss, liability, cost or expense caused in whole or in part by any act or omission
(negligent or otherwise) by any one or more of the Tenant Parties, regardless of whether or not it
is caused in 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.
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5.08 Survival. This Article V shall survive the expiration or early termination of this
Ground Lease.
ARTICLE VI- CONVEYANCES, ASSIGNMENTS AND TRANSFERS
6.01 Consent. This Lease shall be binding upon and inure to the benefit of the
successors and assigns of Landlord and Tenant, except that other than as specifically set forth
herein Tenant may not assign or sublet its interest in this Ground Lease without the prior written
consent of Landlord, which Landlord may withhold in its sole discretion, and, if required under
the terms of any Permitted Leasehold Mortgage, any Permitted Leasehold Mortgagee. Any
attempted transfer without such consent shall be null and void.
6.02 Prohibited Transfers. Tenant agrees for itself and its successors and assigns in
interest hereunder that it will not, other than in accordance with the granting of liens under
Permitted Leasehold Mortgages: (1) assign this Ground Lease or any of its rights under this
Ground Lease as to all or any portion of the Premises, or (2) make or permit any voluntary or
involuntary total or partial sale, lease, assignment, conveyance, mortgage, pledge, encumbrance,
or other transfer of any or all of the Premises, or the occupancy or use thereof, other than in
accordance with this Ground Lease (including but not limited to (i) any sale at foreclosure (other
than by a Permitted Leasehold Mortgagee) or by the execution of any judgment of any or all of
Tenant's rights hereunder, (ii) assignment in lieu of foreclosure or (iii) any Transfer by operation
of law), without first obtaining Landlord's express written consent thereto; provided, however,
that Tenant may, upon reasonable prior notice to Landlord but without first obtaining Landlord's
consent, convey or dedicate land for use as streets, alleys, or other public rights -of -way, and
make grants and easements for the establishment, operation and maintenance of public utilities.
6.03 Additional Restrictions on Transfers. In addition to the transfers described in
Section 6.02, no transfer, conveyance, or assignment shall be made, without the prior written
approval of Landlord, of: (1) any interest of a managing member (any such interest being
referred to as a "Controlling Interest") of Tenant; or (2) a Controlling Interest in any entity that
has a Controlling Interest in Tenant (each of such transfers, conveyances and assignments,
together with the transfers described in Section 6.02, is hereafter referred to as a "Transfer").
Landlord agrees that it will not unreasonably withhold, delay, or condition a request by Tenant
for consent to an internal reorganization of the corporate structure of Tenant or any of the
members of Tenant. Furthermore, the non -managing member of Tenant may remove any
managing member of Tenant without Landlord consent in accordance with the terms of Tenant's
Operating Agreement.
6.04 No Remedy for Unauthorized Transferee. Any person to whom any Transfer is
attempted without such consent shall have no claim, right, or remedy whatsoever hereunder
against Landlord, and Landlord shall have no duty to recognize any person claiming under or
through the same.
6.05 Permitted Transfers. Notwithstanding anything in this Ground Lease to the
contrary, by its execution of this Ground Lease, Landlord is deemed to have consented to any
lease of a new housing rental unit to a tenant.
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6.06 Subsequent Assignment. Landlord's consent to one conveyance, assignment, or
transfer will not waive the requirement of its consent to any subsequent conveyance, assignment,
or transfer.
6.07 Request for Consent. If Tenant requests Landlord's consent to a specific
conveyance, assignment, or Transfer, Tenant shall provide to Landlord (a) the name and address
of the proposed person or entity; (b) a copy of all proposed conveyance, assignment, or transfer
instruments and other legal agreements involved in effecting a transfer; (c) satisfactory
information about the nature, business, and business history of the proposed person or entity; (d)
banking, financial, or other credit information, and references about the proposed person or
entity sufficient to enable Landlord to determine the financial responsibility and qualifications of
the proposed person or entity; (e) an instrument in writing satisfactory to Landlord and in
recordable form wherein the proposed transferee expressly assumes all of the obligations of the
transferor; and (f) satisfactory evidence that the transferee will comply with such other
conditions as Landlord may determine are necessary to achieve and safeguard the purposes of
this Ground Lease.
6.08 Documentation of Assignment. Upon the granting of any consent by Landlord
with respect to a conveyance, assignment, or transfer by Tenant, this Ground Lease shall be
binding upon and inure to the benefit of Landlord, the assignee, and their respective successors
and permitted assigns.
6.09 Permitted Leasehold Mortgages. Neither Tenant nor any permitted successor in
interest to the Premises or any part thereof shall, without the prior written consent of Landlord in
each instance, engage in any financing or any other transaction creating any mortgage or other
encumbrance or lien upon the Premises, whether by express agreement or operation of law, or
suffer any encumbrance or lien to be made on or attach to the Premises, except for the permitted
encumbrances and leasehold mortgages securing construction, interim or permanent financing of
Tenant's leasehold interest in the Premises (the "Permitted Leasehold Mortgages"). With
respect to the Permitted Leasehold Mortgages, the following provisions shall apply:
(a) When giving notice to Tenant with respect to any default (a "Default
Notice"), the Landlord will also send a copy of such notice to each equity investor holding an
interest in Tenant, and their respective successors and/or assigns (each, an "Investor ") at the
address to be provided to Landlord by the Investor, provided that each such Investor or Permitted
Leasehold Mortgagee shall have delivered to Landlord in writing a notice naming itself as an
Investor or the holder of a Permitted Leasehold Mortgage and registering the name and post
office address to which all notices and other communications to it may be addressed. Any
Default Notice given hereunder shall specify the defaults which are the subject of the Default
Notice. A Permitted Leasehold Mortgage shall include a leasehold mortgage that is assigned by a
Permitted Leasehold Mortgagee to a lender (or to a trustee or fiscal agent for the benefit of such
lender) as contemplated in the loan documents, as collateral to secure one or more loans made by
the lender to the assignor Permitted Leasehold Mortgagee, the proceeds of which were used by
the assignor Permitted Leasehold Mortgagee to provide Project financing to Tenant (a
"Collateralized Leasehold Mortgage"). The holder of a Collateralized Leasehold Mortgage
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shall be deemed a Permitted Leasehold Mortgagee and shall have all of the same rights conferred
upon a Permitted Leasehold Mortgagee under this Lease. -
(b) Each Permitted Leasehold Mortgagee and the Investor shall be permitted,
but not obligated, to cure any default under this Ground Lease within the same period of time
specified for Tenant to cure such default, or such longer time as is permitted in Section 6.09(d),
below. No Default Notice or other written notice by Landlord to Tenant under this Ground Lease
shall be effective unless Landlord has delivered a copy of the notice to each Investor and each
Permitted Leasehold Mortgagee whose notice information has been provided to Landlord.
Tenant authorizes the Investor and each Permitted Leasehold Mortgagee to take any such action
at such 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
of Permitted Leasehold Mortgagee to participate (in conjunction with or to the exclusion of
Tenant) in any proceeding, arbitration or settlement involving a Casualty, condemnation or
eminent domain affecting Tenant's leasehold interest in the Premises, but no such delegation
shall be binding upon Landlord unless and until either Tenant or the Permitted Leasehold
Mortgagee in question shall give to Landlord a true copy of a written instrument effecting such
delegation. Any provision of this Ground Lease that gives a Permitted Leasehold Mortgagee the
privilege of exercising a particular right of Tenant hereunder on condition that Tenant shall have
failed to exercise such right shall not be deemed to diminish any privilege that Permitted
Leasehold Mortgagee may have, by virtue of a delegation of authority from Tenant, to exercise
such right without regard to whether or not Tenant shall have failed to exercise such right.
(c) Landlord agrees to accept payment or performance by any Permitted
Leasehold Mortgagee or the Investor as though the same had been done by Tenant.
(d) In the case of a default other than in the payment of money, and provided
that a Permitted Leasehold Mortgagee has commenced to cure the default and is proceeding with
due diligence to cure the default, Landlord will refrain from terminating this Ground Lease for a
reasonable period of time (not to exceed one hundred twenty (120) calendar days from the date
of the notice of default) within which time the Permitted Leasehold Mortgagee may either (i)
obtain possession of the Premises (including possession by receiver); (ii) institute foreclosure
proceedings and complete such foreclosure; or (iii) otherwise acquire Tenant's interest under this
Ground Lease. The Permitted Leasehold Mortgagee shall not be required to continue such
possession or continue such foreclosure proceedings if the default which was the subject of the
notice shall have been cured. In the case of a default by the Tenant of any monetary obligation,
and provided that a Permitted Leasehold Mortgagee has commenced to cure the default and is
proceeding with due diligence to cure the default, the Landlord will refrain from terminating this
Lease for a period of at least five (5) days from the end of any grace period applicable to Tenant.
(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
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Mortgagee or acquirer and thereafter be relieved of all obligations under this Ground Lease,
provided such assignee has delivered to Landlord its written agreement to be bound by all of the
provisions of this Ground Lease.
(f) In the event of a termination of this Ground Lease prior to its stated
expiration date, Landlord will enter into a new lease for the Premises with the Permitted
Leasehold Mortgagee (or its nominee) ("Replacement Tenant"), for the remainder of the Lease
Term, effective as of the date of such termination (the "New Lease"), at the same Base Rent and
Additional Rent and subject to the same covenants and agreements, terms, provisions, and
limitations herein contained, provided that:
(i) Landlord receives the Permitted Leasehold Mortgagee's written
request for such New Lease within thirty (30) calendar days from the date of such termination
and notice thereof by Landlord to the Permitted Leasehold Mortgagee (including an itemization
of amounts then due and owing to Landlord under this Ground Lease) (a "Termination
Notice"), and such written request is accompanied by payment to Landlord of all itemized
amounts then due and owing to Landlord under this Ground Lease described in the Termination
Notice and, within ten (10) calendar days after the delivery of an accounting therefor by
Landlord, pays any and all costs and expenses, including reasonable counsel fees, court costs,
and disbursements made by Landlord in connection with any such default and termination as
well as in connection with the execution and delivery of the New Lease, less the net income
collected by Landlord from the Premises subsequent to the date of termination of this Ground
Lease and prior to the execution and delivery of the New Lease, any excess of such net income
over the aforesaid sums and expenses to be applied in payment of the Base Rent and Additional
Rent thereafter becoming due under the New Lease.
(ii) Upon the execution and delivery of the New Lease at the time
payment is made in (i) above, all subleases which thereafter may have been assigned and
transferred to Landlord shall thereupon be assigned and transferred without recourse by Landlord
to Replacement Tenant.
(iii) If a Permitted Leasehold Mortgagee acquires the leasehold estate
created hereunder or otherwise acquires possession of the Premises pursuant to available legal
remedies, Landlord will look to such acquirer to perform the obligations of Tenant hereunder.
Permitted Leasehold Mortgagee's liability shall be limited to the value of such Permitted
Leasehold Mortgagee's interest in this Lease and in the leasehold estate created hereby.
(iv) Notwithstanding the foregoing, the New Lease shall be subject to
the liens of the Permitted Leasehold Mortgages which existed immediately prior to the
termination of this Ground Lease (other than that of Replacement Tenant) and, further, shall not
impact the rights, priorities and interests of the Permitted Leasehold Mortgagees set forth therein.
If at the time of termination of this Ground Lease prior to its stated expiration date there exists
more than one Permitted Leasehold Mortgagee, then references to the "Permitted Leasehold
Mortgagee" in this subsection (f) shall apply to the Senior Leasehold Mortgagee.
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(g) At no time shall Landlord's fee title in the Premises, or Landlord's interest
in, the Ground Lease be subordinated in any manner to the interests of any Permitted Mortgagee
or any person claiming by or through Tenant. Landlord shall reasonably consider such
amendments to this Lease as may be reasonably requested by any Permitted Leasehold
Mortgagee, provided that such amendments do not increase, or in the sole opinion of the
Landlord, unreasonably alter the obligations of Landlord under this Lease.
6.10 Tenant's Investor. On or about the Commencement Date, the Tenant's equity
Investor (together with its successors and assigns) will be admitted as a member of the Tenant.
(a) Cure Rights. Notwithstanding anything to the contrary contained in this
Lease, Landlord shall not exercise any of its remedies hereunder without having given notice of
the Event of Default or other breach or default to the Investor (following the admission of the
Investor) simultaneously with the giving of notice to Tenant. The Investor shall have the same
cure period after the giving of a notice as provided to Tenant, plus an additional period of thirty
(30) calendar days. If the Investor elects to cure the Event of Default or other breach or default,
Landlord agrees to accept such performance as though the same had been done or performed by
Tenant.
(b) Investor. Notwithstanding anything to the contrary contained in this
Lease, following the admission of the Investor, the Investor shall be deemed a third -party
beneficiary of the provisions of this Section for the sole and exclusive purpose of entitling the
Investor to exercise its rights to notice and cure, as expressly stated herein. The foregoing right
of the Investor to be a third -party beneficiary under the Lease shall be the only right of Investor
(express or implied) to be a third -party beneficiary hereunder.
(c) New Manager. Notwithstanding anything to the contrary contained in this
Lease, Landlord agrees that it will take no action to effect a termination of the Lease by reason of
any Event of Default or any other breach or default without first giving to the Investor reasonable
time, not to exceed thirty (30) calendar days, to replace Tenant's manager and cause the new
manager to cure the Event of Default or other breach or default; provided, however, that as a
condition of such forbearance, Landlord must receive notice from the Investor of the substitution
of a new manager of Tenant within thirty (30) calendar days following Landlord's notice to
Tenant and the Investor of the Event of Default or other breach or default, and Tenant, following
such substitution or admission of the new manager, shall thereupon proceed with due diligence
to cure such Event of Default or other breach or default as soon as reasonably possible. In no
event, however, shall Landlord be required to engage in the forbearance described in this Section
for a period longer than three (3) months, regardless of the due diligence of the Investor or the
new manager.
(d) Tax Credit Compliance Period. For the 15-year tax credit compliance
period, the Landlord and the Tenant shall not agree between themselves to any material
amendment, modification or supplement to this Lease negatively impacting tax credit
compliance without the prior written consent of the Investor, which consent will not be
unreasonably delayed, conditioned or withheld.
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6.11 Estoppel Certificates. Each party hereto shall, at any time and from time to time
within thirty (30) calendar days after being requested to do so by the other party and/or any
Permitted Leasehold Mortgagee in writing, execute, acknowledge, and address and deliver to the
requesting party not more than twice per calendar year (or, at the latter's request, to any existing
or prospective Permitted Leasehold Mortgagee, transferee or other assignee of the requesting
party's interest in the Premises or under this Ground Lease which acquires such interest in
accordance with this Ground Lease) a certificate in recordable form:
(a) Certifying (i) that this Ground Lease is unmodified and in full force and
effect (or, if there has been any modification thereof, that it is in full force and effect as so
modified, stating therein the nature of such modification); (ii) that Tenant has accepted
possession of the Premises, and the date on which the Lease Term commenced; (iii)
confirmation that Base Rent or Additional Rent, including prepaid payments, and other charges
arising hereunder have been paid; (iv) any credit due to Tenant hereunder; (v) as to whether, to
the best of such party's knowledge, information and belief, the requesting party is then in default
in performing any of its obligations hereunder (and, if so, specifying the nature of each such
default); and (vi) as to any other fact or condition reasonably requested by the requesting party;
and
(b) Acknowledging and agreeing that any statement contained in such
certificate may be relied upon by the requesting party and any such other addressee.
6.12 Permitted Corporate Transfers. Notwithstanding anything to the contrary set forth
elsewhere in this Ground Lease, Tenant may, subject to receipt of Landlord's prior written
consent (which consent shall not be unreasonably withheld, conditioned or delayed) and
compliance with any applicable restrictions, assign all or part of this Ground Lease, or sublease
all or a part of the Premises, to:
(a) any entity which has the power to direct Tenant's management and
operation, or any corporation whose management is controlled by Tenant; or
(b) any entity a majority of whose voting equity is owned by Tenant; or
(c) any entity in which or with which Tenant, its successors or assigns, is
merged or consolidated, in accordance with applicable statutory provisions for merger or
consolidation, so long as the liabilities of the entities participating in such merger or
consolidation are assumed by the entity surviving such merger or created by such consolidation.
ARTICLE VII- MAINTENANCE AND REPAIR
7.01 Tenant's Obligations. Tenant will, at its sole cost and expense, maintain the
Premises and the Improvements and make repairs, restorations, and replacements to the
Improvements, including without limitation the landscaping; heating, ventilating, air
conditioning, mechanical, electrical, elevator, and plumbing systems and other systems for the
furnishing of utilities or services to the Premises, structural roof, walls, and foundations; and the
fixtures and appurtenances as and when needed to preserve them in good working order and
condition, and regardless of whether the repairs, restorations, and replacements are ordinary or
extraordinary, foreseeable or unforeseeable, capital or non -capital, or the fault or not the fault of
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Tenant, its agents, employees, invitees, visitors, and contractors. All such repairs, restorations,
and replacements will be in quality and class equal to or better than the original work or
installations.
7.02 No Obligation of Landlord. Landlord shall not be required to 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 Landlord as may be provided
in any statute, law, or ordinance in effect as of the Effective Date.
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ARTICLE VIII- LIENS
8.01 No Liens. Nothing contained in this Lease shall be construed as consent by the
City to subject the estate of the City to liability under the Construction Lien Law of the State of
Florida, it being expressly understood that City's estate shall not be subject to such liability.
Tenant shall not have any right, authority, or power to bind Landlord, the Premises or any other
interest of Landlord in the Premises and will pay or cause to be paid all costs and charges for
work done by it or caused to be done by it, in or to the Premises, for any claim for labor or
material or for any other charge or expense, lien or security interest incurred in connection with
the development, construction or operation of the Improvements or any change, alteration or
addition thereto. Tenant shall not permit to remain any encumbrances of the Improvements,
except the Permitted Leasehold Mortgages. Further, Tenant agrees to indemnify, defend and
save City harmless from and against any damage or loss incurred by City as a result of any such
construction lien. Tenant shall comply with all laws which provide for the waiver of liens which
may arise under any contract for labor or materials for the Improvements and Tenant shall
comply with the requirements of Chapter 713, Florida Statutes, regarding the filing of a Notice of
Commencement prior to the commencement of any work at the Premises to construct the
Improvements or otherwise improve the Premises. Landlord agrees to execute, or join in the
execution of, any such Notice of Commencement and any amendment or termination thereof.
Tenant will comply in all respects with the requirements of Chapter 713, Florida Statutes
regarding proper payments to and obtaining partial and final releases from all contractors,
subcontractors, material suppliers and other parties who have given notices to owner or may be
otherwise entitled to file liens against the Premises. NOTICE IS HEREBY GIVEN THAT
LANDLORD SHALL NOT BE LIABLE FOR ANY LABOR, SERVICES, OR MATERIALS
FURNISHED OR TO BE FURNISHED TO TENANT OR TO ANYONE HOLDING ANY OF
THE PREMISES THROUGH OR UNDER TENANT, AND THAT NO MECHANICS' OR
OTHER LIENS FOR ANY SUCH LABOR; SERVICES, OR MATERIALS SHALL ATTACH
TO OR AFFECT THE INTEREST OF LANDLORD IN AND TO ANY OF THE PREMISES.
PURSUANT TO FLORIDA STATUTES SECTION 713.10(2) (a), TENANT HEREBY
ACKNOWLEDGES RECEIPT OF NOTICE THAT THE INTEREST OF LANDLORD IN THE
PREMISES SHALL NOT BE SUBJECT TO LIENS FOR IMPROVEMENTS MADE BY
TENANT. TENANT FURTHER ACKNOWLEDGES AND AGREES THAT THE
PROVISIONS OF FLORIDA STATUTES SECTION 713.10(2)(a) STATE THAT TENANT
SHALL NOTIFY ANY CONTRACTOR MAKING ANY SUCH IMPROVEMENTS, AND
THAT THE KNOWING OR WILLFUL FAILURE OF TENANT TO PROVIDE SUCH
NOTICE TO ITS CONTRACTOR SHALL RENDER THE CONTRACT BETWEEN TENANT
AND ITS CONTRACTOR VOIDABLE AT THE OPTION OF THE CONTRACTOR.
LANDLORD SHALL BE PERMITTED TO POST ANY NOTICES ON THE PREMISES
REGARDING SUCH NON -LIABILITY OF LANDLORD.
ARTICLE IX— SURRENDER
9.01 Expiration of Lease Term. Upon the expiration of the Lease Term or sooner
termination of this Ground Lease, Tenant will surrender the Premises and the Improvements in
the condition set forth in Section 8.01. Tenant may not remove from the Premises any fixtures,
equipment, or furniture without the approval of Landlord except in the ordinary course of
business and for replacements or repair. Tenant expressly waives to Landlord the benefit of any
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law now in force or hereafter adopted requiring notice to vacate the Premises at the end of the
Lease Term, and Tenant covenants and agrees to give up quiet and peaceful possession and to
surrender the Premises together with all the Improvements thereon and appurtenances upon
expiration of the Lease Term or earlier termination of this Ground Lease without further notice
from Landlord. Tenant acknowledges and agrees that upon the expiration of the Lease Term or
sooner termination of this Ground Lease any and all rights and interests it may have either at law
or in equity to the Premises and Improvements shall immediately cease.
ARTICLE X- CASUALTY; CONDEMNATION
10.01 Damage or Destruction. Tenant shall give prompt written notice to Landlord after
the occurrence of any fire, earthquake, act of God, or other casualty to or in connection with the
Premises or the Improvements or any portion thereof (each a "Casualty"). Except as otherwise
agreed to by Landlord and subject to the provisions of the Permitted Leasehold Mortgages, if
during the Lease Term, the Premises or the Improvements shall be damaged or destroyed by
Casualty, and Landlord and all Permitted Leasehold Mortgagees shall have consented to release
the Net Proceeds to Tenant (if consent of a Permitted Leasehold Mortgagee is required under its
Permitted Leasehold Mortgage), Tenant shall repair or restore the Premises or the Improvements
as nearly as possible to the condition the Premises or the Improvements were in immediately
prior thereto. Notwithstanding the foregoing, Landlord consent shall not be required for the
release of the Net Proceeds to Tenant provided the requirements for Restoration as set forth in
Section 4.04 are satisfied. Upon the occurrence of any such Casualty, Tenant, promptly and with
all due diligence, shall apply for and collect all applicable insurance proceeds recoverable with
respect to such Casualty. After payment of the Net Proceeds for the repair or restoration of the
Premises and the Improvements, any excess sums remaining shall be paid to or retained by
Tenant.
10.02 Condemnation.
(a) Taking. If, by exercise of the right of eminent domain or by conveyance
made in response to the threat of the exercise of such right (in either case a "Taking"), all of the
Premises are taken, or if so much of the Premises are taken that Tenant believes the Premises
cannot be used by Tenant for the purposes for which they were used immediately before the
Taking, then this Ground Lease shall terminate on the earlier of the vesting of title to the
Premises in the condemning authority, or the taking of possession of the Premises by the
condemning authority.
(b) Condemnation Award. Subject to the terms of the Senior Leasehold
Mortgagee loan documents, Landlord and Tenant agree that, in the event of a Taking that does
not result in the termination of this Ground Lease pursuant to subsection (a) above, this Ground
Lease shall continue in effect as to the remainder of the Premises, and the net amounts owed or
paid to Landlord or pursuant to any agreement with any condemning authority which has been
made in settlement of any proceeding relating to a Taking, less any costs and expenses incurred
by Landlord in collecting such award or payment (the "Award") will be disbursed in accordance
with subsection (d) below to Landlord and/or Tenant. Tenant and, to the extent permitted by
law, any Permitted Leasehold Mortgagee, shall have the right to participate in settlement
negotiations with a condemning authority. Permitted Leasehold Mortgagees shall receive notice
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of any Taking (as defined herein), and, in order of their respective priority, shall at all times have
the right to participate in the adjustment and resolution of any Taking claim. In the event of any
Taking, the Senior Leasehold Mortgagee or an independent trustee acceptable to such senior
Permitted Leasehold Mortgagee shall initially receive all condemnation proceeds respecting such
Taking, shall hold and distribute the same in accordance with this Lease and the relevant
Permitted Leasehold Mortgage and all Permitted Leasehold Mortgagees shall be allowed to
participate in the Taking proceedings.
(c) Total Taking. In the event of a permanent Taking of the fee simple
interest or title of the Premises, or control of the entire leasehold estate hereunder (a "Total
Taking"), this Lease shall thereupon terminate as of the effective date of such Total Taking,
without liability or further recourse to the parties, provided that each party shall remain liable for
any obligations required to be performed prior to the effective date of such termination and for
any other obligations under this Lease which are expressly intended to survive termination.
Notwithstanding any provision of this Lease or by operation of law that leasehold improvements
may be or shall become the property of Landlord at the termination of this Lease, the loss of the
building and other improvements paid for by Tenant, the loss of Tenant's leasehold estate and
such additional relief as may be provided by law shall be the basis of Tenant's damages against
the condemning authority if a separate claim therefore is allowable under applicable law, or the
basis of Tenant's damages to a portion of the total award if only one award is made.
(d) Partial Taking. In the event of a permanent Taking of less than all of the
Premises (a "Partial Taking"), if Tenant reasonably determines that the continued development,
use or occupancy of the remainder of the Premises by Tenant cannot reasonably be made to be
economically viable, structurally sound, then Tenant may terminate this Lease, and the Tenant's
portion of the Award shall be paid to Tenant, provided that any and all obligations of Tenant
have been fully and completely complied with by Tenant as of the date of said Partial Taking. If
Tenant shall not elect to terminate this Lease, Tenant shall be entitled to a reduction of rent of
such amount as shall be just and equitable. Subject to the terms of the Permitted Leasehold
Mortgages, if there is a Partial Taking and the Tenant does not terminate this Lease, the Tenant
shall be entitled to receive and retain an equitable portion of the Award and shall apply such
portion of the Award necessary to repair or restore the Premises or the Improvements as nearly as
possible to the condition the Premises or the Improvements were in immediately prior to such
Partial Taking. Subject to the terms of the Permitted Leasehold Mortgages, if there is a Partial
Taking which affects the use of the Premises after the term hereof, the Award shall be
apportioned between the Tenant and the Landlord based on the ratio of the remaining term
hereof and the remaining expected useful life of the Premises following the term hereof. Subject
to the terms of the Permitted Leasehold Mortgages, notwithstanding any provision herein to the
contrary, the Landlord shall be entitled to receive and retain any portion of the Award
apportioned to the land upon which the Improvements are located. Should such award be
insufficient to accomplish the restoration, such additional costs shall be paid by Tenant.
Notwithstanding any provision of this Lease or by operation of law that leasehold improvements
may be or shall become the property of Landlord at the termination of this Lease, the loss of the
building and other improvements paid for by Tenant and such additional relief as may be
provided by law shall be the basis of Tenant's damages against the condemning authority if a
21
separate claim therefore is allowable under applicable law, or the basis of Tenant's damages to a
portion of the total award if only one award is made.
(e) Resolution of Disagreements. Should Landlord and Tenant be unable to
agree as to the division of any singular award or the amount of any reduction of rents and other
charges payable by Tenant under this Lease, such dispute shall be submitted for resolution to the
court exercising jurisdiction of the condemnation proceedings, each party bearing its respective
costs for such determination. Landlord shall not agree to any settlement in lieu of condemnation
with the condemning authority without Tenant's consent. Notwithstanding the forgoing, so long
as any Permitted Leasehold Mortgage is outstanding, any Award payable to the Tenant shall be
paid to the Senior Leasehold Mortgagee, which Award must be at least the value of the total
Award, minus the value of the land taken (considered as unimproved, but encumbered by this
Lease).
(f) No Existing Condemnation. Landlord represents and warrants that as of
the Effective Date it has no actual or constructive knowledge of any proposed condemnation of
any part of the Premises. In the event that subsequent to the Lease Date, but prior to the
Commencement Date, a total or partial condemnation either permanent or temporary, is initiated
by any competent authority, Tenant shall be under no obligation to commence or continue
construction of the building and other improvements and rent and other charges, if any, payable
by Tenant under this Lease shall abate until such time as it can be reasonably ascertained that the
Premises shall not be so affected. In the event the Premises is so affected, Tenant shall be
entitled to all rights, damages and awards pursuant to the appropriate provisions of this Lease.
(g) Termination upon Non -Restoration. Following a Partial Taking, if a
decision is made pursuant to this Section 10.02 that the remaining portion of the Premises is not
to be restored, and Tenant shall have reasonably determined that the continued development, use
or occupancy of the remainder of the Premises by Tenant cannot be made economically viable or
structurally sound, Tenant shall surrender the entire remaining portion of the Premises to
Landlord and this Lease shall thereupon be terminated without liability or further recourse to the
parties hereto, provided that any Rent, impositions and other amounts payable or obligations
hereunder owed by Tenant to Landlord as of the date of the Partial Taking shall be paid in full.
ARTICLE XI- QUIET ENJOYMENT
11.01 Quiet Enjoyment. So long as there is no ongoing Event of Default (beyond any
applicable notice and/or cure period), Tenant's possession of the Premises will not be disturbed
by Landlord, its successors and assigns.
11.02 Landlord's Right of Inspection. Notwithstanding Section 11.01 above, Landlord,
in person or through its agents, upon reasonable prior notice to Tenant, shall have the right to
enter upon the Premises for purposes of reasonable inspections performed during reasonable
business hours in order to assure compliance by Tenant with its obligations under this Ground
Lease.
ARTICLE XII- DEFAULT; REMEDIES
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12.01 Landlord's Right to Perform.
(a) Landlord's Option. If Tenant fails to pay when due amounts payable under
this Ground Lease or to perform any of its other obligations under this Ground Lease within the
time permitted for its performance, then Landlord, after ten (10) calendar days' prior written
notice to Tenant without waiving any of its rights under this Ground Lease, may (but will not be
required to) pay such amount or perform such obligation. All amounts so paid by Landlord and
all costs and expenses incurred by Landlord in connection with the performance of any such
obligations will be payable by Tenant to Landlord on demand and shall constitute Additional
Rent (as defined in Section 12.01(b)).
(b) Additional Rent. Any and all payments that Tenant is required to make
hereunder to or for the benefit of Landlord including expenditures to operate, repair and maintain
the Premises and the Improvements shall be deemed to be "Additional Rent". All such
Additional Rent shall be payable in accordance with the provisions of the Sections of this
Ground Lease specifying the payment of such Additional Rent and shall be subject to the notice
and cure rights provided in Section 12.02(a). The Base Rent and the Additional Rent payable
hereunder shall be deemed "Rents" reserved by Landlord, and any remedies now or hereafter
given to Landlord under the laws of the State of Florida for collection of the Rents shall exist in
favor of Landlord, in addition to any and all other remedies specified in this Ground Lease.
12.02 Events of Default. The occurrence of any of the following events shall constitute
an "Event of Default" by Tenant:
(a) Tenant defaults in the due and punctual payment of Base Rent and/or
Additional Rent, and such default continues for thirty (30) calendar days after written notice
from Landlord;
(b) Tenant vacates or abandons the Premises (except by reason of Casualty or
Taking, as more particularly set forth in Article 10 above) or any substantial part thereof for a
period of more than thirty (30) consecutive days;
(c) This Ground Lease, the Premises or the Improvements or any part thereof
are taken upon execution or by other process of law directed against Tenant, or are taken upon or
subjected to any attachment by any creditor of Tenant or claimant against Tenant, and such
attachment is not discharged or stayed within ninety (90) calendar days after its levy. Tenant
shall notify Landlord in writing of its action to either satisfy or contest the levy and, if contested,
of the matter's status on a monthly basis until concluded. If Tenant shall fail to cause such levy
to be discharged within the period aforesaid, then, in addition to any other right or remedy,
Landlord may, but shall not be obligated to, discharge the same either by paying the amount
claimed to be due or by procuring the discharge of such lien by deposit or by bonding. Any
amount so paid by Landlord and the costs and expenses incurred by Landlord in connection
therewith, shall be payable by Tenant and shall be paid by Tenant to Landlord on demand as
Additional Rent hereunder;
(d) Tenant makes any sale, conveyance, assignment or transfer in violation of
this Ground Lease;
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(e) Tenant violates, breaches or fails to comply with any of the other material
agreements, terms, covenants, or conditions which this Ground Lease requires Tenant to perform
(and where such failure to comply is not otherwise specifically addressed in this Section 12.02),
and such violation, breach or failure continues for a period of thirty (30) calendar days after
notice by Landlord to Tenant; provided that if the nature of the breach is such that it cannot be
cured by Tenant within the period of thirty (30) calendar days, Tenant shall not be deemed in
default of this Ground Lease if Tenant commences the curing of such default within such period
of thirty (30) calendar days and prosecutes in good faith the curing of same continuously
thereafter until the same is, in fact, cured, but in no event shall the cure period be extended later
than one hundred twenty (120) calendar days after the notice from Landlord to Tenant;
(f) Tenant shall file a voluntary petition in bankruptcy or a voluntary petition
seeking reorganization or to effect a plan or an arrangement with or for the benefit of Tenant's
creditors;
(g) Tenant shall apply for or consent to the appointment of a receiver, trustee,
or conservator for any portion of Tenant's property or such appointment shall be made without
Tenant's consent and shall not be removed within ninety (90) calendar days; or
12.03 Remedy.
(a) If any one or more Events of Default set forth in Section 12.02 occurs,
then Landlord may terminate this Ground Lease by written notice to Tenant of its intention to
terminate this Ground Lease on the date of such notice or on any later date specified in such
notice, and, on the date specified in such notice, Tenant's right to possession of the Premises and
the Improvements will cease and the estate conveyed by this Ground Lease shall revest in
Landlord; provided that such revesting of the estate and the reentry by Landlord shall be subject
to and limited by, and shall not defeat, render invalid or limit in any way the lien of any
Permitted Leasehold Mortgage.
(b) So long as the Investor, and any of its successors or assigns, remains the
investor member of the Tenant or any Permitted Leasehold Mortgage remains outstanding,
Landlord shall not be permitted to exercise any right or remedy against Tenant, where the
circumstance giving rise to each right or remedy resulted from an act or omission of Landlord or
where the same would cause a default under any of the loan documents to which Tenant or the
Premises is subject or the Tenant's Operating Agreement without the prior written consent of
Investor and the holder of any Permitted Leasehold Mortgage.
ARTICLE XIII
UTILITIES; REPAIR AND RELOCATION OF UTILITIES
13.01 Tenant agrees that any and all utility accounts with respect to the Premises shall
be in the name of Tenant. From and after the Commencement Date, under no circumstance
whatsoever, shall City be responsible for any utilities on the Premises, including, but not limited
to, the installation, maintenance, initial cost or fee or any on -going charges or fees. Tenant
agrees to pay any and all such utilities relating to the Premises in a timely manner, so as to avoid
any encumbrance on the Premises. Tenant, at its sole cost and expense and with the prior written
24
approval of the appropriate utility, agrees to maintain and repair, replace and relocate as
necessary, utilityrfacilities within the Premises required for the operation of the Premises and all
existing and future Improvements, subject to the following conditions:
(a) Such activity does not materially or adversely interfere with City's
operations on any property outside the boundaries of the Premises; and
(b) Tenant complies with the provisions of all permits which have been issued
and are affected by such repair and relocation.
13.02 Tenant agrees to grant to City and any public utility company, pursuant to
separate instruments, non-exclusive perpetual easements for the installation, operation,
maintenance, repair, replacement, relocation, and removal of utility lines and facilities (together
with access incidental to such activities) such as water lines, fire lines, gas mains, electrical
power lines, telephone lines, cable and internet services, storm and sanitary sewers and other
utility lines and facilities (collectively, "Utility Facilities"), and such other easements as City or
such public utility companies may reasonably require from time to time, and shall provide notice
to City, as described in this Lease, prior to making such grants. All such easements shall be
over, under and across: (i) those portions of the Premises shown on the approved plans and
specifications for the Project; or (ii) such other locations on the Premises as may be requested by
City or such public utility companies from time to time, so long as such locations are reasonably
acceptable to Tenant, considering, among other things, whether such locations cause
unreasonable interference with the construction, use and operation of the Project or undue
expense to Tenant. The instruments granting such easements shall provide, among other things,
that the grantee(s) shall not exercise their rights in such a manner as would cause unreasonable
interference with the construction, use and operation of the Project.
ARTICLE XIV
SIGNAGE
Tenant shall have the exclusive right to construct, operate, and display onsite and offsite
premise signage on the interior, exterior or other portions of the Premises as Tenant deems
necessary and desirable so long as such signage complies with Applicable Laws and is approved
by the City in advance, which approval will not be unreasonably withheld, conditioned or
delayed.
ARTICLE XV
MISCELLANEOUS
15.01 No Brokers. Neither Landlord nor Tenant has dealt with any broker or finder with
regard to the Premises or this Ground Lease. Tenant will indemnify, defend, and hold Landlord
harmless from and against any loss, liability and expense (including reasonable attorneys' fees
and court costs) arising out of claims for fees or commissions in connection with this Ground
Lease.
15.02 Access. Tenant agrees to grant a right of access to Landlord, HUD, the
Comptroller General of the United States, or any of their duly authorized representatives, with
25
respect to any books, documents, papers, or other records related to this Ground Lease in order to
make audits, examinations, excerpts, and transcripts.
15.03 Recordation. Tenant shall record a Memorandum of this Ground Lease in the
appropriate office of public record of Miami -Dade County, Florida. Said Memorandum of
Ground Lease shall be approved by the Landlord prior to recordation. At the expiration of the
Lease Term or earlier termination of this Ground Lease, Tenant shall execute a quit claim or
other document reasonably requested by Landlord to confirm the termination of its interest in
this Ground Lease. If Tenant refuses to do so within ten (10) calendar days after receipt of a
request from Landlord, Landlord may unilaterally record a notice of termination of this Ground
Lease.
15.04 Time of Essence. Time is of the essence of each and every provision of this
Ground Lease.
15.05 No Waiver. No waiver of any condition or agreement in this Ground Lease by
either Landlord or Tenant will imply or constitute a further waiver by such party of the same or
any other condition or agreement. No act or thing done by Landlord or Landlord's agents during
the Lease Term will be deemed an acceptance of a surrender of the Premises, and no agreement
to accept such surrender will be valid unless in writing signed by Landlord. No payment by
Tenant, nor receipt from Landlord, of a lesser amount than the Rent or other charges stipulated in
this Ground Lease will be deemed to be anything other than a payment on account of the earliest
stipulated Rent. No endorsement or statement on any check, or any letter accompanying any
check or payment as Rent, will be deemed an accord and satisfaction. Landlord will accept such
check for payment without prejudice to Landlord's right to recover the balance of such Rent or to
pursue any other remedy available to Landlord. If this Ground Lease is assigned, or if the
Premises or any part of the Premises are sublet or occupied by anyone other than Tenant,
Landlord may collect rent from the assignee, subtenant, or occupant and apply the net amount
collected to the Rent reserved in this Ground Lease. No such collection will be deemed a waiver
of the covenant in this Ground Lease against assignment and subletting, or the acceptance of the
assignee, subtenant, or occupant as Tenant, or a release of Tenant from the complete
performance by Tenant of its covenants in this Ground Lease.
15.06 Joint and Several Liability. If Tenant is composed of more than one signatory to
this Ground Lease, each signatory will be jointly and severally liable with each other signatory
for payment and performance according to this Ground Lease.
15.07 Captions, Exhibits, Gender, Etc. The captions inserted in this Ground Lease are
only for convenience of reference and do not define, limit, or describe the scope or intent of any
provisions of this Ground Lease. The Exhibits to this Ground Lease are incorporated into the
Ground Lease. Unless the context clearly requires otherwise, the singular includes the plural,
and vice versa, and the masculine, feminine, and neuter adjectives include one another.
15.08 Entire Agreement. This Ground Lease and Exhibits hereto contain the entire
agreement between Landlord and Tenant with respect to its subject matter and may be amended
only by subsequent written agreement between them. Except for those that are specifically set
26
forth in this Ground Lease, Landlord or Tenant has made no representations, warranties, or
agreements to one another with respect to this Ground Lease.
15.09 Amendment. This Ground Lease may be amended by mutual agreement of
Landlord and Tenant, provided that all amendments must be in writing and signed by both
parties and that no amendment shall impair the obligations of Tenant to develop and operate the
Premises. Tenant and Landlord hereby expressly stipulate and agree that, they will not
materially modify this Lease in any way nor cancel or terminate this Lease by mutual agreement
nor will Tenant surrender its interest in this Ground Lease, including but not limited to pursuant
to the provisions of Section 10.02, without the prior written consent of all Permitted Leasehold
Mortgagees and, following the admission of the Investor, the Tenant's Investor. No amendment
to or termination of this Ground Lease shall become effective without all such required consents.
Tenant and Landlord further agree that they will not, respectively, take advantage of any
provisions of the United States Bankruptcy Code that would result in a termination of this Lease
or make it unenforceable.
15.10 Severability. If any provision of this Ground Lease is found by a court of
competent jurisdiction to be illegal, invalid, or unenforceable, the remainder of this Ground
Lease will not be affected, and in lieu of each provision which is found to be illegal, invalid, or
unenforceable, there will be added as a part of this Ground Lease a provision as similar to such
illegal, invalid, or unenforceable provision as may be possible and be legal, valid, and
enforceable.
15.11 Notices. Any notice, request, demand, consent, approval, or other communication
required or permitted under this Ground Lease shall be in writing and shall be given by either (a)
hand -delivery, (b) first class, certified or registered mail return receipt requested (postage
prepaid), (c) reliable overnight commercial courier, or (d) electronic mail, telecopy or other
means of electronic transmission, if confirmed promptly by any of the methods specified in
clauses (a), (b) and (c) of this sentence to the other party at its address set forth below. Notice by
telecopy or other means of electronic transmission shall be deemed to have been given and
received when sent. Notice by overnight courier service shall be deemed to have been given and
received upon delivery. A party may change its address by giving written notice to the other
parties as specified herein.
If to Landlord: If to Tenant:
City of Miami
Department of Housing and Community
Development
444 S.W. 2nd Avenue
Miami, Florida 33130
Attn: Victor Turner, Director
Phone: (305) 416-1999
27
5350 Flagler Street, LLC
2850 Tigertail Avenue, Suite 800
Miami, Florida 33133
Attn: Albert Milo, Jr.
E-mail: amilo@relatedgroup.com
With a copy to:
Office of the City Attorney
444 S.W. 2nd Avenue, 9th Floor
Miami, Florida 33130
Attn: George K. Wysong III
E-mail: law@miamigov.com
Phone: (305) 416-1800
With a copy to:
Stearns Weaver Miller Weissler Alhadeff &
Sitterson, P.A.
150 West Flagler Street, Suite 2200
Miami, FL 33130
Attn: Brian J. McDonough, Esq.
E-mail: BMcDonough@stearnsweaver.com
Phone: (305) 789-3350
15.12 Attorneys' Fees. If Landlord and Tenant litigate any provision of this Ground
Lease or the subject matter of this Ground Lease, the parties will pay their own respective
attorneys' fees and court costs incurred by it in connection with such litigation. Payment of any
litigation cost or expense is subject to HUD's approval if such approval is required by HUD.
Settlement of any such litigation is subject to HUD's approval if such approval is required by
HUD.
15.13 Waiver of Jury Trial. Landlord and Tenant may waive trial by jury in any action,
proceeding, or counterclaim brought by either of them against the other on all matters arising out
of this Ground Lease or the use and occupancy of the Premises.
15.14 Governing Law. This Ground Lease shall be governed by the law and construed
in accordance with the laws of the State of Florida, without regard to principles of conflict of
laws and with respect to any dispute hereunder, jurisdiction and venue shall lie exclusively with
the courts of Miami -Dade County, Florida.
15.15 Anti -Human Trafficking. The Tenant confirms and certifies that it is not in
violation of Section 787.06, Florida Statutes, and that it does not and shall not use "coercion" for
labor or services as defined in Section 787.06, Florida Statutes. The Tenant shall execute and
submit to the City an Affidavit, of even date herewith, in compliance with Section 787.06(13),
Florida Statutes, attached an incorporated herein as Exhibit "D".
15.16 Binding Effect. This Ground Lease will inure to the benefit of, and will be
binding upon, Landlord's successors and assigns except as otherwise provided in this Ground
Lease. This Ground Lease will inure to the benefit of, and will be binding upon, Tenant's
successors and assigns so long as the succession or assignment is permitted pursuant to the terms
of this Ground Lease.
15.17 Effect of Exhibits. Each and every exhibit referred to or otherwise mentioned in
this Ground Lease is attached to this Ground Lease is and shall be construed to be made a part of
this Ground Lease by such reference or other mention at each point at which such reference or
other mention occurs, in the same manner and with the same effect as if each exhibit were set
forth in full at length every time it is referred to and otherwise mentioned.
28
15.18 Cumulative 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.
15.19 Relationship of Parties, Limited Third Party Beneficiary. The parties hereto
expressly declare that, in connection with the activities and operations contemplated by this
Ground Lease, they are neither partners nor joint venturers, nor does a principal -agent
relationship exist between them. Notwithstanding anything to the contrary set forth elsewhere in
this Ground Lease, the managing member of Tenant and the Permitted Leasehold Mortgagees
shall be deemed a third -party beneficiary with respect to all notice, cure, default, modification,
amendment, casualty, and condemnation provisions herein to the extent such provisions
expressly apply to such parties.
15.20 Non -Merger. Except upon expiration of the Lease 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), and (b) the fee estate in the
Premises or any part thereof or any interest in such fee estate (including the Improvements),
unless and until all persons, including any assignee of Landlord, having an interest in (i) this
Ground Lease or Tenant's estate created hereunder, and (ii) the fee estate in the Premises or any
part thereof, shall join in a written instrument effecting such merger and shall duly record the
same.
15.21 Counterparts. This Agreement may be executed in counterparts and all such
counterparts shall be deemed to be originals and together shall constitute but one and the same
instrument.
15.22 Landlord Encumbrances. The Landlord hereby agrees that it shall not enter into
any mortgage encumbering the fee estate in the Premises, during the Term of this Lease, unless
the beneficiary of such mortgage grants and provides written subordination of the fee mortgage
to the Permitted Leasehold Mortgagees.
[SIGNATURE PAGE FOLLOWS]
29
SIGNATURE PAGE
TO GROUND LEASE
(Flagler Villas Phase Two)
IN WITNESS WHEREOF, the parties have executed this Ground Lease as of the
Effective Date.
ATTEST:
Date:
City Clerk
APPROVED
REQUIRE
By:
David uiz
Interi Direc or of Risk
Management
LANDLORD:
CITY OF MIAMI, a Flor a municipal
corporation
By:
James R anager
AND APPROVED AS TO FORM CORRECTNESS:
APPROVED AS TO DEPARTMENTAL
REQUIREMENTS:
gil
By: t. & ■ .. A .4(
Vic e u
Dir; • of the Department of Housing
and .. munity Development
By
GeorJ K. Wyson IIlV
City Attorney 4) .0Zs. z� k
TENANT:
5350 FLAGLER STREET, LLC, a Florida
limited liability company
By: 5350 Flagler Street Manager, LLC, a
Florida limited liability, its manager
By: 7
30
Tony Del Pozzo, Vice President
AV
EXHIBIT A
LEGAL DESCRIPTION OF PREMISES
Lots 9, 10 and the South 65 feet of Lots 11 and 12, Block 8, FLAGLER GARDENS in
Section 6, Township 54 South, Range 41 East lying and being in Dade County, now known
as Miami -Dade County, Florida together with all improvement therein and thereon, as
recorded in Plat Book 48 at Page 1, of the Public Records of Dade County, now known as
Miami -Dade County, Florida.
Parcel Identification Number: 01-4106-013-1790
EXHIBIT B
IMPROVEMENTS
The Project will consist of an eight -story building with approximately 98 residential units and 49
parking spaces. The ground level will include resident amenities.
EXHIBIT "B"
EXHIBIT C
INSURANCE: REQUIREMENTS
Exhibit C-1: INSURANCE REQUIREMENTS CONSTRUCTION PHASE FLAGLER
VILLAS: PHASE TWO
Commercial General Liability
Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence $1,000,000.
General Aggregate Limit . $ 2,000,000
Products/Completed Operations $ 1,000,000
Personal;andAdvertising Injury $1,000,000
Endorsements Required
City of Miami. listed as an Additional Insured
Contingent and Contractual Liability
Explosion, Collapse arid. Underground Hazard
Primary Insurance Clause Endorsement
Extended Completed Operations Endorsement proving 3 years
coverage extension following project completion, including City as
additional insured -
Including Crane and Rigging Liability, as applicable
Business Automobile Liability
A.
Limits of Liability
Bodily Injury and Property Damage Liability:
Combined Single Limit
Any Auto.
Including Hired, Borrowed or:Non-Owned Autos
Any One. Accident $ 1,000,000
Endorsements Required
City of Miami included as an additional insured
EXHIBIT "C"
III. Worker's Compensation
Limits of Liability
Statutory -State of Florida
Waiver of subrogation
Employer's Liability
A. Limits of Liability
$1,000,000 for bodily injury caused by an accident, each accident.
$1,000,000 for bodily injury caused by disease, each employee
$1,000,000 for bodily injury caused by disease, policy limit
IV. Umbrella Policy
A. Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence $ 5,000,000
Aggregate $ 5,000,000
City of Miami listed as an additional Insured. Coverage is excess follow form
over all liability polices contained herein.
VI. Payment and Performance Bond $TBD
City of Miami listed as Obligee
VII. Builders' Risk
Causes of Loss: All Risk -Specific Coverage Project Location
Valuation: Replacement Cost
Deductible: $250,000 All other Perils
$1,000,000 Water Damage
5% maximum on Wind/Hail, Earth Movement and Flood
City of Miami listed as loss payee
A. Coverage Extensions: As provided by carrier
The above policies shall provide the City of Miami with written notice of cancellation or
material change from the insurer not less than (30) days prior to any such cancellation or
material change, or in accordance to policy provisions.
Companies authorized to do business in the State of Florida, with the following qualifications,
shall issue all insurance policies required above:
The company must be rated no less than "A-" as to management, and no less than "Class V"
as to Financial Strength, by the latest edition of Best's Insurance Guide, published by A.M.
Best Company, Oldwick, New Jersey, or its equivalent. All policies and /or certificates of
insurance are subject to review and verification by Risk Management prior to insurance
approval.
EXHIBIT "C"
Exhibit C-2: INSURANCE REQUIREMENTS TENANT FLAGLER VILLAS
PHASE TWO
I. Commercial General Liability
A. Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence $1,000,000
General Aggregate Limit $ 2,000,000
Products/Completed Operations $ 1,000,000
Personal and Advertising Injury $1,000,000
B. Endorsements Required
City of Miami listed as an additional insured
Contingent and Contractual Liability
Premises and Operations Liability
Primary Insurance Clause Endorsement
II. Business Automobile Liability
A. Limits of Liability
Bodily Injury and Property Damage Liability
Combined Single Limit
Any Auto
Including Hired, Borrowed or Non -Owned Autos
Any One Accident $ 300,000
B. Endorsements Required
City of Miami included as an Additional Insured
III. Worker's Compensation
Limits of Liability
Statutory -State of Florida
Waiver of subrogation
EXHIBIT "C"
Employer's Liability
A. Limits of Liability
$100,000 for bodily injury caused by an accident, each accident.
$100,000 for bodily injury caused by disease, each employee
$500,000 for bodily injury caused by disease, policy limit
The above policies shall provide the City of Miami with written notice of cancellation or
material change from the insurer not less than (30) days prior to any such cancellation or
material change, or in accordance to policy provisions.
Companies authorized to do business in the State of Florida, with the following qualifications,
shall issue all insurance policies required above:
The company must be rated no less than "A-" as to management, and no less than "Class V"
as to Financial Strength, by the latest edition of Best's Insurance Guide, published by A.M.
Best Company, Oldwick, New Jersey, or its equivalent. All policies and /or certificates of
insurance are subject to review and verification by Risk Management prior to insurance
approval.
EXHIBIT "C"
Exhibit C-3: INSURANCE REQUIREMENTS OPERATIONS PHASE
FLAGLER VILLAS PHASE TWO
I. Commercial General Liability
A. Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence $1,000,000
General Aggregate Limit $ 2,000,000
Products/Completed Operations $ 1,000,000
Personal and Advertising Injury $1,000,000
B. Endorsements Required
City of Miami listed as additional insured
Contingent and Contractual Liability
Premises and Operations Liability
Primary Insurance Clause Endorsement
Hired and Non Owned Auto Endorsement
II. Worker's Compensation
Limits of Liability
Statutory -State of Florida
Waiver of subrogation
Employer's Liability
A. Limits of Liability
$1,000,000 for bodily injury caused by an accident, each accident.
$1,000,000 for bodily injury caused by disease, each employee
$1,000,000 for bodily injury caused by disease, policy limit
ARTICLE XVI
III. PROPERTY
Commercial Property Insurance covering the Building and Business Personal Property owned by
Tenant. Commercial property insurance shall, at a minimum, cover the perils insured under the
ISO Special Causes of Loss Special Form (CP 10 30), or a substitute form providing equivalent
coverages written on an All Risk or Direct Physical Loss or Damage basis with no coinsurance,
EXHIBIT "C"
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 foundation and excavation costs),
trade fixtures and floor coverings. In addition, the policy should afford coverage for sprinkler
leakage, extended coverage including vandalism and malicious mischief, as well as coverage for
business income relative to loss of rents, along with boiler and machinery coverage, if
applicable. The amount of insurance shall equal the full estimated replacement cost of all real
and business personal property owned by Tenant.
The City shall be included as loss payees under the commercial property insurance.
IV. Umbrella Liability
Each Occurrence
Policy Aggregate
$5,000,000
$5,000,000
City of Miami listed as additional insured. 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 with policy provisions.
Companies authorized to do business in the State of Florida, with the following qualifications,
shall issue all insurance policies required above:
The company must be rated no less than "A-" as to management, and no less than "Class V"
as to Financial Strength, by the latest edition of Best's Insurance Guide, published by A.M.
Best Company, Oldwick, New Jersey, or its equivalent. All policies and /or certificates of
insurance are subject to review and verification by Risk Management prior to insurance
approval.
EXHIBIT "C"
EXHIBIT D
ANTI -HUMAN TRAFFICKING
AFFIDAVIT
1. The undersigned affirms, certifies, attests, and stipulates as follows:
a. The entity/individual is a nongovernmental entity authorized to transact business
in the State of Florida (hereinafter, "nongovernmental entity").
b. The nongovernmental entity is either executing, renewing, or extending a contract
(including, but not limited to, any amendments, as applicable) with the City of
Miami ("City") or one of its agencies, authorities, boards, trusts, or other City
entity which constitutes a governmental entity as defined in Section 287.138(1),
Florida Statutes (2025).
c. The nongovernmental entity is not in violation of Section 787.06, Florida Statutes
(2025), titled "Human Trafficking."
d. The nongovernmental entity does not use "coercion" for labor or services as
defined in Section 787.06, Florida Statutes (2025).
2. Under penalties of perjury, pursuant to Section 92.525, Florida Statutes, I declare the
following:
a. I have read and understand the foregoing Anti -Human Trafficking Affidavit and
that the facts, statements and representations provided in Section 1 are true and
correct.
b. I am an officer, a representative, or individual of the nongovernmental entity
authorized to execute this Anti -Human Trafficking Affidavit.
FURTHER'AFFIANT SAYETH NAUGHT.
Nongovernmental Entity/Individual:
Tony Del Pozzo
Vice President
Name:
Signature:
Office Address:
Email Address:
Title:
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EXHIBIT "D"
EXHIBIT E
CITY OF MIAMI RESOLUTION NO.
R-26-0283
EXHIBIT "E"
#14945278 v3
City of Miami
Legislation
Resolution
Enactment Number: R-26-0283
City Hall
3500 Pan American Drive
Miami, FL 33133
www.miamigov.com
File Number: 19456 Final Action Date:6/25/2026
A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), RESCINDING
RESOLUTION NO. R-25-0062, ADOPTED ON FEBRUARY 27, 2025, "A RESOLUTION OF
THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), BY A FOUR -FIFTHS (4/5THS)
AFFIRMATIVE VOTE, AFTER AN ADVERTISED PUBLIC HEARING, RATIFYING,
APPROVING, AND CONFIRMING THE CITY MANAGER'S FINDING, ATTACHED AND
INCORPORATED AS EXHIBIT "B," THAT COMPETITIVE NEGOTIATION METHODS AND
PROCEDURES ARE NOT PRACTICABLE OR ADVANTAGEOUS FOR THE CITY OF MIAMI
("CITY") PURSUANT TO SECTIONS 29-B(A) OF THE CHARTER OF THE CITY OF MIAMI,
FLORIDA, AS AMENDED ("CITY CHARTER"), AND SECTION 18-182(C) OF THE CODE OF
THE CITY OF MIAMI, FLORIDA, AS AMENDED ("CITY CODE"); WAIVING THE
REQUIREMENTS FOR SAID PROCEDURES; AUTHORIZING THE CITY MANAGER TO
EXECUTE A NINETY NINE (99) YEAR GROUND LEASE AGREEMENT ("LEASE"), BETWEEN
THE CITY OF MIAMI ("CITY") AND 5350 FLAGLER STREET, LLC ("DEVELOPER") ON THE
CITY -OWNED PARCEL OF LAND LOCATED AT 5350 WEST FLAGLER STREET, MIAMI,
FLORIDA, AS MORE PARTICULARLY DESCRIBED IN EXHIBIT "A," ATTACHED AND
INCORPORATED, FOR THE DEVELOPMENT OF AFFORDABLE ELDERLY RENTAL
HOUSING PROJECT FOR LOW-INCOME SENIORS; FURTHER AUTHORIZING THE CITY
MANAGER TO NEGOTIATE AND EXECUTE ANY AND ALL NECESSARY DOCUMENTS,
INCLUDING AMENDMENTS, EXTENSIONS, AND MODIFICATIONS, ALL IN FORMS
ACCEPTABLE TO THE CITY ATTORNEY; SUCH LEASE SUBJECT UPON SUCCESSFUL
REMEDIATION OF EXISTING ENVIRONMENTAL CONDITIONS, IF ANY," AND REPLACING
IN LIEU THEREOF A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH
ATTACHMENT(S), BY A FOUR -FIFTHS (4/5THS) AFFIRMATIVE VOTE, AFTER AN
ADVERTISED PUBLIC HEARING, RATIFYING, APPROVING, AND CONFIRMING THE CITY
MANAGER'S FINDING, ATTACHED AND INCORPORATED AS EXHIBIT "B," THAT
COMPETITIVE NEGOTIATION METHODS AND PROCEDURES ARE NOT PRACTICABLE
OR ADVANTAGEOUS FOR THE CITY OF MIAMI ("CITY") PURSUANT TO SECTIONS 29-
B(A) OF THE CHARTER OF THE CITY OF MIAMI, FLORIDA, AS AMENDED ("CITY
CHARTER"), AND SECTION 18-182(C) OF THE CODE OF THE CITY OF MIAMI, FLORIDA,
AS AMENDED ("CITY CODE"); WAIVING THE REQUIREMENTS FOR SAID PROCEDURES;
AUTHORIZING THE CITY MANAGER TO EXECUTE A NINETY NINE (99) YEAR GROUND
LEASE AGREEMENT ("LEASE"), BETWEEN THE CITY OF MIAMI ("CITY") AND 5350
FLAGLER STREET, LLC ("DEVELOPER") ON THE CITY -OWNED PARCEL OF LAND
LOCATED AT 5350 WEST FLAGLER STREET, MIAMI, FLORIDA, AS MORE PARTICULARLY
DESCRIBED IN EXHIBIT "A," ATTACHED AND INCORPORATED, FOR THE DEVELOPMENT
OF AFFORDABLE ELDERLY RENTAL HOUSING PROJECT FOR LOW-INCOME SENIORS;
PROVIDING THAT THE CITY MANAGER IS AUTHORIZED TO EXECUTE THE GROUND
LEASE PRIOR TO CONSTRUCTION FINANCING CLOSING, FOR PURPOSES OF
ESTABLISHING SITE CONTROL, AND FACILITATING DEVELOPER'S ABILITY TO OBTAIN
CONSTRUCTION AND PERMANENT FINANCING FOR THE PROJECT; FURTHER
AUTHORIZING THE CITY MANAGER TO NEGOTIATE AND EXECUTE ANY AND ALL
NECESSARY DOCUMENTS, INCLUDING AMENDMENTS, EXTENSIONS, AND
MODIFICATIONS, ALL IN FORMS ACCEPTABLE TO THE CITY ATTORNEY; SUCH LEASE
SUBJECT UPON SUCCESSFUL REMEDIATION OF EXISTING ENVIRONMENTAL
CONDITIONS, IF ANY.
WHEREAS, pursuant to Resolution No. R-25-0062, adopted on February 27, 2025, the
City Commission authorized the leasing of certain City of Miami ("City") owned parcels to 5350
Flagler Street, LLC ("Developer") for the development of an affordable rental housing project for
seniors consisting of approximately ninety-eight (98) units; and
WHEREAS, it is the intent of the Developer and the City for the Project to be developed
as a affordable rental housing project for low-income seniors on the parcels under a ninety-nine
(99) years ground lease ("Lease"); and
WHEREAS, Section 29-B(a) of the City Charter allows for the conveyance or disposition
of City -owned property for the implementation of projects which are intended to benefit people
or households with low and/or moderate income; and
WHEREAS, the development of affordable housing projects requires the Developer to
obtain construction and permanent loans from lenders, housing finance agencies, and other
funding sources; and
WHEREAS, such financing sources customarily require evidence of site control,
including an executed ground lease, prior to issuing binding financing commitments; and
WHEREAS, the City Commission finds that execution of the ground lease agreements is
necessary to allow the Developer to obtain the financing required to construct the Project; and
WHEREAS, the City Commission desires to clarify that the ground lease agreements
may be executed for purposes of establishing site control and facilitating financing; and
WHEREAS, the City shall require the following in order to lease the Parcels to the
Developer: (i) evidence satisfactory to the Director of the Department of Housing and
Community Development ("Director") that financial commitments from the lender or lenders
have been received; (ii) any mortgages obtained by the Developer on the Parcel(s) will be
subject to the approval of the Director, which such approval shall not be unreasonably withheld;
and
WHEREAS, the approval of the Lease shall be subject to compliance with all applicable
federal, State of Florida, and local laws, rules, regulations, or restrictions; upon successful
remediation of existing environmental conditions, if any; and the negotiation and execution of
any other necessary documents all in form(s) acceptable to the City Attorney, for the purposes
stated herein and in furtherance of the Project;
NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF
MIAMI, FLORIDA:
Section 1. The recitals and findings contained in the Preamble to this Resolution are
adopted by reference and incorporated as if fully set forth in this Section.
Section 2. Resolution No. R-25-0062 is hereby rescinded in its entirety.
Section 3. The City Manager is hereby authorized' to negotiate and execute a ninety-
nine (99) years ground lease agreement ("Lease"), between the City and 5350 Flagler Street,
LLC for the City -owned parcels of land located, as legally described in Exhibits "A," attached
and incorporated, for the development of a mixed use affordable rental housing project for low-
income seniors, all in a form acceptable to the City Attorney, for purposes of establishing site
control and facilitating the Developer's ability to obtain construction and permanent financing for
the Project, and providing that to the extent any language contained in Resolution No. R-25-
0062 could be interpreted to prohibit execution of the ground lease agreements prior to the
closing of the construction financing, such language is hereby clarified and superseded by this
Resolution.
Section 4. The ground lease agreements shall ensure that the lease shall not become
effective, and no leasehold estate shall be created until the closing of construction financing for
the Project. Nothing herein shall be construed to waive the requirement that construction
financing be obtained prior to commencement of development of the Project.
Section 5. The ground lease agreements shall require the Developer to pursue
development of the Project in good faith and to use commercially reasonable efforts to obtain all
necessary governmental approvals and financing as promptly as practicable following execution
of the lease agreement.
Section 6. By a four -fifths (4/5ths) affirmative vote, after an advertised public hearing, the
City Manager's determinations, findings, and recommendations, attached and incorporated as
Exhibit "C," pursuant to Sections 29-B(a) of the City Charter are ratified, approved, and
confirmed and the City Commission hereby waives the requirements for said procedures.
Section 7. The City Manager is authorized' to negotiate and execute the ground lease
agreements, and any amendments, extensions, or related documents, all in a form acceptable
to the City Attorney.
Section 8. This Resolution shall become effective immediately upon adoption and the
signature of the Mayor.2
APPROVED AS TO FORM AND CORRECTNESS:
1 The herein authorization is further subject to compliance with all legal requirements that may be
imposed, including but not limited to, those prescribed by applicable City Charter and City Code
provisions.
2 If the Mayor does not sign this Resolution, it shall become effective at the end of ten (10) calendar days
from the date it was passed and adopted. If the Mayor vetoes this Resolution, it shall become effective
immediately upon override of the veto by the City Commission.
AGENDA ITEM COVER PAGE
File ID: #19456
Resolution
Sponsored by: Commissioner Ralph Rosado
A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), RESCINDING
RESOLUTION NO. R-25-0062, ADOPTED ON FEBRUARY 27, 2025, "A RESOLUTION OF
THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), BY A FOUR -FIFTHS (4/5THS)
AFFIRMATIVE VOTE, AFTER AN ADVERTISED PUBLIC HEARING, RATIFYING,
APPROVING, AND CONFIRMING THE CITY MANAGER'S FINDING, ATTACHED AND
INCORPORATED AS EXHIBIT "B," THAT COMPETITIVE NEGOTIATION METHODS AND
PROCEDURES ARE NOT PRACTICABLE OR ADVANTAGEOUS FOR THE CITY OF MIAMI
("CITY") PURSUANT TO SECTIONS 29-B(A) OF THE CHARTER OF THE CITY OF MIAMI,
FLORIDA, AS AMENDED ("CITY CHARTER"), AND SECTION 18-182(C) OF THE CODE OF
THE CITY OF MIAMI, FLORIDA, AS AMENDED ("CITY CODE"); WAIVING THE
REQUIREMENTS FOR SAID PROCEDURES; AUTHORIZING THE CITY MANAGER TO
EXECUTE A NINETY NINE (99) YEAR GROUND LEASE AGREEMENT ("LEASE"), BETWEEN
THE CITY OF MIAMI ("CITY") AND 5350 FLAGLER STREET, LLC ("DEVELOPER") ON THE
CITY -OWNED PARCEL OF LAND LOCATED AT 5350 WEST FLAGLER STREET, MIAMI,
FLORIDA, AS MORE PARTICULARLY DESCRIBED IN EXHIBIT "A," ATTACHED AND
INCORPORATED, FOR THE DEVELOPMENT OF AFFORDABLE ELDERLY RENTAL
HOUSING PROJECT FOR LOW-INCOME SENIORS; FURTHER AUTHORIZING THE CITY
MANAGER TO NEGOTIATE AND EXECUTE ANY AND ALL NECESSARY DOCUMENTS,
INCLUDING AMENDMENTS, EXTENSIONS, AND MODIFICATIONS, ALL IN FORMS
ACCEPTABLE TO THE CITY ATTORNEY; SUCH LEASE SUBJECT UPON SUCCESSFUL
REMEDIATION OF EXISTING ENVIRONMENTAL CONDITIONS, IF ANY," AND REPLACING
IN LIEU THEREOF A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH
ATTACHMENT(S), BY A FOUR -FIFTHS (4/5THS) AFFIRMATIVE VOTE, AFTER AN
ADVERTISED PUBLIC HEARING, RATIFYING, APPROVING, AND CONFIRMING THE CITY
MANAGER'S FINDING, ATTACHED AND INCORPORATED AS EXHIBIT "B," THAT
COMPETITIVE NEGOTIATION METHODS AND PROCEDURES ARE NOT PRACTICABLE
OR ADVANTAGEOUS FOR THE CITY OF MIAMI ("CITY") PURSUANT TO SECTIONS 29-
B(A) OF THE CHARTER OF THE CITY OF MIAMI, FLORIDA, AS AMENDED ("CITY
CHARTER"), AND SECTION 18-182(C) OF THE CODE OF THE CITY OF MIAMI, FLORIDA,
AS AMENDED ("CITY CODE"); WAIVING THE REQUIREMENTS FOR SAID PROCEDURES;
AUTHORIZING THE CITY MANAGER TO EXECUTE A NINETY NINE (99) YEAR GROUND
LEASE AGREEMENT ("LEASE"), BETWEEN THE CITY OF MIAMI ("CITY") AND 5350
FLAGLER STREET, LLC ("DEVELOPER") ON THE CITY -OWNED PARCEL OF LAND
LOCATED AT 5350 WEST FLAGLER STREET, MIAMI, FLORIDA, AS MORE PARTICULARLY
DESCRIBED IN EXHIBIT "A," ATTACHED AND INCORPORATED, FOR THE DEVELOPMENT
OF AFFORDABLE ELDERLY RENTAL HOUSING PROJECT FOR LOW-INCOME SENIORS;
PROVIDING THAT THE CITY MANAGER IS AUTHORIZED TO EXECUTE THE GROUND
LEASE PRIOR TO CONSTRUCTION FINANCING CLOSING, FOR PURPOSES OF
ESTABLISHING SITE CONTROL, AND FACILITATING DEVELOPER'S ABILITY TO OBTAIN
CONSTRUCTION AND PERMANENT FINANCING FOR THE PROJECT; FURTHER
AUTHORIZING THE CITY MANAGER TO NEGOTIATE AND EXECUTE ANY AND ALL
NECESSARY DOCUMENTS, INCLUDING AMENDMENTS, EXTENSIONS, AND
MODIFICATIONS, ALL IN FORMS ACCEPTABLE TO THE CITY ATTORNEY; SUCH LEASE
SUBJECT UPON SUCCESSFUL REMEDIATION OF EXISTING ENVIRONMENTAL
CONDITIONS, IF ANY.