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HomeMy WebLinkAboutBack-Up Document - Draft Community Benefits AgreementCOMMUNITY BENEFITS AGREEMENT by and between 'V CITY OF MIAMI, a municipal corporation of the State of Florida and MIAMI FREEDOM PARK, LLC, a Delaware limited liability company MIADOCS 18556463 134585.0002 J- COMMUNITY BENEFITS AGREEMENT THIS COMMUNITY BENEFITS AGREEMENT (this "Aereement"), dated and entered into as of this day of , 2019, is made by and between CITY OF MIAMI, a municipal corporation of the State of Florida, having its principal office and place of business at 3500 Pan American Drive, Miami, Florida 33133 ("City") and MIAMI FREEDOM PARK, LLC, a Delaware limited liability company, having its principal office and place of business at 800 Douglas Road, 12th Floor, Coral Gables, Florida 33134 (hereinafter called "MFP" and together with the City, collectively, referred to herein, as the "Parties" and each, individually, as a "Party"). Capitalized terms used in this Agreement, without being defined elsewhere herein, shall have the meanings set forth in Article 1 hereof. WITNESSETH: A. MFP, its principals and affiliates are active members of the City of Miami community and, as part of their continued commitment to the City, seek to contribute to the City's beautification, utility and community -spirit by contributing funds to public parks and projects and making available recreational opportunities for City residents. B. In furtherance of the foregoing and in satisfaction of a material requirement imposed by the City in connection with its award of the Ground Lease (as hereafter defined) to MFP, MFP has agreed (i) to pay the City $20,000,000.00 for the benefit of the Public Park Parcel (the "Park Fund Contribution") and other parks and green space, (ii) to pay the City $5,000,000.00 for the benefit of the Baywalk-Riverwalk Project (the "Bavwalk Contribution"), and (iii) to make multiple soccer fields publicly and freely available to the City's youth (collectively, the "Community Benefits"). C. is the of MFP and will receive a substantial benefit from the Ground Lease transaction entered into in connection herewith and has agreed to guarantee the obligations of MFP herein ("Guarantor") pursuant to the attached guaranty (the "Guaranty"). D. The City and MFP recognize the public benefits attained from the Community Benefits and thereby wish to enter into the agreements, terms, covenants and conditions hereinafter set forth. ARTICLE 1 DEFINITION OF CERTAIN TERMS Section I.I. Terms Defined. Capitalized terms used in this Agreement without definition shall have the meanings given to them in the Ground Lease. The terms set forth below, when used anywhere in this Agreement, shall be defined as follows: the Recitals. (a) "Bavwalk Contribution" shall have the meaning ascribed to such term in (b) "Bavwalk-Riverwalk Proiect'shall mean MIADOCS 18556463 134585.0002 1 (c) "City" shall have the meaning ascribed to such term in the introductory paragraph of this Agreement. (d) "City Commission" shall mean the City Commission of the City of Miami, Florida. (e) "Community Benefits" shall have the meaning ascribed to such term in the Recitals. (f) "Effective Date" shall be first day of the first month after the later of (i) ten (10) days after the date that the City Commission approves the Agreement, and (ii) the date this Agreement is last executed by MFP and City. (g) "Event(s) of Default" shall have the meaning ascribed to such term in Section 3.1. (h) "Final Pavment" shall mean MFP's payment of the final required payment pursuant the Park Fund Contribution Schedule. (i) "Ground Lease" shall mean that certain Ground Lease and Master Development Agreement, dated of even date herewith, pursuant to which the City, as landlord, has agreed to lease to MFP, as tenant, that certain real property more particularly described in the Ground Lease, in connection with, amongst other things, the construction and use of a professional soccer facility on such real property. 0) "MFP" shall have the meaning ascribed to such term in the introductory paragraph of this Agreement. (k) "Notice" shall have the meaning ascribed to such term in Section 4.2. (1) "Party" or "Parties" shall have the meaning ascribed to such term in the introductory paragraph of this Agreement. (m) "Park Fund Contribution" shall have the meaning ascribed to such term in the Recitals. (n) "Park Fund Contribution Schedule" shall have the meaning ascribed to such term in Section 2.2(a). (o) "Public Park Parcel" shall mean that certain real property owned by the City and located in Miami -Dade County, Florida comprised of approximately [58 acres] of public park land, as more particularly described in Schedule "A" attached hereto (the "Public Park Land"), together with all rights, privileges and access appurtenant to said Public Park Land, and all right, title and interest of the City, if any, in and to any land lying in the bed of any street, road, alley or right-of-way, open or closed, adjacent to or abutting said Public Park Land, as needed for the improvements. (p) "Term" shall have the meaning ascribed to such term in Section 2.5. WADOCS 18556463 134585.0002 2 (q) "Unavoidable Delays" shall mean delays beyond the control of a Party required to perform, such as delays due to strikes; a natural catastrophe, such as an earthquake, hurricane, flood or tornado, that could not have been prevented; fires; enemy action; civil disturbance; sabotage; restraint by court or public authority; litigation or formal administrative challenges by third parties to the execution or performance of this Agreement or the procedures leading to its execution or to the process of entitlement for the Demised Property; or moratoriums. Notwithstanding anything in this Agreement to the contrary, if a Party shall be delayed in the performance of any act required under this Agreement by reason of any Unavoidable Delay, then provided notice of the Unavoidable Delay is given to the other Party within ten 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 lesser of days or a period equivalent to the period of the delay. The provisions hereof shall not operate to excuse MFP from the payment of the Park Fund Contribution and Baywalk Contribution or from the obligations to maintain insurance. Delays or failures to perform resulting from lack of funds or the increased cost of obtaining labor and materials shall not be deemed delays beyond the direct control of a Party. ARTICLE 2 GENERAL TERMS OF AGREEMENT Section 2.1. Aereement. For and in consideration of the covenants and agreements specified herein, the Parties agree to the terms and conditions set forth in this Agreement. The Parties hereby agree that the consideration and obligations recited and provided under this Agreement constitute substantial benefits to the Parties and thus adequate consideration for this Agreement. Section 2.2. Contributions. (a) Park Fund Contribution. MFP agrees to pay to the City the Park Fund Contribution. MFP will pay the Park Fund Contribution to the City over thirty (30) years in equal annual installments in accordance with the timing and delivery instructions described on Schedule "B" attached hereto commencing on (the "Park Fund Contribution Schedule"). (b) Baywalk Contribution. MFP agrees to pay to City the Baywalk Contribution upon receipt by MFP of a Certificate of Occupancy (as defined in the Ground Lease) for the Soccer Stadium Development (as defined in the Ground Lease). (c) Use of Contributions. The City shall only use: (i) the Park Fund Contribution for the improvements repair, operation, and maintenance of the green space and parks, including, but not limited to, the Public Park Parcel, and (ii) the Baywalk Contribution for capital expenditures and improvements necessary to complete the Baywalk-Riverwalk Project. Section 2.3. Youth Soccer Field Commitment. MFP shall complete the public use soccer fields depicted on Schedule "C" and contemplated by the Ground Lease not later than ( ) in accordance with plans preapproved in writing by City, all of which will be situated on the elevated platforms of the 23 acres of ground floor parking MUDOCS 18556463 134585.0002 3 contained within the Demised Property (as defined in the Ground Lease). MFP shall also establish a public registration system, in form and substance preapproved by City in writing, for the use of the public use soccer fields, which will permit all registered users that are both residents of the City and sixteen (16) years of age or younger to use the public use soccer fields without charge, subject to such reasonable validation, access, and use restrictions as established by MFP from time -to -time, provided, however, that the hours of operation shall never be less than the hours of operation of the Public Park Parcel. Section 2.4. Use of Union Labor. With respect to the initial construction of the Improvements on the Demised Property (as such terms are defined in the Ground Lease), as stated in the Ground Lease, MFP agrees, through its prime contractors and their subcontractors, to have twenty percent (20%) of its construction labor force comprising of union employees. Notwithstanding the foregoing, the terms of the Ground Lease requiring payment of a Living Wage (as defined in the Ground Lease) shall also apply to this Agreement and are hereby incorporated by reference. Section 2.5. Term of Aureement. The term of this Agreement (the "Term") shall commence on the Effective Date and shall terminate upon the Final Payment, unless sooner terminated pursuant to the terms hereof. ARTICLE 3 DEFAULT BY MFP OR CITY Section 3.1. Events of Default. (a) It shall be an "Event of Default" if MFP fails to pay the Park Fund Contribution and/or Baywalk Contribution to City when due or if either Party fails to keep, observe, or perform any of its other obligations or duties imposed upon the Party under this Agreement and such failure shall continue for a period of thirty (30) days after written notice thereof from the other Party to the defaulting Party setting forth with reasonable specificity the nature of the alleged breach; or in the case of a non -monetary default or contingency which cannot, with due diligence and in good faith, be cured within thirty (30) days, the defaulting Party fails within said thirty (30) day period to proceed promptly and with due diligence and in good faith to pursue curing said default and thereafter continue to diligently pursue the curing of such default. Failure of a Party to perform hereunder due to an Unavoidable Delay shall not constitute grounds for an Event of Default. (b) An Event of Default under the Ground Lease by a Party shall constitute an Event of Default by such Party hereunder and an Event of Default by a Party hereunder shall constitute an Event of Default by such Party under the Ground Lease. Section 3.2. Failure to Cure Default. If an Event of Default shall occur, the non - defaulting Party, at any time after the periods set forth in Section 3.1 and provided the defaulting Party has failed to cure such Event of Default within such applicable period, shall have the following rights and remedies, which are cumulative and in addition to any and all other remedies, in law or in equity that the non -defaulting Party may have against the defaulting Party: MUDOCS 18556463 134585.0002 4 (a) to sue the defaulting Party for all damages, costs and expenses arising from the Event of Default and to recover all such damages, costs and expenses, including reasonable attorneys' fees at both trial and appellate levels; and/or (b) to restrain, by injunction, the commission of or attempt or threatened commission of an Event of Default and to obtain a decree specifically compelling performance of any such term or provision of this Agreement; and/or (c) to terminate any and all obligations that the non -defaulting Party may have under this Agreement and/or under the Ground Lease and/or under the Park Rehabilitation and Environmental Agreement, in which event the non -defaulting Party shall be released and relieved from any and all liability under this Agreement. Section 3.3. Special Termination or Default Circumstances. (a) In the event the Ground Lease is terminated by MFP pursuant to an express right thereunder (such as during the due diligence period), MFP shall be free to terminate this Agreement pursuant to the provisions above and be relieved of the payment of any annual Park Fund Contributions not theretofore made. (b) If MFP defaults under this Agreement with no default by City, City may, among other remedies, declare the entire unpaid balance of the Park Fund Contribution ($20,000,000) and Baywalk Contribution ($5,000,000) forthwith due and payable and may collect the then present value of the entire unpaid balance of the Park Fund Contribution and Baywalk Contribution (calculated using a discount rate equal to the discount rate of the branch of the Federal Reserve Bank closest to the Public Park Parcel in effect as of the date of the default). Section 3.4. No Waiver. No failure by either Party to insist upon the strict performance of any of the terms of this Agreement or to exercise any right or remedy consequent upon a breach thereof shall constitute a waiver of any such breach or of any of the terms of this Agreement. None of the terms of this Agreement to be kept, observed or performed by MFP, and no breach thereof, shall be waived, altered or modified except by a written instrument executed by the non -breaching Party. No waiver of any breach shall affect or alter this Agreement, but each of the terms of this Agreement shall continue in full force and effect with respect to any other then existing or subsequent breach thereof. No waiver of any default of any Party hereunder shall be implied from any omission by the other Party to take any action on account of such default, and no express waiver shall affect any default other than the default specified in the express waiver and then only for the time and to the extent therein stated. One or more waivers by any Party shall not be construed as a waiver of a subsequent breach of the same covenant, term or condition. ARTICLE 4 NOTICES Section 4.1. Addresses. All notices, demands or requests by the City to MFP shall be deemed to have been properly served or given, if addressed to MFP as follows: MFP: Miami Freedom Park, LLC MUDOCS 18556463 134585.0002 5 800 Douglas Road 12th Floor Coral Gables, Florida 33134 Attn: Pablo A. Alvarez With a copy to: Holland & Knight, LLP 701 Brickell Avenue Miami, Florida Attn: Richard Perez and to such other address and to the attention of such other party as MFP may, from time to time, designate by written notice to the City. If MFP at any time during the Term hereof changes its office address as herein stated, MFP will promptly give notice of same in writing to the City. All notices, demands or requests by MFP to the City shall be deemed to have been properly served or given if addressed to the City as follows: City: City Manager, or his/her designee 444 SW 2nd Avenue, 10th Floor Miami, Florida 33130 With a copy to: City Attorney's Office Attention: City Attorney 444 SW 2nd Avenue, 9th Floor Miami, FL 33130 With a copy to: Shutts & Bowen 200 South Biscayne Blvd. Miami, FL 33131 Attention: Florentino L. Gonzalez and to such other addresses and to the attention of such other parties as the City may, from time to time, designate by written notice to MFP. If the City at any time during the Term hereof changes its office address as herein stated, the City will promptly give notice of same in writing to MFP. Section 4.2. Method of Transmitting Notice. All such notices, demands or requests (a "Notice") shall be in writing and sent by: (a) United States registered or certified mail, postage prepaid, return receipt requested, (b) hand delivery, (c) nationally recognized courier, or (d) electronic transmission, provided the transmission is electronically confirmed and the original of the Notice is sent by one of the foregoing means of transmitting Notice within 24 hours of the electronic transmission. Such Notices shall be deemed served or given on (a) the date received, (b) the date delivery of such Notice was refused or unclaimed, or (c) the date noted on the return receipt or delivery receipt as the date of delivery thereof was determined impossible to accomplish because of an unnoticed change of address. ARTICLE 5 CERTIFICATES BY THE CITY AND MFP MUDOCS 18556463 134585.0002 6 Section 5.1. MFP Certificates. MFP agrees at any time and from time to time, upon not less than twenty (20) days' prior written notice by the City, to execute, acknowledge and deliver to the City a statement in writing setting forth any monies then payable under this Agreement, if then known; certifying that this Agreement is unmodified and in full force and effect (or if there have been modifications, that the Agreement is in full force and effect as modified and stating the modification), and the dates to which monies (if any) have been paid; and stating (to the best of MFP's knowledge) whether or not the City is in default in keeping, observing or performing any of the terms of this Agreement, and, if the City shall be in default, specifying each such default (limited to those defaults of which MFP has knowledge). It is intended that any such statement delivered pursuant to this Section 5.1 may be relied upon by the City or any prospective assignee, transferee or purchaser of the fee, but reliance on such certificate shall not extend to any default of the City as to which MFP shall have no actual knowledge. Section 5.2. Citv Certificates. The City agrees at any time and from time to time, upon not less than O days' prior written notice by MFP, to furnish a statement in writing setting forth any monies then payable under this Agreement, if then known; certifying that this Agreement is unmodified and in full force and effect (or if there shall have been modifications that the Agreement is in full force and effect as modified and stating the modifications) and the dates to which monies (if any) have been paid; and stating whether or not to the best of the City's knowledge, MFP is in default in keeping, observing and performing any of the terms of this Agreement, and, if MFP shall be in default, specifying each such default of which the City may have knowledge, provided, however, that the City's failure to furnish any such statements shall not be deemed a default by City under this Agreement. It is intended that any such statement delivered pursuant to this Section 5.2 may be relied upon by any prospective lender, assignee, transferee or purchaser of MFP's interest in this Agreement, but reliance on such certificate may not extend to any default of MFP as to which the City shall have had no actual knowledge. ARTICLE 6 CONSTRUCTION OF TERMS AND MISCELLANEOUS Section 6.1. Severabilitv. If any provisions of this Agreement or the application thereof to any person or situation shall, to any extent, be held invalid or unenforceable, the remainder of this Agreement, and the application of such provisions to persons or situations other than those as to which it shall have been held invalid or unenforceable, shall not be affected thereby, and shall continue valid and be enforced to the fullest extent permitted by law. Section 6.2. Cautions. The Article headings and captions of this Agreement and the Table of Contents preceding this Agreement are for convenience and reference only and in no way define, limit or describe the scope or intent of this Agreement nor in any way affect this Agreement. All references to Sections and Articles mean the Sections and Articles in this Agreement unless another agreement is expressly referenced. Section 6.3. Relationshiu of Parties. This Agreement does not create the relationship of principal and agent or of mortgagee and mortgagor or of partnership or of joint venture or of WADOCS 18556463 134585.0002 7 any association between the Parties, the sole relationship between the Parties being that of the City and MFP. Section 6.4. Construction. All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine or neuter, singular or plural, as the identity of the party or parties may require. The Parties hereby acknowledge and agree that each was properly represented by counsel and this Agreement was negotiated and drafted at arm's length so that the judicial rule of construction to the effect that a legal document shall be construed against the drafters shall be inapplicable to this Agreement which has been drafted by counsel for both the Parties. Section 6.5. Entire Agreement. This Agreement contains the entire agreement between the Parties hereto and shall not be modified or amended in any manner except by an instrument in writing executed by the Parties hereto and, if material, such amendment has been approved by the City and the City Commission. Section 6.6. Successors and Assigns. The terms herein contained shall bind and inure to the benefit of the City, its successors and assigns, and MFP, its successors and assigns, except as may be otherwise provided herein. Section 6.7. Schedules_ Each Schedule referred to in this Agreement forms an essential part of this Agreement. The Schedules shall be treated as if they were part of this Agreement. Section 6.8. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, without regard to any choice of law provisions that would result in the application of other laws. Section 6.9. Cooperation; Time is of the Essence. The Parties agree to cooperate with each other to the full extent practicable pursuant to the terms and conditions of this Agreement. The Parties agree that time is of the essence in all aspects of their respective and mutual responsibilities pursuant to this Agreement. Section 6.10. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall constitute an original but all of which, when taken together, shall constitute one and the same agreement. Section 6.11. No Third -Party Rights. Nothing in this Agreement, express or implied, is intended to confer upon any person, other than the Parties hereto and their respective successors and assigns, any rights or remedies under or by reason of this Agreement. Section 6.12. Exculpation. It is the intent and agreement of the Parties hereto that only the Parties as entities shall be responsible in any way for their respective obligations hereunder, except as otherwise expressly provided herein. In that regard, no officer, director, partner, trustee, representative, investor, official, representative, employee, agent, or attorney of any of the Parties to this Agreement shall be personally liable for the performance of any obligation hereunder or for any other claim made hereunder or in any way in connection with this Agreement, or any other matters contemplated herein, and any and all such personal liability, either at common law or in equity or by constitution or statute or other Applicable Laws are MIADOCS 18556463 134585.0002 8 expressly waived and released as a condition of, and as a consideration for, the execution of this Agreement; provided, however, that nothing in the foregoing is intended to nor shall be deemed to limit the effectiveness, enforceability and terms of the Guaranty. ARTICLE 7 REPRESENTATIONS AND WARRANTIES Section 7.1. Citv's Representations and Warranties. The City hereby represents and warrants to MFP that it has full power and authority to enter into this Agreement and perform in accordance with its terms and provisions and that the persons signing this Agreement on behalf of the City have the authority to bind the City and to enter into this transaction and the City has taken all requisite action and steps to legally authorize it to execute, deliver and perform pursuant to this Agreement. Section 7.2. MFP's Representations and Warranties. MFP hereby represents and warrants to the City that (i) it is duly organized, validly existing, and in good standing under the laws of the State in which it was formed and is duly qualified to transact business in the State of Florida, (ii) it has full power and authority to execute, deliver, and perform its obligations under this Agreement, and (iii) the parties signing this Agreement on behalf of MFP have the full power and authority to bind MFP and to enter into this transaction and MFP has taken all requisite action and steps to legally authorize it to execute, deliver and perform pursuant to this Agreement. ARTICLE 8 GUARANTY Payment of the Park Fund Contribution and the Baywalk Contribution and the performance of all covenants of MFP contained in this Agreement are guaranteed by Guarantor under the Guaranty that is attached hereto as Schedule "D". The Guaranty is a part of this Agreement and MFP agrees to be bound by the terms of the Guaranty that relate to this Agreement. The execution and delivery to the City of the Guaranty together with MFP's execution of this Agreement is a condition to the effectiveness of and the City's obligations under this Agreement. [Note: City may require a letter of credit instead of the Guaranty to insure payment of the Park Fund Contribution and Baywalk Contribution]. [Signatures on Next Page] MIADOCS 18556463 134585.0002 9 IN WITNESS WHEREOF, the City has caused this Agreement to be executed in its name by the City Manager; as authorized by the City Commission, and MFP has caused this Agreement to be executed by its duly authorized representative all on the day and year first hereinabove written. ATTEST: in Todd B. Hannon City Clerk APPROVED AS TO INSURANCE REQUIREMENTS: Ann -Marie Sharpe, Director Risk Management Department Signed in the presence of: Print Name: Print Name: CITY: CITY OF MIAMI, a municipal corporation of the State of Florida Emilio T. Gonzalez City Manager APPROVED AS TO LEGAL FORM & CORRECTNESS: Victoria Mendez City Attorney MEP: MIAMI FREEDOM PARK, LLC, a Delaware limited liability company By: Name: Title: MIADOCS 18556463 134585.0002 10 SCHEDULE "A" Public Park Parcel MIADOCS 18556463 134585.0002 11 SCHEDULE`B" Park Fund Contribution Schedule MIADOCS 18556463 134585.0002 12 SCHEDULE "C" Soccer Fields MIADOCS 18556463 134585.0002 13 SCHEDULE "D" Guaranty CONTINUING GUARANTY THIS IS A GENERAL GUARANTY WHICH IS ENFORCEABLE BY THE LANDLORD, ITS SUCCESSORS AND ASSIGNS. THIS IS ALSO AN ABSOLUTE AND UNCONDITIONAL GUARANTY. For value received and in consideration of and in order to induce , a (the "City") to enter into that certain Community Benefits Agreement to which this Guaranty or a form of this Guaranty is attached, between City and Miami Freedom Park, LLC, a limited liability company (the "MFP"), for I , (the "Agreement") and other good and valuable considerations, the undersigned (the "Guarantor"), acting as principal and not as surety merely, absolutely and unconditionally, for himself and his legal representatives, successors, and assigns, guarantees to the City and to its legal representatives, successors, and assigns, the prompt and full performance and observance by the MFP and by its legal representatives, successors, and assigns, of all of the covenants, terms, provisions, conditions, and agreements required to be performed by MFP under the Agreement, whether, before, during, or after the term of the Agreement. Terms used in this Guaranty which are defined in the Agreement shall have the same definitions as those terms have in the Agreement unless the context clearly indicates a contrary intent. Notice of all defaults is waived and consent is given to all extensions of time that the City may grant to MFP in the performance of any of the terms of the Agreement or to the waiving in whole or in part of performance, or to the releasing of MFP in whole or in part from any performance, or to the adjusting of any dispute concerning the Agreement; and no defaults, extensions, waivers, releases, or adjustments, with or without the knowledge of the undersigned, shall affect or discharge the liability of the undersigned. The undersigned shall pay all expenses, including legal fees and disbursements paid or incurred by City in endeavoring to enforce this Guaranty. This Guaranty shall not be impaired by, and Guarantor consents to, any modification, supplement, extension, or amendment of the Agreement to which the parties to the Agreement may hereafter agree. The liability of the Guarantor hereunder is direct and unconditional and may be enforced without requiring the City first to resort to any other right, remedy, or security. Presentment, notice, and demand to MFP and Guarantor and subsequent dishonor are not conditions for proceeding against Guarantor. Guarantor shall have no right of subrogation, reimbursement, or indemnity whatsoever, nor any right of recourse to security for the debts and obligations of MFP to City. Guarantor waives all defenses based on claims that City has impaired any collateral for the MFP's obligations to City or to Guarantor, including any such claim based on City's failure to perfect or maintain any security interest in MFP's property. This Guaranty is a continuing guaranty that shall be effective before the commencement of the term of the Agreement, and shall remain effective following the term of the Agreement as MUDOCS 18556463 134585.0002 14 to any surviving provisions that remain effective after the termination of the Agreement. The Guarantor's obligations under this Guaranty shall also continue in full force and effect after any transfer of MFP's interest under the Agreement. The liability of Guarantor under this Guaranty shall in no way be affected, modified, or diminished by reason of any of the following, (a) any assignment, renewal, modification, amendment, or extension of the Agreement, or (b) any modification or waiver of or change in any of the terms, covenants, and conditions of the Agreement by City and MFP, or (c) any extension of time that may be granted by City to MFP, or (d) any consent, release, indulgence, or other action, inaction, or omission under or in respect of the Agreement, or (e) any dealings, transactions or matters, between City and MFP that may cause the Agreement to terminate, including without limitation, any adjustment, compromise, deferral, waiver, settlement, accord and satisfaction, or release of MFP's obligations under the Agreement, or (f) any bankruptcy, insolvency, reorganization, liquidation, arrangement, assignment for the benefit of creditors, receivership, trusteeship, or similar proceeding affecting MFP, or the rejection or disaffirmance of the Agreement in any proceedings, whether or not notice of the proceedings is given to Guarantor, or any cap on City's claim against MFP in any such proceedings. Further, Guarantor waives all defenses to its obligations under this Guaranty based on any delay between the effective date of the Agreement and the date of Guarantor's execution of this Guaranty, including the defense of lack of consideration, and Guarantor agrees that, notwithstanding any such delay, Guarantor has received sufficient consideration for its execution of this Guaranty, the delivery of which is a condition to City's obligations under the Agreement. Should City be obligated by any bankruptcy or other law to repay to MFP or to Guarantor or to any trustee, receiver, or other representative of either of them, any amounts previously paid, this Guaranty shall be reinstated in the amount of the repayments. City shall not be required to litigate or otherwise dispute its obligation to make any repayments if it in good faith believes that the obligation exists. For purposes of this Guaranty, on a default by MFP under the Agreement the entire balance of all amounts due under the Agreement for the remainder of the term of the Agreement (including, without limitation, the Park Contribution and Baywalk Contribution) may be declared to be forthwith due and payable as provided in the Agreement notwithstanding any stay, injunction, or other prohibition preventing a similar declaration as against MFP and, in the event of any such declaration by City, all of the obligations (whether or not due and payable by MFP) shall forthwith become due and payable by Guarantor under this Guaranty. No delay on the part of City in exercising any right under this Guaranty or failure to exercise any right shall operate as a waiver of or otherwise affect any right nor shall any single or partial exercise of a right preclude any other or further exercise of the right or the exercise of any other right. No waiver or modification of any provision or this Guaranty nor any termination of this Guaranty shall be effective unless in writing and signed by City; nor shall any such waiver be applicable except in the specific instance for which given. MUDOCS 18556463 134585.0002 15 All of City's rights and remedies under the Agreement and under this Guaranty, now or hereafter existing at law or in equity or by statute or otherwise, are intended to be distinct, separate, and cumulative and no exercise or partial exercise of any right or remedy mentioned in the Agreement or this Guaranty is intended to be in exclusion of or a waiver of any of the others. Guarantor waives and releases all rights of subrogation it may have against MFP on account of any payments made by Guarantor to City. If City assigns the Agreement or sells the Public Park Parcel or the Demised Property (as defined in the Ground Lease), City may assign this Guaranty to the assignee or transferee, who shall thereupon succeed to the rights of City under this Guaranty to the same extent as if the assignee were an original guaranteed party named in this Guaranty, and the same rights shall accrue to each subsequent assignee of this Guaranty. If MFP assigns or sublets the Demised Property (as defined in the Ground Lease), the obligations of the Guarantor under this Guaranty shall remain in full force and effect. From time to time, Guarantor, on not less than five days' prior notice, shall execute and deliver to City an estoppel certificate in a form generally consistent with the requirements of institutional lenders and certified to City and any mortgagee or prospective mortgagee or purchaser of the Demised Property or Public Park Parcel. In addition, if requested, Guarantor shall provide any financial information concerning Guarantor that may be reasonably requested by any mortgagee or prospective mortgagee or purchaser of the Demised Property or Public Park Parcel. If any provision of this Guaranty or the application of any provision to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of that provision and this Guaranty and the application of the provision to persons or circumstances other than those as to which it is invalid or enforceable shall not be affected thereby, and the remainder of the provision and this Guaranty shall otherwise remain in full force and effect. As a further inducement to City to make and enter into the Lease and in consideration of City's execution of the Lease, City and Guarantor waive trial by jury in any action or proceeding brought on, under, or by virtue of this Guaranty. Without regard to principles of conflicts of laws, the validity, interpretation, performance, and enforcement of this Guaranty shall be governed by and construed in accordance with the internal laws of the State of Florida and shall be deemed to have been made and performed in the State of Florida. Any legal action or proceeding arising out of or in any way connected with this Guaranty shall only be instituted in a court (federal or state) located in Miami -Dade County, Florida, which shall be the exclusive jurisdiction and venue for litigation concerning this Guaranty. City and Guarantor shall be subject to the personal jurisdiction of those courts in any legal action or proceeding. In addition, City and Guarantor waive any objection that they may now have or hereafter have to the laying of venue of any action or proceeding in those courts, and further waive the right to plead or claim that any action or proceeding brought in any of those courts has been brought in an inconvenient form. MUDOCS 18556463 134585.0002 16 City has entered into the Agreement on the condition that Guarantor shall maintain a minimum net worth that is not less than the Guarantor's net worth as set forth in the financial statements submitted by Guarantor to City before the Effective Date of the Agreement. Should Guarantor's net worth fall below this minimum level as a result of a transfer of Guarantor's assets or an increase in Guarantor's liabilities and not as a result of fluctuations in the market value of Guarantor's assets, Guarantor shall be in default under this Guaranty and under the Agreement. In that event, City may declare all amounts due under the Lease for the remainder of the term of the Agreement (including, without limitation, the Park Contribution and the Baywalk Contribution) to be forthwith due and payable notwithstanding any stay, injunction, or other prohibition preventing a similar declaration as against MFP and, in the event of any such declaration by City, all of the obligations (whether or not due and payable by MFP) shall forthwith become due and payable by Guarantor under this Guaranty. If there is more than one Guarantor, the liability of each Guarantor shall be joint and several with all other Guarantors. Guarantor authorizes City to obtain credit reports and information regarding Guarantor from time to time in City's discretion. CITY AND GUARANTOR KNOWINGLY, INTENTIONALLY, AND VOLUNTARILY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM INVOLVING ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS GUARANTY AND THE LEASE. , Guarantor Guarantor's address: Guarantor's Social Security No. Guarantor's Driver's License No. D.L. State of Issuance: Dated: , 20 STATE OF ) ss.: COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 20 by , who is personally known to me or who has produced MUDOCS 18556463 134585.0002 17 as identification. OFFICIAL NOTARIAL SEAL: (type, print, or stamp name) NOTARY PUBLIC My commission expires: Commission No. MIADOCS 18556463 134585.0002 18