Loading...
HomeMy WebLinkAboutBack-Up Document - Draft Rehabilitation & Environmental AgreementPARK REHABILITATION AND ENVIRONMENTAL AGREEMENT by and between CITY OF MIAMI, a municipal corporation of the State of Florida and MIAMI FREEDOM PARK, LLC, a Delaware limited liability company for the PUBLIC PARK PARCEL MIADOCS 18557371 1345 85.0002 PARK REHABILITATION AND ENVIRONMENTAL AGREEMENT THIS PARK REHABILITATION AND ENVIRONMENTAL AGREEMENT (together with all amendments, supplements, addenda and renewals, this "Agreement"), 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 "MEP" 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 2 hereof. WITNESSETH: A. The City owns that certain real property located in Miami -Dade County, Florida comprised of approximately [58 acres] of public park land, as more particularly described in Schedule "A" attached hereto, together with all rights, privileges and access appurtenant to said property, 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 property, as needed for the improvements (collectively, the "Public Park Parcel").' B. The City desires that MFP (i) design and construct certain improvements to the Public Park Parcel (the "Park Site Development") on behalf of the City in accordance with the program elements and the time frame set forth in Schedule "B" attached hereto (the "Park Concept Plans") and (ii) investigate, remediate and otherwise eliminate all Environmental Conditions on, to, or under the Public Park Parcel in accordance with Environmental Regulations and Environmental Laws (as such terms are provided herein) (collectively, the "Environmental Work') in accordance with the requirements and time frame set forth in Schedule "F" attached hereto. C. The City and MFP recognize the potential public benefits attained from improving the Public Park Parcel, including, without limitation, the promotion of the development and use of public park spaces within the City of Miami. D. 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. E. It is hereby mutually covenanted and agreed by and between the Parties hereto that this Agreement is made upon the agreements, terms, covenants and conditions hereinafter set forth. 'Open Issue: The Public Park Parcel, as defined in this Agreement, does not include the Waterpark and the Grapeland baseball complex. Depending on the complexity of the environmental remediation, both properties may need to be included within the boundaries of the Public Park Parcel for purposes of this Agreement. MIADOCS 18557371 1345 85.0002 ARTICLE 1 GENERAL TERMS OF AGREEMENT Section 1.1 Agreement. For and in consideration of the covenants and agreements specified herein, the Parties agree that MFP shall, at its sole cost and expense, in good faith, and in accordance with the requirements and time frame set forth in this Agreement, the Park Concept Plans, Schedule B and Schedule F, fully complete (i) the Park Site Development and (ii) the Environmental Work. The Parties hereby agree that the consideration and obligations recited and provided under this Agreement and the delivery of the Ground Lease constitute substantial benefits to both parties and thus adequate consideration for this Agreement. Section 1.2 Term of Agreement (a) The term of this Agreement (the "Term") shall commence on the Effective Date and shall terminate (i) contemporaneously with the expiration of MFP's construction warranty pursuant to Section 7.1, unless sooner terminated pursuant to the terms hereof in the case of the Park Site Development and (ii) on the ninety-ninth (99th) anniversary of the Effective Date under the Ground Lease in the case of the Environmental Work. (b) This Agreement shall constitute a covenant running with the land that shall be binding upon, and inure to, the benefit of the Parties, their successors, assigns, heirs, legal representatives, and personal representatives. (c) MFP agrees that it shall (i) commence the Environmental Work no later than and complete the Environmental Work no later than . but in any case prior to completion of the Park Site Development, and (ii) commence the Park Site Development no later than , perform the Park Site Development contemporaneously with the development and construction of the Soccer Stadium Development (as defined in the Ground Lease) and complete the Park Site Development no later than all in accordance with the terms set forth herein. ARTICLE 2 DEFINITION OF CERTAIN TERMS Section 2.1 Terms Defined. In addition to other capitalized terms as defined in the introductory recitals or elsewhere in this Agreement, when used in this Agreement, the terms set forth below shall be defined as follows: (a) "Administrative Review Period" shall have the meaning ascribed to such term in Section 3.2. (b) "Aereement" shall have the meaning ascribed to such term in the introductory paragraph of this Agreement. (c) "Applicable Law" shall mean all applicable laws, ordinances, rules, regulations, authorizations, orders and requirements of all federal, state, county and municipal governments, the departments, bureaus or commissions thereof, or any other body or bodies exercising similar functions having or acquiring jurisdiction over all or any part of the Property. MIADOCS 18557371 134585.0002 2 (d) "Business Dav" shall mean a day of the year that is not a Saturday, Sunday or Legal Holiday. (e) "City" shall have the meaning ascribed to such term in the introductory paragraph of this Agreement. (f) "City Commission' shall mean the City Commission of the City of Miami, Florida. (g) "City Indemnified Parties" shall have the meaning ascribed to such term in Section 5.2. (h) "Claim" shall have the meaning ascribed to such term in Section 5.2. (i) "Code" shall mean the Code of Ordinances of the City of Miami or any other Governmental Agency having jurisdictional authority over the Property and future development of the Public Park Parcel. 0) "Commencement of Construction' and "commenced" when used in connection with construction of the Improvements shall mean the earlier of the filing of the notice of commencement under Section 713.13, Florida Statutes, or the visible start of work on the Public Park Parcel, including on-site utility, excavation or soil stabilization work. (k) "Completion of Construction' shall mean the occurrence of the following: (i) the architect of record has signed and delivered to MFP a certificate of final completion in accordance with the Construction Plans for the particular Improvement; and (ii) a certificate of completion, temporary certificate of occupancy, final inspection signoff, or equivalent has been issued for such Improvement (but only if required by Applicable Law). (1) "CongrVtion Plans" shall consist of the final design plans for the particular Improvement, the drawings and specifications for which are in the format with sufficient detail as required to obtain building permits for such Improvements, as further described in Section 3.5. (m) "Construction of Itqproyements Term" shall mean the period of time commencing on the Effective Date and ending months thereafter. (n) "Intentionally Omitted". (o) "Effective Date" shall mean the Lease Execution Date (as defined in the Ground Lease). (p) "Event(s) of Default" shall have the meaning ascribed to such term in Section 12.1. (q) "Governmental Aeencv(ies)" shall mean all federal, state, county and municipal governments, the departments, bureaus or commissions thereof, or any other body or bodies exercising similar functions having or acquiring jurisdiction over all or any part of the Property. MIADOCS 18557371 134585.0002 3 (r) "Ground Lease" shall mean that certain Ground Lease and Master Development Agreement, dated of even date herewith, as may be amended from time -to -time, 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. (s) "Impositions" shall mean all taxes, including, but not limited to, ad valorem taxes, special assessments, sales taxes, intangible taxes, and other charges, impositions, assessments, fees or any other levies by any Governmental Agency or other entity with appropriate jurisdiction and any and all liabilities (including interest, fines, penalties or additions) with respect to the foregoing. (a) "Improvement Costs" shall mean, collectively, all costs and expenses incurred by MFP in connection with the Improvements to be completed in accordance with the terms herein, including, without limitation, all hard costs, soft costs (including all surveying, testing, architectural, design, engineering and project management fees, all permitting fees and any other soft costs), and the cost of general conditions, profit and overhead, insurance, bonds, and contingencies applicable to the Improvements. (b) "Improvements" shall mean the Environmental Work and all improvements to the Public Park Parcel as depicted in the Park Concept Plans, as same may be modified in accordance with the terms of this Agreement. (c) "Insurance Reauirements" shall have the meaning ascribed to such term in Section 5.1. (d) "Leual Holidav" shall mean any day, other than a Saturday or Sunday, on which the City's administrative offices are closed for business. (e) "MFP" shall have the meaning ascribed to such term in the introductory paragraph of this Agreement. (f) "Notice" shall have the meaning ascribed to such term in Section 13.2. (g) "Park Approval Process" shall have the meaning ascribed to such term in Section 3.5. (h) "Park Concept Plans" shall have the meaning ascribed to such term in the Recitals. (i) "Par or "Parties" shall have the meaning ascribed to such term in the introductory paragraph of this Agreement. 0) "Pavment and Performance Bond" shall have the meaning ascribed to such term in Section 3.4. (k) "Permit" shall mean any permit or authorization issued or required to be issued by the appropriate Governmental Agency and/or department authorized to issue such permits or MIADOCS 18557371 134585.0002 4 authorization, including, but not limited to, applicable permits for construction, demolition, installation, foundation, dredging, filling, alteration, repair or installation of any building, structure, sanitary plumbing, water supply, gas supply, electrical wiring or equipment, HVAC, sidewalk, curbs, gutters, drainage structures, paving and the like. (1) "Plans and Specifications" shall mean the plans and specifications for all the work in connection with the alteration and construction of the Improvements on the Public Park Parcel, including any changes, additions or modifications thereof initiated by MFP, provided the same are approved by the City in accordance with this Agreement and the procedures set forth in Schedule "C." (m) "Proiect" shall mean the "Project" contemplated and defined in the Ground Lease. (n) " ProDerty" shall mean, collectively, and, to the extent required for development of the Improvements: (1) the Public Park Parcel; and (2) the Public Park Parcel, the Improvements and any other improvements now or hereafter existing on the Public Park Parcel; It being understood between the parties hereto that no portion of the Public Park Parcel is being leased, conveyed or granted or intended to be leased, conveyed or granted to MFP and that all portions or areas of the Public Park Parcel are expressly excepted and reserved unto the City, except to the extent that rights in respect thereof and to the Improvements are granted to MFP as hereinbefore provided or pursuant to such separate instrument as may be entered into between the Parties. (o) "Public Park Parcel" shall have the meaning ascribed to such term in the Recitals. The Public Park Parcel is located wholly outside of the Demised Property (as defined in the Ground Lease) leased to MFP under the Ground Lease. (p) "Term" shall have the meaning ascribed to such term in Section 1.2(a). (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 any sums required to be paid under this MIADOCS 18557371 134585.0002 5 Agreement 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 3 DEVELOPMENT AND CONSTRUI_ i iuiN Section 3.1 Property Uses. The Parties recognize and acknowledge that the manner in which the Property is developed, used and operated and the Environmental Work are matters of critical importance to the City, MFP, and to the general welfare of the community. MFP agrees that, during the Term, it will perform its obligations in a manner consistent with this Agreement, the intent of which is to promote the development and use of public parks within the City of Miami. Section 3.2 Development of Impr9vV1V_ents, Citv Joinder. Subject to and in accordance with the terms and conditions of this Agreement, MFP agrees to complete the Environmental Work and construct, or cause the construction of, the Improvements on and to the Public Park Parcel. Subject to its reasonable consent concerning same, the City, in its capacity as the owner of the affected property and at the request of MFP, will execute, join in, or consent to, any Permits, applications, approvals, agreements, or other administrative documents related to the construction of the Improvements and the Environmental Work. In furtherance thereof and also subject to City's prior reasonable written consent concerning each of same, the City shall take such further actions as necessary to: (x) allow for the execution, submittal and, if required, the recording of any Permits, agreements, temporary or permanent easements, or any covenants or declaration of restrictions required or requested by the reviewing Guvt..nt,c,utal Agency, and (y) accept any conditions related to such Permits, applications, approvals, agreements or other administrative documents imposed by the reviewing Governmental Agency; provided that any costs and/or expense associated therewith (except for the cost of review by the City) will be assumed and paid for by MFP and the City incurs no liability as a result thereof. The City agrees to use reasonable efforts to review and approve any such requests within Business Days of such request (which request shall be accompanied with all underlying documents) from MFP (the "Adfflinistrative Review Period") (except in the event that City Commission approval is required under Applicable Laws for such approval, in which case Section 15.11 shall prevail). Section 3.3 Conformitv of Plans. The Park Site Development and the Environmental Work and all work by MFP shall be in conformity with this Agreement and Envi oiui,%..,, al Laws and all Applicable Laws. Section 3.4 Performance Bonds and Pavment Bonds. (a) The Parties agree that the Improvements to the Public Park Parcel contemplated by the Plans and Specifications are public buildings or public works as contemplated under Section 255.05, Florida Statutes. Prior to the Commencement of Construction of the Improvements on the Public Park Parcel, MFP shall (or cause its prime contractor(s) to) record in the public records of Miami -Dade County, Florida, a payment and performance bond approved in advance by City in writing equal to the total cost of construction of the Improvements, or the applicable portion thereof for each prime contractor, as reflected in the construction contract MIADOCS 18557371 134585.0002 6 between MFP and such prime contractor (the "Pavment and Performance Bond"). Each Payment and Performance Bond shall be in compliance with Applicable Laws, including the applicable provisions of Section 255.05, Florida Statutes, and shall be issued through a surety approved in advance by City and authorized to do business in the State of Florida. In the event that MFP satisfies the requirements for a Payment and Performance Bond through its prime contractor(s), then the Payment and Performance Bond shall name MFP and the City as dual obligees. Subject to City's prior written approval, MFP shall have the right, from time to time, to substitute or replace, or cause its prime contractor to substitute or replace, such Payment and Performance Bonds as deemed necessary by MFP for any portion of the work. (b) Alternatively, if then acceptable to City in its sole and absolute discretion, MFP may satisfy the requirements to provide a Payment and Performance Bond by providing the City with an alternate form of security in the form of a certified check that the City may deposit in a City -controlled bank account or an irrevocable letter of credit, each in a form and for an amount that is acceptable to City ("Alternative Security"), to remain in place until evidence satisfactory to the City is submitted to demonstrate all contractors performing work related to the Improvements (or, as applicable, any portion thereof) have been paid and the Improvements (or, as applicable, any portion thereof) has reached Completion of Construction. The Alternative Security shall comply with the requirements of Section 255.05(7), Florida Statutes. [OPEN] Section 3.5 Park Approval Process. (a) The approval process for the Plans and Specifications and Construction Plans for the Park Site Development (the "Park Plans") shall be as set forth in Schedule "C" (the "Park Approval Process") and for the Environmental Work shall be as set forth on Schedule "17". MFP shall be responsible for the selection, oversight, and management of all portions of the Park Site Development and Environmental Work, including but not limited to, all contractors and consultants necessary to design, construct and remediate and complete all Environmental Work in a diligent, competent and professional manner, all in accordance with the provisions of this Agreement, Environmental Laws and Applicable Laws. (b) MFP shall commence and complete the Park Site Development pursuant to Section 1.2(c) of this Agreement, the target schedule set forth in Schedule B hereto and contemporaneously with the development of the Soccer Stadium Development. All Plans and Specifications (including the Park Concept Plans) for the Improvements shall be subject to the City's review and approval in accordance with the Park Approval Process and the terms of Schedule F. MFP shall submit the Park Plans within time frames that will allow MFP to obtain Permits for same reasonably concurrently with the Permits for the Soccer Stadium Development and/or Project under the Ground Lease. Section 3.6 MFP Oblieations. The City's approval of any Plans and Specifications shall not relieve MFP of its obligations under Applicable Law to file such plans with any Governmental Agency having jurisdiction over the issuance of Permits and to take such steps as necessary to obtain issuance of such Permits. The City agrees, upon written request by MFP and at no cost or expense to City, to reasonably cooperate with MFP in connection with obtaining such approvals and Permits pursuant to Section 3.2 and Section 15.11 and join in (if applicable) with MFP in connection with the obtaining of such approvals and Permits. The City agrees to MIADOCS 18557371 134585.0002 7 use good faith efforts to execute any such acceptable permits, approvals or consents for the Park Site Development within the Administrative Review Period. MFP acknowledges that any approval given by the City, in its proprietary capacity, pursuant to this Article 3, shall not constitute an opinion or agreement by the City that the plans are structurally sufficient or in compliance with any Applicable Laws, and no such approval shall impose any liability upon the City. Section 3.7 Conditions Precedent to Construction. Prior to the Commencement of Construction of the Improvements (or any portion thereof) or the Environmental Work: (a) MFP shall have complied with the Park Approval Process and the Environmental Approval Process (as such term is defined in Schedule F); (b) MFP shall have provided the City with proof that it has obtained, or its prime contractor has obtained, the applicable Payment and Performance Bond(s) or acceptable Alternate Security; and (c) MFP shall have obtained all Permits required by Applicable Law to commence construction of the applicable portion. (d) MFP shall have supplied and City shall have approved the following: (1) Loan and equity documents to finance the Park Site Development and the Environmental Work; (2) Construction contractor, environmental experts, general contract and major -sub -contracts and related documents; (3) Construction schedules; (4) Critical path of work; (5) Such other items as City may require in its sole discretion. Section 3.8 Facilities to be Constructed. MFP shall be responsible for all Improvement Costs associated with the construction and installation of the Improvements pursuant to the terms of this Agreement, subject to the obligation of the City to pay for any Impositions. Section 3.9 Ownership of Improvements. All Improvements located on the Public Park Parcel and all material and equipment provided by MFP or on its behalf that are incorporated into or become a part of the Improvements located on the Public Park Parcel shall, upon being added thereto or incorporated therein, be and remain the property of the City, excluding, however, any personal property of MFP or its contractors and invitees. Section 3.10 Liens. The interest of the City in the Property shall not be subject in any way to any liens, including construction liens, for improvements to or other work performed in the Property by or on behalf of MFP. MFP shall notify every contractor making improvements N ADOCS 18557371 134585.0002 8 to the Property that the interest of the City in the Property shall not be subject to liens. If any lien is filed against the Property for work or materials claimed to have been furnished to MFP, MFP shall cause it to be discharged of record or properly transferred to a bond under Section 713.24, Florida Statutes, within ten days after notice to MFP. Further, MFP shall indemnify, defend, and save City harmless from and against any damage or loss, including reasonable attorneys' fees, incurred by City as a result of any liens or other claims arising out of or related to work performed in the Property by or on behalf of MFP. ARTICLE 4 PAYMENT OF TAXES; ASSESSMENTS MFP shall not be required to pay any Impositions with respect to the Public Park Parcel or any improvements located now or hereinafter thereon, except for any sales taxes due with respect to any contracts for materials or equipment in connection with the construction of the Improvements. If requested by MFP in writing with respect to the construction of the Improvements, City shall, at MFP's sole cost and expense, assist MFP in its efforts to establish and maintain any applicable exemptions from Florida sales and use tax for items of tangible personal property and taxable services acceptable to City used to construct the Improvements. ARTICLE 5 INSURANCE; INDEMNIFICATION Section 5.1 Insurance. The City and MFP hereby agree that the terms and provisions governing the insurance required pursuant to this Agreement are contained in Schedule "D" attached hereto (the "Insurance Reauirements"), which is hereby incorporated herein by reference [OPEN]. Section 5.2 Indemnification for Park Site Development and Environmental Work. (a) MFP shall defend, indemnify and hold harmless the City and its officers, employees, agents and instrumentalities (the "City Indemnified Parties") from any and all liability, losses or damages, including attorneys' fees and costs of defense, which the City or its officers, employees, agents or instrumentalities may incur as a result of any claims, demands, suits, causes of actions or proceedings of any kind or nature arising out of, relating to or resulting from the Environmental Work or the Park Site Development and/or the performance or non- performance of this Agreement by MFP and/or its employees, agents, servants, partners, principals or subcontractors, other than for liability, loss or damage caused by the gross negligence or willful conduct of the City or its employees, agents, servants, or subcontractors after the date MFP completes the Environmental Work and delivers the NFA to City (collectively, a "Claim"). MFP shall pay all Claims in connection therewith and shall investigate and defend all Claims in the name of the City Indemnified Parties, where applicable, including any and all appellate proceedings, and shall pay all costs, judgments, and attorneys' fees which may issue thereon. MFP expressly understands and agrees that any insurance protection required by this Agreement or otherwise provided by MFP, shall in no way limit the responsibility to indemnify, keep and save harmless and defend the City Indemnified Parties. MIADOCS 18557371 134585.0002 9 (b) [OPEN] MFP shall control any litigation or potential litigation involving the defense of any Claim, including the selection by MFP of a single counsel to represent MFP and the City Indemnified Parties. Notwithstanding the foregoing, if there is a conflict between the positions of MFP and the City Indemnified Parties in conducting the defense of such action, or if there are legal defenses available to such City Indemnified Party different from or in addition to those available to MFP, then the City Indemnified Party shall be entitled to select counsel, reasonably acceptable to MFP, to conduct the defense of the Claim and MFP shall pay for the legal fees and related out-of-pocket expenses of the City Indemnified Parties; provided, that MFP shall not be required to pay the legal fees for more than one counsel for all the City Indemnified Parties in connection with any Claim. The City Indemnified Parties shall fully cooperate with MFP in the defense of the Claim. MFP shall have the right to compromise or settle any Claim without the consent of the City Indemnified Parties if the compromise or settlement of the Claim does not require the City Indemnified Parties to admit any liability or incur any financial liability, each with respect to the Claim.] Section 5.3 Waiver of Subrouation. MFP waives all rights to recover against the City, its employees, agents, officers, contractors or instrumentalities, for any claims, losses or damages arising from any cause covered by property insurance required to be carried by MFP hereunder. MFP shall cause its insurer(s) to issue customary waiver of subrogation rights endorsements to all such policies of insurance carried by MFP with respect to the Improvements. The City waives all rights to recover against MFP, its employees, agents, officers, partners, members, principals or contractors, for any claims, losses or damages arising from any cause covered by property insurance (irrespective of whether the insurance is carried by MFP or the City). The City shall cause its insurer(s) to issue customary waiver of subrogation rights endorsements in favor of MFP to all such policies of insurance carried by the City in connection with the Public Park Parcel. Any self-insurance program of the City shall be deemed to include a full waiver of subrogation consistent with this Section. ARTICLE 6 OPERATION Section 6.1 Control of the Property; Improvements. During the Construction Term, MFP shall have the right to undertake all necessary actions in conformity with this Agreement and the approvals of the City within the Public Park Parcel, including the right to direct and manage the construction of the Improvements. After Completion of Construction, the City shall keep, maintain and repair the Improvements, as required in accordance with the Ground Lease and Applicable Law. ARTICLE 7 WARRANTY Section 7.1 MFP Construction Warrantv. Upon Completion of Construction, MFP shall assign to the City any warranties or guarantees received by MFP from its prime contractors or subcontractors related to the Improvements or the Environmental Work. MFP will include in any agreements with its prime contractors or subcontractors related to the Improvements or the Environmental Work, provisions providing for warranties against defective work allowing the City to request the correction of any defective work discovered within [one (1) year] after MIADOCS 18557371 134585.0002 10 Completion of Construction of the Improvements. MFP's prime contractors and subcontractors shall have no obligation hereunder to repair and/or correct damage or defect caused by abuse, alterations to the Improvements not executed by or under the direction of MFP or its prime contractors or subcontractors, improper or insufficient maintenance, normal wear and tear and normal usage. ARTICLE 8 COMPLIANCE WITH APPLICABLE LAW Section 8.1 Compliance by the Parties. Throughout the Term, the Parties, at their own cost and expense, shall promptly comply with all Applicable Law in the performance of their respective obligations under this Agreement. To the extent that MFP's compliance shall require the cooperation and participation of the City, the City agrees to use good faith efforts to cooperate with any written requests of MFP. ARTICLE 9 ENVIRONMENTAL COMPLIANCE Section 9.1 For purposes of this Agreement, the following additional definitions apply and shall be incorporated as part of the definitions included in Article 2 above: (a) "Brownfield" means real property, the expansion, redevelopment, or reuse of which may be complicated by actual or perceived environmental contamination. (b) "BSRA" means Brownfield Site Rehabilitation Agreement, as that term is defined by the Brownfield Redevelopment Act, 376.77-85, Fla. Stat. (c) "Environmental Activities" means any activities required by any Governmental Agency pursuant to Environmental Law to investigate, correct and remediate a Release or threatened Release. Such Environmental Activities shall include, without limitation, the investigation, removal, restoration, remediation, and/or rehabilitation activities required by any Governmental Agency pursuant to Environmental Law, including, without limitation, any required sampling, testing, monitoring, document submittal, or reporting. (d) "Environmental Condition" means any event, circumstance or condition constituting (i) recognized environmental conditions within the meaning of ASTM 1527-13; (ii) the current or past Release or threatened Release of any Hazardous Material into the environment on the Public Park Parcel [or adjoining lands?], whether originating from the Public Park Parcel or from off-site contamination or pollution that has migrated thereto; or (iii) any violation of Environmental Laws at or on any part of the Public Park Parcel [or adjoining lands?]. (e) "Environmental Law" means any federal, state or local law, statute, ordinance, code, rule, regulation, license, authorization, decision, order, injunction, decree, or rule of common law, and any judicial or agency interpretation of any of the foregoing, which pertains to health, safety, any Hazardous Material, the environment, or natural resources (including, but not limited to, ground or air or water or noise pollution or contamination, and underground or above ground tanks) and shall include without limitation, the Solid Waste Disposal Act, 42 U.S.C. 6901 et seq.; the Comprehensive Environmental Response, Compensation and Liability Act of 1980, MIADOCS 18557371 134585.0002 11 42 U. S C. Section 9601 et seq. (CERCLA), as amended by the Superfund Amendments and Reauthorization Act of 1986. (SARA ; the Hazardous Materials Transportation Act 49 U.S.C. Section 1801 C 5-QQ; the Federal Water Pollution Control Act, 33 U.S.C. Section 1251, et seq.; the Clean Air Act 42 U.S.C. Section 7401, et seq.; the Toxic Materials Control Act 15 U.S.C. Section 2601, et seq.; the Safe Drinking Water Act, 42 U.S.C. Section 300f, et. seq.; Chapters 403, 376 and 373, Florida Statutes; Chapter 24 of the Miami -Dade County Code, and any other local, state or federal environmental statutes, codes, or ordinances, and all rules, regulations, orders and decrees now or hereafter promulgated under any of the foregoing, as any of the foregoing now exist or may be changed or amended or come into effect in the future. (f) "Environmental Representative" means employees, agents, representatives, consultants, contractors and subcontractors who perform Environmental Activities. (g) "Environmental Reauirement" means any Environmental Law, agreement or restriction (including, but not limited to, any condition or requirement imposed by any insurance or surety company), as the same now exists or may be changed or amended or come into effect in the future, which pertains to Hazardous Material in the environment, including, but not limited to, ground or air or water pollution or contamination, and underground or aboveground tanks. (h) "Hazardous Material' means any substance, whether solid, liquid or gaseous, which is listed, defined or regulated as a "hazardous substance," a "hazardous waste" or "solid waste," or pesticide, or otherwise classified as hazardous or toxic, in or pursuant to any Environmental Requirement; or which is or contains asbestos, radon, any polychlorinated biphenyl, urea formaldehyde foam insulation, explosive or radioactive material, or motor fuel or other petroleum hydrocarbons. (i) "Institutional Control' means the restriction on use or access to a site to eliminate or minimize exposure to contaminants; such restrictions may include, but are not limited to, deed restrictions, restrictive covenants, or conservation easements. 0) "No Further Action Determination' or "NFA Determination' or "NFA" means a No Site Rehabilitation Completion Order (SRCO) or a conditional Site Rehabilitation Completion Order (CSRCO), as those terms are defined in Chapter 62-780, Fla. Admin. Code, from the Florida Department of Environmental Protection (FDEP), or a No Further Action Determination or a No Further Action with Conditions determination from Miami -Dade County under Chapter 24 of the Miami -Dade County, Florida Code, or similar determination from a federal, local or other applicable Governmental Agency advising that no further action is necessary with respect to the Release(s) of Hazardous Material(s) at the Public Park Parcel in order to meet the requirements of Environmental Law with respect to such Release(s). (k) "On" or "in" means when used with respect to the Public Park Parcel, means "on, in, under, above or about." (1) "PRPs" shall have the meaning ascribed to such term in Section 9.3(d). (m) "Release" means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment at, to or MIADOCS 18557371 134585.0002 12 from the Public Park Parcel, including migration to adjacent land, subsurface geology, surface water, or ground water. Section 9.2 MFP's Compliance Obligations. (a) MFP shall comply with all Environmental Requirements in connection with the Park Site Development and the Environmental Work. of, and shall ensure that its employees, agents, contractors, licensees and sublessees comply with Environmental Requirements. Such compliance shall include obtaining, maintaining and complying with all Permits required under Environmental Requirements. (b) MFP shall not Release any Hazardous Material on the Public Park Parcel. Tenant shall not use, store, handle, or generate any Hazardous Material on the Public Park Parcel, except for de minimis quantities necessary for the Park Site Development and the Environmental Work. Section 9.3 Responsibility for Environmental Conditions. (a) Citv Reports. The City shall provide to MFP, prior to the Effective Date, all of the phase I and phase II environmental reports and similar environmental site assessment reports and other documentation related to the Environmental Conditions regarding the Public Park Parcel listed on Schedule "E". (b) MFP Responsibility For Clean Up. The City and MFP acknowledge that Environmental Conditions are or may be present on the Public Park Parcel, and that such conditions may be known or unknown. The Parties agree as follows: (1) Except as specifically described in Section 9.3(c) with respect to any gross negligence by the City during the Ground Lease Term and after MFP delivers to City an NFA, the City shall have absolutely no obligation, liability, cost or expense whatsoever in connection with the Environmental Work and/or any Environmental Condition or Environmental Requirement. (2) All obligation, liability, cost and expense in connection with the Environmental Work (which shall include, without limitation, procurement of a NFA) shall be the responsibility solely of MFP, including, but not limited to, the Environmental Work described in Schedule' F": (3) Not later than , MFP, at its sole cost and expense, shall conduct all tests, analyses and reports reasonably necessary to investigate the Environmental Conditions on the Public Park Parcel (the "Reports") so as to obtain the NFA Determination from the applicable Governmental Agency. (4) Not later than , MFP shall submit the Reports to the City; MIADOCS 18557371 134585.0002 13 (5) Not later than , MFP shall agree with City on a plan for completion of the Environmental Work in accordance with Schedule «F». (6) MFP, at its sole cost and expense, shall commence Environmental Work no later than and shall complete the Environmental Work (which shall include, without limitation, procurement of a NFA), not later than (c) Remediation of Hazardous Material Release After MFP delivery of NFA and during the Term of the Agreement. If any Hazardous Materials are Released on the Public Park Parcel at any time during the Term, the Party Releasing or discovering same shall notify the other Party orally within four (4) hours of the Release or discovery and in writing within five (5) Business Days thereafter pursuant to Article 13 - Notices. Unless the Environmental Condition was caused by the gross negligence of the City after completion of the Environmental Work by MFP (in which case it shall be City's obligation, at its cost to remedy), MFP shall promptly take all actions to resolve such Environmental Condition, at its sole expense, in compliance with Environmental Law on the affected portion of the Public Park Parcel or the Improvements. (d) Third Partv Liabilitv. Nothing herein shall be construed to limit the responsibility of third parties who are potentially responsible parties ("PRPs") for liability under Environmental Law which may be imposed against such PRPs for any Environmental Condition, but the existing of any such PRPs shall not release either the City or MFP from its responsibility to the other for an Environmental Condition that is their responsibility, as between the City and MFP hereunder, but the responsible Party as between MFP and the City shall have the right to pursue recovery against such PRPs. Section 9.4 Remediation Standards. (a) The Environmental Activities required by this Agreement may be conducted by MFP using risk-based corrective action principles to achieve the NFA Determination pursuant to this Agreement. [The City hereby consents to such risk-based corrective action for a non- residential property, including the implementation of reasonable Institutional Controls with respect to the Public Park Parcel in connection with obtaining a No Further Action Determination, unless it could materially impair the current non-residential use of the Public Park Parcel that is the subject of the Institutional Control or other restriction. Upon the written request of MFP, the City shall execute such reasonable covenants or declarations of restrictions as required by Governmental Agencies in furtherance of the NFA Determination, which covenants and declarations of restrictions may encumber the Public Park Parcel, the Demised Property (as defined in the Ground Lease). The City shall further execute and deliver such other agreements, certificates, instruments and documents, each as MFP may reasonably request in order to obtain an NFA Determination; provided, however, that any out-of-pocket costs incurred by City associated therewith (and approved by MFP in writing) shall be reimbursed by MFP to City.] — OPEN MIADOCS 18557371 134585.0002 14 (b) The City shall promptly execute such documents identified by MFP as reasonably necessary to effectuate an Institutional Control, designation of a Brownfield, approval of a BSRA, or other documentation, to achieve the NFA Determination. (c) MFP and City shall both agree in writing in advance on the approach and pace of such Environmental Activities required by this Agreement pursuant to applicable Environmental Law. MFP shall expeditiously commence such Environmental Activities and diligently pursue efforts to obtain the NFA Determination under applicable Environmental Law in accordance with the terms of Section 9.2 above and Schedule F. (d) The City shall, as reasonably requested by MFP, grant to MFP and its Environmental Representatives a license to enter the Public Park Parcel at reasonable times after providing written notice for the purpose of performing the Environmental Activities pursuant to the terms of this Agreement. Subject to its approval of time, location and manner, the City further grants to MFP a license to place, store and operate all equipment necessary for such Environmental Activities; provided that such placement, storage and operation shall remain no longer than necessary, shall comply with all Applicable Laws and regulations, shall not materially interfere with or disrupt the City's operations, and shall otherwise be reasonably acceptable to City. (e) MFP shall obtain all permits or approvals necessary to perform the Environmental Activities and Environmental Work. To the extent available and non -interfering with City intentions, the City shall allow MFP's Environmental Representatives to use existing utilities, including, without limitation, water and electrical power necessary to operate such systems, provided, however, that MFP shall reimburse the City for the cost of such utility expenses to the extent they can be reasonably ascertained. MFP shall bear responsibility for lawful storage and disposal of any wastes derived from such Environmental Activities (and shall serve as the generator of such wastes) and upon completion of the Environmental Activities, MFP shall restore the Public Park Parcel, as remediated, to substantially their condition prior to the commencement of such Environmental Activities. (f) MFP, with the advance written consent of City in each instance, and with an opportunity for the City to participate, shall take the lead in communicating and setting meetings with Governmental Agencies regarding MFP's Environmental Activities related to the Public Park Parcel. Unless required by Applicable Law, the City shall not initiate or set any meetings with any Governmental Agency regarding MFP's Environmental Activities without prior written notice to, consultation with and the consent of MFP, which consent shall not be unreasonably withheld or delayed. Such consent is expressly conditioned upon MFP's participation in, and taking lead of, any such communications. (g) MFP shall provide a copy to the City of, and an opportunity to comment on,all material reports, remedial action plans, reliance letters, correspondence and filings by MFP concerning a Release and/or the Environmental Activities that have been or are to be conducted ten (10) Business Days prior to being filed with or delivered to any Governmental Agency with jurisdiction over such Environmental Activities. MFP shall provide a copy of all written correspondence received from such Governmental Agency in response thereto no later than ten (10) Business Days following receipt. MIADOCS 18557371 134585.0002 15 ARTICLE 10 LIMITATION OF LIABILITY Section 10.1 Limitation of Liabilitv of the Citv. The City shall not be liable to MFP for any incidental, consequential, special or punitive loss or damage. Section 10.2 Limitation of Liabilitv of MFP. MFP shall not be liable to the City for any incidental, consequential, special or punitive loss or damage. ARTICLE 11 DEFAULT BY MFP OR CITY Section 11.1 Events of Default. It shall be an "Event of Default" if: (a) either Party fails to keep, observe, or perform any of its obligations or duties imposed upon the Party under this Agreement not relating to the Environmental Work 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 a default not relating to the Environmental Work 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. Notwithstanding the foregoing, in the case of a default by MFP threatening serious damage or injury to any person or property, there shall be no notice required to be given by City to MFP. (b) if MFP fails to keep, observe, or perform any of its obligations or duties with respect to the Environmental Work in accordance with this Agreement. (c) If MFP defaults under the Ground Lease and/or the Community Benefits Agreement. Section 11.2 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 11.1 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: (a) to sue the defaulting Party for all damages (as limited by Article 5 and Article 11), 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 (as limited by Article 5 and Article 11); 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 MIADOCS 18557371 134585.0002 16 (c) to terminate any and all obligations that the non -defaulting Party may have under this Agreement, in which event the non -defaulting Party shall be released and relieved from any and all liability under this Agreement. Section 11.3 Citv's Right to Perform. If MFP defaults, City may, but shall have no obligation to, perform the obligations of MFP, and if City, in doing so, makes any expenditures or incurs any obligation for the payment of money, including reasonable attorneys' fees, the sums so paid or obligations incurred shall be paid by MFP to City within five days of rendition of a bill or statement to MFP therefor. Section 11.4 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 12 NOTICES Section 12.1 Addresses. All notices, demands or requests by the City to MFP shall be deemed to have been properly seined or given, if addressed to MFP as follows: MFP: Miami Freedom Park, LLC 800 Douglas Road 12th Floor Coral Gables, Florida 33134 Attn: Pablo A. Alvarez With a copy to: Holland & Knight, LLP 701 Brickell Avenue Suite 3000 Miami, Florida 33131 Attn: Richard Perez Greenberg Traurig P.A. 333 S.E. 2nd Avenue Suite 4400 Miami, Florida 33131 Attn: Kerri L. Barsh MIADOCS 18557371 134585.0002 17 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 Manager, or his/her designee: 444 SW 2nd Avenue, 10th Floor, Miami, Florida 33130 With a copy to the City Attorney's Office Attention: City Attorney 444 SW 2nd Avenue, 9th Floor Miami, FL 33130 With a copy to: Shutts & Bowen LLP 200 South Biscayne Boulevard, Suite 4100 Miami, FL 33131 Attn: 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 12.2 Method of Transmittine 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 overnight 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 twenty four (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 delivery thereof was determined impossible to accomplish because of an unnoticed change of address. ARTICLE 13 CERTIFICATES BY THE CITY Section 13.1 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 MIADOCS 18557371 134585.0002 18 which the City may have knowledge, provided, however, that the City's failure to furnish any such statement shall not be deemed a default by City under this Agreement. It is intended that any such statement delivered pursuant to this Section 14.1 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 14 CONSTRUCTION OF TERMS AND MISCELLANEOUS Section 14.1 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 14.2 Captions. The article and section headings and captions of 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. Section 14.3 Relationship 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 any association between the Parties, the sole relationship between the Parties being that of the City and MFP. Section 14.4 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 14.5 Consents. Whenever in this Agreement the consent or approval of the City or MFP is required, such consent or approval, with respect to the City shall be made by the City Manager, unless such approval requires the consent of the City Commission, and any duly authorized officer or representative of MFP on behalf of MFP, and: (a) shall not be unreasonably or arbitrarily withheld, conditioned, or delayed unless specifically provided to the contrary, and shall not require a fee from the Party requesting same; (b) shall not be effective unless it is in writing; and (c) shall apply only to the specific act or transaction so approved or consented to and shall not relieve MFP or the City, as applicable, of the obligation of obtaining the other's prior written consent or approval to any future similar act or transaction. Material amendments to this Agreement shall require the consent of the City Commission and shall not be effective until the consent of the City Commission is obtained. Amendments MIADOCS 18557371 134585.0002 19 extending the time for performance of any obligation of MFP by no more than _ (_) months shall not be deemed material. Section 14.6 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 Commission. Section 14.7 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 14.8 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 14.9 Brokers. The Parties hereby represent and agree that no real estate broker or other person is entitled to claim a commission as a result of the execution and delivery of this Agreement. Section 14.10 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 14.11 Cooperation, and 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, provided that with respect to City's cooperation, such cooperation shall be at no expense, cost or liability to City. The Parties agree that time is of the essence in all aspects of their respective and mutual responsibilities pursuant to this Agreement. Section 14.12 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 14.13 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 14.14 Exculpation. Subject to the obligations of Guarantor under the Guaranty, 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 Law are expressly waived and released as a condition of, and as a consideration for, the execution of this Agreement. N ADOCS 18557371 134585.0002 20 Section 14.15 Unavoidable Delays. The Party obligated to perform under this Agreement shall not be required to perform, and/or 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 Agreement, where such failure or inability to perform is caused by an Unavoidable Delay. Section 14.16 Public Records. To the extent applicable, MFP shall comply with Section 119.0701, Florida Statutes, including without limitation: (1) keep and maintain those records constituting public records under Chapter 119, Florida Statutes; (2) provide the public with access to public records in the possession of MFP in the manner required by Chapter 119, Florida Statutes, and make available copies of such public records at the cost provided by Chapter 119, Florida Statutes, or as otherwise provided by Applicable Law; (3) ensure that those public records that are confidential and exempt from disclosure are not disclosed, except as authorized by Applicable Law; (4) meet all requirements for retaining public records as set forth in Chapter 119, Florida Statutes, (5) transfer, upon the written request of the City and at no cost to the City, all public records in MFP's possession on the date of termination of this Agreement, which transfer shall be done in an electronic format compatible with the City's information technology systems. Notwithstanding the foregoing, MFP may (x) withhold any records that do not constitute public records under Chapter 119, Florida Statutes, and (y) withhold and/or redact certain records, trade secrets and other proprietary information, as confidential, and any such information shall be excluded from public disclosure to the fullest extent permitted by Applicable Law. ARTICLE 15 REPRESENTATIONS AND WARRANTIES Section 15.1 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 15.2 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 16 GUARANTY Payment of all sums required to complete the Improvements, Park Site Development and Environmental Work 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 "G". The MIADOCS 18557371 134585.0002 21 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. [Signatures on Next Page] MIADOCS 18557371 134585.0002 22 IN WITNESS WHEREOF, the City has caused this Park Rehabilitation and Environmental Agreement to be executed in its name by the City Manager; as authorized by the City Commission, and MFP has caused this Park Rehabilitation and Environmental Agreement to be executed by its duly authorized representative all on the day and year first hereinabove written. ATTEST: Todd B. Hannon City Clerk APPROVED AS TO INSURANCE REQUIREMENTS: Ann -Marie Sharpe, Director Risk Management Department Signed in the presence of- Print f Print Name: Print Name: CITY: CITY OF MIAMI, a municipal corporation of the State of Florida By: Emilio T. Gonzalez City Manager APPROVED AS TO LEGAL FORM & CORRECTNESS: By: _ Victoria Mendez City Attorney MEP: MIAMI FREEDOM PARK, LLC, a Delaware limited liability company By: Name: Title: MIADOCS 18557371 134585.0002 23 SCHEDULE A Public Park Parcel Legal Description MIADOCS 18557371 1345 85.0002 SCHEDULE B Park Concept Plans and Target Development Schedule (Park Site Development) MIADOCS 18557371 1345 85.0002 SCHEDULE C Park Approval Process MIADOCS 18557371 1345 85.0002 For purposes of this Agreement, the defined terms below apply and shall be incorporated as part of the Definitions included in Article 2 of the Agreement: 1. MFP and the City agree that MFP will construct the Park Site Development for the City in accordance with the sketch and program elements set forth in the Park Concept Plans. This Exhibit sets forth the approval process for the Construction Plans, construction contracts, change orders, and the inspection for the Park Site Development. 2. MFP agrees to design and construct the Park Site Development for the City in accordance with the following procedures: (a) Design Phase. (i) The design and construction of the Park Site Development shall be done using a delivery method chosen in the good faith reasonable judgment of MFP. The architect and/or engineer for the Improvements shall be selected by MFP in accordance with Section 287.055 Fla. Stat., and the general contractor shall be selected in accordance with Section 255.20, Fla. Stat., and in the event that the Park Site Development is designed and constructed by a "design -build" firm, the applicable professionals shall be selected in accordance with requirements of 287.055 Fla. Stat. To the extent that MFP believes any exemption to the competitive bidding requirements of Section 255.20, Florida Statutes, are applicable, MFP may request, in writing, confirmation from the City that it may avail itself of any such exemption(s). The selected architect, engineer, and general contractor shall, respectively, be referred to herein as the "Architect," the "Eneineer," and the "Contractor." (ii) MFP shall enter into a written agreement with the Architect, Engineer, and/or Contractor providing services for the Park Site Development, which agreement shall incorporate, and be consistent with, all of the terms and conditions of the Agreement, including this Exhibit, shall provide that the City is an express third party beneficiary of such agreements with the Architect, Engineer and/or Contractor, and be subject to City's prior written approval. (iii) The Park Site Development will be designed to be compliant with the Park Concept Plans and all laws and regulations applicable thereto, including, but not limited to, the Florida Accessibility Code, the Florida Building Code (FBC), the National Fire Protection Association (NFPA), and Fire Safety Code. The conceptual drawings for the Park Site Development ("Conceptual Drawines") will include conceptual site layouts and plans, sections, elevations, and massing rendering studies. The Architect will prepare and deliver the Conceptual Drawings to the City and MFP in the time agreed to between the Parties. The City shall then have [thirty (30)] days to approve the Conceptual Drawings, or to provide comments and request revisions. If the City fails to approve the Conceptual Drawings or provide comments within this period, the Conceptual Drawings shall be deemed rejected. MFP shall make revisions timely requested by the City, or provide an explanation why such revisions have not been made, and resubmit same for approval within [fourteen (14)] days after MFP's receipt of such comments and requested revisions, and the City shall approve or provide comments to the resubmitted Conceptual Drawings within [ten (10)] Business Days of its receipt of same. If the City fails to MIADOCS 18557371 1345 85.0002 approve the Conceptual Drawings or provide comments within this period, the Conceptual Drawings shall be deemed rejected. (iv) The Architect and/or Engineers will complete the preparation of more detailed design drawings of the Park Site Development (the "Schematic Drawines") within a reasonable period of time after approval of the Conceptual Drawings. The Schematic Drawings may include 3D renderings, site plans, architectural, engineering, structural, mechanical, electrical, landscape and plumbing plans; preliminary grading and drainage plans; soil tests; utilities; water and sewer service connections; vehicular and pedestrian traffic circulation plans, including locations of ingress and egress to and from the Park Site Development; curbs, gutters, and parkways, as applicable; lighting, all sufficient to enable the City to review the Schematic Drawings for conformity to the Conceptual Drawings and the Park Concept Plans. (v) Upon approval by the City of the Schematic Drawings, Architect and any Engineers will complete the Construction Plans for the Park Site Development. The Construction Plans shall illustrate and describe the further development of the Park Site Development, setting forth the quality levels of materials and systems and other requirements for the construction of the Park Site Development, all in detail sufficient and appropriate for a Contractor to agree to a price for a contract for the construction of the Park Site Development (the "Contract") and submission to the applicable Governmental Agencies having jurisdiction over the issuance of Permits for the Improvements. (vi) Upon the approval by the City of the Construction Plans, MFP shall provide the City with a set of plans signed by all parties as approved. In the event any change is proposed after approval of the final Construction Plans, other than Minor Revisions (as hereinafter defined), then MFP must resubmit the proposed changes to the Construction Plans for the City's approval. The City expressly consents to minor changes in the Construction Plans that do not materially increase total project costs or materially extend the time to achieve substantial completion of the Park Site Development and comply with Applicable Laws ("Minor Revisions"). (vii) The City's approval of any plans pursuant to this Agreement shall not relieve MFP of its obligations under Applicable Law to file such plans with any department of the City or any other Governmental Agency having jurisdiction over the issuance of Permits and to take such steps as are necessary to obtain issuance of such Permits. MFP acknowledges that any approval given by the City pursuant to this Agreement shall not constitute an opinion or agreement by the City that the plans are structurally sufficient or in compliance with any Applicable Laws, and no such approval shall impose any liability upon the City related thereto. (b) Construction Phase. (i) MFP will assume full responsibility for supervising the performance of all of the work under the Contract, and for the methods, means, and equipment used in performing the Contract and for all materials, tools, apparatus, and property of every description used in connection therewith. MIADOCS 18557371 1345 85.0002 (ii) MFP will review all of Contractor's applications for payment and cause Contractor to be paid for the construction of the Park Site Development. (iii) MFP shall conduct any and all tests of the work or inspections required by any Governmental Agencies or otherwise provided for in the Contract. All testing and analysis required to be performed by third parties shall be performed by qualified persons authorized to perform such tests by Governmental Agencies having jurisdiction. (iv) The City, its employees, agents, representatives and contractors, may at any reasonable time and with reasonable notice conduct such on-site observations, inspections and testing, as the City deems necessary or desirable to ascertain whether the work complies with the terms of this Agreement provided that such persons adhere to all required safety instructions and directives governing the construction site and shall not interfere in any manner with the progress of the work. The costs of any such inspections and testing shall be paid by the City. (v) Each of the Parties shall secure and deliver to the other promptly and immediately upon request, all required certificates of inspections, test reports, work logs, certified payroll and approvals with respect to the work. (vi) When the Park Site Development is substantially complete, MFP shall famish the City with a complete set of final record documents, which will include as -built plans and survey for the constructed improvements. Within ninety (90) days of final completion of the Park Site Development, MFP shall provide the City with two (2) signed and sealed sets of complete as -built drawings for the Park Site Development certified both by the Architect(s) and/or Engineer(s) of record and also by the Professional Surveyor and Mapper (PSM) where required. As -built shall show all changes and deviations from or to permitted plans and drawings and include as -built dimensions and elevations recorded or verified by the PSM. All as -built information regarding underground or otherwise concealed facilities shall be taken in the field concurrently with the program of construction and before facilities are covered or otherwise concealed. Otherwise, MFP's Contractor or design -builder, as the case may be, shall expose (and restore) sufficient areas of work to allow the PSM to meet the aforementioned dimension, elevation, and location verification certification requirements. The as -built drawing shall be submitted to the City in hard copy and AutoCAD format or in Geographic Information System as -built information format. (c) Access to Records by Auditor General. All records of MFP, the Contractor and any subcontractors pertaining to the Park Site Development shall be maintained and, upon reasonable notice, shall be made available for inspection to representatives of the City. In addition, the Office of the Independent Auditor General of the City shall have access thereto for any of the purposes provided in any City Code. MIADOCS 18557371 1345 85.0002 SCHEDULE D [Replace with City required coverages] Insurance Requirements MFP shall require every contractor performing any work pertaining to the construction of the Property to furnish certificates of insurance, containing the following coverage limits and endorsements: I. 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 and Advertising Injury $1,000,000 Endorsements Required City of Miami listed as an additional insured Employees included as insured Independent Contractors Coverage Contractual Liability Premises/Operations Explosion, Collapse and Underground Hazard Loading and Unloading II. Business Automobile Liability Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Any Auto/Owned/Scheduled Including Hired, Borrowed or Non -Owned Autos Any One Accident $1,000,000 Endorsements Required City of Miami listed as an additional insured III. Worker's Compensation Limits of Liability Statutory -State of Florida Waiver of subrogation USL&H if Applicable MIADOCS 18557371 1345 85.0002 IV. Employer's Liability 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 V. Owner's & Contractor's Protective Limits of Liability Each Occurrence $1,000,000 Policy Aggregate $1,000,000 City of Miami listed as named insured VI. Excess Liability/Umbrella Policy Limits of Liability Bodily Injury and Property Damage Liability Each Oc. mitllce $5,000,000 Aggregate $5,000,000 City of Miami listed as an additional insured VII. Payment and Performance Bond $ TBD City of Miami Listed as Obligee VIII. Builder's Risk Causes of Loss: Special /All Risk Valuation: Replacement Cost Deductible: 5% wind and hail City listed as loss payee IX. Protection and Indemnity (If applicable) $1,000,000 Jones Act included. MIADOCS 18557371 1345 85.0002 SCHEDULE E List of Environmental Reports MIADOCS 18557371 1345 85.0002 SCHEDULE F Procedures for Agreeing Upon the Environmental Work; Description of the Environmental Work, Remediation; Target Schedule MIADOCS 18557371 1345 85.0002 SCHEDULE G 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 Park Rehabilitation and Environmental 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 (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. MIADOCS 18557371 1345 85.0002 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 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 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. MIADOCS 18557371 1345 85.0002 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. MIADOCS 18557371 1345 85.0002 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 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 MIADOCS 18557371 1345 85.0002 as identification. OFFICIAL NOTARIAL SEAL: (type, print, or stamp name) NOTARY PUBLIC My commission expires: Commission No. MIADOCS 18557371 1345 85.0002