Assignment and Assumption of Ground Lease DRAFT ASSIGNMENT AND ASSUMPTION OF GROUND LEASE
THIS DOCUMENT PREPARED BY
AND WHEN RECORDED
RETURN TO:
Daniel J. Perlman,Esq.
Kirkland&Ellis LLP
300 North LaSalle Street
Chicago, Illinois 60654
[Space Above for Recorder]
ASSIGNMENT AND ASSUMPTION AGREEMENT
(PELICAN GARAGE GROUND LEASE)
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement") is made and
entered into as of January_, 2014 (the "Effective Date"), by and between Pelican Investment Holdings,
LLC, a Florida limited liability company, having an address of 176 NE 43rd Street, Miami, FL 33137
("Assignor"), and LIPT Collins Avenue, LLC, a Delaware limited liability company, which is a wholly
owned subsidiary of Jones Lang LaSalle Income Property Trust, Inc., having an address of c/o LaSalle
Investment Management, Inc., 100 East Pratt Street, Baltimore, Maryland 21202 ("Assignee"). All initial
capitalized terms used but not otherwise defined herein shall have the respective meanings given to them
in the Purchase Agreement(as hereinafter defined).
RECITALS
A. Assignor and Assignee have entered into that certain Agreement of Sale and Purchase
dated as of December 18, 2013 (as amended from time to time, the "Purchase Agreement"), pursuant to
which, among other things, Assignor has agreed to sell, assign, transfer, convey and deliver to Assignee,
and Assignee has agreed to purchase and accept from Assignor, all right, title and interest of Assignor in
the Pelican Garage located at 1027 Collins Avenue, Miami Beach, Florida and 1041 Collins Avenue,
Miami Beach, Florida, as more particularly described on Exhibit "A" attached hereto and by this
reference made a part hereof(the"Property").
B. Pursuant to the Purchase Agreement, Assignor has agreed to assign to Assignee all of
Assignor's right, title and interest in and to all of the Assignor's leasehold estate under that certain
Agreement of Lease by and between Assignor and the City of Miami Beach ("Owner" or "City"), dated
December 1, 1999, recorded in O.R. Book 18938, Page 2422, of the Public Records of Miami-Dade
County, Florida with respect to the Property (the "Ground Lease"), and Assignee has agreed to assume
such Ground Lease, as more particularly set forth below.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set
forth and set forth in the Purchase Agreement and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound,
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subject to the terms and conditions set forth herein and in the Purchase Agreement, hereby agree as
follows:
1. Assignment. Upon the terms and subject to the conditions of the Purchase Agreement, and in
reliance upon the representations, warranties, covenants and agreements set forth therein,
effective as of the Effective Date, Assignor hereby sells, assigns, transfers, sets over and delivers
unto Assignee, as lessee, all of Assignor's right, title and interest in and to all of the Assignor's
leasehold estate and interest under the Ground Lease, together with all the right, title, interest and
estate of Assignor in and to the premises demised by and described in the Ground Lease, and all
improvements and appurtenances situated on or used, occupied and enjoyed in connection with
the Ground Lease and the land thereby demised, and all other rights of the Assignor under the
Ground Lease("Sale").
2. Assignor's Covenants. Assignor does hereby covenant with the Assignee that Assignor is the
owner of the leasehold estate interest under the Ground Lease; that the Ground Lease is in full
force and effect in accordance with its terms and Assignor is not, to its actual knowledge, in
default under the terms of the Ground Lease beyond expiration of applicable notice and cure
periods; that Assignor has good right to assign the same as herein set forth; that the Ground Lease
is free and clear of liens and encumbrances made or suffered by the Assignor; and that Assignor
will WARRANT AND DEFEND the title to the same unto Assignee against the lawful claims
and demands of all persons lawfully claiming same by through and under Assignor, but against
none other, except as aforesaid and except for(1) all real estate taxes and assessments not yet due
and payable as of the Effective Date; (2) all unrecorded leases as reflected on the rent roll
delivered to Assignee at Closing which do not contain any options to purchase or rights of first
refusal or rights of first offer to purchase any interest in the Property, except as stated therein to
the contrary; (3) all matters that are or would be shown on an accurate plat of survey of the
Property; and (4) all matters set forth (or insured against) in the owner's title insurance policy
issued to Assignee (or for which a commitment has been issued) by Chicago Title Insurance
Company issued for the benefit of Assignee in connection with the Property.
3. Assumption. Upon the terms and subject to the conditions of the Purchase Agreement, and in
reliance upon the representations, warranties, covenants and agreements set forth therein,
effective as of the Effective Date, Assignee hereby accepts the assignment of the Ground Lease,
and hereby assumes and agrees to perform all of the obligations of Assignor under the Ground
Lease, and further agrees to be personally liable and subject to all conditions and restrictions to
which Assignor is subject to under said Ground Lease; provided, however, that any claim,
liability, or obligation arising out of any breach of the Ground Lease by Assignor, or any act or
omission of Assignor that occurred prior to the Effective Date, and any amount owed under the
Ground Lease prior to the Effective Date, shall remain the sole responsibility of Assignor.
4. Indemnities. Assignor hereby agrees to defend, indemnify and hold harmless Assignee and its
affiliates and their directors, officers, shareholders, members, managers, partners, employees and
agents (each, an "Assignee Indemnified Party"), from and against all losses, damages, costs and
expenses, including, without limitation, reasonable legal fees and disbursements, incurred by an
Assignee Indemnified Party in connection with any claim, liability or obligation arising under the
Ground Lease accruing prior to the Effective Date. Assignee hereby agrees to defend, indemnify
and hold harmless Assignor and its affiliates and their directors, officers, shareholders, members,
managers, partners, employees and agents (each, an "Assignor Indemnified Party"), from and
against all losses, damages, costs and expenses, including, without limitation, reasonable legal
fees and disbursements, incurred by an Assignor Indemnified Party in connection with any claim,
liability or obligation arising under the Ground Lease accruing from and after the Effective Date.
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5. Survival. The provisions of this Agreement shall survive the Closing.
6. Further Assurances. Assignor and Assignee hereby agree and covenant that they will, at any time
and from time to time after the date hereof, upon the reasonable request of the other party hereto,
execute and deliver such further instruments or documents of assignment, conveyance and
transfer as may be reasonably necessary to implement and effect the assignment and assumption
of the Ground Lease contemplated by this Agreement and the Purchase Agreement.
7. City's Required Consents.
(a) Rejection of Right of First Offer. On December 11, 2013, the Mayor and City
Commission adopted City Resolution No. 2013-28438, attached hereto and made a part
hereof as Exhibit "B", whereby the Mayor and City Commission authorized the City
Manager to decline, in writing, the Right of First Offer Transaction, as required pursuant
to Section 36.2 of the Ground Lease, and as further evidenced by the City Manager's
letter, attached hereto and made a part hereof as Exhibit"C".
(b) Consent to Sale to Assignee. Additionally, On December 11, 2013, pursuant to
Resolution No. 2013-28438, the Mayor and City Commission also approved the Sale,
subject to and conditioned upon the City's successful completion of its evaluation of
Assignee, in accordance with Article 10 of the Ground Lease (the "City's Due
Diligence"); and payment to the City of its reasonable costs incurred in connection with
the Sale including, without limitation, reimbursement of the City's Due Diligence costs
and payment of the Settlement Offer by Assignor. (The terms "City's Due Diligence"
and "Settlement Offer" shall have the respective meanings given to them in City
Resolution No. 2013-28438). The City's consent to the. Sale shall not be deemed a
consent to any subsequent assignment or subletting, nor shall it be deemed or construed
to be a waiver of any of the restrictions or limitations on assignment and subletting set
forth in the Ground Lease.
(c) Approval of LAZ Parking as an Acceptable Operator. The City hereby approves LAZ
Parking as an "Acceptable Operator", as such term is defined in Section 1.1 of the
Ground Lease; in reliance upon the warranties and representations from Assignee to the
City that, to the knowledge of Assignee (after confirming the following with LAZ
Parking) LAZ Parking meets the following criteria for an Acceptable Operator under
Section 1.1 of the Ground Lease, that: 1. LAZ Parking has a management contract with
Assignee; 2. LAZ Parking maintains a management office within Miami-Dade County,
Florida; 3. LAZ Parking does not have any outstanding building code violations against
any property owned or managed by LAZ Parking within the City of Miami Beach,
Miami-Dade County, and cities located within Miami-Dade County; 4. LAZ Parking has
been in the business of operating similar projects and parking garages similar to the
Property for the past five (5) years (or has management personnel who have been in the
business of operating public garages similar to the Property for at least five (5)years); 5.
LAZ Parking has been in the business of managing similar projects and parking garages
similar to the Property for the past five(5)years(or has management personnel who have
been in the business of managing public garages similar to the Property for at least five
(5)years); and 6. LAZ Parking is not a foreign instrumentality.
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8. Miscellaneous.
(a) This Agreement may not be amended or modified other than by an instrument in writing
signed by Assignor and Assignee and only if consented to by Owner.
(b) This Agreement shall be binding upon and inure solely to the benefit of the parties hereto
and their respective successors and permitted assigns, and nothing herein, expressed or
implied, shall give or be construed to give any person or entity, other than the parties
hereto and such successors and assigns, any legal or equitable rights hereunder.
(c) This Agreement shall be governed by, and construed in accordance with, the laws of the
State of Florida without giving effect to the choice of law principles thereof, including all
matters of construction,validity and performance.
(d) For the convenience of the parties hereto,this Agreement may be executed in any number
of counterparts, each such counterpart being deemed an original, and all such
counterparts shall together constitute the same agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed
effective as of the date first above written.
WITNESSES: ASSIGNOR:
PELICAN INVESTMENT HOLDINGS, LLC,
Print Name: a Florida limited liability company
By:
Print Name:
Name:
Title:
STATE OF
COUNTY OF
On , 2014 before me, the undersigned Notary Public, in and for the State aforesaid,
personally appeared known to me as the of
Pelican Investment Holdings, LLC,.a Florida limited liability company, and he, as such officer, being
authorized to do so,executed the foregoing instrument for the purposes therein contained.
Notary Public
My Commission Expires
[Notary Public Seal]
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WITNESSES: ASSIGNEE:
LIPT COLLINS AVENUE, LLC,
Print Name: a Delaware limited liability company
By:
Print Name:
Name:
Title:
STATE OF )
COUNTY OF )
On , 2014 before me, the undersigned Notary Public, in and for the State aforesaid,
personally appeared known to me as the of LIFT
Collins Avenue, LLC, a Delaware limited liability company, and he, as such officer, being authorized to
do so, executed the foregoing instrument for the purposes therein contained.
Notary Public
My Commission Expires
[Notary Public Seal]
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CITY'S ACKNOWLEDGEMENT, CONSENT, AND AGREEMENT AS TO ARTICLE 7 ONLY:
WITNESSES: CITY/OWNER:
City of viiamiBeac , Florida
Pr a $ ��L
By
Pri4f Name: r -
NamNe Jimmy L. Morales,
WITNE SES: Titleity Manager
Print ame: By: 123, J
Name: Rafael Granado
Print Name: 571A sii /e- LP
Title: City Clerk
STATE OF FLORIDA)
COUNTY OF MIAMI-DADE)
On; - D-3 , 2014 before me, the undersigned Notary Public, in and for the State aforesaid,
personally appeared Jimmy L. Morales, as the City Manager for the City of Miami Beach, Florida, and
Rafael Granado, as the City Clerk of the.City of Miami Beach, Florida, in the capacity aforestated. They
are personally known to me or have produced a valid Florida driver's license as identification.
A �
N ary Public /
My Commission Expires fir,/ 2 / C
/
[Notary Public Seal]
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Exhibit A
LEGAL DESCRIP'T'ION
North 1 foot of Lot 11, and all of Lots 12, 13, and 14, of Block 15, OCEAN BEACH ADDITION NO.2,
according to the Plat thereof, recorded in Plat Book 2, Page 56, of the Public Records of Miami-Dade
County,Florida.
A-1
Exhibit B
City Resolution No. 2013-28438
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B-1
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Exhibit C
City Manager's letter
C-i