2025 Grant Agreement between MB Redevelopment Agency, MB Mixed Use Investment Company, LLC, and Public Finance Authority for MB Convention Center Hotel b4(p - 2.1:212.1-1
Execution Version
GRANT AGREEMENT
by and among
MIAMI BEACH REDEVELOPMENT AGENCY,
MB MIXED USE INVESTMENT COMPANY I,LLC,
and
PUBLIC FINANCE AUTHORITY
for
MIAMI BEACH CONVENTION CENTER HOTEL
Dated as of April 10 , 2025
Table of Contents
Page
ARTICLE I
DEFINITIONS 3
ARTICLE II
GRANT; TERM OF AGREEMENT;ASSIGNMENT TO PURCHASERS OF HOTEL
Section 2.01. Grants 11
Section 2.02. Condition Precedent to Release of Grant Funds and to Agency's
Obligation to make the Payments 11
Section 2.03. Term of Agreement; Construction Commencement 11
Section 2.04. Required Assignment of This Agreement 12
ARTICLE III
CONVENTION CENTER HOTEL
Section 3.01. Compliance with Lease Agreement 12
Section 3.02. Public Benefit Commitments 12
Section 3.03. No Warranty by Agency 17
ARTICLE IV
ACKNOWLEDGMENT OF GRANT; AGENCY PAYMENTS
Section 4.01. Acknowledgment of Grant; Potential Reduction to Funded Grant
Amount; Disbursements by Bond Trustee 17
Section 4.02. Payment Obligations of Agency 18
Section 4.03. Security for Payments 19
Section 4.04. Issuance of Additional Parity Obligations or Additional Agency Bonds 19
Section 4.05. Issuance of Refunding Bonds 20
Section 4.06. Further Disclaimer 20
Section 4.07. Semi-Annual Installment Payment Schedule 20
ARTICLE V
REPORTING 21
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Section 6.01. [RESERVED] 21
Section 6.02. The Parent's Representations,Warranties and Covenants 21
Section 6.03. The Issuer's Representations and Covenants 24
Section 6.04. The Agency's Representations,Warranties and Covenants 25
ARTICLE VII
INDEMNIFICATION OF ISSUER; LIMITED OBLIGATION OF ISSUER
Table of Contents
(continued)
Page
Section 7.01. Indemnification 27
Section 7.02. Non-Liability of Issuer 30
Section 7.03. Issuer's Performance 30
Section 7.04. Waiver of Personal Liability 31
Section 7.05. No Impairment of Rights 31
Section 7.06. No Obligation to Enforce Assigned Rights 31
ARTICLE VIII
DEFAULTS AND REMEDIES
Section 8.01. Event of Default 32
Section 8.02. Remedies 32
Section 8.03. No Acceleration;Failure to Timely Make Payments 32
Section 8.04. Liens, Security Interests 33
ARTICLE IX
GENERAL PROVISIONS
Section 9.01. Non-liability of Agency Officials 33
Section 9.02. Force Majeure 33
Section 9.03. Notices 33
Section 9.04. Time 34
Section 9.05. Entire Agreement 34
Section 9.06. Amendment 34
Section 9.07. Waivers 35
Section 9.08. Indemnification of Agency 35
Section 9.09. Additional Indemnification of Agency, City,and County 35
Section 9.10. Severability 36
Section 9.11. Compliance With State and Other Laws 36
Section 9.12. Third Party Beneficiaries 36
Section 9.13. Public Entity Crimes Notice.. 36
Section 9.14. Incorporation by Reference 36
Section 9.15. Order of Precedence 36
Section 9.16. Counterparts 37
Section 9.17. Independent Contractor 37
Section 9.18. Retention of Records/Audit 37
Section 9.19. Non-Merger 38
Section 9.20. Exemption of City and County 38
Section 9.21. Parties to Agreement; Successors and Assigns 38
Section 9.22. Venue; Applicable Law 39
Section 9.23. Recordation 39
Section 9.24. Further Assurances 39
Section 9.25. Construction 40
Section 9.26. Headings 40
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Table of Contents
(continued)
Page
Section 9.27. Further Authorizations 40
Section 9.28. Content of Certificates 40
Section 9.29. Survival 40
Section 9.30. Estoppel Certificate 40
Section 9.31. Waiver of Jury Trial 41
EXHIBIT A LEGAL DESCRIPTION OF HOTEL PARCEL
EXHIBIT B IN-KIND PUBLIC BENEFIT COMMITMENTS
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GRANT AGREEMENT
THIS GRANT AGREEMENT (this "Agreement") is made as of this lath day of
Ann' , 2025 (the "Effective Date"), among the MIAMI BEACH REDEVELOPMENT
AGENCY, a public agency and body corporate created pursuant to Section 163.356, Florida
Statutes (the "Agency"), MB MIXED USE INVESTMENT COMPANY I, LLC, a Delaware
limited liability company (the "Parent") and PUBLIC FINANCE AUTHORITY, a unit of
government and a body corporate and politic of the State of Wisconsin(the"Issuer"),pursuant to
the authority of Section 66.0301, 66.0303 and 66.0304, Wisconsin Statutes, as amended (the
"Act').
WITNES SETH :
WHEREAS,the Issuer is authorized by the Act to issue revenue bonds to finance a project,
including but not limited to,any capital project; and
WHEREAS, the Act further authorizes the Issuer to expend the proceeds of such revenue
bonds to make grants for the purpose of supporting economic activities; and
WHEREAS, the Agency has been duly created and established to transact business and
exercise powers under and pursuant to Community Redevelopment Act of 1969, as amended,
being Chapter 163,Part III,Florida Statutes,as amended(together with other applicable provisions
of law, the "Redevelopment Act"), in order to achieve the purposes of redevelopment under the
Redevelopment Act; and
WHEREAS, all requirements of law have been complied with in the creation of the
Agency,the adoption and amendment of a redevelopment plan(the"Redevelopment Plan")under
the Redevelopment Act for that portion of the City of Miami Beach (the"City") described in the
Redevelopment Plan and known as the"City Center/Historic Convention Village Redevelopment
and Revitalization Area" (the "Redevelopment Area") and the creation and funding of the "City
Center/Historic Convention Village Redevelopment and Revitalization Trust Fund" (the "Trust
Fund")in accordance with the Redevelopment Act; and
WHEREAS, Miami-Dade County, a political subdivision of the State of Florida, whose
address is 111 NW 1st Street,Miami,Florida 33128,Attention:County Mayor(the"County")and
the City adopted Resolutions R-1110-14 and 2014-28835, respectively, approving an amendment
to the Redevelopment Plan to define the Convention Center Renovation and Expansion Project
(the "Convention Center Project") for the Miami Beach Convention Center (the "Convention
Center"), which includes the construction of a convention center headquarters hotel (the
"Convention Center Hotel"), and to authorize the use of Agency Trust Fund revenues as a funding
source for the Convention Center Project;and
WHEREAS, the Agency has served as a prominent funding mechanism for the
transformative renovation of the Convention Center,which is an important economic asset of the
entire County and the City; and
WHEREAS,completion of the Convention Center Hotel as part of the Convention Center
Project is essential to ensuring the viability of the Convention Center as a destination for high-
Execution Version
profile and high-economic-impact events and to ensuring the success of the Redevelopment Area
and implementation of the Redevelopment Plan; and
WHEREAS, the City, through Resolution 2018-30425, approved a development and
ground lease agreement (the "Lease Agreement") between the City and MB Mixed Use
Investment, LLC, a Delaware limited liability company under common control with and a
subsidiary of Parent (the "Developer") for the development and operation of the Convention
Center Hotel contemplated by the Redevelopment Plan at the location defined in the Lease
Agreement(the"Hotel Parcel"); and
WHEREAS, the Developer has timely completed the design of the Convention Center
Hotel in accordance with the Lease Agreement, and the Developer has also timely completed the
preparation of the Hotel Parcel for vertical construction, including the demolition and
reconfiguration of existing buildings,at a total cost of more than$25 Million funded by Developer
equity, which amount exceeds, by more than two-and-a-half times, the Initial Lessee Minimum
Equity Contribution required by the Lease Agreement; and
WHEREAS, the Hotel Parcel is ready for the commencement of construction of the
Convention Center Hotel upon the closing of construction financing; and
WHEREAS, due to widespread market conditions, the cost to construct the Convention
Center Hotel has increased by more than $200 Million since the award of the Lease Agreement;
and
WHEREAS, upon closing of all debt and equity for the construction of the Convention
Center Hotel, there will remain a funding gap of approximately$75 Million in present value that
cannot be met reasonably by current debt and equity markets; and
WHEREAS, Section 163.370(2)(c)(3)of the Redevelopment Act authorizes the Agency to
support the construction of "public areas of major hotels that are constructed in support of
convention centers, including meeting rooms, banquet facilities, parking garages, lobbies, and
passageways" (collectively, "Public Areas");and
WHEREAS, the Convention Center Hotel will include Public Areas, such as, without
limitation, more than 100,000 square feet of meeting space, and the cost to construct the Public
Areas is budgeted to exceed$75 Million in present value; and
WHEREAS, the Issuer will finance a grant (the "Grant") to be made by the Issuer to the
Parent to finance the portion of the costs of the Convention Center Hotel attributable to the Public
Areas, through the issuance of taxable revenue bonds to be issued by the Issuer(the"Series 2025
Bonds"); and
WHEREAS, in order to secure the repayment of the Series 2025 Bonds,the Agency shall
be obligated to pay to the Issuer from revenues deposited into the Trust Fund (the"Trust Fund
Revenues") in the manner and subject to the priority of payment and availability of Trust Fund
Revenues set forth herein, the amounts set forth in the Semi-Annual Installment Payment
Schedule, as described herein; and
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WHEREAS,the Convention Center Hotel is located within the territorial boundaries of the
City,the County, and the Redevelopment Area;and
WHEREAS, the Issuer, based on the representations of the Agency and the Parent, but
without independent investigation,has found and determined that the financing of the Convention
Center Hotel will promote significant economic, cultural and community development
opportunities, including the creation and retention of employment, the stimulation of economic
activity, and the promotion of the Convention Center and businesses within the Redevelopment
Area; and
WHEREAS,the execution and delivery of this Agreement, and the issuance of the Series
2025 Bonds pursuant to an Indenture of Trust dated as of March 1, 2025 (the"Bond Indenture")
by and between the Issuer and U.S. Bank Trust Company, N.A., as trustee (the"Bond Trustee"),
pursuant to the provisions of the Act, have been in all respects duly and validly authorized by a
resolution (the "Bond Resolution") duly adopted and approved by the governing board of the
Issuer; and
WHEREAS, the execution and delivery of this Agreement has been approved by the
Agency pursuant to its Resolution No. 703-2024(the"Agency Resolution")adopted on November
14,2024; and
WHEREAS, the Agency, City, and County entered into an interlocal cooperation
agreement on November 16, 1993,as subsequently amended(the"Interlocal Agreement"),which,
among other matters,authorizes the Agency to issue new Agency Indebtedness(as defined by the
Interlocal Agreement) subject to the approval of the Board of County Commissioners of the
County; and
WHEREAS, the obligation of the Agency to make the Payments (as defined below)
pursuant to this Agreement constitutes "Agency Indebtedness" under the Interlocal Agreement,
and the execution and delivery of this Agreement has been approved by the County pursuant to its
Resolution R-1002-24 (the "County Resolution") adopted on November 6, 2024 and by the City
pursuant to its Resolution No. 2024-33354, adopted on November 14, 2024.
NOW, THEREFORE, in consideration of the mutual undertakings and agreements herein,
and for $10.00 and other valuable consideration, the receipt and sufficiency of which are
acknowledged, the Agency, the Parent and the Issuer represent, warrant, covenant and agree as
follows:
ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms shall have the meaning set opposite each:
"Act"means Section 66.0301, 66.0303 and 66.0304,Wisconsin Statutes,as amended.
"Affiliates" means, regarding any Person, any other Person directly or indirectly
Controlling, Controlled by or under common Control with such Person. When used in reference
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to Developer, for so long as Parent(or any of its Affiliates)holds an interest,directly or indirectly,
in Developer, "Affiliate" shall include any Person Controlling, Controlled by, or under common
Control with Parent.
"Agency" has the meaning set forth in the first paragraph of this Agreement. Upon the
expiration(sunset)of the Miami Beach Redevelopment Agency,the term"Agency"as used in this
Agreement shall refer to the successor(s)-in-interest of the Agency; provided, however, that any
obligation of Parent to indemnify the City as a successor in interest to the Agency (including,
without limitation,the obligations set forth in Section 7.01)after the expiration of the Agency shall
apply only to the extent that the Agency is sued or suffers a Liability in its own name (and shall
not apply to suits or other Liabilities suffered by the City in its own name).
"Agency Bonds" means the tax increment revenue bonds heretofore and hereafter issued
by the Agency pursuant to the Agency Bonds Resolution from time to time payable from and
secured by Trust Fund Revenues,as may be outstanding from time to time,including the Agency's
Tax Increment Revenue and Revenue Refunding Bonds, Series 2015A (City Center/Historic
Convention Village) outstanding as of the Effective Date, including any bonds issued to refund
Agency Bonds.
"Agency Bonds Resolution" means Resolution No. 619-2015 adopted by the Board on
October 14,2015,as such resolution may be amended or supplemented from time to time,together
with any resolutions that may hereafter be adopted by the Board for the issuance of Agency Bonds.
"Agency Resolution"means Resolution No. 703-2024 adopted by the Board on November
14, 2024,as such resolution may be amended or supplemented from time to time.
"Agreement" means this Grant Agreement dated April 10 , 2025, by and among the Issuer,
the Parent and the Agency,as may be amended or supplemented from time to time pursuant to this
Agreement.
"Annual Fee"shall have the meaning as defined in Section 3.02(a)of this Agreement.
"Annual Fee Commencement Date" shall have the meaning as defined in Section 3.02(a)
of this Agreement.
"Anticipated Total Payment Amount"shall have the meaning as defined in Section 4.02 of
this Agreement.
"Authorized Signatory" means any officer, director or other Person designated by
resolution of the Board of Directors of the Issuer(whether such resolution is adopted in connection
with the issuance of the Series 2025 Bonds or otherwise) or by the Issuer's Bylaws as an
`Authorized Signatory' empowered to, among other things, execute and deliver on behalf of the
Issuer this Agreement, the Bond Indenture, and the Series 2025 Bonds.
"Available Cash Flow" shall have the meaning as defined in Section 3.02(b) of this
Agreement.
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"Board'means the board of the Agency,being the chairperson and the other members of
the board.
"Bond Documents" means the documents executed in connection with the issuance of the
Series 2025 Bonds,including, but not limited to,the Bond Indenture and this Grant Agreement, in
each case as originally executed or as it may thereafter be amended or supplemented in accordance
with its respective terms.
"Bond Indenture"means the Indenture of Trust dated as of March 1,2025,by and between
the Bond Trustee and the Issuer, as may be amended or supplemented from time to time as
permitted by the provisions of the Bond Indenture.
"Bond Trustee"means U.S. Bank Trust Company,N.A., as trustee for the Bonds.
"Bonds" means the Series 2025 Bonds and any refunding bonds that may be issued from
time to time pursuant to the terms of the Bond Indenture.
"City"means the City of Miami Beach, Florida.
"Code"means the Internal Revenue Code of 1986,as amended from time to time, and the
regulations promulgated thereunder.
"Completion of Construction"shall have the meaning set forth in the Lease Agreement.
"Control," "Controlling" or "Controlled" shall mean the possession, directly or
indirectly,of the power to direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities,by contract,by governmental requirements or
otherwise,or the power to elect in excess of fifty percent(50%)of the directors,managers,general
partners or other Persons exercising similar authority with respect to such Person (it being
acknowledged that a Person shall not be deemed to lack Control of another Person even though
certain decisions may be subject to"major decision"consent or approval rights of limited partners,
shareholders or members, as applicable). For avoidance of doubt, if a Person(for purposes of this
definition, "Person A") cannot elect in excess of fifty percent (50%) of the directors, managers,
general partners or other Persons exercising similar authority with respect to a Person(for purposes
of this definition, "Person B")without the consent or approval of another Person or Persons, then
Person A shall not be deemed to Control Person B.
"Convention Center Hotel' shall have the meaning set forth in the recitals.
"Convention Center Hotel Project" shall mean the construction of an approximately 800-
room convention center hotel, inclusive of Public Areas, on the Hotel Parcel within the
Redevelopment Area being financed in part with the Grant and more particularly described in the
Lease Agreement.
"County"means Miami-Dade County,Florida.
"Debt Service"means, as of any applicable date of determination,the sum of all scheduled
interest payments on any then-existing secured financing obtained by Parent or its direct or indirect
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subsidiaries, including, without limitation, Developer, in respect of the Convention Center Hotel
Project, calculated at the non-default rate.
"Debt Service Coverage Ratio" means, as of any applicable date of determination, the
meaning assigned such term(or equivalent term)in any then-applicable secured financing(s) (and
if more than one,the seniormost)obtained by Parent or its director indirect subsidiaries,including,
without limitation,Developer, in respect of the Convention Center Hotel Project,and if there is no
such term (or equivalent term) in any such financing, then such term shall mean, as of any
applicable date of determination,a ratio in which(a)the numerator is Net Operating Income as of
the applicable date of determination, and (b) the denominator is the aggregate amount of Debt
Service that would be payable during the succeeding twelve(12)-month period.
"Debt Service Requirement" shall have the meaning set forth in the Agency Bonds
Resolution.
"Deferred Fee Amount" shall have the meaning as defined in Section 3.02(b) of this
Agreement.
"Developer" means MB Mixed Use Investment, LLC, a Delaware limited liability
company. Upon the assignment of the Lease Agreement to a successor tenant under the terms
thereof, the term"Developer"as used in this Agreement shall mean such successor tenant.
"DSC Threshold"shall have the meaning as defined in Section 3.02(a)of this Agreement
"Effective Date" shall have the meaning as defined on the first page hereof.
"Emergency Equity" shall have the meaning as defined in Section 3.02(a) of this
Agreement.
"Equity Participant" shall have the meaning as defined in Section 3.02(a) of this
Agreement.
"Executive Director"means the Executive Director of the Agency.
"Fee Payment Period" shall have the meaning as defined in Section 3.02(a) of this
Agreement.
"Fiscal Year"means the period commencing on October 1,and continuing to and including
the next September 30, or such other annual period as may be prescribed by law or by the Agency
in accordance with law.
"Funded Grant Amount" shall have the meaning as defined in Section 4.01 of this
Agreement.
"Grant"means the grant of the portion of the Series 2025 Bond proceeds by the Issuer to
the Parent applied for the costs related to the Public Areas of the Convention Center Hotel as
authorized pursuant to the terms of this Agreement.
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"Grant Funds Holdback" shall have the meaning as defined in Section 4.01 of this
Agreement.
"Grant Funds Reserve" shall have the meaning as defined in Section 4.01 of this
Agreement.
"Holdings" means MB Mixed Use Investment Holdings, LLC, a Florida limited liability
company,and its successors and assigns.
"Hotel Distributions" shall have the meaning as defined in Section 3.02(a) of this
Agreement.
"Hotel Operator" shall have the meaning set forth in the Lease Agreement.
"Hotel Parcel'shall mean the real property described on Exhibit A attached hereto.
"In-Kind Public Benefits" shall have the meaning as defined in Section 3.02(e) of this
Agreement.
"Issuer" shall have the meaning set forth on the first page hereof.
"Issuer Indemnified Persons" means collectively, (i)the Sponsors, (ii) the Members and
(iii) each and all of Issuer's, the Sponsors' and the Members' respective past, present and future
directors, board members, governing members, trustees, commissioners, elected or appointed
officials,officers, employees,Authorized Signatory,attorneys,contractors, subcontractors,agents
and advisers (including, without limitation, counsel and financial advisers) and each of their
respective heirs, successors and assigns.
"Joint Exercise Agreement" means the Amended and Restated Joint Exercise of Powers
Agreement Relating to the Public Finance Authority, dated September 28, 2010 by and among
Adams County,Wisconsin,Bayfield County,Wisconsin, Marathon County,Wisconsin, Waupaca
County, Wisconsin and the City of Lancaster, Wisconsin, as such agreement may be amended
from time to time.
"Lease Agreement" means the Development and Ground Lease Agreement executed July
31, 2018, and effective as of December 12, 2018, by and between the City, as lessor, and the
Developer, as lessee,pursuant to which the City is leasing the Hotel Parcel to the Developer.
"Loan to Value Ratio" means, as of any applicable date of determination, the meaning
assigned such term(or equivalent term)in any then-applicable secured financing(and if more than
one, the seniormost) obtained by Parent or its direct or indirect subsidiaries, including, without
limitation,Developer,and if there is no such term(or equivalent term)in any such financing,then
such term shall mean,as of any applicable date of determination,a ratio in which(a)the numerator
is equal to the outstanding principal amount of then-existing secured financing obtained by Parent
or its direct or indirect subsidiaries, including, without limitation, Developer, and (b) the
denominator is the fair market value of the Convention Center Hotel (for avoidance of doubt,
including, without limitation, the value of Developer's leasehold estate under the Lease
Agreement), as determined by an appraisal reasonably acceptable to the Agency, plus any cash
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collateral or letter of credit provided to the applicable lender as additional security for the
financing.
"LTV Threshold" shall have the meaning as defined in Section 3.02(a)of this Agreement.
"Management Agreement" shall have the meaning set forth in the Lease Agreement.
"Maximum Annual Debt Service" shall mean, at any time and with respect to all of the
Agency Bonds,the greatest Debt Service Requirement in the then current or any succeeding Fiscal
Year.
"Maximum Annual Payments" means, at any time and with respect to the Payments and
Parity Obligations,the greatest amount of payments required to be made by the Agency in the then
current or any future Fiscal Year.
"Maximum Total Payment Amount" shall have the meaning as defined in Section 4.02 of
this Agreement.
"Member"means the parties to the Joint Exercise Agreement and any political subdivision
that becomes a member of the Issuer pursuant to the Joint Exercise Agreement.
"Net Operating Income" means, as of any date of determination, all income and revenues
Developer receives or that is due to Developer of any nature, including, but not limited to, rents,
additional rents(including,without limitation any common area maintenance charges),room rents,
parking revenues, proceeds of rent loss and/or business interruption insurance, performance test
cure payments under the Management Agreement, and vending machine receipts, all on a trailing
twelve (12) month period, less the customary and necessary expenses incurred of operating the
Convention Center Hotel during the trailing twelve (12) month period which are paid by or on
behalf of Developer or accrued by Developer(for avoidance of doubt, excluding capital expenses,
Debt Service, any payment or expense which is reimbursable by insurance or by any third party,
any non-cash charges such as depreciation and amortization, and federal, state or local income or
similar taxes).
"Opening of the Convention Center Hotel"means the date that the Hotel is actually opened
to the public for paying guests after the issuance of all licenses, permits, certificates, approvals,
and/or permissions required for the operation of the Convention Center Hotel under applicable
laws;provided,however, that such date shall be no later than one hundred twenty(120)days after
the date that the Convention Center Hotel receives its certificate of occupancy. Parent shall
provide the Agency and the County with written notice of the date of the Opening of the
Convention Center Hotel within fifteen (15) days of the date thereof.
"Operating Expenses"means:
(a) operating expenses of the Convention Center Hotel Project other than
payments made to Developer,Parent or Affiliates of either;
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(b) wages and benefits paid and payable to the Hotel Operator's full time or
part-time on-site or off-site management employees and full or part-time non-management
employees; and
(c) management fees, at prevailing market rates, provided, any management
fees payable to Developer,Parent or Affiliates of Developer or Parent shall not be included
for purposes of calculating Operating Expenses in the event Available Cash Flow is
insufficient to cover Operating Expenses and pay amounts due to the Agency hereunder at
any time; provided, further, however, that the management fees payment to the Hotel
Operator shall in no event be excluded from such calculation of Operating Expenses except
to the extent that such fees exceed market fees for the applicable brand.
"Parent"shall have the meaning as defined on the first page hereof. Upon the assignment
of this Agreement to a Successor by Parent or by any Successor, the term"Parent"as used in this
Agreement shall be deemed to include any Successor to whom such assignment is made.
"Parent Representative" means David Martin or Aly-khan Merali, or any other person
authorized by Parent to act on behalf of the Parent with respect to this Agreement.
"Parity Obligations"means additional obligations of the Agency hereafter incurred by the
Agency which are payable from Trost Fund Revenues on a parity with the obligation of the Agency
to make the Payments.
"Payments" means the payments that the Agency is obligated to make to the Issuer
hereunder from the Trust Fund Revenues as provided in Section 4.02 of this Agreement.
"Person" means any corporation, unincorporated association or business, limited liability
company; business trust, real estate investment trust, common law trust, or other trust, general
partnership, limited partnership, limited liability limited partnership, limited liability partnership,
joint venture, or two or more persons having a joint or common economic interest, nominee, or
other entity, or any individual (or estate of such individual); and shall include any governmental
authority.
"Pledged Funds" shall have the meaning set forth in the Agency Bonds Resolution.
"Priority Debt" shall have the meaning as defined in Section 3.02(a)of this Agreement.
"Project Budget"shall mean$589,372,907.00,which represents the total estimated cost to
develop and construct the Convention Center Hotel Project, inclusive all soft costs,hard costs,and
financing costs.
"Public Areas Factor" shall have the meaning as defined in Section 4.01(a) of this
Agreement.
"Public Benefits" shall have the meaning as defined in Section 3.02 of this Agreement.
"Redevelopment Act" means the Community Redevelopment Act of 1969, as amended,
being Chapter 163, Part III, Florida Statutes, as amended, and other applicable provisions of law.
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"Redevelopment Area" means the "City Center/Historic Convention Village
Redevelopment and Revitalization Area" located within the City and found by the City to be a
"blighted area" within the meaning of the Redevelopment Act and as described in the
Redevelopment Plan,which geographic boundaries may be changed from time to time as permitted
by the Redevelopment Act.
"Redevelopment Plan" means the redevelopment plan for the Redevelopment Area
originally adopted by the Agency by Resolution No. 128-93 adopted on February 12, 1993 and
approved by the City by Resolution No.93-20721 adopted on February 12, 1993 and by the County
by Resolution No. 317-93 adopted on March 30, 1993,as the same has been and may be amended
from time to time.
"Redevelopment Projects" means the particular community redevelopment projects
undertaken by the Agency pursuant to the Redevelopment Plan within the Redevelopment Area in
accordance with the Redevelopment Act, including the Convention Center Hotel Project.
"Semi-Annual Installment" shall have the meaning as defined in Section 4.02 and
scheduled as set forth in Exhibit C of this Agreement.
"Semi-Annual Installment Due Date"shall have the meaning as defined in Section 4.02 of
this Agreement.
"Series 2025 Bonds" means the Public Finance Authority Tax Increment Revenue Bonds
(Miami Beach Convention Center Hotel Project) Series 2025, being issued in one or more series
pursuant to the terms of the Bond Indenture.
"Sponsor"means the National League of Cities,the National Association of Counties,the
Wisconsin Counties Association, the League of Wisconsin Municipalities, and any other Person
that is identified by the Issuer,as an organization sponsoring the Issuer.
"Subordinate Debt" shall have the meaning as defined in Section 3.02(a) of this
Agreement.
"Successor" shall mean any assignee of Parent and any successor to such assignee.
"Transfer"shall have the meaning set forth in the Lease Agreement.
"Transfer Fee" shall have the meaning as defined in Section 3.02(d)of this Agreement.
"Trust Fund" means the "City Center/Historic Convention Village Redevelopment and
Revitalization Trust Fund" established by Ordinance No. 93-2836 adopted by the City on
February 24, 1993, and by Ordinance No. 93-28 enacted by the County on April 27, 1993, in
accordance with the Redevelopment Act.
"Trust Fund Revenues" means the revenues derived from the Redevelopment Area and
received by the Agency for deposit into the Trust Fund pursuant to Section 163.387, Florida
Statutes, as amended, Ordinance No. 93-2836 adopted by the City on February 24, 1993, as
amended from time to time,including Ordinance No.2014-3901 adopted by the City on November
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8,2014,and Ordinance No.93-28 enacted by the County on April 27, 1993,as amended from time
to time, including Ordinance No. 14-133 enacted by the County on December 16, 2014.
"Unassigned Rights" shall have the meaning as defined in the Bond Indenture.
"Underbudget Amount" shall have the meaning as defined in Section 4.01(b) of this
Agreement.
Other capitalized terms not defined in this Article shall have the meanings assigned to them
elsewhere in this Agreement.
All pronouns and any variations thereof shall be deemed to refer to the masculine,
feminine, neuter, singular or plural, as appropriate. The words "herein," "hereof" "hereunder,"
"hereinafter," and words of similar import refer to this Agreement as a whole and not to any
particular Article, Section or Subsection hereof The terms "include"and "including"and words
of similar import shall each be construed as if followed by the phrase"without limitation". This
Agreement will be interpreted without interpreting any provision in favor of or against either party
by reason of the drafting of such provision.
ARTICLE II
GRANT; TERM OF AGREEMENT; ASSIGNMENT TO PURCHASERS OF HOTEL
Section 2.01. Grants. Subject to the terms and conditions set forth herein, the Issuer
hereby agrees to pay to the Parent, solely from the proceeds of the Series 2025 Bonds, the Grant
in the amount of$75 Million,which shall be disbursed to Parent by Bond Trustee as contemplated
in Section 4.01 and used by the Parent solely for the purpose of financing a portion of the costs of
constructing the Public Areas of the Convention Center Hotel. The remaining proceeds of the
Series 2025 Bonds in excess of the amount required to fund the Grant shall be applied to pay the
costs of issuance for the Series 2025 Bonds.
Section 2.02. Condition Precedent to Release of Grant Funds and to Agency's
Obligation to make the Payments. Prior to the release of the Grant proceeds by the Issuer to the
Developer,Agency shall have confirmed that the"Possession Date"as described in Section 4.1(b)
of the Lease Agreement has occurred, or is occurring simultaneously, as evidenced in writing by
the City to the Developer.Furthermore,notwithstanding any other provision herein to the contrary,
Agency's obligation to make the Payments shall not become effective until(a)Agency shall have
confirmed that the Possession Date has occurred or is occurring simultaneously with the
effectiveness of such obligation and(b)the Series 2025 Bonds have been issued and delivered.
Section 2.03. Term of Agreement; Construction Commencement. The term of this
Agreement shall run from its execution until the later to occur of(i) the date all obligations of
Parent to the Agency pursuant this Agreement shall have been fully satisfied and (ii) the date all
obligations of Agency to the Parent, the Issuer and the holder of the Series 2025 Bonds pursuant
to this Agreement shall have been fully satisfied.On or before the date that is nine(9)months from
the Effective Date, the Parent or the Developer, as appropriate, shall: (a) obtain all development
approvals and building permits needed for construction of the Convention Center Hotel and submit
the same to the County; and(b)shall commence construction of the Convention Center Hotel and
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thereafter diligently pursue the construction of the Convention Center Hotel until completion
thereof. For purposes of this Agreement,"commence construction"shall mean the later of:(i)the
filing of the notice of commencement under Florida Statutes, Section 713.13; or (ii) the visible
start of construction work on the Convention Center Hotel,including on-site utility, excavation of
soil stabilization work (but specifically excluding any necessary testing, environmental
remediation or ceremonial groundbreaking). In order to meet the definition of "commence
construction"the filing of the notice of commencement and visible start of work must occur after
the Parent or Developer has secured the necessary building permits for the work and issued the
notice to proceed to its prime contractor for the improvements.
Section 2.04. Required Assignment of This Agreement. For so long as any obligations
of Parent to the Agency, the City, and the County expressly set forth in this Agreement remain
unsatisfied, in connection with any Transfer of the Convention Center Hotel Project (i.e., the
leasehold estate under the Lease Agreement), or any Transfer of Parent's interests in Developer,
(i)the Parent shall provide written notice to the Agency,the City,the County and the holder of the
Series 2025 Bonds of the Transfer and(ii)the Parent and/or Developer shall cause the transferee(s)
to assume all obligations of Parent under this Agreement(or, in the case of a Transfer of less than
100%of Parent's interests, shall cause the transferee(s) to execute a joinder to this Agreement in
form and substance reasonably acceptable to the Agency) in accordance with the provisions of
Section 9.21 of this Agreement; provided,however,in the event of any Transfer of the Convention
Center Hotel Project(i.e.,the leasehold estate under the Lease Agreement), or of Parent's interests
in Developer, directly or indirectly, in each case resulting from foreclosure and/or
deed/assignment-in-lieu of foreclosure,the Parent shall not be obligated to provide written notice
as set forth in clause (i) in this Section 2.04 and the only obligations of Parent the transferee shall
be required to assume are those expressly set forth in Sections 3.02(e)(inclusive of any extensions
to the Public Benefit Period required by Section 3.02(d) or Section 4.02), 4.01(a) and 4.01(b) of
this Agreement. Any failure to comply with the provisions of this Section 2.04 shall constitute a
default under the Lease Agreement, and if such failure continues for a period of forty-five (45)
days after written notice thereof by City to Developer specifying such failure, such default shall
be an Event of Default under the Lease Agreement, but, for avoidance of doubt, shall be subject
to all rights of lenders under the Lease Agreement, including, without limitation, the rights to
receive notice of default,opportunity to cure and new lease rights;provided,however, in the event
of any Transfer of the Convention Center Hotel Project (i.e, the leasehold estate under the Lease
Agreement), or of Parent's interests in Developer, directly or indirectly, in each case resulting
from foreclosure and/or deed/assignment-in-lieu of foreclosure, there should be no breach or
default for failing to affirmatively assume Parent's obligations under Sections 3.02(e) (inclusive
of any extensions to the Public Benefit Period required by Section 3.02(d)or Section 4.02),4.01(a)
and 4.01(b) so long as these obligations are (i)not rejected, (ii) complied with and(iii)expressly
assumed in writing if requested. For the avoidance of doubt, nothing in this Section 2.04 shall be
construed to limit the right of the Agency or County to excess foreclosure proceeds as set forth in
Section 3.02(b).
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ARTICLE III
CONVENTION CENTER HOTEL
Section 3.01. Compliance with Lease Agreement. The Parent hereby agrees that it shall
cause the Developer(a)to comply with all provisions of the Lease Agreement; and(b) to take all
other actions necessary so that Parent is in full compliance with all provisions of this Agreement.
Section 3.02. Public Benefit Commitments. As an inducement to the Agency and the
Issuer to enter into this Agreement for the benefit of the Convention Center Hotel, and to further
the goals of the Agency, the Parent shall provide, or cause the Developer or Hotel Operator, as
applicable, to provide, the following public benefits (the "Public Benefits") with respect to the
Convention Center Hotel:
(a) Commencing on the fifth(S")anniversary of the Opening of the Convention
Center Hotel(the"Annual Fee Commencement Date")and continuing for a period of fifty
(50) years (the "Fee Payment Period") thereafter, the Parent shall pay to the County an
annual participation fee in the amount of$500,000.00 (the "Annual Fee"), of which fifty
percent (50%) of said Annual Fee shall be used to fund (a) supportive housing for
individuals and families experiencing homelessness and (b) domestic violence centers.
The Annual Fee will escalate by three percent(3%) on the first anniversary of the Annual
Fee Commencement Date(i.e.,the sixth(0)anniversary of the Opening of the Convention
Center Hotel) and annually thereafter. Parent shall pay the Annual Fee in equal monthly
installments, in advance, with the amount of the monthly installment to be determined by
dividing the applicable Annual Fee into twelve(12). Payment of the Annual Fee shall not
be subordinate to, and, for the avoidance of doubt, the Agency's and County's right to
receive the Annual Fee shall be superior to, the rights of any equity participants in
Developer, Parent, any Affiliate of either, any other so-called "equity participant" or
"capital participant"in the Convention Center Hotel or any successors in interest of any of
the foregoing (collectively, "Equity Participants") to receive distributions of earnings,
capital or otherwise out of, or associated with, the Convention Center Hotel(collectively,
"Hotel Distributions"); provided, however, that payment of the Annual Fee shall remain
subordinate to the payment of management fees to the Hotel Operator even in the event
that the Hotel Operator or Affiliate thereof is or becomes an Equity Participant, except to
the extent that such management fees exceed market fees for the applicable brand. Parent
shall cause Holdings and all Equity Participants with direct ownership of Parent or
Holdings(and, in the event of a partial assignment of ownership of either Parent's or
Holdings' interest in Developer, shall cause all Equity Participants with direct ownership
of such assignee) to execute a written agreement with Parent acknowledging the terms of
this Agreement, including without limitation, the subordination of such Equity
Participants' rights to receive Hotel Distributions in accordance with the provisions of this
Section 3.02(a), and shall provide a true and correct copy of each such written agreement
to Agency and County. In addition,the Agency's and County's right to receive the Annual
Fee shall not be subordinate to debt other than secured debt(subject to the limitations set
forth in the next sentence).The Parent,the County,and the Agency acknowledge and agree
that should secured financing obtained by Parent or any of its director indirect subsidiaries,
including, without limitation, Developer, that is closed on or after the Annual Fee
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Commencement Date exceed an aggregate Loan to Value Ratio of 75% (the "LTV
Threshold")or cause the aggregate Debt Service Coverage Ratio to be less than 1.2x (the
"DSC Threshold")as of the date of closing of any such secured financing,then the portion
of the aggregate Debt Service allocable to the amount of such financing that exceeds the
LTV Threshold or that causes the Debt Service Coverage Ratio to fall below the DSC
Threshold, as applicable (such portion, the "Subordinate Debt," and the balance of such
financing, the "Priority Debt"), shall be subordinate to the payments of the Annual Fee to
the Agency and County. For avoidance of doubt, (i) references in this Agreement to
"secured debt" and "secured financing" shall include debt secured in whole or in part by
mortgages and debt secured in whole or in part by direct and/or indirect pledges of
membership interests,limited liability company interests and other equity interests and(ii)
the Annual Fee paid to thc Agency and County is independent of,and supplemental to,the
lease payments made by the Developer to the City under the Lease Agreement.
(b) In the event that the Parent fails to pay any installment of the Annual Fee in
any year after the Annual Fee Commencement Date due to insufficient cash flow after
payment of all Operating Expenses including Debt Service (other than allocable to any
Subordinate Debt) and after payment of all amounts payable to the City under the Lease
Agreement, but specifically excluding any payments to Parent, Developer, Holdings, or
their Affiliates (such available funds after payment of all such costs and expenses, the
"Available Cash Flow"), such unpaid installments of the Annual Fee shall be deferred(as
such amount may increase or decrease from time to time, the "Deferred Fee Amount").
Payment of the Deferred Fee Amount shall be made from Available Cash Flow. Such
Deferred Fee Amount shall be and continue to remain superior to any Hotel Distributions
to any Equity Participants at any time when a Deferred Fee Amount balance exists.
Notwithstanding the foregoing, the Agency and County acknowledge and agree in the
event that Debt Service (other than allocable to any Subordinate Debt) cannot be covered
from Available Cash Flow as payments become due as a result of a Force Majeure Event
(as defined in the Lease Agreement),and an existing subordinated Equity Participant at the
time of such shortfall funds such shortfall with a contribution of equity (as opposed to a
loan)("Emergency Equity"),the Emergency Equity shall be returned to such subordinated
Equity Participant(s)with priority over the Annual Fee and any Deferred Fee Amount then
existing until such time as such equity is repaid in full. Any installment(s) of the Annual
Fee that are not paid as a result of the preference for the return of Emergency Equity shall
be added to the Deferred Fee Amount. Once the Emergency Equity has been returned,
payments of installments of the Annual Fee and of the Deferred Fee Amount shall be paid
from Available Cash Flow with priority over any distributions to any Equity Participants.
The entire outstanding Deferred Fee Amount then existing shall be paid upon the closing
of any sale,assignment or transfer of the Convention Center Hotel(i.e.,the leasehold estate
under the Lease Agreement), directly or indirectly to a third party that results in a change
of Control; provided, however, that in the event of any Transfer of the Convention Center
Hotel (i.e., the leasehold estate under the Lease Agreement), and/or of direct or indirect
ownership interests in Developer, in each case directly or indirectly resulting from
foreclosure and/or deed/assignment-in-lieu of foreclosure, all obligations with respect to
the payments of the Annual Fee (including the payment of any Deferred Fee Amounts)
shall be extinguished, this clause (b) shall no longer be applicable. To the extent any
foreclosure proceeds exceed the aggregate of the corresponding foreclosure judgment,any
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and all accrued interest thereon, and any and all other Priority Debt, including, without
limitation, outstanding principal balances, accrued and unpaid interest, and all other
accrued amounts due thereunder,then such excess shall be paid according to the following
order of priority: first, to the Agency and County up to the amount of the sum of(i) any
accrued and unpaid Deferred Fee Amount,(ii)any other amounts due to the Agency and/or
County under this Agreement, and (iii) an amount equal to the net present value of the
remaining payments of the Annual Fee that would have accrued after the date of the
foreclosure sale utilizing the 10-year Treasury rate in effect as of such date; second, to any
outstanding principal balances,accrued and unpaid interest, and all other accrued amounts
due under any Subordinate Debt obtained by Parent or any of its direct or indirect
subsidiaries (including, without limitation, Developer); third, to any preferred equity
investor in Parent or any of its direct or indirect subsidiaries, including,without limitation,
Holdings and Developer,up to the amount of any outstanding preferred equity investment,
including,without limitation, accrued and unpaid interest thereon; and fourth, the balance
to the Parent or its applicable direct or indirect subsidiaries, including,without limitation,
Developer, that was foreclosed upon (including the repayment of any Emergency Equity
contributed by Parent or its applicable direct or indirect subsidiary). Notwithstanding the
foregoing,the Agency and/or County may, in their sole discretion, agree to subordinate its
interest to a lender providing Subordinate Debt.
(c) The Parent and/or Developer and/or any of its affiliates shall have the right
to buy out payments of the Annual Fee by providing a lump-sum payment equal to the net
present value of the remaining payments of the Annual Fee utilizing the 10-year Treasury
rate in effect at the time of the buyout;provided,however,that no such buyout may occur
prior to tenth (106) anniversary of the Annual Fee Commencement Date, and, provided,
further, no such buyout may occur prior to the fifteenth (I 5'") anniversary of the Annual
Fee Commencement Date unless it in connection with the sale, assignment or transfer of
the Convention Center Hotel,directly or indirectly to a third party that results in a change
of Control.
(d) In the event of an arm's length sale, assignment or transfer of (i) the
Convention Center Hotel (i.e., the leasehold estate under the Lease Agreement)to a third
party or(ii) direct or indirect ownership interests in Developer to a third party that results
in a change of Control of Developer, the seller in such transaction (whether the seller is
Parent or an Affiliate of Parent) shall pay to County a one-time transfer fee (the"Transfer
Fee") in an amount equal to two percent (2%) of the gross sale proceeds of the sale,
assignment or transfer less(i)the outstanding balance to pay off in full any existing Priority
Debt and(ii) all transaction costs, of which fifty percent(50%) of said Transfer Fee shall
be used to fund (a) supportive housing for individuals and families experiencing
homelessness and (b) domestic violence centers. Notwithstanding the foregoing, the
Transfer of the Convention Center Hotel and/or of direct or indirect ownership interests in
Developer, in each case directly or indirectly, resulting from a foreclosure and/or
deed/assignment-in-lieu of foreclosure shall not be deemed a Transfer subject to the
Transfer Fee, and upon any such Transfer all obligations with respect to the Transfer Fee
shall be extinguished and this clause (d) shall no longer be applicable, and the In-Kind
Public Benefits(as defined below)set forth on Exhibit B shall be extended for an additional
period of five (5)years. For avoidance of doubt,the Transfer Fee shall be applicable only
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to the Transfer, directly or indirectly, of the first to occur of the leasehold estate under the
Lease Agreement or of a Controlling interest in Developer, and once paid, this clause(d)
shall no longer be applicable. In the event of a Transfer that results in a change of Control
of Developer,but such Transfer is less than 100%of the ownership interests, the Transfer
Fee shall be adjusted to reflect the amount the Transfer Fee would have been if such
Transfer had been for 100%of the ownership interests(by way of example,in the event of
a Transfer of 75% of the ownership interests, the sales price shall be grossed up 33.33%
for purposes of calculating the Transfer Fee).
(e) For the time period commencing upon the Opening of the Convention
Center Hotel and during each year of the twenty-two (22)years following the Opening of
the Convention Center Hotel, unless extended in accordance with Section 3.02(d) or
Section 4.02 of this Agreement(the"Public Benefit Period"), the Parent shall provide, or
shall cause the Developer to provide,the additional in-kind public benefits described in the
attached Exhibit B (the"In-Kind Public Benefits"), in each case subject to availability and
force majeure. In the event that the Agency or County, in any calendar year, is unable to
utilize any portion of the reimbursable room nights,junior ballroom rentals or conference
rooms as a result of unavailability or force majeure,then such unused portion(but no more
than 50%of the then remaining room nights,junior ballroom and conference room rentals)
may be utilized by the Agency and County only in the following calendar year. The City
and/or County are intended beneficiaries of some of the In-Kind Public Benefits as set forth
in Exhibit B, attached hereto and incorporated herein by this reference. Notwithstanding
anything to the contrary stated herein, the parties hereto irrevocably and expressly agree
that the County and the City are intended third party beneficiaries of this Agreement for
the limited purpose(s) outlined in this Section 3.02(e), and that the County and City shall
have the right to seek to enforce the provisions of Section 2.03, Section 2.04, Section 3.02,
Section 4.02, Section 4.07, and Exhibit B all hereof in their absolute discretion
(collectively, `Beneficiary Rights"). For the avoidance of doubt, the County and the City
(i)are entitled to enforce any rights and/or obligations in conformity with this Section,and
(ii)may commence an appropriate legal or equitable action to enforce performance of this
Agreement in the manner outlined in this Section. The parties hereto acknowledge that the
provisions of this section are the basis for the bargain for the transaction contemplated in
this Agreement. Notwithstanding anything to the contrary contained herein, the parties
hereto agree that the Beneficiary Rights will not be amended, revised, or altered without
the County's prior written consent. It is expressly agreed and by this statement specifically
intended by the parties hereto that nothing within this Agreement shall be construed as
indicating any intent by either party to benefit any other entity or person not a party
signatory to this Agreement by any provision or to entitle any such third party to any right
of action on account hereof except for the County and the City.
(I) For purposes of this subparagraph 3.02(e), the term "force majeure" shall
be interpreted by reference to the definition of "Force Majeure Event" in the Lease
Agreement. For the avoidance of doubt, if there is a weather event that would otherwise
constitute force majeure,for so long as the hotel remains in a physical and operational state
(and is legally permitted)to accommodate guests,the Agency shall nevertheless be entitled
to use its "weather emergency" room allotment, immediately before, during, and
immediately following the weather event subject to availability.
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(g) Upon the termination of the Agency, all rights of the Agency pursuant to
this Agreement(including the right to receive the Public Benefits described in this Section
3.02) will be transferred fifty percent (50%) to the City and fifty percent (50%) to the
County in accordance with applicable law.
(h) For the avoidance of doubt, neither the Parent nor the Developer nor any
other person or entity shall be required to provide or maintain the Public Benefits in any
manner that would violate applicable laws or regulations.
Section 3.03. No Warranty by Agency. Nothing contained in this Agreement or any
other document attached hereto or contemplated hereby shall constitute or create any duty on or
warranty by the Agency regarding: (a) the accuracy or reasonableness of the Convention Center
Hotel Project budgets; (b) the feasibility or quality of the construction documents for the
Convention Center Hotel Project; (c) the quality or condition of the work; or(d) the competence
or qualifications of any third party furnishing services, labor or materials in connection with the
construction of the Convention Center Hotel. The Parent and the Issuer acknowledge that they
have not relied and will not rely upon any experience, awareness or expertise of the Agency, or
any City or Agency inspector, regarding the aforesaid matters.
ARTICLE IV
ACKNOWLEDGMENT OF GRANT; AGENCY PAYMENTS
Section 4.01. Acknowledgment of Grant; Potential Reduction to Funded Grant
Amount; Disbursements by Bond Trustee. The Agency acknowledges that the Issuer will issue
the Series 2025 Bonds in order to fund the Grant to the Parent in an amount equal to
$75,000,000.00 (the"Funded Grant Amount"). The Parent acknowledges that, as of the Effective
Date of this Agreement,it is anticipated that the cost to construct the Convention Center Hotel will
equal or exceed the amount of the Project Budget, and the cost to construct the Public Areas will
equal or exceed the Funded Grant Amount. The Underbudget Amount (as defined below) shall
reduce the final amount of the Grant in accordance with the below provisions of this Section 4.01.
The Bond Trustee shall disburse to Parent or Developer the full amount of the Funded Grant
Amount upon submission of a requisition in the manner established under the Bond Indenture in
order to fund the amount of actual hard and soft costs (including, without limitation, financing
costs) of development and construction solely of the Public Areas. Parent shall deliver, or cause
Developer to deliver, to one or more lender(s) providing secured financing to Parent or its direct
or indirect subsidiaries (including, without limitation, Developer) the Funded Grant Amount to
hold in one or more reserves (collectively, the "Grant Funds Reserve") for further disbursement
for payment of costs of developing and constructing the Convention Center Hotel Project,
including,without limitation,hard and soft costs thereof One or more such lenders shall restrict
loan availability in an aggregate amount equal initially to the Funded Grant Amount (such
restricted loan funds,the "Grant Funds Holdback"). The Grant Funds Holdback shall reduce by a
percentage equal to the Public Areas Factor of each dollar disbursed from the Grant Funds Reserve
and of each dollar disbursed from unrestricted loan funds and of each dollar of equity investment
disbursed by the provider of any preferred equity investment, in each case in connection with the
development and construction of the Convention Center Hotel Project. The Bond Indenture shall
include provisions consistent with the foregoing. By way of example, if the Public Areas Factor
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is equal to 25%, then after the first $100 Million has been spent on the construction of the
Convention Center Hotel Project, the Grant Funds Holdback shall have been reduced from $75
Million to $50 Million, and the Grant Funds Holdback may be released upon the expenditure of
$300 Million towards the construction of the Convention Center Hotel Project.
(a) Within sixty(60)days after issuance of a final certificate of occupancy for
the Convention Center Hotel, the Parent shall submit to the Agency a final reconciliation
of the actual hard and soft costs(including,without limitation, financing costs)to develop
and construct the Convention Center Hotel and Public Areas of the Convention Center
Hotel (inclusive of all hard and soft costs,financing costs,and other costs incorporated into
the Project Budget) in the form required by the construction lender for the Convention
Center Hotel or in a different form reasonably satisfactory to the Agency as required to
reasonably verify that such actual costs of the Convention Center Hotel Project and the
Public Areas equal or exceed the amounts of the Project Budget and of the Funded Grant
Amount,respectively. The Agency acknowledges and agrees that the Public Areas will be
constructed as part of the larger Convention Center Hotel Project,and the methodology for
verifying the actual costs of construction of the Public Areas shall be to multiply the actual
costs of construction of the Convention Center Hotel Project by the percentage of such
construction costs that are attributable to Public Areas(such percentage,the"Public Areas
Factor"). The Parent and Agency agree that, based on the approved plans for the
Convention Center Hotel Project as of the Effective Date, the Public Areas Factor is
28.62%, and the Public Areas Factor shall not be subject to revision except to the extent
the plans for the Convention Center Hotel Project are revised after the Effective Date and
the Agency reasonably concludes that such revisions are likely to reduce the cost to
construct the Public Areas relative to the cost to construct the balance of the Convention
Center Hotel Project. For the avoidance of doubt, the Parent may request that any such
documentation provided to the Agency in accordance with this paragraph be treated as
confidential,and exempt from public disclosure,to the extent that a valid exemption exists
pursuant to Chapter 119, Florida Statutes, and the Agency shall honor such claim to the
extent authorized by applicable law.
(b) Within ninety(90)days after issuance of a final certificate of occupancy for
the Convention Center Hotel, the Parent shall pay to the Agency an amount equal to the
Underbudget Amount, as a repayment of a portion of the Funded Grant Amount not
required by the Parent for its intended purpose (i.e., to facilitate the expeditious
development of the Convention Center Hotel) due to cost savings (whether or not
anticipated), the amount calculated as the greater of the following: (a) the amount of the
Project Budget minus the actual hard and soft costs (including, without limitation,
financing costs during construction)to develop and construct the Convention Center Hotel
or(b) the Funded Grant Amount minus the actual hard and soft costs (including, without
limitation, financing costs during construction) to develop construct the Public Areas of
the Convention Center Hotel(the amount so calculated, the"Underbudget Amount"). Any
such calculation resulting in a negative number shall be equal to zero. The Parent shall
provide written notice to the Agency advising of the Underbudget Amount and confirming
payment of the Underbudget Amount to the Agency. Parent's failure to pay the
Underbudget Amount, if any, as required by this subsection 4.01(b) shall constitute a
default under the Lease Agreement,and if such failure continues for a period of thirty(30)
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days after written notice thereof by City to Developer specifying such failure,such default
shall be an Event of Default under the Lease Agreement,but, for avoidance of doubt,shall
be subject to all rights of lenders under the Lease Agreement,including,without limitation,
the rights to receive notice of default,opportunity to cure and new lease rights.
Section 4.02. Payment Obligations of Agency. The Agency hereby agrees to pay to the
Bond Trustee by federal funds wire, in semi-annual installments (each, a "Semi-Annual
Installment"), due and payable on or before February 1 and August 1 of each calendar year(the
due date of such Semi-Annual Installment, the "Semi-Annual Installment Due Date"),
commencing August I, 2025 and ending on February 1, 2030, the amount due in accordance with
the payment schedule set forth in the Semi-Annual Installment Payment Schedule, as described
herein, from available Trust Fund Revenues as set forth in Section 4.03 hereof. The Parent and
the Agency acknowledge that, as of the Effective Date, the sum of the Payments, which include
the Funded Grant Amount plus the cost of issuance and interest accruing during the scheduled
repayment term is anticipated to equal the amount of $86,200,000.00 (the "Anticipated Total
Payment Amount"), but in any event shall not exceed the amount of $92,500,000.00 (the
"Maximum Total Payment Amount"). The Agency shall not have any liability for the Payments
in excess of the Maximum Total Payment Amount,payable in the Semi-Annual Installments stated
in the Semi-Annual Installment Payment Schedule,as described herein,due on each Semi-Annual
Installment Due Date, and, except as expressly provided in Sections 2.02 and 8.02 of this
Agreement, the Semi-Annual Installments as set forth in the Semi-Annual Installment Payment
Schedule, as described herein, shall not be subject to reduction, offset or repayment. The Parent
and the Agency acknowledge that the total Payments due from the Agency pursuant to this
Agreement may vary from the Anticipated Total Payment Amount (but will not exceed the
Maximum Total Payment Amount) based on changes in the interest rate and other applicable
financing costs between the Effective Date and the date that the Issuer issues the Bonds. In the
event the actual sum of the Payments exceeds the Anticipated Total Payment Amount, then for
each $3,000,000.00 paid by the Agency above the Anticipated Total Payment Amount, the Public
Benefits required to be provided by the Parent and/or the Developer pursuant to Section 3.02
above, including the Annual Fee and the In-Kind Public Benefits, shall be extended for a period
of five(5)years.The County may require and all parties hereto agree to cooperate fully and execute
any and all supplementary documents and to take all additional actions which may be necessary
or appropriate to give full force and effect to the basic terms and intent of the immediately
preceding sentence. At the earlier of(i) such time as the Bonds shall have been retired and all
principal amounts paid in full or(ii) the Payments have been paid in full by the Agency (taking
into account any credit for any Underbudget Amount), the obligation of the Agency to pay the
Payments shall terminate. Each Semi-Annual Installment shall be applied by the Bond Trustee to
pay the principal of and interest on the Bonds when due,the annual fees of the Issuer and the Bond
Trustee when due, and for such other purposes as shall be authorized pursuant to the Bond
Indenture.
Section 4.03. Security for Payments. The obligation of the Agency to make the
Payments as set forth in Section 4.02 shall be secured by and payable exclusively from available
Trust Fund Revenues, on a basis subordinate to the Agency Bonds, in the order of priority as set
forth in Section 3.04D(4) of the Agency Bonds Resolution. Such obligation to pay the Payments
shall constitute a "subordinated obligation" of the Agency as described in Section 304G of the
Agency Bonds Resolution and shall be junior, inferior and subordinate in all respects to Agency
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Bonds as to lien and source and security for payment from the Pledged Funds and in all other
respects. The interest rate applicable to the Payments as a"subordinated obligation"of the Agency
and on the Series 2025 Bonds shall not exceed the maximum interest rate permitted under Section
215.84,Florida Statutes, as amended.
Section 4.04. Issuance of Additional Parity Obligations or Additional Agency Bonds.
The Agency covenants and agrees that it will not issue or incur any additional Parity Obligations
or additional Agency Bonds except as provided in this Section 4.04. Additional Parity Obligations
or additional Agency Bonds may be issued or incurred by the Agency if the aggregate of the Trust
Fund Revenues (not including any portion thereof which may be attributable to investment
earnings)received by the Agency during the immediately preceding Fiscal Year were at least equal
to (I) one hundred fifty percent (150%) of the Maximum Annual Debt Service on the Agency
Bonds issued and then outstanding under the Agency Bonds Resolution and the additional Agency
Bonds then proposed to be issued, plus (2)one hundred percent(100%)of the Maximum Annual
Payments with respect to (A) the Payments, (B)any Parity Obligations then outstanding or
otherwise due and payable and(C) the additional Parity Obligations then proposed to be issued or
incurred.
The Agency need not comply with the above paragraph in the issuance of additional
Agency Bonds if and to the extent the Agency Bonds to be issued are refunding Agency Bonds,
that is, delivered in lieu of, in substitution for or for the redemption of Agency Bonds previously
issued under the Agency Bonds Resolution,if the Agency shall cause to be delivered a certificate
of the Executive Director of the Agency setting forth (i) the Maximum Annual Debt Service
(X)with respect to the Agency Bonds outstanding under the Agency Bonds Resolution
immediately prior to the date of authentication and delivery of such refunding Additional Agency
Bonds, and (Y) with respect to the Agency Bonds to be outstanding under the Agency Bonds
Resolution immediately thereafter, and (ii) that the Maximum Annual Debt Service set forth
pursuant to(Y)above is no greater than that set forth pursuant to(X)above.
Section 4.05. Issuance of Refunding Bonds. The Issuer may issue bonds to refund all or
a portion of the Series 2025 Bonds or any Bonds issued to refund all or a portion of the Series 2025
Bonds or other series of Bonds pursuant to the terms of the Bond Indenture only upon the written
agreement of all parties hereto to the issuance of such refunding bonds. As a condition for the
issuance of any such refunding bonds,the parties hereto shall enter into an amendment to the Semi-
Annual Installment Payment Schedule to reflect the semi-annual debt service payments with
respect to the Bonds outstanding,but in no event shall the revised payments exceed the payments
set forth in the Semi-Annual Installment Payment Schedule (as the same maybe have been
amended) immediately prior to the issuance of any such refunding bonds.
Section 4.06. Further Disclaimer. The Payments shall not be deemed to constitute a
debt, liability, or obligation of the City, the County, the Agency, or of the State of Florida or any
political subdivision thereof within the meaning of any constitutional or statutory limitation, or a
pledge of the faith and credit or taxing power of the City, the County, the Agency,or of the State
of Florida or any political subdivision thereof The Agency shall not be obligated to pay the
Payments or any installments except from available Trust Fund Revenues provided for that
purpose as set forth herein, and neither the faith and credit nor the taxing power of the City, the
County,the Agency or of the State of Florida or any political subdivision thereof is pledged to the
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payment of the Payments or any Semi-Annual Installment thereof. The Issuer, the Developer or
any person, firm or entity claiming by,through or under the Issuer or the Developer, or any other
person whomsoever, shall never have any right, directly or indirectly, to compel the exercise of
the ad valorem taxing power, or any other taxing power, of the City, the County, the Agency, or
of the State of Florida or any political subdivision thereof for the Payments or any Semi-Annual
Installment thereof. For the avoidance of doubt, the Agency has no taxing power.
Section 4.07. Semi-Annual Installment Payment Schedule. The Agency and County
shall reasonably approve the form of Semi-Annual Installment Payment Schedule prior to the
execution of the Bond Indenture. Following the issuance of the Bonds,Issuer,Parent,and Agency
shall deliver the Semi-Annual Installment Payment Schedule to County substantially in the form
previously approved by County;provided,however,for the avoidance of doubt,County shall have
no approval rights with respect to the Semi-Annual Installment Payment Schedule following the
issuance of the Bonds.
ARTICLE V
REPORTING
The Agency hereby covenants and agrees that it will comply with and carry out all of the
provisions of the Disclosure Dissemination Agent Agreement dated as of December 15, 2015
between the Agency and Digital Assurance Certification LLC, and any Disclosure Dissemination
Agent Agreement subsequently entered into by the Agency with respect to the Agency Bonds
(collectively, the "Disclosure Agreement") while any Payments are due and payable,
Notwithstanding any other provision of this Agreement, failure of the Agency to comply with the
Disclosure Agreement does not constitute a default by the Agency hereunder or with respect to the
Series 2025 Bonds.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Section 6.01. [RESERVED].
Section 6.02. The Parent's Representations,Warranties and Covenants. The Parent's
representations,warranties and covenants are made as of the date of this Agreement and as of the
date of delivery of the Series 2025 Bonds to the Agency and initial purchasers and survive the
issuance of the Bonds. The Parent's representations, warranties and covenants remain operative
and in full force and effect, regardless of any investigations by or on behalf of the Issuer or the
Agency or the results thereof, until termination of this Agreement pursuant to this Agreement's
terms. The Parent hereby makes the following representations, warranties and covenants, as the
basis for the undertakings on the part of the Parent herein contained:
(a) The Parent is a limited liability company duly organized and validly existing
under the laws of the State of Delaware,is authorized to do business and is in good standing
under the laws of the State of Florida,and is not in violation of any provisions of its Articles
of Organization, its operating agreement, or any laws of the State of Florida or the
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Constitution of the State of Florida relevant to the transactions contemplated hereby or in
connection with the issuance of the Bonds.
(b) The Parent has full legal power and authority to execute and deliver this
Agreement and full company power and authority to approve the execution and delivery
of the Series 2025 Bonds and of the Bond Indenture, and has, by proper company action,
duly authorized the execution and delivery of such instruments.
(c) Neither the execution and delivery of this Agreement, the execution and
delivery by the Developer of the Lease Agreement, the consummation of the transactions
contemplated hereby and thereby, nor the fulfillment of or compliance with the terms and
conditions of this Agreement or the Lease Agreement conflict with or result in a breach of
the terms, conditions, or provisions of any company restriction or any agreement or
instrument to which the Parent or the Developer is now a party or by which either is bound,
or constitutes a default under any of the foregoing, or results in the creation or imposition
of any prohibited lien, charge, or encumbrance whatsoever upon any of the property or
assets of the Parent or the Developer under the terms of any instrument or agreement.
(d) Any certificate with respect to any material factual or financial matters
signed by a Parent Representative and delivered to the Issuer or the Agency in connection
with this Agreement or the Lease Agreement shall be deemed a representation and warranty
by the Parent as to the statements made therein.
(e) Neither the Parent nor the Developer is in breach of or in default under any
constitutional provision,applicable law(including,without limitation,the Redevelopment
Act)or administrative rule or regulation of the State of Florida,the United States,or of any
department,division,agency or instrumentality of either thereof or any applicable court or
administrative decree or order, or the Lease Agreement, note, ordinance, resolution,
indenture,contract,agreement or other instrument to which the Parent or the Developer,as
applicable,is a party or to which the Parent or the Developer,as applicable,or any property
or assets of the Parent or the Developer,as applicable,is otherwise subject or bound which
in any material way,directly or indirectly,affects the Parent's entering into this Agreement
or the Developer entering into the Lease Agreement,or the validity thereof,the validity or
adoption of the resolution authorizing Parent to enter into this Agreement or the Developer
to enter into the Lease Agreement,the execution and delivery of this Agreement,the Lease
Agreement or other instruments contemplated thereby to which the Parent or the
Developer, as applicable, is a party, and compliance with the provisions of each thereof
will not conflict with or constitute a breach of or default under any constitutional provision,
applicable law (including, without limitation, the Redevelopment Act) or administrative
rule or regulation of the State of Florida,the United States, or of any department, division,
agency or instrumentality of either thereof,or any applicable court or administrative decree
or order, or any agreement, note, ordinance, resolution, indenture, contract, agreement or
other instrument to which the Parent or the Developer, as applicable,is a party or to which
the Parent or the Developer, as applicable,or any of the property or assets of the Parent or
Developer is otherwise subject or bound.
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(t) The conduct of the Parent's operations and the condition of any property it
owns does not and will not cause a violation of any federal laws, rules or ordinances or
environmental protection regulations of the Environmental Protection Agency and any
applicable local or State of Florida law, rule or regulation of common law or any judicial
interpretation thereof relating primarily to environment or hazardous materials.
(g) The Parent shall not amend,supplement,or restate or permit this Agreement
to be amended excepted as permitted in the Bond Indenture.
(h) (i) This Agreement and the other Bond Documents to which Parent is a
party when the Series 2025 Bonds are issued, will constitute the legal, valid and binding
agreements of the Parent enforceable against the Parent in accordance with their terms,
including, without limitation, by the Bond Trustee for the benefit of the owners of the
Bonds, and (ii) the agreements, obligations, and undertakings of the Parent in respect of
the Unassigned Rights constitute the legal, valid, and binding agreements of the Parent
enforceable against the Parent by the Issuer in its own right, or, in the case of the rights of
any Issuer Indemnified Person (including, without limitation, the right of any Issuer
Indemnified Person to indemnification and immunity from liability), by such Issuer
Indemnified Person in his, her or its own right in accordance with their respective terms,
subject to applicable bankruptcy, insolvency and similar laws affecting creditors' rights
generally, and subject, as to enforceability, to general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law).
(i) No written information, exhibit or report furnished to the Issuer by the
Parent in its application for financing or prepared by the Parent or the Developer in
connection with the negotiation of this Agreement or the Bond Documents, regardless of
whether the Issuer is a party thereto, and the issuance of the Series 2025 Bonds(including,
without limitation, any financial statements,whether audited or unaudited, and any other
financial information provided in connection therewith)contains any untrue statement of a
material fact or omits to state a material fact required to be stated therein or necessary to
make the statements therein,in the light of the circumstances under which they were made,
not misleading;provided however that the representation and warranty made in this Section
6.02(i) is made only to the Issuer and may not be relied upon by any other Person.
(j) No written information, exhibit or report furnished to the Agency by the
Parent or prepared by the Parent or the Developer in connection with the negotiation of this
Agreement or the Bond Documents, regardless of whether the Agency is a party thereto,
and the issuance of the Series 2025 Bonds (including, without limitation, any financial
statements,whether audited or unaudited, and any other financial information provided in
connection therewith) contains any untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading; provided
however that the representation and warranty made in this Section 6.02(j) is made only to
the Agency and may not be relied upon by any other Person.
(k) There are no actions, suits or proceedings of any type whatsoever pending
or, to its knowledge, threatened in writing against or affecting it or its assets,properties or
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operations which,if determined adversely to it or its interests,would have an adverse effect
in any material respect upon its financial condition,assets,properties or operations,or upon
its ability to perform its obligations under this Agreement, or upon the validity or
enforceability of any or all of this Agreement or the Lease Agreement, and to its best
knowledge, after reasonable diligence, it is not in default with respect to any order or
decree of any court or any order, regulation or decree of any federal, state, municipal or
other governmental agency, which default would adversely affect in any material respect
its operations or its properties or its ability to perform it obligations under this Agreement.
(I) Neither the representations of the Parent contained herein nor any written
statement, furnished by or on behalf of the Parent to the Issuer, the Agency or the
purchasers of the Bonds in connection with the transactions contemplated hereby, contain
any untrue statement of a material fact or omit to state a material fact necessary to make
the statements contained herein or therein, in light of the circumstances under which they
were made,not misleading.
(m) The Parent (i) understands the nature of the structure of the transactions
related to this Agreement, and(ii) is familiar with all the provisions of the documents and
instruments related to the Convention Center Hotel, the Convention Center Hotel Project
and any financing to which the Parent, the Developer or the Issuer is a party or of which
the Parent or the Developer is a beneficiary.
(n) All representations of the Parent contained herein and all representations of
the Developer contained in the Lease Agreement, or in connection with the transactions
contemplated hereby or thereby, shall survive the expiration or termination of this
Agreement as representations of facts existing as of the date of the execution and delivery
of the instrument containing such representation.
(o) The Parent shall not take any action to prevent, and shall cause the
Developer to diligently take all steps necessary to achieve,the Completion of Construction
in a timely manner and in accordance with all applicable requirements of law, including
requirements of any federal, state, county, city or other governmental authority having
jurisdiction over the Convention Center Hotel or its ownership,use and operation.
(p) Neither the developer fee for any other line item included in the Project
Budget includes any direct or indirect profit to the Developer, the Parent, or any Affiliate
of either and represents only actual overhead costs without any additional mark-up of any
kind.
(q) The Parent shall comply with all terms and conditions herein,including any
restrictions on the use of the proceeds of the Grant.
Section 6.03. The Issuer's Representations and Covenants. The Issuer's
representations and covenants are made as of the date of this Agreement and as of the date of
delivery of the Series 2025 Bonds to the Agency and survive the issuance of the Bonds. The
Issuer's representations and covenants remain operative and in full force and effect until
termination of this Agreement pursuant to this Agreement's terms. The Issuer hereby makes the
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following representations and covenants, as the basis for the undertakings on the part of the Issuer
herein contained:
(a) The Issuer is a joint powers commission under the Act, the "commission"
under Section 66.0304 of the Wisconsin Statutes, and a unit of government and body
corporate and politic organized and existing under the laws of the State of Wisconsin.
(b) The Issuer has full power and authority under the Act to adopt the Bond
Resolution,to enter into and to perform its obligations under the Bond Documents to which
it is a party, to execute and deliver the Series 2025 Bonds and to finance the payment of
the Grant for the payment of constructing the Public Areas of the Convention Center Hotel.
(c) The execution and delivery of this Agreement, the Series 2025 Bonds, the
Bond Indenture and the other Bond Documents to which it is a party,the consummation of
the transactions contemplated hereby and thereby, and the fulfillment of or compliance
with the terms and conditions of this Agreement, the Bond Indenture and the other Bond
Documents to which it is a party will neither (i) materially conflict with or constitute a
material breach of or default under(A)the terms,conditions,or provisions of any corporate
restriction or any agreement or instrument to which the Issuer is now a party or by which
it is bound,or constitutes a default under any of the foregoing, or(B) any applicable State
of Wisconsin or federal law, administrative regulation,judgment or decree, nor (ii)result
in the creation or imposition of any prohibited lien, charge, or encumbrance whatsoever
upon any of the property or assets of the Issuer under the terms of any instrument or
agreement or State of Wisconsin or federal law, administrative regulation,judgment or
decree, except as provided by the Bond Documents.
(d) Any certificate with respect to any material factual or financial matters
signed by an Authorized Signatory and delivered to the Parent or the Agency in connection
with this Agreement or the Bond Indenture shall be deemed a representation by the Issuer
as to the statements made therein.
(e) The Issuer shall not amend,supplement,or restate or permit this Agreement
to be amended excepted as permitted in the Bond Indenture.
(t) When executed and delivered by the respective parties thereto, this
Agreement,the Bond Indenture, the other Bond Documents to which it is a party and the
Series 2025 Bonds will constitute the legal, valid and binding agreements of the Issuer
enforceable against the Issuer in accordance with their terms, except as the enforcement
thereof may be limited by applicable bankruptcy,insolvency,reorganization,arrangement,
fraudulent conveyance, moratorium and similar laws relating to or affecting creditors'
rights, by the application of equitable principles, by the exercise of judicial discretion in
appropriate cases, and by the limitation on legal remedies against joint powers
commissions or governmental units of the State of Wisconsin.
Section 6.04. The Agency's Representations, Warranties and Covenants. The
Agency's representations,warranties and covenants are made as of the date of this Agreement and
as of the date of delivery of the Series 2025 Bonds to the Parent and the Issuer and survive the
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issuance of the Bonds. The Agency's representations,warranties and covenants remain operative
and in full force and effect until expiration or termination of this Agreement pursuant to this
Agreement's terms,and regardless of any investigations by or on behalf of the Issuer or the Parent
or the results thereof The Agency hereby makes the following representations, warranties and
covenants, as the basis for the undertakings on the part of the Agency herein contained:
(a) The Agency is a community redevelopment agency duly organized and
validly existing under the laws of the State of Florida, is authorized to do business and is
in good standing under the laws of the State of Florida, and is not in violation of any
provisions of any laws of the State of Florida or the Constitution of the State of Florida
relevant to the transactions contemplated hereby.
(b) The Agency has full corporate power and authority to execute and deliver
this Agreement, and has, by proper corporate action, duly authorized the execution and
delivery of this Agreement.
(c) Neither the execution and delivery of this Agreement,the consummation of
the transactions contemplated hereby, nor the fulfillment of or compliance with the terms
and conditions of this Agreement conflict with or result in a breach of the terms,conditions,
or provisions of any corporate restriction or any agreement or instrument to which the
Agency is now a party or by which it is bound, or constitutes a default under any of the
foregoing, or results in the creation or imposition of any prohibited lien, charge, or
encumbrance whatsoever upon any of the property or assets of the Agency under the terms
of any instrument or agreement.
(d) Any certificate with respect to any material factual or financial matters
signed by the Executive Director and delivered to the Issuer or the Parent in connection
with this Agreement shall be deemed a representation and warranty by the Agency as to
the statements made therein.
(e) The Agency is not in breach of or in default under any constitutional
provision, applicable law (including, without limitation, the Redevelopment Act) or
administrative rule or regulation of the State of Florida, the United States, or of any
department,division, agency or instrumentality of either thereof or any applicable court or
administrative decree or order, or any agreement, note, ordinance, resolution, indenture,
contract, agreement or other instrument to which the Agency is a party or to which the
Agency or any property or assets of the Agency is otherwise subject or bound which in any
material way, directly or indirectly, affects the Agency's entering into this Agreement, or
the validity thereof, the validity or adoption of the resolution authorizing Agency to enter
into this Agreement, the execution and delivery of this Agreement or other instruments
contemplated thereby to which the Agency is a party, and compliance with the provisions
of each thereof will not conflict with or constitute a breach of or default under any
constitutional provision,applicable law(including, without limitation, the Redevelopment
Act)or administrative rule or regulation of the State of Florida,the United States,or of any
department, division, agency or instrumentality of either thereof, or any applicable court
or administrative decree or order,or any agreement,note,ordinance,resolution, indenture,
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contract, agreement or other instrument to which the Agency is a party or to which the
Agency or any of the property or assets of the Agency is otherwise subject or bound.
(f) This Agreement constitutes the legal, valid and binding agreement of the
Agency enforceable against the Agency in accordance with their terms, including,without
limitation, by the Bond Trustee for the benefit of the owners of the Bonds, subject to
applicable bankruptcy, insolvency and similar laws affecting creditors' rights generally,
and subject, as to enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law).
For the avoidance of doubt, the Agency makes no representations or warranties with
respect to the Bonds or the Bond Indenture,including,without limitation,the exclusion from gross
income for federal income tax purposes of interest on the Bonds or any state of local tax exemption
related to the Bonds or interest thereon,to the extent applicable to the Bonds.
ARTICLE VII
INDEMNIFICATION OF ISSUER; LIMITED OBLIGATION OF ISSUER
Section 7.01. Indemnification. The Parent hereby fully and forever and irrevocably
releases and,to the fullest extent permitted by law,agrees to defend,indemnify and hold harmless
the Issuer, each Issuer Indemnified Person, the Agency, the holders of the Bonds and the Bond
Trustee (collectively, the "Indemnified Persons"), against any and all fees, costs and charges,
losses, damages, claims, actions, liabilities and expenses of any conceivable nature, kind or
character (including,without limitation, fees and expenses of attorneys, accountants, consultants
and other experts, litigation and court costs, amounts paid in settlement and amounts paid to
discharge judgments)to which the Indemnified Persons,or any of them,become subject under any
statutory law or regulation (including federal or state securities laws and regulations and federal
tax laws and regulations) or at common law or otherwise (collectively, "Liabilities"), arising out
of or based upon or in any way relating to any of the following, except to the extent caused by
such Issuer or Issuer Indemnified Persons' willful misconduct,or any other Indemnified Person's
gross negligence or willful misconduct:
(a) the Bonds, the Bond Indenture,this Agreement, and the Bond Documents,
and the execution or amendment hereof or thereof or in connection with transactions
contemplated hereby or thereby, including the issuance, sale or resale of the Bonds;
(b) the performance or observance by or on behalf of the Issuer of those things
on the part of the Issuer agreed to be performed or observed hereunder and under the Bond
Indenture and the documents identified in Subsection(a), above;
(c) any act or omission (to the extent there is an affirmative duty to act) of the
Parent or the Developer or any of their respective affiliates or affiliated persons, agents,
contractors, servants, employees, tenants or licensees in connection with the Convention
Center Hotel Project, the operation of the Convention Center Hotel, or the condition,
environmental or otherwise,occupancy, use,possession, conduct or management of work
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done in or about, or from the planning,design, acquisition, installation or construction of,
the Convention Center Hotel or any part thereof;
(d) any lien or charge upon payments by the Parent or the Developer to the
Issuer, the owner of the Bonds or the Bond Trustee hereunder, or any taxes (including,
without limitation,all ad valorem taxes and sales taxes),assessments,impositions and other
charges imposed on the Issuer, the owner of the Bonds or the Bond Trustee in respect of
any portion of the Convention Center Hotel;
(e) any violation of any environmental laws with respect to, or the release of
any hazardous substances from,the Convention Center Hotel or any part thereof;
(f) the defeasance and/or redemption, in whole or in part, of the Bonds;
(g) to the extent any offering or disclosure document or other disclosure
(including any continuing disclosure document) is prepared in connection with the Bonds,
any untrue statement or misleading statement or alleged untrue statement or alleged
misleading statement of a material fact contained in any offering or disclosure document
or disclosure or continuing disclosure document for the Bonds or any of the documents
relating to the Bonds,or any omission or alleged omission from any offering or disclosure
document or disclosure or continuing disclosure document for the Bonds of any material
fact necessary to be stated therein in order to make the statements made therein,in the light
of the circumstances under which they were made,not misleading;
(h) any investigation or formal or informal inquiry by any federal,state,or local
governmental or regulatory agency (including, but not limited to, the U.S. Securities &
Exchange Commission)with respect to the Bonds or the transactions contemplated by this
Agreement and the Bond Documents or in connection therewith;
(i) any third-party request to the Issuer for documents or information regarding
the Bonds, this Agreement or related documents or transactions pursuant to the Federal
Freedom of Information Act("FOIA"), the Wisconsin Public Records Law(Wis. Stat. §§
19.21,et. seq.),or any applicable public records act, in each case to the extent not paid by
the requesting party;
(j) the Bond Trustee's acceptance or administration of the trust of the Bond
Indenture,or the exercise or performance of any of its powers or duties thereunder or under
any of the documents relating to the Bonds to which it is a party;
(k) any audit, inquiry, investigation, or proceeding instituted or threatened by
any state or federal governmental entity, agency, board, commission, or regulatory body,
relating in any way to or arising in any way from the matters referred to in this Section 7.01;
or
(I) any injury to or death of any Person or damage to property in or upon the
Convention Center Hotel or growing out of or connected with the use, nonuse, condition
or occupancy of the Convention Center Hotel.
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THE PARENT EXPRESSLY ACKNOWLEDGES AND AGREES
THAT THE ISSUER AND THE ISSUER INDEMNIFIED PERSONS
SHALL BE RELEASED FROM, AND INDEMNIFIED
HEREUNDER AGAINST, LIABILITIES ARISING FROM THE
ISSUER'S OR ANY ISSUER INDEMNIFIED PERSONS' OWN
NEGLIGENCE OF ANY KIND, DESCRIPTION OR DEGREE
(WITHOUT REGARD TO THE PROVISIONS OF SECTION 895.045
OF THE WISCONSIN STATUTES AND THE STATUTORY OR
COMMON-LAW CONTRIBUTORY OR COMPARATIVE
NEGLIGENCE LAWS OF ANY OTHER STATE OR
JURISDICTION), OR BREACH OF CONTRACTUAL DUTY,
WITHOUT REGARD TO OR THE NECESSITY OF ANY BREACH
OR FAULT ON THE PART OF PARENT OR ANY OTHER
PERSON, EXCEPT INSOFAR AS AND TO THE EXTENT THAT
ANY SUCH LIABILITIES ARISE FROM THE WILLFUL
MISCONDUCT OF THE PERSON SEEKING INDEMNIFICATION.
The Parent will also pay and discharge and will indemnify and hold harmless the
Indemnified Persons from any lien or charge upon payments by the Parent to the Indemnified
Persons hereunder. If any such lien or charge upon payments, taxes,assessments,impositions, or
other charges are sought to be imposed, the Indemnified Persons will give or cause to be given
prompt notice to the Parent, and the Parent shall have the sole right and duty to assume, and will
assume,the defense thereof,with full power to litigate, compromise, or settle the same in its sole
discretion.
In the event that any action or proceeding is brought against any Indemnified Persons with
respect to which indemnity may be sought hereunder, the Parent, upon written notice from the
Indemnified Persons, shall assume the investigation and defense thereof; including the
employment of counsel selected by the Parent with the consent of the Indemnified Persons,which
consent shall not be unreasonably withheld, and shall assume the payment of all expenses related
thereto, with full power to litigate, compromise or settle the same in its sole discretion; provided
that the Indemnified Persons shall have the right to review and approve or disapprove any such
compromise or settlement, which shall not be unreasonably withheld. Each Indemnified Person
shall have the right to employ separate counsel in any such action or proceeding and participate in
the investigation and defense thereof The Parent shall pay the fees and expenses of such separate
counsel; provided, however, that such Indemnified Persons may only employ separate counsel at
the expense of the Parent if in the judgment of such Indemnified Person a conflict of interest exists
by reason of common representation.
In no event shall Parent be liable for any special,consequential,treble or punitive damages
(but expressly excluding any consequential,punitive,special or other indirect damages if any third
party makes any claim or demand upon Indemnified Persons for damages on account of
consequential,punitive, special or other indirect damages).
The rights of any Indemnified Persons to indemnity hereunder and rights to payment of
fees and reimbursement of expenses shall survive the final payment or defeasance of the Bonds
and in the case of the Bond Trustee any resignation or removal as Bond Trustee under the Bond
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Indenture. The provisions of this Section shall remain valid and in effect notwithstanding payment
in full of the Payments hereunder or payment, redemption or defeasance of the Bonds or
termination of this Agreement or the Bond Indenture.
INSOFAR AS ANY DOCUMENT OR INSTRUMENT ISSUED OR DELIVERED
IN CONNECTION WITH THE BONDS (INCLUDING, WITHOUT LIMITATION, THE
DOCUMENTS REFERRED TO IN SUBSECTION (A), ABOVE) PURPORTS TO
CONSTITUTE AN UNDERTAKING BY, OR IMPOSE AN OBLIGATION UPON, THE
PARENT TO PROVIDE INDEMNIFICATION TO THE INDEMNIFIED PERSONS,THE
INDEMNIFICATION PROVISION OR PROVISIONS OF SUCH DOCUMENT SHALL
NOT BE DEEMED, INTERPRETED OR CONSTRUED IN ANY WAY AS A
MODIFICATION OF OR LIMITATION UPON THE PARENT'S OBLIGATIONS OR
THE RIGHTS OF THE INDEMNIFIED PERSONS UNDER THIS SECTION 7.01 AND
THE PROVISIONS OF THIS SECTION 7.01 SHALL IN EVERY RESPECT SUPERSEDE
THE INDEMNIFICATION PROVISIONS OF ANY SUCH OTHER DOCUMENT AND
SHALL APPLY THERETO AS IF FULLY SET FORTH THEREIN.
Section 7.02. Non-Liability of Issuer. Notwithstanding anything to the contrary in this
Agreement or any other document or instrument to which Issuer is a party, whether express or by
implication or construction or interpretation or otherwise, Developer, Parent and Agency each
acknowledges and agrees that NEITHER ISSUER NOR ANY ISSUER INDEMNIFIED PERSON
SHALL BE liable or obligated in any manner under this Agreement or otherwise to pay or cause
to be paid any fees, expenses or reimbursements or to make any other payments or advance funds
under this Agreement or otherwise, or incur or cause to be incurred any expense in pursuing any
course of action,in connection with the Convention Center Hotel Projector any other matter within
the scope of or contemplated by this Agreement or be liable (directly, indirectly, contingently or
otherwise)for any claims, actions, proceedings, losses, costs or expenses of any conceivable kind
on any conceivable theory,under or by any reason of or in connection with or in any way related
to this Agreement,the Bonds or the Bond Indenture or any other document or instrument to which
Issuer is a party related to the Convention Center Hotel Project, its financing, development,
operation, management or otherwise, EXCEPT ONLY TO THE EXTENT that the Bonds are
issued and amounts are received for the payment thereof from the Parent under this Agreement or
from the Trust Estate (as defined in the Bond Indenture) and available therefor as expressly set
forth hereunder and in accordance with the Bond Indenture,and provided,that Issuer shall not be
required to incur any expense or liability in pursuing any claim against such moneys for the benefit
of Parent or any other Person. Neither the faith and credit nor the taxing power of any Sponsor,
any Member, the State of Wisconsin or any other political subdivision or agency thereof or any
political subdivision approving the issuance of the Bonds, nor the faith and credit of the Issuer, is
pledged to the payment of the principal of,premium, if any,or interest on the Bonds or any costs
incidental thereto. The Issuer has no taxing power.
Parent further acknowledges and agrees that it must adhere to the provisions hereof and of
the Bond Indenture in requesting disbursements from Funded Grant Amount held by the Bond
Trustee for the Grant and to the extent that funds are available therefor under the priority of
payments set forth in the Bond Indenture. Parent hereby acknowledges that the Issuer's sole source
of moneys to repay the Bonds arc the Payments to be made by the Agency hereunder.
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Section 7.03. Issuer's Performance.
(a) None of the provisions of this Agreement or the Bond Indenture shall
require Issuer to expend or risk its own funds or otherwise to incur financial liability in the
performance of any of its duties or in the exercise of any of its rights or powers hereunder
or thereunder,unless payable from the Trust Estate(as defined in the Bond Indenture),or
unless Issuer shall first have been adequately indemnified to its satisfaction against the
cost, expense, and liability which may be incurred thereby. Issuer shall not be under any
obligation hereunder or under the Bond Indenture to perform any administrative service
with respect to the Bonds, the Grant, or the Convention Center Hotel Project(including,
without limitation, record keeping and legal services), it being understood that such
services shall be performed or provided by the Bond Trustee or the Parent. Issuer
covenants that it will faithfully perform at all times any and all covenants, undertakings,
stipulations, and provisions expressly contained in this Agreement, the Bond Indenture,
and any and every Bond executed, authenticated and delivered under the Bond Indenture
(including without limitation, the application of the proceeds of the Series 2025 Bonds
solely to pay costs of issuance of the Series 2025 Bonds and to make the Grant in
accordance with the Bond Indenture);provided,however,that Issuer shall not be obligated
to take any action or execute any instrument pursuant to any provision hereof unless and
until it shall have (i) been directed to do so in writing by the Parent, the Bond Trustee, or
the Agency having the authority to so direct; (ii)received from the Person requesting such
action or execution assurance satisfactory to Issuer that Issuer's expenses incurred or to be
incurred in connection with taking such action or executing such instrument have been or
will be paid or reimbursed to Issuer;and(iii)if applicable,received in a timely manner the
instrument or document to be executed, in form and substance satisfactory to Issuer.
(b) In complying with any provision herein or in the Bond Indenture, including
but not limited to any provision requiring Issuer to "cause"another Person to take or omit
any action, Issuer shall be entitled to rely conclusively (and without independent
investigation or verification) (1) on the faithful performance by the Bond Trustee, the
Agency, or the Parent, as the case may be, of their respective obligations hereunder and,
with respect to the Bond Trustee or the Parent, as the case may be, under the Bond
Indenture; and(ii)upon any written certification or opinion furnished to Issuer by the Bond
Trustee,Agency,or the Parent,as the case may be. In acting,or in refraining from acting,
under this Agreement, Issuer may conclusively rely on the advice of its counsel. Issuer
shall not be required to take any action hereunder or under the Bond Indenture that it
reasonably believes to be unlawful or in contravention hereof or thereof.
Section 7.04. Waiver of Personal Liability. No Issuer Indemnified Person shall be
individually or personally liable for the payment of any principal of,premium, if any, or interest
on the Bonds or any costs incidental thereto or any sum hereunder or under the Bond Indenture or
be subject to any personal liability or accountability by reason of the execution and delivery of this
Agreement or the Bond Indenture,or any other Bond Document to which the Issuer is a party.
Section 7.05. No Impairment of Rights. Nothing herein shall be deemed or construed
to limit, impair or affect in any way the Issuer's (or any Issuer Indemnified Person's) right to
enforce the Unassigned Rights, regardless of whether there is then existing an Event of Default
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(including, without limitation, a payment default), or any action based thereon or occasioned by
an Event of Default or alleged Event of Default, and regardless of any waiver or forbearance
granted by the Bond Trustee or any Bond Owner in respect thereof. Any default or Event of
Default in respect of the Unassigned Rights may only be waived with Issuer's written consent.
Section 7.06. No Obligation to Enforce Assigned Rights. Notwithstanding anything to
the contrary in this Agreement or the Bond Indenture, the Issuer shall have no obligation to and
instead the Bond Trustee,in accordance with the Bond Indenture,shall have the sole and exclusive
right, without any notice to, direction from, or action by the Issuer (unless otherwise expressly
required hereby), to take any and all steps, actions and proceedings,to enforce any or all rights of
the Issuer (other than the Unassigned Rights) under this Agreement or the Bond Indenture,
including without limitation, the rights to enforce the remedies upon the occurrence and
continuation of an Event of Default and the obligations of the Parent under this Agreement.
ARTICLE VIII
DEFAULTS AND REMEDIES
Section 8.01. Event of Default. An"Event of Default"under this Agreement shall consist
of the breach of any covenant, agreement,representation,provision,or warranty(that has not been
cured prior to the expiration of any applicable grace period or notice and cure period contained in
this Agreement or such other documents, as applicable) contained in this Agreement; provided,
however,that it is expressly agreed by the parties that no failure by the Developer to comply with
the Lease Agreement shall constitute or give rise to an "Event of Default" hereunder, it being
acknowledged by each party hereto that the sole remedy for any such failure shall be as set forth
in the Lease Agreement.
Section 8.02. Remedies. Upon the occurrence of any Event of Default by or with respect
to one of the parties hereto (the "Defaulting Party"), each of the other parties hereto (the `Non-
Defaulting Party")shall have the right(exercisable by the giving of written notice to the Defaulting
Party)to pursue all remedies available to the Non-Defaulting Party under applicable law as a result
of such Event of Default (provided however that so long as any Bonds are outstanding under the
Bond Indenture, termination of this Agreement shall not be a remedy available to the Non-
Defaulting Party), if the Defaulting Party fails to remedy such Event of Default within five (5)
days after its receipt of notice to remedy if such default relates to the payment of a sum of money
and, in all other cases, within thirty (30) days after its receipt of notice to remedy; provided,
however, that if such Event of Default be of a non-monetary nature and if it cannot reasonably be
remedied within said thirty(30)day period,then such thirty(30)day period shall be deemed to be
extended for such additional period as may reasonably be required to remedy the same if the
Defaulting Party shall promptly commence to remedy upon receipt of notice from the Non-
Defaulting Party and shall continue therewith with due diligence. Notwithstanding the foregoing,
upon the occurrence and continuance of an Event of Default by the Parent or the Issuer,the Agency
shall not have available as a remedy withholding or reducing the Semi-Annual Installment
Payments. The Agency hereby acknowledges that the Agency shall continue to have the obligation
to timely pay the Semi-Annual Installment Payments in full to the Bond Trustee regardless of the
occurrence or continuance of any Event of Default hereunder. Notwithstanding the foregoing, if
the Issuer or the Bond Trustee fails to make the Grant available to Parent as contemplated herein
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and in the Bond Indenture,the Agency shall have the right to refrain from making the Semi-Annual
Installment Payments;provided further that the Series 2025 Bonds shall not be issued by the Issuer
until the Issuer and the Bond Trustee simultaneously make the Grant available to the Parent as
contemplated herein and in the Bond Indenture. The Parent hereby agrees that upon the occurrence
and continuance of an Event of Default by the Agency hereunder,the Parent will pay all reasonable
fees and expenses of the Bond Trustee and the holders of the Bonds that result from enforcing this
Agreement,which fees and expenses shall be payable on demand.
Section 8.03.No Acceleration;Failure to Timely Make Payments. In no event shall the
Payments be subject to acceleration for any reason. In the event the Agency fails to timely make
any Payments from available Trust Fund Revenues when due, Parent shall pay directly to the
holder of the Series 2025 Bonds an amount equal to the interest on the untimely Payments,
compounding on each Payment Date until paid, calculated at an interest rate per annum equal to
(X) the then applicable prejudgment default rate as defined by Section 55.03 of the Florida
Statutes, less (Y) the interest rate of the Series 2025 Bonds. This Section 8.03 shall not be
construed to limit the rights of any Non-Defaulting Party or third-party beneficiary under Section
8.02 to pursue all remedies available at law or equity in the event of an uncured Event of Default
by the Agency nor to limit or waive any defenses or counterclaims available to the Agency.
Section 8.04. Liens, Security Interests. The Agency and the Bond Trustee agree and
acknowledge that this Agreement does not create any lien on or security interest in the Convention
Center Hotel, including, without limitation, the leasehold estate under the Lease Agreement.
ARTICLE IX
GENERAL PROVISIONS
Section 9.01. Non-liability of Agency Officials. No member,official or employee of the
Agency shall be personally liable to the Parent, the Developer, to the Issuer or to any person or
entity with whom the Parent, the Developer or the Issuer shall have entered into any contract, or
to any other Person, in the event of any default or breach by the Agency,or for any amount which
may become due to the Parent, the Developer, the Issuer or any other person or entity under the
terms of this Agreement.
Section 9.02. Force Majeure. No party, to this Agreement shall be deemed in default
hereunder where such a default is based on a delay in performance as a result of a"Force Majeure
Event" as such term is defined in the Lease Agreement; provided, however, that the extension of
time granted for any delay caused by any of the foregoing shall not exceed the actual period of
such delay.
Section 9.03. Notices. All notices to be given hereunder shall be in writing and personally
delivered or delivered by an air courier service utilizing return receipts to the parties at the
following addresses (or to such other or further addresses as the parties may designate by like
notice similarly sent) and such notices shall be deemed given and received for all purposes under
this Agreement on the date actually received if sent by personal delivery or air courier service,
except that notice of a change in address shall be effective only upon receipt.
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to Agency: Miami Beach Redevelopment Agency
1700 Convention Center Drive
Miami Beach,Florida 33139
Telephone: (305)673-7000
E-mail: ericcarpenter@miamibeachfl.gov
Attention: Executive Director
with copy to:
Miami Beach Redevelopment Agency
1700 Convention Center Drive
Miami Beach, Florida 33139
Tel: (305)673-7470
E-mail: RicardoDopico@miamibeachfl.gov
Attention: General Counsel
to Parent: MB Mixed Use Investment Company I, LLC
3310 Mary Street, Suite 302
Coconut Grove, Florida 33133
Telephone: (305)416-4556
E-mail: dmartin@terragroup.com
Attention: David Martin
with copy to:
Gangemi Law Group, PLLC
3310 Mary Street, Suite 303
Miami, Florida 33133
Attention: Laura Gangemi Vignola
to Issuer: Public Finance Authority
22 East Mifflin Street, Suite 900
Madison, Wisconsin 53703
Attention: Scott Carper and Michael LaPierre
to holder of
Series 2025 Bonds: PNC Bank
16740 San Carlos Boulevard
Fort Myers, Florida 33908
Telephone: (239)437-3736
E-mail: Nicholas.ayotte@pnc.com
Attention: Nick Ayotte, Senior Vice President, Public
Finance
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to County: Miami-Dade County
Ill NW 1st Street, 22nd Floor
Miami,Florida 33128
Telephone: (305) 375-5143
E-mail: David.Clodfelter@miamidade.gov
Attention: Chief Budget Officer&Director,
Office of Management&Budget
To City: City of Miami Beach
1700 Convention Center Drive
Miami Beach,Florida 33139
Attention: City Manager
Section 9.04. Time. Time is of the essence in the performance by any party of its
obligations hereunder.
Section 9.05. Entire Agreement. This Agreement constitutes the entire understanding
and agreement between the parties and supersedes all prior negotiations and agreements between
them with respect to all or any of the matters contained herein.
Section 9.06. Amendment. This Agreement may be amended by the parties hereto only
upon the execution of a written amendment or modification signed by the parties. Notwithstanding
the foregoing, the Executive Director of the Agency is authorized to approve, in his or her sole
discretion, any"technical" changes to this Agreement. Such`technical"changes include without
limitation non-material modifications to legal descriptions and surveys, ingress and egress, and
easements and rights of way,as long as such modifications do not involve any financial obligation
or liability to the Agency or the City. For the avoidance of doubt, nothing herein shall preclude
the Executive Director, in his or her reasonable discretion, from seeking direction from the Board,
or electing to have the Board determine, any matter arising out of or related to this Agreement,
including,without limitation,the approval of any proposed"technical"changes to this Agreement.
Section 9.07. Waivers. Except as otherwise provided herein,all waivers,amendments or
modifications of this Agreement must be in writing and signed by all parties. Any failures or
delays by any party in insisting upon strict performance of the provisions hereof or asserting any
of its rights and remedies as to any default shall not constitute a waiver of any other default or of
any such rights or remedies. Except with respect to rights and remedies expressly declared to be
exclusive in this Agreement, the rights and remedies of the parties hereto are cumulative, and the
exercise by any party of one or more of such rights or remedies shall not preclude the exercise by
it,at the same or different times, of any other rights or remedies for the same default or any other
default by any other party.
Section 9.08. Indemnification of Agency. The indemnification in this Section 9.08,shall
not apply to any loss, claim,action,damage, injury, liability,cost and expense of whatsoever kind
or nature(including without limitation attorneys' fees and costs)related to any demands,suits and
actions covered in Section 7.01 herein.
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The Parent shall indemnify, hold harmless and defend the Agency from and against any
loss, claim, action, damage, injury, liability, cost, and expense of whatsoever kind or nature
(including without limitation attorneys' fees and costs) related to any demands, suits and actions
of any kind brought against the Agency or other damages or losses incurred or sustained, or
claimed to have been incurred or sustained,by any person or entity arising out of or in connection
with any negligent act or omission or willful misconduct by the Developer or the Parent,or either
of their respective contractors, subcontractors, agents, officers, employees, representatives,
successors or assigns in connection with the Convention Center Hotel. The term"Agency"as used
in this Section 9.08 shall include all officers, Board members, employees, representatives, agents,
successors and assigns of the Agency, as applicable. These indemnification obligations shall
survive the expiration or termination of this Agreement. The term "Parent," "Developer" and
"Issuer" as used in this Section 9.08 shall include all officers, board members, members,
employees, representatives, agents, successors and assigns of the Parent, the Developer and the
Issuer,as applicable.
Section 9.09. Additional Indemnification of Agency, City, County and Holder of
Series 2025 Bonds. The Parent agrees to defend, indemnify and hold the Agency, the County,
the City and the holder of the Series 2025 Bonds, as well as their respective officers, employees,
agents and representatives (the "Additional Indemnified Parties")harmless from and against any
and all damage, liability, lien, loss, cost or expense("Loss")arising or accruing from or resulting
by reason of any and all claims of any person or entity relating to the validity of this Agreement
or of any action taken by the Additional Indemnified Parties with respect to the negotiation or
approval of(a)this Agreement or the Grant and(b)any other document or legal instrument related
in any way to this Agreement or the Grant (but only to the extent such claim arises out of this
Agreement or the Grant and specifically excluding any future documents or legal instruments
pertaining to the Lease Agreement, including, without limitation, estoppel certificates and
recognition agreements), except to the extent such Loss is caused by a breach of any contractual
obligation of any of the Additional Indemnified Parties (including,without limitation,a breach by
the Agency of any funding obligation hereunder). The indemnity set forth in this Section 9.09
includes all costs and expenses, including reasonable attorneys' and paralegals' fees and costs
(including reasonable fees and costs of the Agency's, the City's, the County's and the holder of
the Series 2025 Bonds' internal legal staff), at trial, appellate and post judgment proceedings,
whether by judgment, settlement or otherwise. The foregoing indemnity obligations of Parent
shall survive the expiration, full performance,or termination of this Agreement.
Section 9.10. Severability. The invalidity, illegality or unenforceability of any one or
more of the provisions of this Agreement shall not affect any other provisions of this Agreement,
but this Agreement will be construed as if such invalid, illegal or unenforceable provision had
never been contained herein.
Section 9.11. Compliance With State and Other Laws. In the performance of this
Agreement,the Parent must comply with any and all applicable federal, state and local laws, rules
and regulations, as the same exist and may be amended from time to time. Such laws, rules and
regulations include,but are not limited to, Chapter 119,Florida Statutes (the Public Records Act)
and Section 286.011, Florida Statutes, (the Florida Sunshine Law). If any of the obligations of
this Agreement are to be performed by a subcontractor, the provisions of this Section shall be
incorporated into and become a part of the subcontract.
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Execution Version
Section 9.12. Third Party Beneficiaries. Notwithstanding any provision hereof to the
contrary, it is specifically acknowledged and agreed that, to the extent of their rights hereunder
(including, without limitation, their rights to immunity and exculpation from pecuniary liability)
each Issuer Indemnified Person, the Bond Trustee and the holder of the Series 2025 Bonds are
third party beneficiaries of this Agreement entitled to enforce such rights in his, her, its or their
own name; provided,however, that the only the Bond Trustee shall be permitted to bring suit or
otherwise enforce the rights of the holder of the Series 2025 Bonds on behalf of the holder of the
Series 2025 Bonds.
Section 9.13. Public Entity Crimes Notice. In conformity with the requirements of
Section 287.133, Florida Statutes, the parties agree as follows:
The parties are aware and understand that a person or affiliate who has been placed
on the State of Florida Convicted Vendor List, following a conviction for a public
entity crime, may not submit a bid on a contract to provide any goods or services
to a public entity; may not submit a bid on a contract with a public entity for the
construction or repair of a public building or public work; may not submit bids on
leases of real property to a public entity;may not be awarded or perform work as a
contractor, supplier, subcontractor, or consultant under a contract with any public
entity; and may not transact business with any public entity, in excess of
$35,000.00, for a period of 36 months from the date of being placed on the
Convicted Vendor List.
Section 9.14. Incorporation by Reference. All exhibits and other attachments to this
Agreement that arc referenced in this Agreement are by this reference made a part hereof and are
incorporated herein.
Section 9.15. Order of Precedence. In the event of any conflict between or among the
provisions of this Agreement and those of any exhibit attached hereto or of any amendment, the
priority, in decreasing order of precedence shall be: first, any fully executed amendment; second,
provisions in this Agreement; and third, exhibits to this Agreement.
Section 9.16. Counterparts. This Agreement may be executed in several counterparts,
each of which shall be deemed an original, and all of such counterparts together shall constitute
one and the same instrument. Facsimiled, scanned or photocopied signatures shall be deemed
equivalent to original signatures.
Section 9.17. Independent Contractor. In the performance of this Agreement,the Parent
will be acting in the capacity of an independent contractor and not as an agent,employee,partner,
joint venturer, or association of the Agency. The Parent, the Developer and their respective
employees or agents shall be solely responsible for the means, method, technique, sequences and
procedures utilized by the Parent and the Developer,as the case may be,in the performance of this
Agreement and the Lease Agreement.
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Section 9.18. Retention of Records/Audit. The Parent agrees:
(a) to establish and maintain books, records and documents (including
electronic storage media) sufficient to reflect all income and expenditures of funds
provided by the Agency under this Agreement;
(b) to retain, with respect to the Convention Center Hotel, all client records,
financial records, supporting documents, statistical records, and any other documents
(including electronic storage media) pertinent to this Agreement for a period of six years
after the date of final Payment by the Agency under this Agreement. If an audit has been
initiated and audit findings have not been resolved at the end of six years, the records shall
be retained until resolution of the audit findings or any litigation which may be based on
the terms of this Agreement, at no additional cost to the Agency;
(c) upon demand, at no additional cost to the Agency, to facilitate the
duplication and transfer of any records or documents during the required retention period;
(d) to assure that these records shall be subject at all reasonable times to
inspection, review, copying, or audit by personnel duly authorized by the Agency,
including but not limited to its auditors;
(e) at all reasonable times for as long as records are maintained, to allow
persons duly authorized by the Agency,including but not limited to its auditors,full access
to and the right to examine any of the Parent's, Developer's and/or the Issuer's contracts
and related records and documents,regardless of the form in which kept;
(f) to ensure that all related party transactions are disclosed to the Agency;
(g) to include the aforementioned audit, inspections, investigations and record
keeping requirements in all subcontracts and assignments of this Agreement and the
Interlocal Agreement;
(h) upon reasonable prior notice and during regular business hours, to permit
persons duly authorized by the Agency, including but not limited to its auditors,to inspect
and copy any records, papers, documents, facilities, goods and services of the Parent,
Developer and Issuer that are relevant to this Agreement, and to interview any employees
and subcontractor employees of the Parent or the Developer to assure the Agency of the
satisfactory performance of the terms and conditions of this Agreement. Following such
review, the Agency will deliver to the Parent, the Developer or the Issuer, as applicable, a
written report of its findings and request for development by the Parent, the Developer or
the Issuer,as applicable,of a corrective action plan where appropriate. The Parent and the
Issuer hereby agree to timely correct, or cause to be timely corrected, all deficiencies
identified in the corrective action plan;
(i) additional monies due as a result of any audit or annual reconciliation shall
be paid within 30 days of date of the Agency' s invoice; and
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Execution Version
(j) should the annual reconciliation or any audit reveal that the Parent or the
Developer owe the Agency additional monies, and the Parent or the Developer, as
applicable,do not make restitution within 30 days from the date of receipt of written notice
from the Agency, the Agency shall be entitled to pursue any remedies available to the
Agency; provided however that the Agency shall in no event have the right to terminate
this Agreement or to reduce the amount or otherwise stop payment of the Semi-Annual
Installment Payments. No payment made by the Parent or the Developer under this Section
9.18 shall constitute a waiver by the Parent, the Developer or the Issuer of their right to
later contest the validity or correctness of such payment
Section 9.19. Non-Merger. None of the terms, covenants, agreements or conditions set
forth in this Agreement shall be deemed to be merged with any deed conveying title to the Hotel
Parcel, if applicable.
Section 9.20. Exemption of City and County. Neither this Agreement nor the
obligations imposed upon the Agency hereunder shall be or constitute an indebtedness of the City
or County within the meaning of any constitutional,statutory,or charter provisions related thereto,
nor shall this Agreement require the City or County to levy ad valorem taxes,make any payments
using City or County funds,or constitute a lien upon any properties of the City or County.
Section 9.21. Parties to Agreement; Successors and Assigns. This is an agreement
solely among the Issuer, the Agency,and the Parent. The execution and delivery hereof shall not
be deemed to confer any rights or privileges or obligations on any person not a party hereto(other
than the Bond Trustee and the Indemnified Persons)except as set forth herein;provided,however,
that the Parent shall assign this Agreement in its entirety after the Issuer shall have issued the
Bonds to a successor in interest in connection with a sale of the Convention Center Hotel as
contemplated in Section 2.04, above. Nothing herein is intended to modify any requirements that
Parent,Developer or any of their respective Affiliates must satisfy in connection with any Transfer
pursuant to the Lease Agreement, including without limitation compliance with the provisions in
Article V. Parent shall provide documentation in form and content acceptable to the Executive
Director of the Agency in his or her reasonable discretion that any such assignee has the financial
ability to meet the obligations proposed to be assigned and undertaken pursuant to this Agreement,
and that the proposed assignee has assumed Parent's obligations under this Agreement. Any
assignee shall enter into an assignment and assumption agreement with Parent (or subsequent
assignee) in form and content acceptable to the Executive Director of the Agency in his or her
reasonable discretion. This Agreement shall be binding upon the Parent and the Parent's
successors and assigns, and shall inure to the benefit of the Agency and the Issuer, and their
respective successors and assigns.
Section 9.22. Venue; Applicable Law.
(a) Except and to the extent provided in Subsection(b)below, this Agreement
and all claims, defenses,controversies or causes of action(whether in contract or tort) that
may be based upon, arise out of or relate hereto, including as to any representation or
warranty made by the Parent or Agency in or in connection with this Agreement or as an
inducement to enter into this Agreement,shall be governed by the internal laws of the State
of Florida, excluding conflicts of law principles.
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Execution Version
(b) Notwithstanding Subsection (a), above, any disputes, claims, defenses,
controversies or causes of action based upon, arising out of or relating to the following
enumerated matters shall be governed by the laws of the State of Wisconsin, excluding
conflicts of law principles: (i)the Issuer's organization, existence,statutory and corporate
powers,and legal and contractual capacity;(ii)the Issuer's rights to the payment of its fees,
costs and expenses (including, without limitation, attorneys' fees, costs of investigation
and the expenses of other professionals retained by the Issuer and the reasonableness of
such fees,costs and expenses);(iii)the Issuer's and the Issuer Indemnified Persons' rights
to indemnification from the Parent (and the Parent's corresponding obligation to provide
such indemnification); (iv) the Parent's release of the Issuer and the Issuer Indemnified
Persons from liability; (v) exculpation of the Issuer and the Issuer Indemnified Persons
from pecuniary liability; and (vi) the Issuer's governmental rights, privileges and
immunities.
(c) All claims of whatever character arising out of this Agreement shall be
brought in any state or federal court of competent jurisdiction located in Miami-Dade
County,Florida;provided,that to the extent that such a dispute,claim,controversy or cause
of action enumerated in Subsection (b) above can be separated from other disputes under
this Agreement(each a"Separate Dispute"),such Separate Dispute shall be adjudicated by
a state or federal court of competent jurisdiction located in Dane County, Wisconsin, but
only to the extent that neither the Agency,the City,the County,nor the holder of the Series
2025 Bonds is or,at any point in the litigation, becomes a party to such Separate Dispute,
in which case such Separate Dispute shall be adjudicated in(and transferred to in the event
the litigation is commenced in Wisconsin)a state or federal court of competent jurisdiction
located in Miami-Dade County,Florida.By executing and delivering this Agreement,each
party hereto irrevocably: (i) accepts generally and unconditionally the exclusive
jurisdiction and venue of such courts; (ii) waives any defense of forum non conveniens;
and (iii) agrees not to seek removal of such proceedings to any court or forum other than
as specified above. The foregoing shall not be deemed or construed to constitute a waiver
by the Issuer of any prior notice or procedural requirements applicable to actions or claims
against or involving joint powers commissions or governmental units of the State of
Wisconsin that may exist at the time of and in connection with such matter.
Section 9.23. Recordation. A notice setting forth the obligations of the Parent with
respect to Section 3.02 of this Agreement shall be recorded in the Public Records of Miami-Dade
County,Florida, within thirty(30) days of the Effective Date.
Section 9.24. Further Assurances. The Issuer, subject to Section 7.03, and the Parent
will, on request of the Agency, and the Agency will, on request of the Issuer or the Parent:
(a) promptly correct any defect, error or omission herein or in any documents
executed in connection herewith;
(b) execute, acknowledge, deliver, procure, record or file such further
instruments and do such further acts necessary,desirable or proper to carry out the purposes
of this Agreement; and
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Execution Version
(c) provide such certificates, documents, reports, information, affidavits and
other instruments and do such further acts necessary, desirable or proper to carry out the
purposes of this Agreement.
Section 9.25. Construction. All parties acknowledge that they have had meaningful input
into the terms and conditions contained in this Agreement. The Parent and the Issuer further
acknowledge that they have had ample time to review this Agreement and related documents with
counsel of its choice. Any doubtful or ambiguous provisions contained herein shall not be
construed against the party who drafted the Agreement.
Section 9.26. Headings. The captions and headings used in this Agreement are for
convenience only and do not in any way limit,amplify,or otherwise modify the provisions of this
Agreement.
Section 9.27. Further Authorizations. The parties acknowledge and agree that the
Executive Director, or his or her designee, is hereby authorized to execute any and all other
contracts and documents and otherwise take all necessary action in connection with this
Agreement.
Section 9.28. Content of Certificates. Notwithstanding any provision hereof to the
contrary, whenever any certificate or opinion is required by the terms of this Agreement to be
given by the Issuer on its own behalf, any such certificate or opinion may be made or given by an
Authorized Signatory (and in no event individually) and may be based (i)insofar as it relates to
factual matters, upon a certificate of or representation by the Bond Trustee, the Agency or the
Parent; and(ii)insofar as it relates to legal or accounting matters,upon a certificate or opinion of
or representation by counsel or an accountant,in each case under clause(i) and(ii)without further
investigation or inquiry by such Authorized Signatory or otherwise on behalf of the Issuer.
Section 9.29. Survival. The provisions of this Agreement and the Bond Indenture and
any other document in connection with the issuance of the Bonds and making of the Grant to which
Issuer is a party concerning(a)the interpretation of this Agreement;(b)governing law,jurisdiction
and venue; (c)Issuer's right to rely on written representations of others contained herein or in any
other document or instrument issued or entered into in respect of the Bonds,regardless of whether
Issuer is a party thereto; (d)the indemnification rights and exculpation from liability of Issuer and
the Issuer Indemnified Persons; and (e) any other provision of this Agreement not described or
enumerated above that expressly provides for its survival, shall survive and remain in full force
and effect notwithstanding the payment or redemption in full, or defeasance of the Bonds, the
discharge of the Bond Indenture, and the termination or expiration of this Agreement.
Section 9.30. Estoppel Certificate. The parties agree from time to time, but no more
frequently than twice annually, within not more than 10 business days after receipt of written
request from the other party, to execute, acknowledge and deliver to the other party a statement
("Estoppel Certificate") in writing, certifying: (a) this Agreement is unmodified and in full force
and effect, or in full force and effect as modified, and stating the modification; (b) that there are
not, to that party's actual knowledge, any uncured defaults, or events which with the passage of
time would become a default, on the part of the other party, or specifying existing defaults; and
(c)any other matters required by lenders or preferred equity investors providing financing or
41
Execution Version
investment for the Convention Center Hotel Project. Any such Estoppel Certificate delivered
pursuant to this Section 9.30 may be relied upon by any prospective purchaser or mortgagee of all
or any portion of the Convention Center Hotel,or any prospective assignee of any such mortgagee,
or any ground lessor under any ground lease with respect to any portion of the Convention Center
Hotel.
Section 9.31. Waiver of Jury Trial. EACH PARTY HERETO HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR ANY OTHER RELATED DOCUMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY. EACH PARTY HERETO(A)CERTIFIES THAT NO REPRESENTATIVE,AGENT
OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER RELATED
DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
42
IN WITNESS WHEREOF, this Agreement is executed the day and year above written.
MIAMI BEACH REDEVELOPMENT
AGENCY, a public agency and body corporate
created pursuant to Section 163.356, Florida
Statutes
APPROVED AS TO By /? ,W�l`EG
FORM Sk LANGUAGE NameECUTI Fr;c car tr
ON Title F,.cutire h',re cyor
fifi ozr MB MIXED USE INVESTMENT COMPANY
Redevelopment Agency Date I, LLC, a Delaware limited liability company
General Counsel
By:
Name: David Martin
Title: Authorized Signatory
By:
Name: Aly-khan Merali
Title: Authorized Signatory
PUBLIC FINANCE AUTHORITY
By
Name
Title Assistant Secretary
The undersigned joins solely for purposes of
agreeing to Section 2.04 of this Agreement:
MB MIXED USE INVESTMENT, LLC, a
Delaware limited liability company
By:
Name: David Martin
Title: Authorized Signatory
By:
Name: Aly-khan Merali
Title: Authorized Signatory
IN WITNESS WHEREOF,this Agreement is executed the day and year above written.
MIAMI BEACH REDEVELOPMENT
AGENCY,a public agency and body corporate
created pursuant to Section 163.356,Florida
Statutes
By
Name
Title
MB MIXED USE INVESTMENT COMPANY
I,LLC, a Delaware limited liabi ity company
By:
Name: ef
avid Martin
Title: Authorized Signatory
By:
Name: Aly-khan Merali
Title: Authorized Signatory
PUBLIC FINANCE AUTHORITY
By
Name
Title Assistant Secretary
The undersigned joins solely for purposes of
agreeing to Section 2.04 of this Agreement:
MB MIXED USE INVESTMENT,LLC,a
Delaware limited liability c mpany
By:
Name: avid rtin
Title: A thorize Signatory
By:
Name:Aly-khan Merali
Title: Authorized Signatory
IN WITNESS WHEREOF,this Agreement is executed the day and year above written.
MIAMI BEACH REDEVELOPMENT.
AGENCY,a public agency and body corporate
created pursuant to Section 163.356,Florida
Statutes
By
Name
Title
MB MIXED USE INVESTMENT COMPANY
I, LLC, a Delaware limited liability company
By:
Name: David Martin
Title: Authorized Signatory
By:_
Name: y-khan Merali
Title: Authorized Signatory
PUBLIC FINANCE AUTHORITY
By
Name
Title Assistant Secretary
The undersigned joins solely for purposes of
agreeing to Section 2.04 of this Agreement:
MB MIXED USE INVESTMENT, LLC, a
Delaware limited liability company
By:
Name: David Martin
Title: Authorized Signatory
By: I
N. A2y-khan Merali
Title: Authorized Signatory
IN WITNESS WHEREOF,this Agreement is executed the day and year above written.
MIAMI BEACH REDEVELOPMENT AGENCY,a public agency and body corporate
created pursuant to Section 163.356,Florida
Statutes
By
Name
Title
MB MIXED USE INVESTMENT COMPANY
I,LLC, a Delaware limited liability company
By:
Name: David Martin
Title: Authorized Signatory
By:
Name: Aly-Kahn Merali
Title: Authorized Signatory
PU�B-LIICC FINANCE AUTHORITY
By .2 s. ..Ark—
Name Ann Marie Austin
Title Assistant Secretary
The undersigned joins solely for purposes of
agreeing to Section 2.04 of this Agreement:
MB MIXED USE INVESTMENT,LLC,a
Delaware limited liability company
By:
Name: David Martin
Title: Authorized Signatory
By:
Name: Aly-Kahn Merali
Title: Authorized Signatory
EXHIBIT A
LEGAL DESCRIPTION OF HOTEL PARCEL
BEING A PARCEL OF LAND LING IS SECTION 34. TOWNSHIP 53 SOUTH, RANGE 42 EAST. CITY OF MIAMI BEACH,
MIAMI-DADE COUNTY, FLORIDA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCE AT THE SOUTHEAST CORNER OF LOT 1, BLOCK 22, ACCORDING TO THE AMENDED PLAT OF GOLF
COURSE SUBDIVISION OF THE ALTCN BEACH REALTY COMPANY, AS RECORDED IN PLAT BOOK 6, PAGE 26, OF THE
PUBUC RECORDS OF MIAMI-DARE COUNTY. FLORIDA; THENCE NW000'S3-E, ALONG THE EASTERLY PROLONGATION
OF THE NORTHERLY RIGHT OF WAY UNE OF 17TH STREET, SAID RIGHT OF WAY BEING 70 FEET IN WIDTH AS
SHOWN ON SAID PLAT BOOK 6, PAGE 26, A DISTANCE 358,16 FEET; THENCE NO2'34'00"W, ALONG THE EASTERN
EDGE OF AN EXISTING 15 FEET WIDE SIDEWALK LYING ON THE EAST SIDE OF CONVENTION CENTER DRIVE AS NOW
LAID OUT AND IN USE, A DISTANCE OF 39.94 FEET TO THE POINT OF BEGINNING; THENCE CONTINUE 410211/4100'W
ALONG SAID EXISTING SIDEWALK, A DISTANCE OF 238.58 FEET TO THE BEGINNING OF A CURVE CONCAVE TO THE
SOUTHEAST HAVING A RADIUS OF 40.00 FEET. A CHORD WHICH BEARS N42'58'54'E; THENCE NORTHEASTERLY
ALONG THE ARC OF SAID CURVE A DISTANCE OF 62.90 FEET. THROUGH A CENTRAL. ANGLE OF 9075'48"; THENCE
N8B101148'E A DISTANCE OF 13.05 FEET TO A POINT HEREINAFTER REFERRED TO AS POINT 'A; THENCE
CONTINUE N88'01'46'E A DISTANCE OF 297.49 FEET; THENCE S0115526'E, TO THE INTERSECTION WITH SAID
EASTERLY PROLONGATION OF 111E NORTHERLY RIGHT OF WAY OF 17TH STREET. A DISTANCE OF 318,50 FEET;
THENCE $88100'5311W, ALONG SAID EASTERLY PROLONGATION OF THE NORTHERLY RIGHT OF WAY OF 17114 STREET.
A DISTANCE OF 309.96 FEET TO THE BEGINNING OF A CURVE CONCAVE TO THE NORTHEAST HAVING A RADIUS OF'
40.00 FEET, A CHORD WHICH BEARS N4771'33'W: THENCE NORTHWESTERLY ALONG THE ARC SAID CURVE A
DISTANCE OF 62.78 FEET, THROUGH A CENTRAL ANGLE OF 89155'08' TO THE POINT OF BEGINNING.
THE ABOVE DESCRIBED PARCEL CONTAINS 110,884 SQUARE FEET OR 2.55 ACRES MORE CR LESS.
TOGETHER WTH:
AN AIRSPACE PARCEL BEING A PARCEL OF LAND LYING IS SECTION 34. TOWNSHIP 53 SOUTH. RANGE 42 EAST.
CITY CF MIAMI BEACH. MIAMI-DADE COUNTY, FLORIDA, HAVING AS ITS LOWER BOUNDARY, A HORIZONTAL PLANE
AT ELEVATON 23.69 FEET (NORTH AMERICAN VERTICAL DATUM OF 1988). HAVING AS ITS UPPER BOUNDARY, A
HORIZONTAL PLANE AT ELEVATION 52.44 FEET (NORTH AMERICAN VERTICAL DATUM OF 1988). THE PERIMETRICAL
BOUNDARIES OF WHICH ARE MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGIN AT SAID POINT -A-; THENCE NO329122'W A DISTANCE OF 53.99 FEET; THENCE N86130'38'E A DISTANCE OF
30.00 FEET; THENCE 50329.22E A DISTANCE OF 54.78 FEET': THENCE S88'01'48'W A DISTANCE OF 30.01 FEET
TO THE POINT OF BEGINNING SAID POINT ALSO BEING POINT 'A .
EXHIBIT B
IN-KIND PUBLIC BENEFIT COMMITMENTS
I. Waiver of Junior Ballroom Rental Fees: Up to four(4)times in any twelve(12) calendar
month period, the Agency may reserve the Junior Ballroom (inclusive of access to available
pre-function space directly adjacent to the Junior Ballroom) for up to eight (8) consecutive
hours, but no less than four(4)consecutive hours, on a single day, plus usual and customary
move in/out time. Two(2) of said reservations may be made by the Agency on behalf of the
City and two (2) on behalf of the County. Such reservation shall be made in writing by
emailing the General Manager of the Convention Center Hotel directly no earlier than three
(3)months prior to the requested reservation date;provided,one(1)of the four(4)reservation
requests may be made no earlier than nine (9)months prior to the requested reservation date.
To the extent the requested date is available, all rental fees for the Junior Ballroom for such
date shall be waived. Audio-visual fees and other services shall be provided at cost. Gratuity
for Convention Center Hotel employees shall be charged at standard rates then in effect.
Banquet and catering services, shall be charged at a 20% discount off standard rates then in
effect.
2. Waiver of Conference Room Fees: The Agency may reserve breakout or board rooms at the
Convention Center Hotel (but specifically excluding any ballrooms) for Agency, City, or
County meetings for up to four (4) consecutive hours, on a single day. The total of all such
bookings shall not exceed twenty(20)per calendar month. Such reservation shall be made in
writing by emailing the General Manager of the Convention Center Hotel directly no earlier
than two (2)weeks prior the requested reservation date; provided, two(2)of the twenty(20)
bookings per month may be made no earlier than three(3)months and each such booking may
be for up to eight (8) consecutive hours plus usual and customary move in/out time. To the
extent the requested date is available,all rental fees for the use of the breakout or board rooms
shall be waived. Audio-visual fees and other services shall be provided at cost. Gratuity for
Convention Center Hotel employees shall be charged at standard rates then in effect. Banquet
and catering services shall be charged at a 20%discount off standard rates then in effect.
3. Public Safety Office: The Parent shall, or shall cause the Developer, or their successors to
provide the Agency with an additional approximately 250 sf within its first-floor retail area
for a City of Miami Beach Public Safety Office. This area shall be in addition to the area
allocated to the Visitor Center(approximately 1,000 square feet).
4. Reimbursement for Hotel Rooms During Weather Emergencies: Provided the
Convention Center Hotel is in a physical and operational state (and is legally permitted) to
accommodate guests, the Parent shall, or shall cause the Developer, or their successors to
provide up to 100 rooms each night for Agency, City, or County emergency personnel, as
further described below,working immediately before,during,and immediately after a weather
emergency as declared by local, state or national authorities. In such event, the County, City,
and Agency, as applicable, shall pay for their own emergency personnel's' rooms, and shall
be reimbursed,by the Parent, Developer, or their successors,one-hundred percent(100%)of
the costs associated with the rental of such rooms;however,all taxes(if applicable), fees, and
charges other than the base room rate shall remain due and payable. For the purposes of this
subparagraph, the term "emergency personnel" is limited to employees that: (i) show valid
employer-issued identification to the Agency-designated representative, as described herein,
confirming that they are active law enforcement or emergency and fire rescue personnel, and
(ii) appear on a written list of pre-approved employees,which list may be updated from time
to time,that's been respectively transmitted by the Agency's Executive Director or his or her
designee, the City Manager or his or her designee, and the County Mayor or his or her
designee, to the Agency-designated representative,as described herein. Bookings pursuant to
this public benefit shall be completed through an Agency-designated representative and shall
not be withheld,conditioned, or delayed. For the purposes of this paragraph, in the event that
the Agency no longer exists or is no longer operational, then the Agency-designated
representative's duties and responsibilities shall be transferred to a City-designated
representative and/or County-designated representative.
5. Complimentary Rooms for Official Delegations: Each calendar year,the Agency shall be
permitted to book up to 70 room nights with a waiver of the base room rate for the purpose of
hosting official visiting delegations (e.g., Sister City delegations)to the City or County.
6. MBSHS Culinary Arts Program: The Parent shall develop, or shall cause the Developer,
or their successors to develop and implement a program with the Miami Beach Senior High
School Culinary Arts Program,which may include interactive virtual meetings with students,
student site visits to the restaurants at the Convention Center Hotel, and such other activities
as the Convention Center Hotel and the Miami Beach Senior High School administration shall
agree upon. In addition,the Convention Center Hotel shall hold a job fair each year for junior
and senior high school students residing in the Miami-Dade County.
7. Broad Cooperation: The Parent shall use, or shall cause the Developer, or their successors
to use commercially reasonable efforts to accommodate other requests from the Agency.
Additionally, the Parent shall reasonably cooperate, or shall cause the Developer, or their
successors to reasonably cooperate and coordinate with the Agency and the Miami Beach
Convention Center to co-market and support events and initiatives.
B-2
EXHIBIT C
SEMI-ANNUAL PAYMENT SCHEDULE
Miami Beach Redevelopment Agency Payment Schedule
Date* Principal Payment Interest Payment Total Payment
August 1,2025 $11,000,000.00 $1,007,633.33 $12,007,633.33
February 1,2026 $11,910,000.00 $1,397,500.00 $13,307,500.00
August 1,2026 $- $1,141,435.00 $1,141,435.00
February 1,2027 $12,430,000.00 $1,141,435.00 $13,571,435.00
August 1, 2027 $- $874,190.00 $874,190.00
February 1,2028 $12,975,000.00 $874,190.00 $13,849,190.00
August 1, 2028 $- $595,227.50 $595,227.50
February 1,2029 $13,545,000.00 $595,227.50 $14,140,227.50
August 1, 2029 $- $304,010.00 $304,010.00
February 1,2030 $14,140,000.00 $304,010.00 $14,444,010.00
*Federal funds wire transfer to be made by 9:00 am on such date to the
Bond Trustee, or on the business day prior to such date if such date is
not a business day.
4914-9089-7459.1