SkyRise Hold Harmless Agreement

After Recordation Return this instrument to:

Victoria Mendez, City Attorney
OFFICE OF THE CITY ATTORNEY
City of Miami, Florida
444 S.W. 2 Avenue, 9th Floor
Miami, Florida 33130-1910
(Space Above for Recorder's Use Only)
HOLD HARMLESS AND INDEMNIFICATION AGREEMENT
THIS HOLD HARMLESS AND INDEMNIFICATION AGREEMENT (hereinafter the
"Agreement"), is made and entered into this
day of April, 2014, by and between
SKYRISE MIAMI, LLC, f/k/a SkyHigh Miami, LLC, a Florida limited liability company,
party of the first part (hereinafter called
"SkyRise"), BAYSIDE MARKETPLACE, LLC, a
Delaware limited liability company ("Tenant") and THE CITY OF MIAMI, FLORIDA, a
municipal corporation of the State of Florida, in the County of Miami-Dade,
party of the
second part, (hereinafter called the "City").
RECITALS:
A.
The City owns certain property commonly known as Bayside Marketplace
("Bayside") and leases a portion of Bayside (the "Prime Leased Premises") to Tenant pursuant
to that certain Amended and Restated Lease Agreement between City and Tenant, as successor
by merger to Bayside Center Limited Partnership (as amended, the
"Prime Lease").
B.
SkyRise has subleased (subject to certain conditions set forth in the Sublease,
including Referendum approval, as defined below) a portion of the Prime Leased Premises
("Sublet Premises")
from Tenant pursuant to a Bayside Marketplace Sub-Ground Lease
("Sublease").
C.
SkyRise desires to construct an approximately 1000 foot tall mixed use
commercial and recreational facility on the Sublet Premises, requiring vertical construction
beyond that currently authorized in the Prime Lease ("Project").
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SkyRise Hold Harmless Agreement
D. Tenant must obtain City Commission approval of an amendment to the Prime
Lease, authorizing SkyRise to construct the Project, and then seek approval from the City's
electorate at an August 26, 2014 or November 4, 2014 referendum ("Referendum").
E.
SkyRise purports that it must commence foundation work prior to June 12, 2014
in order to preserve an existing FAA Approval.
F. City requires that SkyRise and Tenant execute this Agreement as a condition to
City issuing a building permit for, and as a condition to commencing, a portion of the foundation
work required for the Project on the Prime Leased Premises.
NOW, THEREFORE, in consideration of the permission by City to authorize SkyRise to
apply for a foundation permit, and commence foundation work, on the Prime Leased Premises,
subject to the terms and conditions set forth herein below, and in further consideration of these
premises, SkyRise and Tenant do hereby agree with City as follows:
1.

The foregoing recitals are true and correct and made a part hereof
2. SkyRise is hereby authorized to apply for a foundation permit to commence
installation of three (3) pilings required for the Project, as reflected on the plan attached hereto as
Exhibit A, on the Prime Leased Premises ("Foundation Work") and to commence such work
when the permit is issued.
3. Tenant approves SkyRise' s application for the necessary permits and approves its
performance of the Foundation Work, subject to SkyRise's full compliance with the provisions
of the Sublease, as amended (including obtaining all consents and approvals of Tenant as
required thereunder).
4.

SkyRise shall pay all actual or estimated permit and other applicable regulatory
fees associated with the Foundation Work prior to issuance of any building permits.
5. SkyRise agrees to indemnify, hold harmless and post a cash bond in the amount
of $500,000.00 (the "Bond") for the benefit of the City as security for payment of the costs of the
Foundation Work and restoration of the pier site to a fully operational condition. The City shall,
within fifteen (15) days of request by SkyRise following restoration of the pier site to a fully
operational condition, accompanied by reasonable evidence of payment for the Foundation
Work, refund to SkyRise the full amount of the Bond. If SkyRise does not pay for the
Foundation Work or restore the pier site to a fully operational condition, in either case within a
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MIAMI 4103741.8 71982/40643
SkyRise Hold Harmless Agreement
reasonable period of time after notice by the City to SkyRise, the City may do so and utilize the
Bond to pay the reasonable costs thereof, with SkyRise promptly thereafter receiving any excess
Bond funds or paying to the City any shortfall. In addition, SkyRise shall maintain insurance
coverages in the amount listed in Exhibit B.
6. SkyRise shall repay the City for the lost streams of revenue, if any, from the
Marina adjacent to the Sublet Premises and the parking for Marina patrons on the Sublet
Premises while the Foundation Work is being performed, and shall guarantee to restore the
current pier located on the Prime Leased Premises to full operational status within three (3)
weeks (subject to extension by reason of force majeure for a like period) following
commencement of construction of the Foundation Work. The estimated lost stream of revenue,
if any, from May 2014 through November 2014 is less than $5,000.00 and shall be secured by
the Bond. All additional amounts due to the City to cover any lost revenue shall be due
immediately upon the City's demand to SkyRise, and City shall reimburse SkyRise for any
overpayment, if any, of the lost stream of revenue immediately following a determination of the
amount thereof.
7. Tenant guarantees all payments due to the City and agrees to hold the City
harmless for any possible damages or business interruptions it or any of its subtenants
experiences due to SkyRise's performance of the Foundation Work, other than those damages or
business interruptions, if any, caused solely by the acts or omissions of the City, its agents,
employees, representatives or contractors.
8. No vertical construction for the Project to be constructed on the Prime Leased
Premises may commence, other than Foundation Work, until the City has been provided with
substantial, documented and satisfactory evidence that financing to complete the Project is in
place and the Referendum is approved.
9. Should the Referendum pass and City not be provided with substantial,
documented and satisfactory evidence that financing to complete the Project is in place and/or
the Referendum fail, SkyRise shall immediately cease construction and restore the Sublet
Premises site to an operational condition, by restoring or improving, subject to all applicable
building and zoning laws, and specifically not simply patching the Prime Leased Premises or any
other area utilized or damaged during the construction. Such restoration shall include but not
MIAMI 4103741.8 71982/40643
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SkyRise Hold Harmless Agreement
limited to, making all existing utilities fully functional, milling and resurfacing parking facilities
with the same number of current spaces and fully restoring the pier.
10.
SkyRise acknowledges that nothing in this Agreement shall prejudice the City's
right to impose conditions on approval of the Foundation Work which are required by state,
county, and/or City ordinances and zoning regulations or are otherwise necessary to ensure the
public health, safety and welfare of the citizens of the City; nor shall the City be stopped from
enforcing the terms of this Agreement by reason of its issuance of building permits.
11.
SkyRise acknowledges that any building permit(s) issued by the City for
construction of the Project will be issued in accordance with all applicable laws and the terms
and conditions set forth in this Agreement.
12. SkyRise acknowledges it is proceeding at its own risk and acknowledges that it
will not make a vested / property rights claim or cause of action arising or accruing by virtue of
these exceptions provided by Subsection 55-10(i) of the City of Miami Code.
13.
SkyRise acknowledges that the City reserves the right to evaluate all applications
for building permits for compliance with all existing laws, ordinances and regulations controlling
the issuance of building permits for construction within the City.
14.

SkyRise and Tenant agree that the City shall not be held financially responsible to
SkyRise, Tenant or any third parties in connection with the Foundation Work.
15. SkyRise agrees to indemnify, defend (at SkyRise's expense) and hold harmless
the City, its officials and assigns, and its employees, from any claims, demands, liabilities,
losses, causes of action of any nature whatsoever arising out of or in connection with this
Agreement, from any injuries to property and persons during the construction of the Foundation
Work, the granting of any building permits for the Foundation Work, from and against all costs,
fees, expenses, liabilities, any orders, judgments or decrees which may be entered in from and
against all costs, attorneys' fees, expenses and liabilities incurred in the defense of such claim or
in the investigation thereof, in each case other than those claims, demands, liabilities, losses,
causes of action or injuries, if any, caused by the acts or omissions of the City, its agents,
employees, representatives and contractors.
This indemnity shall survive the issuance of a
certificate of occupancy or its equivalent for the Foundation Work or the Project.
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MIAMI 4103741.8 71982/40643
SkyRise Hold Harmless Agreement
16. Handling of Hazardous Materials. SkyRise shall, at its sole cost and expense, at
all times and in all respects comply with all federal, state and local laws, statutes, ordinances and
regulations, rules, rulings, policies, orders and administrative actions and orders related to
protection of the environment ("Hazardous Materials Laws"), including, without limitation,
any Hazardous Materials Laws relating to industrial hygiene, environmental protection or the
use, analysis, generation, storage, disposal or transportation of any fuel, oils, flammable
explosives, asbestos, urea formaldehyde, radioactive materials or waste, infectious waste, or
other hazardous, toxic, contaminated or polluting materials, substances or wastes, including,
without limitation, any "Hazardous Substances", "Hazardous Wastes", "Hazardous Materials" or
"Toxic Substances", under any such laws, ordinances or regulations (collectively "Hazardous
Materials"). SkyRise shall, at its sole cost and expense, procure, maintain in effect and comply
with all conditions of any and all permits, licenses and other governmental and regulatory
approvals relating to the presence of Hazardous Materials within, on, under or about the Prime
Leased Premises or any other area utilized for the Foundation Work required for SkyRise's use
or placement of any Hazardous Materials in conformity with all applicable Hazardous Materials
Laws and prudent industry practices regarding management of such Hazardous Materials.
SkyRise shall, at its sole cost and expense, be responsible for performing any removal,
remediation, cleanup or restoration required as a result of its activities on, under or about the
Prime Leased Premises or any other area utilized for the Foundation Work. Upon termination or
expiration of this Agreement, SkyRise shall, at its sole cost and expense, cause all Hazardous
Materials which are in storage devices placed on, under or about the Prime Leased Premises or
any other area utilized for the Foundation Work by SkyRise or its employees, officers, agents,
contractors or customers or at any such person's directions to be removed from such property
and transported for use, storage or disposal in accordance and compliance with all applicable
Hazardous Materials Laws.
These requirements shall survive the issuance of a certificate of occupancy or its
equivalent for the Foundation Work or the Project.
17.

This Agreement shall be binding upon SkyRise, Tenant, and also upon their
successors in interest or assigns.
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MIAMI 4103741.8 71982/40643
SkyRise Hold Harmless Agreement
18. Any notice, request, demand, approval or consent given or required to be given
under this Agreement shall be in writing and shall be deemed as having been given when mailed
by United States registered or certified mail (return receipt requested), postage prepaid, to the
other parties at the address stated below or at the last change of address given by the party to be
notified as herein specified.
SKYRISE MIAMI, LLC
c/o Berkowitz Development Group, Inc.
2665 S. Bayshore Drive
Suite 1200
Coconut Grove, FL 33133
Attention: Jeffrey Berkowitz
John C. Sumberg, Esq.
Bilzin Sumberg
1450 Brickell Avenue, Suite 2300
Miami, FL 33131
Bayside Marketplace, LLC
c/o General Growth Properties, Inc.
110 North Wacker Drive
Chicago, IL 60606
Attention: Chief Legal Officer
Bayside Marketplace, LLC
c/o General Growth Properties, Inc.
1245 Worcester Street
Suite 1218
Natick, MA 01760
Attention: John Charters
City Manager
City of Miami
444 SW 2nd Avenue, l 0th Floor
Miami, FL 33130
Director of Public Works Department
City of Miami
444 SW 2nd Avenue, 8th Floor
Miami, FL 33130
City Attorney
City of Miami
As to SkyRise:
With a copy to:
As to Tenant:
With a copy to:
As to City:
With a copy to:
6
MIAMI 4103741.8 71982/40643
SkyRise Hold Harmless Agreement
444 SW 2nd Avenue, 9th Floor
Miami, FL 33130
20. Joint Preparation.
The parties acknowledge that they have sought and received
whatever competent advice and counsel was necessary for them to form a full and complete
understanding of all rights and obligations herein and that the preparation of this Agreement has
been their joint effort.
The language agreed to express their mutual intent and the resulting
document shall not, solely as a matter of judicial construction, be construed more severely
against one of the parties.
21.
As between Tenant and SkyRise, if there is any conflict or inconsistency between the
provisions of this Agreement and the provisions of the Sublease, the provisions of the Sublease
shall control to the extent necessary to resolve any such conflict or inconsistency.
[Signature pages follow]
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MIAMI 4103741.8 71982/40643
SkyRise Hold Harmless Agreement
IN WITNESS WHEREOF, the parties have caused these presents to be executed by its
proper officer and its corporate seal to be affixed hereto, the day and year first above set forth.
Signed, Sealed and Delivered
in the Presence of:
SIGNATURE (FI" S ITNESS)
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PRINT NAME (SECOND WITNESS)
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ATURE (SE 0 ' WITNESS)
SKYRISE MIA L LLC,
a Florida limit-. '.bility company,
by Berkowit D; elopment Group,
Inc., its m
STAL'E OF FLORIDA

)
COUNTY OF MIAMI-DADE )
I hereby certify: That on this day personally appeared before me, an officer duly
authorized to administer oaths and take acknowledgments, Jeffrey Berkowitz, President of
Berkowitz Development Group, I , as Manager of SKYRISE MIAMI, LLC, a Florida limited
liability company, and who [ ' ] is personally known to me or [ ] who has produced
as identification and who executed the foregoing instrument and
acknowledged the execution thereof to be his free act and deed as such officer for the purposes
therein expressed.
Witness my hand and official seal this day ofAug. l L., 2014.
Signature of Person Taking Acknowledgement:
Print Name of Acknowledger: I\ct ^S 5. el-
Notary Public, State of
Serial Number, (if any)
My Commission Expires:
8
MIAMI 4103741.8 71982/40643
SkyRise Hold Harmless Agreement
"
City"
CITY OF MIAMI, a Florida municipal
ATTEST:

corporation
By:
Todd B. Hannon

Daniel Alfonso
City Clerk

City Manager
APPROVED AS TO FORM AND

APPROVED AS TO INSURANCE
CORRECTNESS:

REQUIREMENTS:
Victoria Mendez

Anne-Marie Sharpe
City Attorney

Interim Risk Management Director

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MIAMI 4103741,8 71982/40643
SkyRise Hold I armless Agreement
'SIGNATURE (FIRST WIESS)
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PRINT NAME (FIRST WITNESS)/
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SIGNATURE (SECOND WITNESS)
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PRINT NAME (SECOND WITNESS)
STATE OF
COUNTY OF M Mi tDE )
BAYSIDE MARKETPLACE,
LLC, a Delaware limited liability
company
(Corporate Seal)
Signed, Sealed and Delivered
in the Presence o
I hereby certify: That on this day personally appeared before me, an officer my
authorized to administer oaths and take acknowledgments,MkQ,*AVMs A ' ^. ^

of
BAYSIDE MARKETPLACE, LLC, a Delaware limited liability company, and who [X] is
personally known to me or [ ] who has producedas identification
and who executed the foregoing instrument, and acknowledged the execution thereof to be his
free act and deed as such officer for thepuroses therein expressed.
Witness nay hand and official seal this'-lf'day oftt`'
r
Signature of Person Taking Acknowledgement:
Print Name of Acknowledger:fociG
J
Notary Public, State of tJ &t.
Serial Number, (if any)I\i
My Commission Expires:1-
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MIAMI 4103741.8 71982/40643
SkyRise Hold Harmless Agreement
Exhibit A
Scope of Foundation Work
MIAMI 4103741.8 7 1 982/40643
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CITY OF MIAMI
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EXHIBIT B
INSURANCE REQUIREMENTS FOR A CERTIFICATE OF
INSURANCE-HOLD HARMLESS AGREEMENT SKYRISE MIAMI,
LLC, AND ITS CONTRACTORS
SkyRise Miami shall carry or cause its contractors to carry the below
insurance for the project
I.

Commercial General Liability (Primary &Non Contributory)

A. Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence

$1,000,000
General Aggregate Limit

$ 2,000,000
Products/Completed Operations

$ 1,000,000
Personal and Advertising Injury

$1,000,000
B. Endorsements Required (or otherwise provide in the policy form)
City of Miami listed an additional insured
Contingent and Contractual Exposures
Premises/Operations Liability
Explosion, Collapse and Underground Hazard
Loading and Unloading
II.

Business Automobile Liability

A. Limits of Liability
Bodily Injury and Property Damage Liability
Combined Single Limit
Any Auto
Including Hired, Borrowed or Non-Owned Autos
Any One Accident

$ 1,000,000
B. Endorsements Required
City of Miami listed as an additional insured
III.

Worker's Compensation
Limits of Liability
Statutory-State of Florida
Waiver of subrogation
USL&H (only for those contractors with a USL&H exposure)
Employer's Liability
A. Limits of Liability
$1,000,000 for bodily injury caused by an accident, each accident.
$1,000,000 for bodily injury caused by disease, each employee
$1,000,000 for bodily injury caused by disease, policy limit

IV.

Umbrella Liability (Excess Follow Form)

A. Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence

$ 10,000,000
Aggregate

$ 10,000,000
City of Miami listed as an additional insured
V.

Installation Floater/Builder's Risk (If Applicable)

Causes of Loss: Special Form with Replacement Cost Valuation
Deductible: $100,000 AOP, 5% Wind &Hail and Flood
City of Miami listed as loss payee
VI. Payment and Performance Bond
City of Miami listed as an obligee
VII. Protection and Indemnity Coverage/J ones Act Included
Limits of Liability

$1,000,000
VIII. Contractor's Pollution Liability, If Applicable
Each Occurrence
$1,000,000
Policy Aggregate
$1,000,000
City of Miami listed as an additional insured with regards to pollution
liability. Retro date applies on professional liability.
Certificates of insurance shall be providing the City of Miami with written notice of
cancellation not less than (30) days (except 10 days for non-payment) prior to any
such cancellation or in accordance with policy provisions.
Companies authorized to do business in the State of Florida, with the following
qualifications, shall issue all insurance policies required above:
The company must be rated no less than "A-" as to management, and no less
than "Class V" as to Financial Strength, by the latest edition of Best's Insurance
Guide, published by A.M. Best Company, Oldwick, New J ersey, or its
eq uivalent. All policies and /or certificates of insurance are subject to review and
verification by Risk Management prior to insurance approval.