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HOLD HARMLESS AGREEMENT

HOLD HARMLESS AGREEMENT

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Published by Al Crespo

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Published by: Al Crespo on May 04, 2014
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05/05/2014

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SkyRise Hold Harmless Agreement
After Recordation Return this instrument to:Victoria Mendez, City AttorneyOFFICE 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
 
ay 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, amunicipal 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 ).
MIAMI 4103741.8 71982/40643
1
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3-^^(6s
 
SkyRise Hold Harmless Agreement
D.
Tenant must obtain City Commission approval of an amendment to the PrimeLease, 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 theFoundation 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 fullyoperational 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
2
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 theBond 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 thecurrent 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 bythe 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 withsubstantial, 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
3

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