2013-10 RESOLUTION NO. 2013-10
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
AVENTURA, FLORIDA, APPROVING THE FORM OF LICENSE
TO USE PROPERTY BETWEEN THE CITY OF AVENTURA AND
PMG AVENTURA LLC; APPROVING THE FORM OF LICENSOR
ESTOPPEL CERTIFICATE AND AGREEMENT BETWEEN THE
CITY OF AVENTURA AND COLFIN AVENTURA FUNDING LLC;
AUTHORIZING THE CITY MANAGER TO EXECUTE THE
LICENSE FOR USE OF REAL PROPERTY AND LICENSOR
ESTOPPEL CERTIFICATE AND AGREEMENT AFTER
ACCEPTANCE OF THE TITLE OR DEED TO THE PROPERTY;
AUTHORIZING THE CITY MANAGER TO DO ALL THINGS
NECESSARY TO CARRY OUT THE AIMS OF THIS
RESOLUTION; ALL RELATING TO A 1.5 ACRE PARCEL OF
LAND WITH A MUNICIPAL ADDRESS OF 3200 NE 188 STREET,
CITY OF AVENTURA; PROVIDING AN EFFECTIVE DATE.
WHEREAS, on October 2, 2012, the City Commission passed and
adopted Resolution No. 2012-44 granting conditional use approval to permit an
eleven story or 135 foot high residential building on the property located at 3250
NE 188 Street ", which approval contains a condition that the applicant dedicate
a 1.5 acre parcel, municipal address 3200 NE 188 Street, (the "Premises") to the
City prior to issuance of a building permit for the development; and
WHEREAS, the City Commission is desirous of approving the form of
License For Use of Real Property with PMG Aventura, LLC, in the form attached
to this Resolution, authorizing the temporary use of the Premises for a sales
center/office and construction staging during development; and
WHEREAS, the City Commission also wishes to approve the form of
Licensor Estoppel Certificate and Agreement with the lender of the Premises, in
the form attached to the Resolution, in connection with the license of the
Premises to PMG Aventura, LLC; and
WHEREAS, upon acceptance of the dedication of the Premises to the
City by Deed, as required by Resolution No. 2012-44, the City Manager shall
then be authorized to enter into the License to Use Real Property and Lender
Estoppel Certificate and Agreement, both in the form attached to this
Resolution; and
WHEREAS, the City Commission finds that entering into the License to
Use Real Property and Licensor Estoppel Certificate and Agreement is in the
best interest of the City and furthers the purposes of Resolution No. 2012-44.
Resolution No. 2013-10
Page 2
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION
OF THE CITY OF AVENTURA, FLORIDA, THAT:
Section 1. The form of License to Use Real Property and Lender
Estoppel Certificate and Agreement, as attached to this Resolution, are hereby
approved. The City Manager is authorized to execute and otherwise enter into
that certain License to Use Real Property, in the form attached hereto, and to
execute and otherwise enter into that certain Licensor Estoppel Certificate and
Agreement, in the form attached hereto, such execution of documents to occur
after acceptance by the City of the dedication of the Premises by deed.
Section 2. The City Manager is hereby authorized to do all things
necessary to carry out the aims of this Resolution.
Section 3. This Resolution shall become effective immediately upon its
adoption.
The foregoing Resolution was offered by Commissioner Joel, who moved
its adoption. The motion was seconded by Commissioner Stern, and upon being
put to a vote, the vote was as follows:
Commissioner Enbar Cohen yes
Commissioner Teri Holzberg yes
Commissioner Billy Joel yes
Commissioner Michael Stern yes
Commissioner Howard Weinberg yes
Vice Mayor Luz Urbaez Weinberg yes
Mayor Susan Gottlieb absent
Resolution No. 2013-10
Page 3
PASSED AND ADOPTED this 5th day of Februa' 2013.
of i ,i
usan Gottli° Mayor
ATTEST:
/
I I ILA_• L amJ Ciki
4-sa M. Soro - Me, City Clerk
APPROVED AS TO LEGAL SUFFICIENC ic4/kn\, L/14/"\---)Attorney
in the Office of the City Clerk this da of February,
Resolution was filed t y y ry,
2013.
Ci A lerk
LICENSE TO USE REAL PROPERTY
THIS LICENSE TO USE REAL PROPERTY (this "License Agreement") is made
and entered into as of the day of , 2013 (the "Effective Date"), by and
between THE CITY OF AVENTURA, a Florida municipal corporation ("Licensor"), having
an office at 19200 West Country Club Drive, Aventura, Florida 33180, Attention: City Manager,
and PMG AVENTURA, LLC, a Florida limited liability company ("Licensee"), having an
office at 19495 Biscayne Blvd.,Suite 410, Aventura, Florida 33180,Attention: Ryan Shear.
WITNESSETH:
WHEREAS, Licensor is the owner of certain real property located at 3200 NE 188 Street
in the City of Aventura, Miami-Dade County, Florida, which real property is more accurately
described on Exhibit "A" attached hereto and incorporated herein by reference (the "Licensed
Premises").
WHEREAS, Licensee is the owner of certain real property which is adjacent to the
Licensed Premises, which real property is more accurately described on Exhibit `B" attached
hereto and incorporated herein by reference(the "Licensee's Property").
WHEREAS, Licensee is developing a condominium development on Licensee's Property
(the "Condominium Development"), and, in connection therewith, will commence construction
and other development activities on the Licensee's Property.
WHEREAS, Licensee desires to use the Licensed Premises in connection with the
Condominium Development and Licensor desires to grant a license for such purposes pursuant to
the terms of this License Agreement.
Now, therefore, in consideration of the foregoing, the covenants and agreements
hereinafter contained, and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Licensor and Licensee hereby agree as follows:
1. Grant of License. Licensor hereby grants to Licensee an exclusive license to use the
Licensed Premises as a sales center and office space, and for temporary construction staging, in
connection with the Condominium Development on the Licensee's Property, which Licensed
Premises contain approximately 1.5 acres of land. Licensee agrees to accept the Licensed
Premises in "AS IS" and "WHERE IS" condition, with no representations or warranties by the
Licensor as to the condition, quality or suitability of the Licensed Premises for their intended use
by the Licensee. Licensor shall use reasonable efforts to cooperate and assist Licensee with the
prompt processing and review of any plans submitted by Licensee to the City of Aventura
Building Division in connection with Licensee's use of the Licensed Premises, as more
accurately described in Section 3 below.
2. Term. The right, privilege and license hereby granted to use the Licensed Premises shall
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10698241.2
be for a term commencing on the Effective Date, and expiring on the eighteenth (18th) month
thereafter (as such term may be extended pursuant to the terms hereof, the "Term"), provided,
however, that if Licensee is not in Default of this License Agreement, Licensee may extend the
Term on a monthly basis for up to six (6) months. In order to exercise the foregoing extension
option(s), Licensee must provide Licensor with written notice of such extension at least seven (7)
days prior to the then Term expiring. The license granted hereunder shall be irrevocable during
the Term except upon a Default as provided in paragraph 16 herein.
3 Use. The Licensed Premises shall be used by Licensee for the purposes of a sales center
and office space, and for temporary construction staging, in connection with the Condominium
Development on the Licensee's Property (the "Permitted Use'). The Licensee agrees to use the
Licensed Premises only for the Permitted Use, and for no other uses or purposes, without the
prior written consent of the Licensor, in its sole and absolute discretion. Rights not specifically
granted to the Licensee by this License Agreement are hereby reserved to the Licensor, and the
Licensor shall have the right to grant utilities and easements to others over, under, through,
across or on the Licensor's Property during the Term of this License Agreement, provided such
grants(s) do not unreasonably interfere with the Licensee's use of the Licensed Premises and the
rights granted pursuant to this License. In order for Licensee to use the Licensed Premises as
intended hereby, it shall be necessary for Licensee to build or place improvements and/or a
structure on the Licensed Premises to serve as the sales center/office (collectively, the
"Improvements").
In connection with the Permitted Use and the Improvements, Licensee shall submit to the
City of Aventura an application for Administrative Temporary Use Approval with required site
development plans and documentation, prior to the submittal for building permit. The Licensee
agrees to use the Licensed Premises and construct the Improvements pursuant to any approved
Site Plan and Administrative Temporary Use Approval granted by the City of Aventura. The
Licensed Premises and the improvements, including the use(s) approved and the location of all
Improvements, shall be developed in substantial conformity with the site development plans, as
approved by the City of Aventura through Administrative Temporary Use Approval, said plans
and approval to be on file with the City of Aventura Community Development Department("Site
Plan"). The Licensor shall reasonably cooperate and assist Licensee with the prompt processing
and review of any such application and plans submitted by Licensee to the City of Aventura in
connection with Site Plan approval and Administrative Temporary Use Approval for the
Licensed Premises. The Licensor acknowledges that Licensee will submit applications to the
City of Aventura for Administrative Temporary Use Approval and other applications and
documents required for the Licensee to utilize the Licensed Premises for the Permitted Use and
to construct the Improvements. To the extent that any such applications must be signed by the
Licensor as the fee owner of the Licensed Premises, Licensor will review and join in such
applications after approval,which approval shall not be unreasonably withheld.
All Improvements on the Licensed Premises shall be built, constructed and installed in
compliance with the approved site development plans and in accordance with all applicable laws,
including the attainment of all permits and approvals required for the Improvements. The
Licensee shall make no other alterations, improvements or additions to the Licensed Premises
except as necessary for the Permitted Use and as approved by the Licensor and as set forth in the
approved Site Plan.
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10698241.2
Licensee agrees to remove any such Improvements and/or structures placed on the
Licensed Premises within sixty (60) days after the expiration of the Term and Licensee shall
repair any damage to the Licensed Premises and restore same to the condition existing prior to
the Licensee's use and occupancy.
Licensee shall be responsible for the timely payment of any real estate or other taxes,
sales taxes, and public assessments and charges levied, assessed or imposed on the Licensed
Premises and the Improvements by any governmental authority in connection with Licensee's
use and occupancy of the Licensed Premises during the Term of this Agreement.
Licensor shall reasonably assist Licensee, to the extent necessary, in the provision of
utilities to the Licensed Premises, with all costs of such to be paid by Licensee. Licensee shall
pay for the costs of any and all utilities and services consumed on the Licensed Premises during
the Term of this Agreement, including, but not limited to, electricity, water, sewer, trash/garbage
removal.
4. License Fee. Licensee agrees to pay Licensor a fixed license fee (the "License Fee") of
One Hundred Twenty Five Thousand and No/100 Dollars ($125,000.00), for the use of the
Licensed Premises during the Term. The License Fee shall be payable to Licensor in advance
within three (3) business days of the full execution of this License Agreement. For each month
the Term may be extended pursuant to Section 2 above, Licensee shall pay Licensor an
additional fee of Six Thousand and No/100 Dollars ($6,000.00) per month which shall be paid to
Licensor in advance simultaneously with any notice to extend.
5. Maintenance of Licensed Premises. The Licensee shall be solely responsible for the
maintenance and repair of the Licensed Premises and for all Improvements and/or structures
built, constructed or installed by Licensee on the Licensed Premises. The Licensed Premises and
all Improvements and/or structures thereon shall be maintained in good, working and neat
condition.
6. Compliance with Laws. The Licensee shall comply with all applicable federal, state,
county and municipal laws, ordinances, resolutions and governmental rules, regulations and
orders, when using and occupying the Licensed Premises pursuant to this License Agreement.
Licensee shall not commit nor permit any violations of applicable federal, state, county and
municipal laws, ordinances, resolutions and governmental rules, regulations and orders, as may
be in effect now or at any time during the Term of this License Agreement, all as may be
amended, which are applicable to the City of Aventura, the Licensee, the Licensed Premises or
the Permitted Use, the Improvements or operations conducted at the Licensed Premises. A
violation of any such laws, ordinances, resolutions, rules, regulations or orders, as amended,
shall constitute a material breach of this License Agreement, and in such event, the Licensor
shall be entitled to exercise any and all rights and remedies hereunder and at law and in equity.
The Licensor may promulgate and enforce reasonable rules and regulations governing the use of
the Licensed Premises by the Licensee, and the Licensee shall provide adequate supervision of
the Licensed Premises at all times during the Term of this License Agreement. If Licensee fails
to cure or remedy a violation of any such laws, ordinances, resolutions, rules, regulations or
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10698241.2
orders, within ten (10) business days after written notice of such violation setting forth in
reasonable detail the claimed violation (provided, however, if such violation requires work to be
performed, acts to be done or conditions to be remedied which by their nature cannot be
performed, done or remedied, within such ten (10) day period, Licensee shall have such
additional time as is reasonably necessary to cure such violation so long as Licensee in good
faith, diligently and continuously processes the same to completion, but such cure period, in the
aggregate, shall not exceed sixty (60) days from the date of the giving of such notice to
Licensee), then such uncured violation shall constitute a material breach of this License
Agreement, and in such event, the Licensor shall be entitled to exercise any and all rights and
remedies hereunder and at law and in equity.
7. Liability; Loss and Damage. The Licensee hereby assumes all financial, administrative
and legal responsibility in connection with, related to, or arising out of the use of the Licensed
Premises. Nothing in this License Agreement will be construed to affect in any way the
Licensor's rights, privileges, and immunities, including the monetary limitations of liability set
forth in Section 768.28, Florida Statutes. The provisions of this Section will survive the
termination or expiration of this License Agreement.
The Licensor shall not be liable for any loss, damage or injury of any kind or character to
any person or property, including,but not limited to, and loss or damage(i) caused by any defect
in any building, structure, or the Improvements on the Licensed Premises or in any equipment or
other facility located thereon; (ii) caused by or arising from any act or omission of the Licensee,
or of any of its agents, employees, guests or invitees; (iii) arising from any accident on the
Licensed Premises or any fire or other casualty thereon; or (iv) arising from any other cause on
the Licensed Premises.
8. Indemnification. The Licensee does hereby agree to defend, indemnify and hold the
Licensor harmless from and against any and all claims, demands, suits, liability, losses, damages,
costs or expenses (including reasonable attorneys' fees, costs, and expenses at both the trial and
appellate levels) arising from, incidental to, or in any way connected with this License Agreement
and Licensee's use and occupancy of the Licensed Premises, and the acts or omissions of the
Licensee and its agents, servants, invitees and contractors. The provisions of this Section shall
expressly survive any expiration or termination of this License Agreement.
9. Insurance. The Licensee agrees to obtain general liability insurance in an amount no
less than One Million and No/100 Dollars ($1,000,000.00) per occurrence, naming the Licensor
as an additional insured and as acceptable to the Licensor, The Licensee shall furnish to the
Licensor certificates of insurance evidencing the insurance coverages specified by this Section
prior to the Effective Date of this License Agreement. The required certificates of insurance shall
name the type of policy provided, refer specifically to this License Agreement, and state that
such insurance is as required by this License Agreement. The required insurance coverage is not
to cease and is to remain in full force throughout the Term of this License Agreement. The
Licensor must be provided with at least thirty(30) days' notice of cancellation or non-renewal on
all insurance policies.
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10. Liens Against the Licensed Premises. Licensee shall not permit any mechanic's,
laborer's or materialmen's lien to be filed against the Licensed Premises or any part thereof by
reason of work, labor, services or materials supplied or claimed to have been supplied to Licensee.
If any such lien is at any time filed against the Licensed Premises or any part thereof, Licensee,
within thirty (30) days after notice of the filing, will cause such lien to be discharged of record by
payment, deposit,bond, order of a court of competent jurisdiction, or otherwise. If Licensee fails to
cause such lien to be discharged within the thirty(30)day period,then, in addition to any other right
or remedy in the event of default by Licensee hereunder, the Licensor may, but is not obligated to,
discharge such lien either by paying the amount claimed to be due or by procuring the discharge of
such lien by transferring it to a bond. Any amounts paid by the Licensor in obtaining the discharge
or transfer of any lien, plus all of the Licensor's costs and expenses associated with any lien,
including attorneys' fees, will be paid by Licensee to the Licensor on demand. Notwithstanding the
foregoing, Licensee shall have the right to contest the correctness or the validity of any such lien if,
prior to the expiration of the thirty (30) day period, Licensee procures and records a bond issued by
a corporation authorized to issue surety bonds in Florida. The bond must meet the requirements of
local law and must provide for payment of the sum that the claimant may recover on the claim. All
persons and entities contracting or otherwise dealing with Licensee relative to the Licensed
Premises shall be placed on notice of the provisions of this Section.
11. Assignment. The Licensee shall not assign, transfer or otherwise dispose of this License
Agreement, or any portion thereof, or permit the Licensed Premises to be used or occupied by
other organizations, entities or persons, without the prior written consent of the Licensor.
12. Notices. Notices to Licensee and Licensor under this License Agreement shall be
addressed to Licensee and Licensor to the addresses in the introductory paragraph of this License
Agreement and shall be delivered by hand or by United States certified or registered mail,
postage prepaid, return receipt requested or by overnight courier. A notice shall be considered to
have been given upon personal delivery if personally delivered, the date delivery is confirmed by
an overnight courier if sent by overnight courier or three (3) business days after posting in the
United States mails if mailed.
13. Entire Agreement. This.License Agreement contains the complete exclusive and entire
agreement between Licensor and Licensee regarding use of the Licensed Premises, and
supersedes any and all prior oral and written agreements between Licensor and Licensee
regarding such matters. This License Agreement may be modified only by an agreement in
writing signed by both Licensor and Licensee.
14. Benefits; Binding Effect; Attorney's Fees. This License Agreement shall be binding
upon and inure to the benefit of the heirs, legal representatives and successors of Licensor, the
mortgage holders of the Licensor's Property and Licensee, and shall be construed and enforced in
accordance with the laws of the State of Florida. Venue for any litigation, which may arise in
connection with this License Agreement, shall be in Miami-Dade County, Florida. In the event
of any litigation concerning this License Agreement, the prevailing party shall be entitled to have
its attorney's fees and court costs paid by the losing party.
15. Severability. If any covenant or provision of this License Agreement, or the application
thereof to any person or circumstance, shall to any extent be invalid or unenforceable, the
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remainder of this License Agreement or the application of such, covenant or provision to persons
or circumstances other than those as to which it is held invalid or unenforceable shall not be
affected thereby, and each and every covenant and provision of this License Agreement shall be
valid and be enforced to the fullest extent permitted by law.
16. Events of Default. If Licensee (i) shall fail to pay to Licensor as and when due the
License Fee, or (ii) shall otherwise not comply with the terms and conditions of this License
Agreement, then and in any of such events, Licensee will be deemed to be in "Default". If
Licensee shall be in Default, Licensor will have any and all rights and remedies in law or in
equity which the law of Florida confers upon a Licensor against a Licensee in breach or default,
including, without limitation, the right to terminate this License Agreement. If Licensor (i) shall
interfere with Licensee's use of the Licensed Premises as contemplated hereby, or (ii) shall
otherwise not comply with the terms of this License Agreement, then and in any of such events,
Licensor will be deemed to be in "Default". If Licensor (i) shall interfere with Licensee's use of
the Licensed Premises as contemplated hereby, or (ii) shall otherwise not comply with the terms
of this License Agreement, then and in any of such events, Licensor will be deemed to be in
"Default". If Licensor shall be in Default, Licensee will have any and all rights and remedies
which the law of Florida confers upon a Licensee against a Licensor in breach or default.
Notwithstanding anything stated herein to the contrary, prior to constituting a "Default" it shall
be necessary for the non-defaulting party to notify the defaulting party of its default and provide
such party with ten(10) days to cure the alleged default.
17. Police and Regulatory Powers. The Licensor cannot, and hereby specifically does not,
waive or relinquish any of its regulatory approval or enforcement rights and obligations as it may
relate to regulations of general applicability which may govern the Licensed Premises or any
operations at the Licensed Premises. Nothing herein shall be deemed to create an affirmative
duty on the Licensor to abrogate its sovereign right to exercise its police powers and
governmental powers by approving or disapproving or taking any other action in accordance
with its ordinances, rules and regulations, federal laws and regulations and state laws and
regulations.
18. WAIVER OF TRIAL BY JURY. THE PARTIES HERETO SHALL, AND THEY
HEREBY WAIVE, TRIAL BY JURY IN ANY ACTION PROCEEDING OR
COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE
OTHER ON ANY MATTERS WHATSOEVER ARISING OUT OF OR IN ANY WAY
CONNECTED WITH THIS LICENSE AGREEMENT, THE RELATIONSHIP OF LICENSOR
AND LICENSEE, LICENSEE'S USE OF THE LICENSED PREMISES AND/OR ANY
CLAIM OR INJURY OR DAMAGE.
19. Gender. The terms "Licensor" and "Licensee" as herein contained shall include the
singular and/or the plural, the masculine, the feminine, and/or the neuter, the heirs, successors,
executors, administrators, personal representatives and/or assigns, wherever and whenever the
context so requires or admits.
20. Captions. The captions of the various paragraphs of this License Agreement have been
inserted for the purposes of convenience only. Such captions are not a part of this License
Agreement and shall not be deemed in any manner to modify, explain, enlarge or restrict any of
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the provisions contained in this License Agreement.
21. Counterparts. This License Agreement may be executed in several counterparts, all of
which shall constitute one and the same License Agreement between Licensor and Licensee.
22. Effective Date: The Effective Date of this License Agreement shall be the date when the
last one of Licensor or Licensee has signed this License Agreement.
23. Non-Discrimination. Licensee agrees that there will be no discrimination against any
person based upon race, color, sex, religious creed, ancestry, national origin, mental or physical
handicap, in the use or operation of the Licensed Premises.
24. Radon Gas. Radon is a naturally occurring radioactive gas that, when it has accumulated
in a building in sufficient quantities, may present health risks to persons who are exposed to it
over time. Levels of radon that exceed federal and state guidelines have been found in buildings
in Florida. Additional information regarding radon and radon testing may be obtained from your
county public health unit. Pursuant to §404.056(8), Florida Statutes.
25. Collateral Assignment; Lender. Provided Licensee is not in Default of this License
Agreement at such time, Licensee shall have the right to collaterally assign its interest in this
License Agreement ("Collateral Assignment") provided that any such assignment shall be
subject to the provisions of this License Agreement. If Licensee shall have executed and
delivered a Collateral Assignment and the holder thereof ("Licensee's Lender") shall have
provided written notice to Licensor to such effect giving its name and address:
(a) Licensor shall give notice to such Licensee's Lender of each notice of Default
given to Licensee under this License Agreement.
(b) Such Licensee's Lender shall have the right, for a period of sixty (60) days from
the date of the notice of Default to remedy or cause to be remedied any breach or Default which
is the basis of a notice and Licensor shall accept performance by such Licensee's Lender as
performance by Licensee.
(c) In case of Default by Licensee under this License Agreement, other than a Default
in the payment of money or a Default susceptible of being cured by the payment of a sum of
money,Licensor shall take no action to effect a termination of this License Agreement by service
of a notice or otherwise, without first giving to such Licensee's Lender prior written notice and
the Non-Monetary Cure Period (as hereafter defined) within which either (i) to obtain possession
of the Licensed Premises and the Improvements (including possession by a receiver) and to cure
such Default when such Licensee's Lender has either obtained possession of the Premises and the
Improvements or has the right and ability to cure same (acting reasonably), or(ii)to institute and
complete enforcement proceedings or otherwise acquire Licensee's interest or license under this
License Agreement and cure upon obtaining possession.
As used herein, the "Non-Monetary Cure Period" shall mean such time as Licensee's
Lender reasonably requires to cure such Default, not to exceed sixty (60) days from the notice of
Default provided to Licensee's Lender by the Licensor; provided, however, if Licensee's Lender
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continues to diligently pursue enforcement proceedings to obtain possession of the Licensed
Premises and Improvements, then Licensee's Lender shall have ninety (90) days additional time
beyond expiration of the sixty (60) day period as reasonably required by Licensee's Lender to
complete such enforcement proceedings and to effect the cure of the Default by Licensee under
the License Agreement.
If in connection with this subparagraph (c), if Licensee's Lender elects to proceed to
acquire possession of the Licensed Premises and the Improvements and Licensee's interest in this
License Agreement, or to commence an enforcement proceeding on the Collateral Assignment or
otherwise to extinguish Licensee's interest in the Licensed Premises, Licensee's Lender shall
deliver to Licensor an instrument in writing duly executed and acknowledged wherein the holder
of the Collateral Assignment agrees that (i) during the period that such holder shall be in
possession of the Licensed Premises and the Improvements and/or during the pendency of any
such enforcement or other proceedings and until the interest of Licensee in this License
Agreement shall terminate, as the case may be, it will pay or cause to be paid to Licensor any
monthly fees and any other amounts due from Licensee pursuant to this License Agreement
(including past due) and from time to time becoming due under this License Agreement; and (ii)
if delivery of possession of the Licensed Premises and the Improvements shall be made to such
Licensee's Lender (or to its nominee), whether voluntarily or pursuant to any enforcement
proceedings or otherwise, such holder shall, promptly following such delivery of possession,
perform or cause such nominee to perform, as the case may be, all the covenants and agreements
herein contained on Licensee's part to be performed to the extent that Licensee shall have failed
to perform the same to the date of delivery of possession, as aforesaid. Nothing herein contained
shall affect the right of Licensor, upon the subsequent occurrence of any Default by Licensee, to
exercise any right or remedy herein reserved to Licensor, subject to the rights of the Licensee's
Lender under this Section with respect to such Default.
(d) Whether or not a Default has occurred, Licensee's Lender shall be permitted to
extend the Term for up to the six (6) month period set forth in Section 2 in accordance with the
provisions of Section 2 and upon simultaneous payment of the fee of$6,000 per month required
in Section 4.
(e) Licensor, without the prior written consent of the Licensee's Lender (which
consent shall not be unreasonably delayed or withheld), shall not (a) consent to or accept any
voluntary cancellation, termination or surrender of this License Agreement, whereby Licensor
shall have the right to accept any such cancellation, termination or surrender of this License
Agreement, or (b) amend this Section 25 or otherwise materially amend or modify this License
Agreement. Additionally, in the event that this License Agreement is terminated by result of any
action (including rejection of this License Agreement in any bankruptcy proceeding) other than
as provided for herein, and if Licensee's Lender shall not have been provided with the
opportunity to cure a Default and acquire the Licensee's interest in accordance with subparts (b)
or (c) above, then in that event Licensor shall give Licensee's Lender notice of such event and
Licensee's Lender shall have thirty (30) days from its receipt of such notice in which to enter in
to a new license with the Licensor on the same terms and conditions of this License Agreement,
for a term which is co-terminus with the remaining Term of this License Agreement.
26. Estoppel Information. Licensor shall, from time to time, upon reasonable written request,
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10698241.2
provide a Licensee's Lender with estoppel information as to the status of this License Agreement.
27. Prevailing Party; Attorneys' Fees. In the event of any controversy, claim, dispute or
litigation between the parties arising from or relating to this License Agreement (including, but
not limited to, the enforcement of any indemnity provisions), the prevailing party shall be
entitled to recover reasonable costs, expenses and attorneys' fees including, but not limited to,
court costs and other expenses through all appellate levels.
[The Remainder of this Page Intentionally Left Blank]
•
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10698241.2
IN WITNESS WHEREOF,the parties have executed this License Agreement on the
dates written below their signatures.
LICENSOR:
THE CITY OF AVENTURA, a Florida
municipal corporation
ATTEST:
By:
Name:
Title:
Date Executed:
Approved as to Form and
Legal Sufficiency:
City Attorney
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10698241.2
IN WITNESS WHEREOF, the parties have executed this License Agreement on the
dates written below their signatures.
LICENSEE:
Witnesses:
PMG AVENTURA, LLC, a Florida Limited
Liability Company
Print Name:
Print Name:
By:
Name:
Title:
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EXHIBIT "A"
LICENSED PREMISES
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10698241.2
EXHIBIT "B"
LICENSEE'S PROPERTY
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10698241.2
LICENSOR ESTOPPEL CERTIFICATE AND AGREEMENT
This LICENSOR ESTOPPEL CERTIFICATE AND AGREEMENT (this "Agreement"),
dated effective for all purposes this day of , 2013, is entered into by the City of
Aventura, a Florida municipal corporation ("Licensor"), having an address at 19200 West
Country Club Drive, Aventura, Florida 33180, Attention: City Manager, for the benefit of
ColFin Aventura Funding, LLC, a Delaware limited liability company (together with its
successors and/or assigns, collectively "Lender"), having an address at c/o Colony Capital LLC,
2450 Broadway, 6th Floor, Santa Monica, California, 90404, Attention: Legal Director and is
joined and consented to for all purposes by PMG Aventura, LLC, a Florida limited liability
company ("Licensee").
RECITALS
A. Licensee is the licensee and Licensor is the licensor under that certain License to
Use Real Property (the "License Agreement") dated as of , 20_, by and
between Licensor and Licensee covering the premises described therein and located at 3200 NE
188th Street, Aventura, Florida(the "Licensed Premises").
B. The License Agreement is evidenced by that certain Memorandum of License
Agreement dated , 2013 and recorded on , 20_ in
Official Records Book at Page of the Public Records of Miami-Dade County,
Florida(the "Memorandum").
C. On January 10, 2013, Lender made a loan to Licensee in the principal sum of
$22,250,000 (the "Loan"), evidenced by, inter alia, a promissory note in the original principal
amount of the Loan made by Licensee and payable to the order of Lender (as the same may be
amended, restated, replaced, severed, consolidated, supplemented or otherwise modified from
time to time, the "Note") and a loan agreement by and between Lender and Licensee (as the
same may be amended, restated, replaced, supplemented or otherwise modified from time to
time, the "Loan Agreement"); and secured by, inter alia, a first lien collateral assignment of
license agreement dated January 10, 2013 encumbering Licensee's interest in the Licensed
Premises under the License Agreement (as the same may be amended, restated, replaced,
supplemented or otherwise modified from time to time, the "Collateral Assignment"; and
together with the Note, the Loan Agreement and all other documents, instruments and
agreements evidencing, securing or otherwise entered into in connection with the Loan, each as
may be amended, restated, replaced, supplemented or otherwise modified from time to time, the
"Loan Documents").
D. The execution and delivery of this Agreement by Licensor is a condition
subsequent to Lender making the Loan to Licensee.
E. Capitalized terms used in this Agreement but not otherwise defined herein shall
have the respective meanings assigned to such terms in the License Agreement.
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NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and adequacy of which are hereby conclusively
acknowledged, Licensor does hereby certify to and agree with Lender as follows:
1. As of the date of this Agreement, the License Agreement is valid and in full force
and effect and has not been modified or amended and a true and complete copy of the License
Agreement is attached hereto as Exhibit "A". The License Agreement and the Memorandum
constitute the entire agreement between Licensor and Licensee regarding Licensee's license of
the Licensed Premises and, except for the terms and conditions set forth in any Administrative
Temporary Use Approval, and/or any other development approval issued by the City of Aventura
in connection with the use and development of the Licensed Premises, there are no other written
or oral agreements of any kind between Licensor and Licensee affecting the License Agreement
or Licensee's license of the Licensed Premises. Lender acknowledges and agrees that the
Licensed Premises shall be subject to the terms and conditions of any Administrative Temporary
Use Approval or other development approval or order issued by the City of Aventura governing
use of the Licensed Premises and any development and construction the Improvements thereon.
To the best knowledge and belief of Licensor, no default exists on the part of the Licensee under
the License Agreement and, to the best knowledge of Licensor, there is no existing circumstance
which, with the delivery of notice or the passage of time or both, would give rise to or ripen into
such a Default.
2. The term of the License Agreement commenced on , 2013
and the term of the License Agreement will expire on , 20_.
3. The $125,000 License Fee for the initial Term has been paid by Licensee to
Licensor.
4. Licensor consents to the Collateral Assignment and acknowledges and agrees that
the encumbrance of Licensee's interest in the Licensed Premises and the License by the
Collateral Assignment does not and shall not constitute a Default under the License Agreement.
5. Pursuant to Section 25 of the License Agreement, Licensor acknowledges that the
Lender is entitled to all rights, privileges and notices accorded to the holder of a Collateral
Assignment under the terms of the License Agreement. Licensor further acknowledges that
Licensor has received notice of Lender's name and address as set forth above.
6. Lender may, at any time, without Licensor's consent, sell, assign, participate or
securitize all or any portion of the Loan and Lender's right and obligations under the Collateral
Assignment and the other Loan Documents, and any such sale, assignment, participation or
securitization may be to one or more financial institutions or other entities, to private investors,
and/or into the public securities market, in Lender's sole discretion. Licensor acknowledges and
agrees that any securitization vehicle in connection with a securitization of the Loan, including,
without limitation, a real estate mortgage investment conduit or CDO, shall be deemed a
Collateral Assignment for all purposes under the License Agreement. In the event Lender sells,
assigns, participates, or securitizes all or any portion of the Loan, Lender shall provide written
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2
notice of such action to Licensor which notice shall provide the name and address of a
designated party or entity entitled to receive notice under Section 25 of the License Agreement.
7. Subject to the terms and conditions of the License Agreement, Licensor
acknowledges and agrees that Lender (or its nominee or designee) or a purchaser at an
enforcement action may acquire the License Agreement and Licensee's interest in the Licensed
Premises whether through an enforcement action or otherwise, and upon such party's acquisition
of the License Agreement and Licensee's interest in the Licensed Premises, and written notice to
the Licensor of such assignment or acquisition, Licensor shall recognize such party as licensee
under the License Agreement and such party shall be subject to all terms and conditions of the
License Agreement. Licensor further acknowledges and agrees that any other party may acquire
the License Agreement and license to the Licensed Premises directly from any of the parties
described in the foregoing sentence without Licensor's consent, and Licensor shall recognize
such party as licensee under the License Agreement.
8. Licensor acknowledges and agrees that (a) Lender shall be an additional insured
under all of Licensee's insurance policies relating to the Licensed Premises; and (b) Lender shall
have the right to participate in any insurance settlement affecting the Licensed Premises.
9. Licensor agrees to accept performance by Lender of any obligation on Licensee's
part to be performed under the License Agreement with the same force and effect as though
performed by Licensee; provided, however, that the Lender shall not become liable for
Licensee's obligations under the License Agreement unless and until such Lender acquires the
interest of Licensee in the License Agreement.
10. Licensor acknowledges that Licensee shall have no right to exercise any
termination option or termination right set forth in the License Agreement without the Lender's
prior written consent, which consent may not be unreasonably delayed or withheld. No
amendment, modification, voluntary termination, cancellation or surrender of the License
Agreement by Licensee or mutual termination of the License Agreement between Licensor and
Licensee shall be effective without the prior written consent of the Lender, which consent may
not be unreasonably delayed or withheld by the Lender. Licensor will not, without the prior
written consent of Lender (which consent may not be unreasonably delayed or withheld by the
Lender), consent to or accept any cancellation or termination by the Licensee of the License
Agreement or any provision thereof.
11. Licensor agrees that the Collateral Assignment and other Loan Documents may
provide that the Lender may remove any Improvements and any inventory, equipment or other
personal property, and all products and proceeds of the foregoing, that may be removed without
material damage to the Licensed Premises and that are located on the Licensed Premises and
used by Licensee in the operation of business conducted on the Licensed Premises (collectively,
the "Property Collateral"), or any part thereof, from the Licensed Premises, and Licensor will
not object, delay, hinder or interfere with any or all of such actions by the Lender, provided,
however, that any damage to the Licensed Premises shall be repaired and the Licensed Premises
restored to their condition existing prior to the Licensee's use and occupancy.
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12. In the event of any conflict between the terms of this Agreement and the terms of
the License Agreement, the terms of the License Agreement shall govern and control. All terms
of the License Agreement shall remain in full force and effect.
13. All notices to Licensor hereunder or under the License Agreement from Lender
shall be delivered in accordance with Section 12 of the License Agreement at the address for
Licensor set forth therein, or at such other address of which written notification delivered in
accordance with Section 12 of the License Agreement has been given. All notices hereunder or
under the License Agreement from Licensor to Lender shall be deemed to have been sufficiently
given or served for all purposes when delivered in writing by (i) certified United States Mail,
postage prepaid, return receipt requested, (ii) hand delivered with a request for a written receipt
of acknowledgement of delivery, at its address set forth herein below, or at such other address of
which written notification delivered in accordance with the foregoing procedures has been given:
ColFin Aventura Funding,LLC
do Colony Capital, LLC
2450 Broadway, 6th Floor
Santa Monica, CA 90404
Attention: Legal Director
Telephone: 310-282-8820
Facsimile: 310-282-8808
With a copy to:
ColFin Aventura Funding, LLC
c/o Colony Capital, LLC
660 Madison Avenue, Suite 1600
New York,N.Y. 10065
Attention: David Schwarz
Telephone: 212-330-3330
Facsimile: 646-837-5324
and
Marshall R. Pasternack, Esquire
Bilzin Sumberg Baena Price& Axelrod LLP
1450 Brickell Avenue, 23rd Floor
Miami, Florida 33131
Telephone: 305-350-2356
Facsimile: 305-351-2247
14. This Agreement shall be governed by the internal laws of the State of Florida,
without reference to choice of law principles. This Agreement may be executed in any number
of counterparts, each of which when executed and delivered shall be deemed to be an original
and all such counterparts together shall constitute one and the same instrument. This Agreement
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may not be modified except by an agreement in writing signed by Licensor and Lender or their
respective successors in interest.
15. Licensor agrees that this Agreement shall be binding upon Licensor and its
successors and assigns and may be relied upon by and shall inure to the benefit of Lender and its
successors and assigns.
[Signatures commence on the following page]
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•
IN WITNESS WHEREOF, Licensor and Lender have executed this Agreement as of the
day and year first above written.
LICENSOR:
CITY OF AVENTURA, a municipal corporation
By:
Title:
ATTEST:
City Clerk
Approved as to form and correctness:
City Attorney
LENDER:
COLFIN Aventura Funding,LLC,a Delaware
Limited Liability Company
By:
Name:
Title:
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LICENSEE JOINDER
Licensee hereby joins in the execution of the foregoing Agreement to acknowledge and
agree to the provisions thereof in all respects, including any amendment or modifications to the
License Agreement effected by such Agreement.
PMG AVENTURA, LLC, a Florida limited
liability company
By:
Name:
Title:
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EXHIBIT A
LICENSE AGREEMENT
[Attached]
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