Filing # 57898966 E-Filed 06/16/2017 08:39:01 PM

IN THE CIRCUIT COURT OF THE 11TH

JUDICIAL CIRCUIT IN AND FOR
MIAMI-DADE COUNTY, FLORIDA

COMPLEX BUSINESS LITIGATION

CASE NO.: 2017-013829-CA-01 (44)

FLAGSTONE ISLAND GARDENS LLC,
a Delaware Limited Liability Company, and
FLAGSTONE DEVELOPMENT CORPORATION,
a Delaware Corporation,

Plaintiffs,

v.

CITY OF MIAMI, a Florida municipal corporation,

Defendant.
_________________________________________/

FLAGSTONES EMERGENCY MOTION FOR

PRELIMINARY INJUNCTION

Plaintiffs Flagstone Island Gardens, LLC (Flagstone) and Flagstone Development

Corporation move pursuant to Florida Rule of Civil Procedure 1.610 on an emergency basis to

preliminarily enjoin Defendant City of Miami (City) and for a standstill order to preserve the

status quo until the Court has resolved the merits of Plaintiffs claims.

PRELIMINARY STATEMENT

The Citys recent public repudiation of its agreements with Flagstone for the

development of a mixed-use waterfront project will cripple Flagstones property rights and

leasehold interests absent immediate Court intervention. The Citys actionspurporting to

notice Flagstones default on the agreements governing the developmentare legally

unsupportable, so much so that the Citys own staff and lawyers tasked with coordinating the

development repeatedly confirmed that Flagstone remains in complete compliance with those

agreements. Flagstone will succeed on the merits of its claims in establishing that it never

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defaulted, and furthermore, that the City breached and repudiated its obligations, to Flagstones

considerable detriment.

But in the interim, because of the Notice of Default, the State could withdraw land use

modifications without which Flagstone has no development or property rights; the City could

revoke Flagstones certification to use and develop its marina leasehold; the City threatens to

retake the entire property and all of its improvements; and Flagstones financing, investment and

development partners have and are backing out; all while development deadlines tick away with

Flagstone, through no fault of its own, unable to proceed with the project. Even after Flagstone

proves its compliance with every term of its agreements, and it will, Flagstone will have suffered

the diminishment or erasure of its property rightswithout the availability of any retroactive

recourse. Flagstone therefore seeks limited, preliminary injunctive relief to preserve the status

quo and to protect itself from those irreversible injuries.

FACTUAL BACKGROUND

Flagstones Complaint 1 provides a more detailed factual background to the parties

dispute. Flagstone verifies the following facts for purposes of this Motion, as provided in the

attached Declaration of Mehmet Bayraktar:

A. The Project, Agreements, and the Citys Repudiation

As more particularly described in the Deed, the Board of Trustees conveyed to the City

certain lands on which the Project is located. The Deed contained certain restrictions. In

December 2000, the City Commission authorized the RFP for development of the Project.

Solicited by the City, Flagstone submitted the Island Gardens Proposal in response to the RFP.

After conducting its technical review and evaluation process, by near-unanimous vote, the Citys

1
Capitalized terms not defined herein have the meanings ascribed to them in Flagstones
Complaint.
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Selection Committee selected Flagstone as the developer for the Project. In November 2001, the

Island Gardens Proposal was soundly approved by voter Referendum. Flagstones Island

Gardens Proposal was approved by the City Commission by resolution. The Project consists of a

mixed-use development with a mega-yacht marina, luxury retail facilities, two hotels, fractional

ownership units, and parking.

Pursuant to a City Commission resolution, the City and Flagstone entered into the

Amended Agreement to Enter, dated as of February 1, 2010, which among other things, allows

for the phasing of the Project on a component-by-component basis: Phase 1 the Marina

Component; Phase 2 Retail/Parking Component; Phase 3 Hotel 1 Component; and Phase 4

Hotel 2 Component. Ex. A to Bayraktar Decl. The City also approved the form of Amended

Ground Leases for the components. Id. at Ex. B.

On June 2, 2014, the Board of Trustees and the City amended and restated the Partial

Modification of Restrictions, which modifies certain restrictions in the Deed, on the terms set

forth in the Second Partial Modification. Ex. C to Bayraktar Decl. On May 30, 2014, the City

and Flagstone entered into the Marina Lease. Id. at Ex. D. On May 31, 2014, the City and

Flagstone entered into the Compliance Agreement. Id. at Ex. E. On March 20, 2015, the City,

Flagstone and a lender entered into a Subordination, Non-Disturbance and Attornment

Agreement (SNDA) with respect to the Marina Lease. Id. at Ex. F. On August 31, 2016, the

City and Flagstone entered into the Retail/Parking Lease. Id. at Ex. G.

The Agreements generally state the parties rights and obligations with respect to the

Project, and provide for interlocking development and construction deadlines. Further, certain

defaults under the Amended Agreement to Enter permit the termination of the other interrelated

Agreements.

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Flagstone has met every contractual obligation required of it under the Agreements.

Flagstone has adhered to the required timeline with respect to the Project. This included

construction of the Marina Component at a cost of over $52 million. The Marina is operational,

and has tenants under separate dockage agreements.

Flagstone is not in default with respect to any of the Agreements. The City, through its

elected officials and professional staff, consistently and publically confirmed Flagstones full

compliance with all of the relevant Agreements throughout the course of the Projects

development and construction. Ex. H thru L to Bayraktar Decl. The City, including through the

City Managers office, City Attorneys office and various City departments, repeatedly reiterated

that position in standing weekly Project-coordination meetings with Flagstone during the past

three years. As recently as May 26, 2017, the City Manager publicly stated that he would

advise that [Flagstone is] not in default. Id. at Ex. K.

Nevertheless, on May 30, 2017, the City Commission issued the Default Resolution

directing the City Manager (despite his contrary conclusion) to issue a notice of default to

Flagstone for failure to timely begin construction of the Retail/Parking Component and for

failure to obtain financing under the Amended Agreement to Enter. Ex. M. to Bayraktar Decl.

On June 10, 2017, the City Manager delivered to Flagstone the defective Notice of Default, dated

June 7, 2017, referencing the Default Resolution, sections 6.1.2 and 12.1.12 of the Agreement to

Enter, and Composite Attachment 3 to the Retail/Parking Lease. Id. at Ex. N.

B. Invalidity of the Notice of Default

Flagstone obtained the Phased Foundation Permit for the Retail/Parking Component on

September 1, 2016. Immediately thereafter, Flagstone actually began construction on the

Retail/Parking Component as contemplated by the Retail/Parking Lease. As Flagstone continued

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with development and construction of the Retail/Parking Component, between June 2015 and

April 2017, Flagstone obtained a series of permits and approvals from various state and local

agencies:

On June 25, 2015, Flagstone opened a Miami-Dade WASA Master Agreement.

On February 25, 2016, and on March 21, 2016, Flagstone obtained Miami-Dade
WASA water relocation permits.

On February 25, 2016, and on September 2, 2016, Flagstone obtained a Miami-

Dade WASA sewer relocation permit.

On March 21, 2016, Flagstone obtained a Miami-Dade DERM water relocation

permit.

On March 24, 2016, Flagstone obtained a Florida Department of Health general

permit.

On August 3, 2016, Flagstone obtained a Florida Department of Environmental

Protection sewer relocation permit.

On September 2, 2016, Flagstone was issued the Miami-Dade Wastewater

Collection/Transmission System construction permit.

On October 3, 2016, Flagstone obtained a Florida Department of Transportation

utility permit.

On February 28, 2017, the private provider for the Project selected by the City
conducted an inspection whereby Flagstone received approval of all foundation
work completed to date under the Retail/Parking Component.

On April 26, 2017, Flagstone obtained preliminary approval of the City of Miami
Public Works Permit for a non-material public works permit, and the City of
Miami Public Works issued the final permit.

On May 4, 2017, Flagstone obtained a permanent non-material public works

permit.

During that time and with those permits and approvals, construction continued apace. Also

during that time, the Phased Foundation Permit temporarily lapsed necessitating the issuance of a

new Phased Foundation Permit; Flagstone used good faith efforts to reinstate the Phased

Foundation Permit; and a new Phased Foundation Permit was issued by the City on May 4, 2017.
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With respect to both the Marina Component and Retail/Parking Component, and with

respect to both the Marina Lease and Retail/Parking Lease, Flagstone had no need to obtain, and

therefore did not obtain, an Initial Construction Loan (as defined by the Agreements). Instead,

Flagstone initially self-financed with respect to both the Marina Component and Retail/Parking

Component and with respect to both the Marina Lease and Retail/Parking Lease. In connection

with both the Marina Lease and the Retail/Parking Lease, Flagstone provided the City an

affidavit attesting that: (1) there was no Construction Loan for the development of the relevant

Component; (2) Flagstone and its affiliates were funding the complete development and

construction of the relevant Component; and (3) Flagstone and its affiliates have sufficient funds

to finance the complete development and construction of the relevant Component. Ex. O & P to

Bayraktar Decl. The City accepted in writing those financing affidavits and Flagstones self-

financing of the development and construction of the Marina Component and the Retail/Parking

Component. Id. at Ex. Q. The City and Flagstone then entered into both the Marina Lease and

the Retail/Parking Lease.

C. Flagstones Property Rights at Issue

Under the various Agreements, Flagstone has development rights with respect to the

Project and has leasehold rights to occupy, use, and maintain the Land. In connection with the

supposed Default, the City has repeatedly indicated that it will be terminating the Agreements,

halting the Project, and retaking the Land. Ex. R & S to Bayraktar Decl. Regardless,

Flagstones relationships and contracts with third parties (which permit Flagstone to proceed

with the development and construction of the Project) have already been disrupted as a result of

the uncertainty surrounding the Citys repudiation of the Agreements. Id. at Ex. T.

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Furthermore, on January 7, 2016, Flagstone obtained a temporary certificate of

occupancy with respect to the Marina Component. Ex. T to Bayraktar Decl. That temporary

certificate of occupancy is set to expire of its own accord on June 30, 2017. Id. With completion

and approval of a single construction itemextension of a sewer line and connection to a water

meterFlagstone will be entitled to a final certificate of occupancy. Flagstone has substantially

completed that construction item. Flagstone intended to complete that construction item within

the required timeframe. However, the City refused to process Flagstones permits required to

obtain the permanent certificate. In fact, the City has indicated that it will no longer process any

of Flagstones requests for permits and approvals, thereby preventing Flagstone from obtaining

the final certificate of occupancy. Id. at Ex. V & W.

D. Remittance of the Semi-Annual Payments

As required by the Compliance Agreement and contemplated by the Amended

Agreement to Enter, Marina Lease, and Retail/Parking Lease, during the six month period of

January 1, 2017 through June 1, 2017, Flagstone delivered to the City six monthly payments of

Rent totaling $570,000, and six monthly payments for remittance to the State totaling $85,500.

Ex. X & Y to Bayraktar Decl. Under the Compliance Agreement and Second Partial

Modification, the City is required, on or before July 1, 2017, to remit a semi-annual payment to

the State of that six-month $85,500 aggregate of Flagstones payments. However, Flagstone

understands that the City does not intend to remit that payment.

LEGAL STANDARD

Flagstone easily satisfies the test for issuance of a temporary injunction: [1] a substantial

likelihood of success on the merits; [2] lack of an adequate remedy at law; [3] irreparable harm

absent the entry of an injunction; and [4] that injunctive relief will serve the public interest.

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Liberty Counsel v. Fla. Bar Bd. Of Governors, 12 So. 3d 183, 186 n.7 (Fla. 2009) (quoting

Reform Party of Fla. v. Black, 885 So. 2d 303, 305 (Fla. 2004)); Ryan v. Lobo De Gonzalez, 921

So. 2d 572, 579 (Fla. 2005); Charlotte Cty. v. Grant Med. Transp., Inc., 68 So. 3d 920, 922 (Fla.

2d DCA 2011); Dania Jai Alai Intl, Inc. v. Murua, 375 So. 2d 57, 58 (Fla. 4th DCA 1979). A

trial court may exercise broad discretion in granting injunctions and [an appellate court] will not

disturb the trial courts decision unless a clear abuse of discretion is demonstrated. U.S. 1 Office

Corp. v. Falls Home Furnishings, Inc., 655 So. 2d 209, 210 (Fla. 3d DCA 1995) (citing Wise v.

Schmidek, 649 So. 2d 336 (Fla. 3d DCA 1995)).

ARGUMENT

Flagstone requires preliminary injunctive relief to maintain the status quo and to protect

its rights while the Court adjudicates Flagstones claims. Without such relief, Flagstone will

suffer significant irreparable damage to its leasehold and development rights. Specifically, if the

City is not made to remit its semi-annual payment by July 1, the State can unilaterally revoke

Flagstones Deed modifications that provide Flagstone its leasehold interest and ability to use the

Land. Likewise, Flagstone will suffer the unrecoverable loss of its leasehold rights, even when it

ultimately succeeds on its claims, if the City is permitted to terminate Flagstones certificate of

occupancy pursuant to the Citys invalid Notice of Default. Absent the Courts protection of

Flagstones status quo use of the Land and a pause in the Project development deadlines,

Flagstones property rights will be significantly diminished (if not extinguished) while the Notice

of Default is pending as (a) Flagstone is effectively unable to develop and construct the Project

and (b) the City will proceed to exercise its purported right to retake the Land and its

improvements.

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Thus, Flagstone requests that the Court: (1) direct the City to remit to the State on or

before July 1, 2017 the payments already made by Flagstone, as required under the Compliance

Agreement and the Second Partial Modification, and to continue to remit semi-annually

Flagstones payments pursuant to those agreements; (2) enjoin the City from revoking

Flagstones temporary certificate of occupancy with respect to the Marina Component, and either

require the City to extend that temporary certificate of occupancy during the pendency of this

litigation or to issue Flagstone all ancillary permits and to grant Flagstone a final certificate of

occupancy; (3) preserve the status quo with respect to the Land and the Project by (a) preventing

the City from altering Flagstones leasehold interests and use of the Land during the pendency of

this suit; (b) preventing the City from interfering with Flagstones collection of rents and

payments and from undertaking its day-to-day operations on the Marina during the pendency of

this suit; and (c) suspending and extending all deadlines under the Agreements and with respect

to the Project during the pendency of this suit; and (4) direct Flagstone to deposit monthly in an

escrow account during the pendency of the case the payments that it owes to the City in the

regular course per the Agreements. To protect the City and further preserve the status quo, the

Court should direct Flagstone to deposit monthly in an escrow account during the pendency of

the case the payments that it owes to the City in the regular course per the Agreements.

A. Flagstone Is Substantially Likely to Succeed on the Merits.

1. The City Is Contractually Obligated to Remit the Semi-Annual Payments.

Under both the Compliance Agreement and the Second Partial Modification, the City is

required to remit the semi-annual payment on July 1, 2017 to the State regardless of whether the

City had a valid basis to notice an event of default by Flagstone (it did not).

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No party disputes that both the Compliance Agreement (between the City and Flagstone)

and the Second Partial Modification (between the City and the Board of Trustees) are valid and

enforceable agreements. Section 2(a) of the Compliance Agreement provides that Flagstone

shall pay monthly to the City fifteen percent of its total gross rental payments due under the

Amended Agreement to Enter and Marina Lease (as applicable). Section 2(a) of the Compliance

Agreement and the Second Partial Modification then requires the City to remit, on a semi-annual

basis, those payments to the Division for the Board of Trustees.

The Compliance Agreement contemplates two potential defaults by Flagstone: if (a)

Flagstone fails to make the requisite payments under section 2; or (b) a Ground Lease is

terminated and there is no other valid and active Ground Lease. Id. at 3(a) and (b). Likewise,

the City will be in default of the Second Partial Modification if: (1) it fails to remit the semi-

annual payments to the Board of Trustees; or (2) a Ground Lease is terminated and there is no

other valid Ground Lease. Id. at 3(a) and (b).

Flagstone has made all required payments pursuant to the Compliance Agreement via

monthly checkson January 1, 2017 through June 1, 2017. Ex. Y to Bayraktar Decl. And even

if the Citys Notice of Default with respect to the Retail/Parking Lease was valid (it is not) and

such Notice effectively terminated the Lease (it did not)the Marina Lease remains in full force

and effect. Therefore, the City has no right to abandon its obligations under the Compliance

Agreement and the Second Partial Modification. The Citys semi-annual payment to the Board

of Trustees is due by or before July 1, 2017. Without any legal justification, the City has made

clear its intention to breach the Compliance Agreement and Second Partial Modification and not

to remit that payment.

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To be clear: Flagstone has paid the City in full; the City is required to remit that

payment, which it has in hand, to the Board of Trustees. Flagstone is simply asking the Court to

require the City to remit a payment the City is contractually obligated to make, using money it

already has. In addition, Flagstone asks that the Court preserve the parties rights by directing

Flagstone to put in escrow all future payments it owes to the City in the normal course, and to

have the City make all required payments to the State out of such escrow, for the remainder of

this case.

2. The Citys Notice of Default is Erroneous; Flagstone Has Not Defaulted

on Any Agreement.

Flagstone has fully complied with all of its duties and obligations under the Agreements.

The City has nevertheless repudiated the Agreements by falsely asserting an Event of

Flagstones Default through the Default Resolution and the Notice of Default. The Notice of

Default declares a default under the Amended Agreement to Enter and the Retail/Parking Lease

by reference to two discrete issues: starting construction with respect to the Retail/Parking

Component, and financing conditions prior to entry into the Retail/Parking Lease. Flagstone will

succeed on the merits of its claims in establishing that it has not defaulted with respect to either

issue.

a. Flagstone Timely Started Construction.

Composite Attachment 3 to the Retail/Parking Lease provided Flagstone a May 1, 2017

deadline (the stated deadline of April 30, 2017 being a Sunday) to Start Construction of both the

Retail/Parking Components. The Retail/Parking Lease, including at section 1.5(n) and Revised

Exhibit A to Composite Attachment 3, defines Start Construction to mean that all material

plans and permits are approved and issued and the actual act of physical construction has begun.

Section 6.1.13(b) of the Amended Agreement to Enter further provides, in relevant part:
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Flagstone shall ... (ii) apply to the City for Foundation Permits and commence site
utility relocation work by such time period as necessary to begin such site utility
work for the applicable Major Project Components, (iii) obtain and provide any
other necessary governmental approvals for commencement of construction for
the applicable Major Project Component(s), and (iv) continue to use good faith
efforts to keep active and in full force and effect such FDOT Approvals, City
Approvals, Foundation Permits, other necessary governmental approvals ... .
Should any of the FDOT Approvals, the City Approvals, the Foundation Permits,
the Miami- Dade County Class I Permit for the Marina, or any other
governmental approvals temporarily lapse, (i) such lapse shall not be a reason to
extend the Outside Dates for construction commencement of any Major Project
Component, and (ii) such temporary lapse shall not constitute an Event of
Flagstones Default as long as Flagstone continues to use good faith efforts to
reinstate any such lapsed FDOT Approval(s), City Approval(s), Class I
Permit, the Foundation Permits, or any other governmental approval, as
applicable.

(emphasis added). Finally, sections 25.1(i) and 25.2(b)(i) of the Retail/Parking Lease provide

Flagstone with the explicit right to cure any default with respect to the deadline to start

construction.

First, Flagstone obtained the Phased Foundation Permit for the Retail/Parking

Component on September 1, 2016. Immediately thereafter, Flagstone actually began

construction on the Retail/Parking Component. This was eight months prior to the May 1, 2017

deadline. On those two facts alone, Flagstone satisfied its deadline to Start Construction under

the Retail/Parking Lease. Between June 2015 and April 2017, Flagstone proceeded apace with

development and construction of the Retail/Parking Component, including by obtaining more

than a dozen state and local permits and approvals. That is, Flagstone has been actually building

the retail and parking facilities, with State and City departments issuing permit after approval, for

nearly a year.

Second, the temporary lapse in Flagstones Phased Foundation Permit is a non-issue.

During Flagstones construction of the Retail/Parking Component, the Phased Foundation Permit

temporarily lapsed. However, Flagstone used good faith efforts to obtain a new Phased
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Foundation Permit, which was issued on May 4, 2017. The City made much of this issue at the

May 30 Commissioners meeting. However, explicitly pursuant to section 6.1.13(b) of the

Amended Agreement to Enter, the temporary lapse of the Phased Foundation Permit does not

constitute an Event of Flagstones Default. That is, even considering the temporary lapse of the

Phased Foundation Permit, Flagstone complied with the May 1, 2017 deadline to Start

Construction under Composite Attachment 3 to the Retail/Parking Lease.

Third, even if, because of the temporarily lapsed Phased Foundation Permit, Flagstone

failed to Start Construction by the May 1 deadline (it did not), the Retail/Parking Lease explicitly

provides that Flagstone shall have the right to cure any cross default under Composite

Attachment 3including the construction deadline subject of the Notice of Default. Flagstone

indisputably cured the purported deadline default three days after the May 1 deadline, on May 4,

when it obtained a new Phased Foundation Permit.

Flagstone timely started construction of the Retail/Parking Component. There was no

default of that deadline.

b. Flagstone Met All of Its Financing Obligations.

There are five relevant sections in the Amended Agreement to Enter that govern

Flagstones alleged breach of its financing obligations. Section 6.1.2 provides, in relevant part,

Closing of Construction Loan(s); Other. For each Major Project Component,

Flagstone shall have closed its Initial Construction Loan(s) with an Approved
Initial Construction Lender (as defined in the Ground Lease), which financing
thereunder, together with the amount of Initial Equity Requirement or more as
Flagstone may determine to invest into the same, applicable to the relevant Major
Project Component(s), shall be sufficient to complete the development and
construction (either all at once or on a component by component basis at
Flagstones option) of the applicable Major Project Component of the Project and
to fund any shortfalls in operations that may exist prior to Project Stabilization for
such major Project Component.

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Section 6.2.1 provides that Flagstones failure to satisfy any Article 6 condition precedent

including the preconditions in section 6.1.2prior to the parties entry into the applicable

Ground Lease gives the City the right to terminate the Agreement only if the City provides

Flagstone written notice within five business days after the deadline to enter into such Lease.

Section 12.1.2 provides, in relevant part,

At such time as Flagstone enters into the related Ground Lease(s) for each of the
applicable Major Project Component(s), Flagstone shall represent and warrant to
the City that, to the best of Flagstones knowledge as of the Lease Delivery
Date, Flagstone will have closed upon an Initial Construction Loan for the
applicable Major Project Component(s).

Section 6.1 provides that the City Manager, on behalf of the City, in his or her sole and absolute

discretion may waive[] or defer[] any such conditions precedent that are not satisfied.

Finally, pursuant to section 2.1.3, the City could not enter into any Ground Lease for any

component of the Project unless Flagstone had met any and all conditions precedentfor

construction of the related Major Project Component(s). These provisions of the Amended

Agreement to Enter apply equally to the Marina Component, the Retail/Parking Component, the

Marina Lease, and the Retail/Parking Lease.

With respect to both the Marina Component and Retail/Parking Component, and with

respect to both the Marina Lease and Retail/Parking Lease, Flagstone did not need to obtain, and

thus did not obtain, an Initial Construction Loan (as defined by the Agreements). Instead,

Flagstone self-financed with respect to both the Marina Component and Retail/Parking

Component and with respect to both the Marina Lease and Retail/Parking Lease. In connection

with both the Marina Lease and the Retail/Parking Lease, Flagstone provided the City an

affidavit attesting that (1) there was no construction loan for the development of the relevant

Component; (2) Flagstone and its affiliates were funding the complete development and

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construction of the relevant Component; and (3) Flagstone and its affiliates have sufficient funds

to fund the complete development and construction of the relevant Component. Ex. O & P to

Bayraktar Decl. The City Manager, who was authorized to do so on behalf of the City, accepted

in writing those financing affidavits and Flagstones self-financing of the development and

construction of the Marina Competent and the Retail/Parking Component. 2 Id. at Ex. Q. The

City then entered into both the Marina Lease and the Retail/Parking Lease.

On those facts, which the City cannot dispute, Flagstone complied with the financing

terms the City accuses it of breaching.

First, because Flagstone did not require any construction loan with respect to either the

Marina Lease or the Retail/Parking Lease, the Initial Construction Loan and Approved Initial

Construction Lender provisions of sections 6.1.2 and 12.1.2 are simply inapplicable to those

Project Components and to those Ground Leases. That is, the requirement to close a construction

loan only applied if Flagstone required a construction loan. It did not. It self-financed. So the

term simply did not apply. Accordingly, Flagstone complied with the relevant provisions of the

Amended Agreement to Enter with respect to Flagstones obtaining financing.

Second, pursuant to section 2.1.3, the City could not have entered into the Retail/Parking

Lease if it did not believe that Flagstone had adhered to and satisfied all conditions precedent,

including the construction loan closing and financing requirements. In fact, the City did enter

into the Retail/Parking Lease: executed by the City Attorney, City Manager and the Citys Risk

Management Interim Director, and attested to by the City Clerk. That affirms that according to

2
Pursuant to section 8.1.1 of the Amended Agreement to Enter, the Citys Ombudsman, Aldo
Bustamante, is authorized to, among other things, coordinate, expedite and respond for the City
on behalf of the City Manager with respect to construction and development issues.
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the City itself Flagstone complied with all relevant covenants in the Agreements related to

Flagstone obtaining financing.

Third, the City Manager, as authorized and contemplated by section 6.1, accepted in

writing the condition precedent regarding closing of a construction loan with respect to both the

Marina Lease and the Retail/Parking Lease. That is, even if the construction loan closing term

was applicable, the City affirmatively waived that condition as expressly contemplated by section

6.1 of the Amended Agreement to Enter.

Fourth, at least with respect to the section 6.1.2 Closing of Construction Loan

requirements, the City by its inaction waived its right to terminate by failing to notice any

default (in writing or otherwise) due to that condition precedent within five days of the

Retail/Parking Lease execution deadline, as required by section 6.2.1. The City executed the

Retail/Parking Lease in August 2016. That notice of default deadline passed nearly a year ago.

Finally, on equitable grounds, the City should be held to have affirmatively and

intentionally waived any rights under the Agreements related to Flagstone obtaining financing

through the Citys entering into the Leases and its repeated affirmations that Flagstone was in

full compliance. The process by which Flagstone and the City addressed Flagstones financing

obligations under the Marina Lease and the Retail/Parking Lease was identical. Flagstone self-

financed with respect to the Marina Lease. The City accepted Flagstones financial affidavit

when entering into the Marina Lease. The parties did the same thing when entering into the

Retail/Parking Lease, with one relevant difference: Flagstone provided, and the City accepted,

an additional financial affidavit, attesting to Flagstones self-financing of the Marina

construction. The City then proceeded to act as if the leases were valid, repeatedly confirming

that Flagstone was in full compliance. On the equities, the City should be enjoined from having

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approved Flagstones self-financingnot once through the Marina Lease, not twice when

confirming the Marina financing in connection with the Retail/Parking Lease, but three times

when entering into the Retail/Parking Leaseand then trying to enforce a contrary construction

loan precondition.

For any and all of those reasons, Flagstone is not in default of any of the provisions

specified in the Notice of Default.

B. Flagstone Has No Remedy at Law and Will Suffer Irreparable Harm Absent
Injunctive Relief.

Flagstone will succeed on the merits of its central claims. But in the interim, Flagstone

stands to suffer irreparable injury to its property and leasehold rights absent temporary injunctive

relief to preserve the status quo. Flagstones requested standstill order targets three discrete and

limited issues: (1) the Citys required semi-annual payments to the State; (2) Flagstones

certificate of occupancy of the Marina Property; and (3) Flagstones continued use of the Land,

and inability to move forward with development of the Project, during the pendency of this

litigation.

1. The Violation of Property and Leasehold Rights Warrants Equitable

Relief.

Florida law has long and consistently made available injunctive relief to remedy the

violation of and to protect property rightsincluding specifically the violation of leasehold

rights or restrictive covenants affecting the use of real propertywithout the need to show

irreparable harm. Clark v. Bluewater Key RV Ownership Park Prop. Owners Assn, Inc., --- So.

3d ---, 2017 WL 1908373, at *5 (Fla. 3d DCA May 10, 2017); Autozone Stores, Inc. v. Northeast

Plaza Venture, LLC, 934 So. 2d 670, 672-75 (Fla. 2d DCA 2006); Coffman v. James, 177 So. 2d

25, 31 (Fla. 1st DCA 1965). The bedrock rationale is that every piece of land in the world has a

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peculiar value, infringement of which is not readily remediable by assessment of damages of

law. Daniel v. May, 143 So. 2d 536, 538 (Fla. 2d DCA 1962) (citing Stephl v. Moore, 114 So.

455, 455 (Fla. 1927)). That principle applies with equal strength to commercial properties and to

commercial leases: A tenant seeking to enforce a restrictive covenant under a commercial lease

is no less entitled to the strong protection afforded property interests by specific remedies

designed to secure enjoyment of the intended benefit than is the owner of a residential property

seeking to enforce a setback requirement or other restrictive covenant. Autozone, 934 So. 2d at

674 (quotation omitted).

Further, injunctive relief is appropriate to protect against the destruction of business

opportunities where the immediate impact of the continuing harm would be difficult for the court

to discern. U.S. 1 Office Corp. v. Falls Home Furnishings, Inc., 655 So. 2d 209, 210 (Fla. 3d

DCA 1995) (affirming temporary injunctive relief where plaintiff faced the destruction of its

business without the opportunity to counter the immediate threat to its property rights);

Fountainebleau Hotel Corp. v. Kaplan, 108 So. 2d 503, 505 (Fla. 3d DCA 1959).

2. Flagstone Has Critical Property and Leasehold Rights at Risk.

Each of the Leasesthe Marina Lease and the Retail/Parking Leaseprovides Flagstone

with a wide array of significant property and leasehold rights and interrelated obligations. To list

just a few:

Flagstone has the right to use and maintain the subject Properties and to operate
on them a mega-yacht marina and a 200,000-plus square-foot retail space. See
Leases 7.3(a), 1.5(fff); Exhibit E; Composite Attachment 3.

Flagstone has the right to generate revenues from the marina, parking and retail
operations. See Leases 1.5(dd), Exhibit G.

Flagstone has the right to develop and construct the relevant Component of the
Project, and is required to do so on a set schedule. See Leases 14.1, 14.2,
Composite Attachment 3.

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Flagstone owns all Leasehold Improvementsincluding the tens of millions of

dollars of marina structures and improvements already built, such as the seawall,
artificial reef, dredged and environmentally mitigated seabed, bulkhead, dockage,
mooring system, and pier workon the Properties. See Leases 2.2, 1.5(mm).

Flagstone has the right to lawfully and quietly hold, occupy and enjoy the
Properties during the Lease Terms. See Leases Art. XXVII.

3. Violation of Flagstones Rights Requires the Requested Standstill Order.

Flagstone requires each segment of its requested relief to protect its property rights

through the pendency of this litigation.

a. Semi-Annual Payments

The Citys failure to fulfill its contractual obligations and remit the semi-annual payments

would fatally undermine Flagstones property rights with respect to the entire development.

Most concretely, the Citys default on its obligations under the Second Partial

Modification to timely remit the July 1, 2017 semi-annual payment would allow the Board of

Trustees to terminate the States approvals required for (i) the Ground Leases to Flagstone, (ii)

Flagstones use of the property for development of the Project, and (iii) the Amended Agreement

to Enter governing the entire development. See Second Partial Modification 3(a), 1. The

Citys default under, thereby permitting the termination of, the Second Partial Modification

would further result in the automatic and immediate reimposition of the original restrictions

under the Deed. Id. 3(c). The Deed modifications, approved though the Second Partial

Modification, are a prerequisite to the Ground Leases and necessary for Flagstones development

of the Project. The termination of the States approvals and removal of the Deed modifications

would vitiate Flagstones development and leasehold rights. 3

3
Flagstones marina tenants under current dockage agreements would also be adversely affected.
They would be effectively evicted, and, due to the size and number of Flagstones mega-yacht
tenants, would find it likely impossible to re-dock anywhere else in this country.
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Only injunctive relief directing the City to remit the funds paid by Flagstone for the State

can protect Flagstone from the disastrous consequences of the Citys breach of the Compliance

Agreement and Second Partial Modification.

b. Marina Certificate of Occupancy

Flagstone validly obtained the temporary certificate of occupancy for the Marina.

Flagstone would have been in a position validly to obtain a final certificate of occupancy prior to

the temporary certificates June 30, 2017 expiration. But the City refused to process Flagstones

permits required to obtain the permanent certificate. The City has made clear that it has no

intention of entertaining Flagstones applications for a routine extension or final certificate. Ex.

V & W to Bayraktar Decl. Given the Citys recent misconduct, Flagstone cannot be secure in its

status quo property rights absent a Court order requiring the City to attend to Flagstones permits

and approvals in the normal course.

Injunctive relief is particularly appropriate to compel governmental approvals where an

applicant has satisfied the relevant requirements. See Charlotte Cty. v. Vetter, 863 So. 2d 465,

468-69 (Fla. 2d DCA 2004) (affirming preliminary injunction ordering county to complete

permit process pending final hearing and to lift moratorium imposed with respect to subject

property, where developer relied on countys strong support of development); City of Oviedo v.

Alafaya Utils., Inc., 704 So. 2d 206, 207 (Fla. 5th DCA 1998) (affirming preliminary injunction

prohibiting city from withholding approval of utility improvements because of incalculable

amount of loss that would occur to developers and home buyers if [citys] prohibitions continued

until resolution of the dispute); accord Hollywood Beach Hotel Co. v. City of Hollywood, 329

So. 2d 10, 15-16 (Fla. 1976) (affirming injunction against citys change to development and

zoning regulations prohibiting development based on prior approvals, and rejecting as

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unconscionable citys attempt to reverse prohibition within a timeframe rendering developers

compliance impossible).

c. Use of Properties and Deadline Standstill

The Citys improper Notice of Default has succeeded in derailing development of the

Project. Flagstones relationships and contracts with third partiescontractors, hotel flags,

fractional unit managers, retailers, etc.have been strained and disrupted in the wake of the

inherent uncertainty surrounding the Default Resolution and Notice of Default. With the cloud

of default hanging over the development, Flagstone is unable to obtain financing or attract new,

or maintain its current, investors and partners.

Of course, that was the Citys stated intention. The City Commission determined to walk

away from the Agreements and walk out on development of the Project. As the Commissioners

made clear in the May 30 meeting authorizing the Default Resolution, the City intended the

Notice of Default to halt Flagstones development and, ultimately, to eject Flagstone from the

Properties. Ex. R & S to Bayraktar Decl.

But even if that wasnt the Citys stated intention, it would be the direct legal effect of the

Notice of Default, were it valid. Again, the Notice purports to default Flagstone under both the

Amended Agreement to Enter and the Retail/Parking Lease, and with respect to the two issues

described above: pre-lease financing, and commencement of construction.

First, with respect to the pre-lease financing issue, the Notice references requirements

under sections 6.1.2 and 12.1.2 of the Amended Agreement to Enter. Section 11.1.1 of the

Amended Agreement to Enter generally provides that [t]he failure of Flagstone to perform or

observe any of the covenants, conditions and agreements on the part of Flagstone to be

performed hereunder within thirty (30) days . . . after written notice of such failure constitutes

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an Event of Flagstones Default. Inasmuch as the City is attempting to apply that notice and

default provision, 4 Flagstone has no facially available cure recourse during that thirty day period.

Flagstone either satisfied the construction loan closing condition precedent and properly

warranted as much to the City back in August 2016, or it didnt. If Flagstone did default (and the

City satisfied all relevant conditions), under section 11.2, the City could terminate the Amended

Agreement to Enter. Flagstones ongoing development and leasehold rights would then revert to

the City, and the City would no longer be obligated to move forward with any of the future

Ground Leases towards the development of the Project. See Amended Agreement to Enter

7.2, 7.6, 6.1.12.

Second, with respect to beginning construction, sections VI(a) and VII(c) of Composite

Attachment 3 provide:

If both the Parking/Retail Components do not Start Construction by 4/30/2017,

then Flagstones rights to build any Components expires and ceases, the
Agreement to Enter is terminated, City retains all Prepaid Construction/Base
Rent and Flagstone must turn over to the City immediately the applicable
Ground Lease(s), Flagstone also agrees to return or sign over, as applicable, to
the City all of Flagstones rights, directly or indirectly, in the permits, plans,
specifications, and all related governmental approvals, documents, instruments,
and agreements as necessary related to the Property, and [] deliver to the City all
of such permits, plans, specifications, and all related governmental approvals,
documents, instruments, and agreements which are in Flagstones possession or in
Flagstones control.

Notwithstanding anything to the contrary in this Exhibit A [to Composite

Attachment 3], if the Retail/Parking Components do not Commence Construction
by the [sic] 04/30/2017, then (i) there will be no crediting of Prepaid
Construction/Base Rent, the City shall keep all Prepaid Construction/Base Rent
received, (ii) the City can terminate the Agreement to Enter, all Ground Lease(s),
and (iii) the City can take back the Marina Component, the Retail/Parking
Components, any Hotel Components and the balance of the Project and the
Property.

4
As explained above, under section 6.2.1, the City would have been required to notice an event
of default as to the construction loan closing conditions precedent provisions of section 6.1.2
within five days of the Retail/Parking Lease execution deadlinenearly a year ago.
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Under those cross-default provisions, a valid deadline default (unlike the Notice of Default here)

would result in the termination of the entire network of Flagstones rights with respect to the

Land and the Project. 5

The Citys intentions and the legal implications aside, the practical effect of the Notice of

Default has been to stop Flagstones development and construction of the Project. Flagstone

cannot move forward with construction, and cannot maintain and attract third party participants,

with the Notice of Default outstanding. Flagstone is already suffering those injuries. At the

same time, all of the relevant deadlines in the Agreements are marching forward. Flagstone

requires injunctive relief now both to maintain the status quo as to its property rights, and to

protect its property rights for the eventuality of Flagstones success on the merits. Absent a

standstill orderrequiring the City to respect the Ground Leases and Flagstones leasehold and

development rights with respect to the Properties during the pendency of this litigation

Flagstone is at risk of the City moving forward with retaking Flagstones leasehold Properties.

And absent a pause of the deadlines under the Agreements, even when Flagstone succeeds on the

merits, Flagstone will trigger other purported defaults for failing to meet construction deadlines.

5
Of course, as noted above, Flagstone has explicit cure rights under sections 25.1(i) and
25.2(b)(i) of the Retail/Parking Lease. Even if there was an Event of Flagstone Default with
respect to the deadline to start construction (there was not), Flagstone cured it three days later.
Further, even if Flagstone had defaulted under the Retail/Parking Lease (it did not), the City
would not be able to simply take back the Properties. The SDNA provides Flagstones third-
party lender a host of rightssubordinating the Citys lien and development rights, to notice and
cure, and the ability to effectuate a new Marine Leasepreventing the City from moving against
Flagstones leasehold. And the Agreements provide Flagstone a series of other protections. Not
to mention the Notice of Defaults several independent defects, the least of which is the Citys
failure to provide any factual detail about Flagstones purported breach. It goes without saying
that, by identifying here what the City intends and purports to do, Flagstone in no way admits to
the validity of the Citys actions, any default by Flagstone, or any abridgment of Flagstones
rights with respect to the Land or the Project.
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Injunctive relief is required generally to protect Flagstones property rights and to enforce

the covenants on use and development of the Properties granted by the City in the Ground

Leases. See Clark, --- So. 3d ---, 2017 WL 1908373, at *5; Autozone, 934 So. 2d at 672-75;

Coffman, 177 So. 2d at 31. Such relief is further recommended where the immediate impact of

the continuing harm would be difficult for the court to discern, as it would be here. See U.S. 1

Office, 655 So. 2d at 210; Fountainebleau, 108 So. 2d at 505. And courts regularly issue

injunctive relief to preserve the status quo between parties to contracts while the court resolves

the dispute on the merits. See Precision Tune Auto Care, Inc. v. Radcliff, 731 So. 2d 744, 746

(Fla. 4th DCA 1999) (affirming temporary injunction preserving the status quo until the court

determines whether there has been a breach of contract); Angelis v. Tarpon Springs Sponge

Producers Assn, 149 So. 630, 630 (Fla. 1933) (affirming temporary injunction preserving the

status of the parties under a written contract); Bailey v. Christo, 453 So. 2d 1134, 1136-37 (Fla.

1st DCA 1984) (The purpose of a temporary injunction is to preserve the status quo until a final

hearing may be held and the dispute resolved. The status quo preserved by a temporary

injunction is the last peaceable noncontested condition that preceded the controversy.).

C. The Requested Relief Serves the Public Interest.

Temporary injunctive relief to protect property rights of the type Flagstone requests here

serves a fundamental public interest. Our courts have described private property rights as

sacrosanct in the face of government encroachment. See CNL Resort Hotel, L.P. v. City of

Doral, 991 So. 2d 417, 420-21 (Fla. 3d DCA 2008) (Private property rights have long been

viewed as sacrosanct and fundamentally immune from government interference . . . Florida

further protects these sacrosanct private property rights when evaluating a comprehensive

development plan.). Accordingly, they enjoin interference with private property rights while

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attending to underlying disputes. See Hall v. City of Orlando, 555 So. 2d 963, 966 (Fla. 5th

DCA 1990) (reversing and directing imposition of temporary injunction in favor of private

owner preventing city from use of disputed easement); see also Manheim Remarketing, Inc. v. J

& B Auto Sales & Brokerage, LLC, 2012 WL 12873223, at *4 (S.D. Fla. Apr. 13, 2012) ([T]he

defense and preservation of [movants] property rights and security interest is in the public

interest, as it supports the enforcement of valid contracts and property rights).

D. No Additional Bond Is Required.

Flagstones proposed escrow payments, consisting of all of its amounts due under the

Agreements in the normal course, satisfy the Rule 1.610(b) bond requirement by providing the

City complete security against a potential wrongful enjoinder. Chiefly, Flagstones escrow

payments would act as an increasing bond to protect the City. Accordingly, no additional bond

is required.

First, Flagstone is simply attempting preliminarily to stand-still the parties current

positions and to thereby prevent any prejudice to either Flagstone or to the City. The City stands

to lose nothing from the Courts preservation of the status quo. Absent any potential loss to the

City stemming from the possibility of wrongful enjoinder, nothing beyond a de minimus bond is

required. See Southards v. Motel Mgmt. Co., 567 So. 2d 523, 524 (Fla. 3d DCA 1990) (nominal

bond permissible under appropriate circumstances).

Second, because it is beyond peradventure that, under the Compliance Agreement and the

Second Partial Modification, the City owes the July 1, 2017 semi-annual payment to the State

regardless of Flagstones conduct with respect to the Retail/Parking Lease, and because

Flagstone has in fact already provided the monies for that payment to the City, the City could not

suffer any adverse impact from being enjoined to remit the payment to the State. With respect to

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the July 1, 2017 semi-annual payment, there is no possibility of wrongful enjoinder, and no

potential losses against which to protect the City. See Montville v. Mobile Med. Indus., Inc., 855

So. 2d 212, 216 (Fla. 4th DCA 2003) (court can consider any mitigating factor, including the

adverse partys chances of overturning the temporary injunction, in setting bond amount).

Third, in accordance with the Amended Agreement to Enter, the Marina Lease and the

Parking/Retail Lease, Flagstone has already escrowed over $1 million to protect the City

specifically from risks associated with litigation (and other losses). The Court should permit

Flagstone to rely on those escrowed funds to secure the City with respect to Flagstones

injunctive relief. Ex. Z to Bayraktar Decl.

Fourth, and most important, Flagstone has requested that the Court direct Flagstone to

escrow future payment owed to the City. Because Flagstones rental obligations accrue going

forward, the amount in escrow will increase as this case progresses. Those increasing funds will

act as adequate security to protect the City in the event Flagstone does not ultimately succeed on

the merits. Accord Commodore Plaza at Century 21 Condo. Assn, Inc. v. Century 21

Commodore Plaza Inc., 290 So. 2d 539, 540 (Fla. 3d DCA 1974) (affirming escrow requirement

in alternative to bond for issuance of temporary injunction). Critically, Flagstone has no

continuing obligation to make any rental payments to the City. The City has repudiated the

Agreements; Flagstone has the right to treat that repudiation as a complete breach of the

Agreements, and does not need to perform under those Agreements going forward. See Hosp.

Mortg. Grp. v. First Prudential Dev. Corp., 411 So. 2d 181, 182 (Fla. 1982) ([W]here an

obligor repudiates . . . the nonbreaching party is relieved of its duty to tender performance and

has an immediate cause of action against the breaching party); Craigside, LLC v. GDC View,

LLC, 74 So. 3d 1087, 1090 (Fla. 1st DCA 2011) (same). Further, the rental payments assume

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and depend on Flagstones ability to develop and use the Properties. But the invalid Notice of

Default abrogates those assumptions. Flagstone proposes, nevertheless, to continue to make

those rental payments, into escrow, to preserve the status quo and to act as the bond for its

required injunctive relief.

CONCLUSION

For the reasons and upon the authority stated herein, Plaintiffs request that the Court

enter a standstill order preliminary enjoining the City as stated herein and provide Plaintiffs such

further relief as it deems just and proper.

June 16, 2017 Respectfully submitted,

STEARNS WEAVER MILLER WEISSLER

ALAHADEFF & SITTERSON, P.A.
150 West Flagler Street, Suite 2200
Miami, Florida 33130
Telephone: (305) 789-3200
Facsimile: (305) 789-3395

By: /s/ Eugene E. Stearns

Eugene E. Stearns
Florida Bar No. 149335
estearns@stearnsweaver.com
Maria A. Fehretdinov
Florida Bar No. 52084
mfehretdinov@stearnsweaver.com
Jason S. Koslowe
Florida Bar No. 122758
jkoslowe@stearnsweaver.com

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NOTICE OF COMPLIANCE WITH MEET AND CONFER REQUIREMENT

I HEREBY CERTIFY that on June 16, 2017, pursuant to Rule 4.3 of the Complex

Business Litigation Division Procedures, I conferred via telephone with Christopher A. Green,

Defendants counsel. Mr. Green advised that Defendant opposes the Motion on the basis that the

matter is subject to arbitration.

/s/ Maria A. Fehretdinov

Maria A. Fehretdinov

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that undersigned counsel has electronically filed the foregoing

document with the Clerk of the Court using the Florida Courts E-Portal. Pursuant to Florida R.

Jud. Adm. 2.516(b), I also certify that the foregoing document has been furnished to all counsel

of record or pro se parties identified below in the manner specified, either via transmission of

Notices of Service of Court Document generated by the E-Portal or in some other authorized

manner for those counsel or parties who are excused from email service, this 16th day of June,

2017.

Christopher A. Green, Esq.

Office of the City Attorney
444 S.W. 2nd Avenue, Suite 945
Miami, FL 33130
Tel: (305)416-1800
Fax: (305)416-1801
cagreen@miamigov.com

/s/ Maria A. Fehretdinov

Maria A. Fehretdinov

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 IN THE CIRCUIT COURT OF THE 11TH
JUDICIAL CIRCUIT IN AND FOR
MIAMI-DADE COUNTY, FLORIDA

COMPLEX BUSINESS LITIGATION

CASE NO.: 2017-013829-CA-01 (44)

FLAGSTONE ISLAND GARDENS LLC,
a Delaware Limited Liability Company, and
FLAGSTONE DEVELOPMENT CORPORATION,
a Delaware Corporation,

Plaintiffs,

v.

CITY OF MIAMI, a Florida municipal corporation,

Defendant.
_________________________________________/

DECLARATION OF MEHMET BAYRAKTAR

1. I, Mehmet Bayraktar, am over the age of 21, and I have personal knowledge of
the facts set forth herein.

2. I am the President of Flagstone Development Corporation, the sole and managing

member of Flagstone Island Gardens LLC.

3. I hereby verify that the facts contained in the Factual Background section of
Flagstones Emergency Motion for Preliminary Injunction are true and correct.

4. A true and correct copy of the Amended and Restated Agreement to Enter into
Ground Lease, dated as of February 1, 2010, is attached hereto as Exhibit A.

5. A true and correct copy of the Form of Ground Lease (exhibit C to the Amended
Agreement to Enter) is attached hereto as Exhibit B.

6. A true and correct copy of the Partial Modification of Original Restrictions,

executed on June 2, 2014, is attached hereto as Exhibit C.
 7. A true and correct copy of the Marina Component Amended and Restated Ground
Lease, dated as of May 30, 2014, is attached hereto as Exhibit D.

8. A true and correct copy of the Compliance Agreement, dated June 2, 2014, is
attached hereto as Exhibit E.

9. A true and correct copy of the Subordination, Non-Disturbance and Attornment

Agreement, dated March 20, 2015, is attached hereto as Exhibit F.

10. A true and correct copy of the Retail/Parking Component and Restated Ground
Lease, dated as of August 31, 2016, is attached hereto as Exhibit G.

11. A true and correct copy of an excerpt of the July 10, 2014 City Commission
Meeting Minutes is attached hereto as Exhibit H.

12. A true and correct copy of a May 4, 2017 Email from A. Bustamante to D.
Rotenberg re: Flagstone deadline to begin retail construction? is attached hereto as Exhibit I.

13. A true and correct copy of a May 5, 2017 Email from A. Bustamante to D.
Rotenberg re: Flagstone deadline to begin retail construction? is attached hereto as Exhibit J.

14. A true and correct copy of the Miami Herald article by D. Smiley, After 16 Years,
Billion Dollar Projects Fate Rests in the Hands of Miami, dated May 26, 2017 is attached hereto
as Exhibit K.

15. A true and correct copy of the Miami Herald article by D. Smiley, Did Flagstone
Island Gardens Just Break Ground? Or Break Its Lease?, dated May 6, 2017 is attached hereto
as Exhibit L.

16. A true and correct copy of the Default Resolution, R-17-0263, dated as of May
30, 2017, is attached hereto as Exhibit M.

17. A true and correct copy of the Notice of Default, dated June 7, 2017, is attached
hereto as Exhibit N.

18. A true and correct copy of the Affidavit of M. Bayraktar in connection with the
Marina Lease, dated May 27, 2014, is attached hereto as Exhibit O.
 19. True and correct copies of the Affidavits of M. Bayraktar in connection with the
Retail/Parking Lease, dated August 30, 2016, are attached hereto as composite Exhibit P.

20. A true and correct copy of the A. Bustamantes Retail/Parking Lease Closing
Checklist is attached hereto as Exhibit Q.

21. A true and correct copy of the May 12, 2017 Email from K. Russell to J. Jones
and T. Hannon re: Flagstone statement, is attached hereto as Exhibit R.

22. A true and correct copy of the May 30, 2017 City Commission Hearing Transcript
is attached hereto as Exhibit S.

23. A true and correct copy of the June 14, 2017 Email from D. Witkins (lessee of the
Island Gardens Deep Harbour Marina) to Marina Manager W. Goncalves, re: Nirvana Island
Gardens Deep Harbour Marina Contract, is attached hereto as Exhibit T.

24. True and correct copies of the Marina Temporary Certificates of Occupancy are
attached hereto as composite Exhibit U.

25. A true and correct copy of the June 7, 2017 Email from A. Yurttas to N. Goulet,
et al. re: Building Department-Electrical Permit Issues, is attached hereto as Exhibit V.

26. A true and correct copy of the June 9, 2017 Email from A. Bustamante to R.
Suarez-Rivas and J. Camero, et al., re: Marina Sewer Extension Work, is attached hereto as
Exhibit W.

27. A true and correct copy of Flagstones bank records reflecting its Rent payments
to the City for the past twelve months is attached hereto as Exhibit X.

28. A true and correct copy of the Flagstones bank records reflecting its payments to
the City for remittance to the State per the Compliance Agreement and Second Partial
Modification is attached hereto as Exhibit Y.

29. A true and correct copy of the May 26, 2017 Letter from S. Pique of Flagstone to
A. Bustamante is attached hereto as Exhibit Z.