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HomeMy WebLinkAboutSEOPW-CRA-R-98-00214 Agenda Item No. 1. a. SOPWICRA 9 8 - 21 RESOLUTION NO. A RESOLUTION OF THE BOARD OF THE DIRECTORS OF THE COMMUNITY REDEVELOPMENT AGENCY RATIFYING THE APPROVAL OF AN AMENDMENT TO THE LEASE AND DEVELOPMENT AGREEMENT WITH POINCIANA VILLAGE OF MIAMI LIMITED APPROVED BY THE BOARD OF DIRECTORS OF THE COMMUNITY REDEVELOPMENT AGENCY ON JUNE 30, 1998, PROVIDING FOR THE AMENDMENT TO BE EXECUTED WITHIN TWENTY BUSINESS DAYS SUBJECT TO AN EXTENSION DUE TO UNAVOIDABLE DELAYS AS DEFINED IN THE LEASE AND DEVELOPMENT AGREEMENT; PROVIDING AN EFFECTIVE DATE; AND FOR SUCH OTHER PURPOSES. WHEREAS, Poinciana Village of Miami, Ltd., a Florida limited partnership (the "Developer") and the City of Miami, a Florida municipal corporation (the "City") have entered into that certain Southeast Overtown/Park West Lease and Development Agreement (the "Lease"); and WHEREAS, the City assigned all of its right, title and interest in the Lease to the CRA; and WHEREAS, the CRA has granted the Developer certain amendments to the Lease to facilitate the completion of partially developed units of Poinciana Village Condominiums (the "Project"); and NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE COMMUNITY REDEVELOPMENT AGENCY: SECTION 1: The recitals contained in the preamble to this Resolution are hereby adopted by reference and incorporated in this Resolution as if fully set forth in this Section. SECTION 2: The Board of Directors of the CRA hereby ratifies approval of the Amendment to the Lease approved by the Board of Directors on June 30, 1998, subject to the Developer executing an amendment to the Lease within twenty (20) business days from the 1 SBOMIMA' 9 8 - 21 passage of this Resolution; provided that, the Developer may be granted an extension of such twenty day period due to unavoidable delays as defined in the Lease. SECTION 3: This Resolution shall become effective immediately upon its adoption. PASSED AND ADOPTED ON THIS 22nd DAY OF September 1998. ATTEST: Walter J. Foeman, Clerk APPROVED AS TO FORM AND LEGAL SUFFICIENCY Holland & Knight LLP Counsel to CRA MIA4-688652.1 2 Arthur E. Teele, Jr., Chairman `.. �o w1cRA 9 8 - 21 AGENDA ITEM 1A AMENDMENT THIS AMENDMENT is made and entered into as of the day of September, 1998, by and between the Southeast Overtown/Park West Community Redevelopment Agency of the City of Miami (the "Landlord") and Poinciana Village of Miami, Ltd., a Florida limited partnership (the "Developer"). RECITALS: A. Developer and the City of Miami, a municipal corporation of the State of Florida (the "City") entered into that certain Southeast Overtown Park West Lease & Development Agreement dated June 15, 1988, as amended by Amendment No. 1 dated February 17, 1989, by Amendment No. 2 dated July 24, 1989 and Amendment No. 3 dated January 11, 1990 (collectively the "Lease"). B. The City assigned all of its right, title and interest in the Lease to Landlord. C. Landlord and Developer desire to modify and amend certain terms and provisions of the Lease as hereinafter set forth. NOW, THEREFORE, for and in consideration of ten dollars ($10.00) and other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Recitals. The Recitals to this Amendment are true and correct and are hereby incorporated by reference and made a part hereof. 2. Defined Terms. Any defined terms utilized herein but not defined in this Amendment shall have the meanings ascribed to said terms in the Lease. 3. Developer Improvements. The Developer Improvements are generally as shown on the site plan attached hereto as Exhibit "A" consisting of the following: 3.1 Developer Improvements on the east half of Block 46 which consists of sixty-four (64) units in two (2) buildings of four stories ("Phase I"). These low-rise buildings are arranged around the perimeter of the site to create a continuous pedestrian street scale. Interior of the block will be landscaped open space and parking areas. 3.2 Developer Improvements on the west half of Block 46 shall consist of 91 condominium units or rental apartments in a low-rise building and/or a single tall building or tower of ten (10) to twelve (12) floors or a hotel, extended stay facility, or any combination thereof, containing approximately 125 guest rooms ("Phase II"). 98- 21 3.3 In addition to the interior landscaping open space, the development includes several other amenity features to include covered parking for all units constructed. 4. Project. The Project means the Poinciana Village to be constructed by Developer consisting of the Developer Improvements to be located on Block 46 of the Southeast Overtown Park West Redevelopment Project. 5. Performance Bond. Section 2.1(c)(iii) of the Lease is hereby deleted in its entirety. The Developer's obligations with respect to the posting of a performance bond or bonds under Section 2.1(c)(iii) are hereby released and the Landlord shall, simultaneously with the execution of this Amendment, release to the Developer said bond or bonds and release the second mortgage which was granted by the Developer to the Landlord to secure said bonds. 6. Future Leased Property. 6.1 Section 2.1(d) of the Lease is hereby amended to provide that the Landlord shall deliver possession of the Future Leased Property as described in Section 2.1 to the Developer, and the Developer shall take immediate possession thereof upon the satisfaction of all of the following conditions: 6.1.1 Developer shall have commenced construction of the 24 Units (as defined in Section 17 of this Amendment) within sixty (60) days from the date hereof, as same may be extended as a result of Unavoidable Delays. 6.1.2 Developer shall have obtained the Certificate of Final Completion for the 24 Units on or before 245 days from the date hereof, as same may be extended as a result of Unavoidable Delays. 6.1.3 Developer shall have provided Landlord on or before twenty four (24) months from the date hereof with evidence reasonably satisfactory to Landlord that Developer has obtained a binding loan commitment for construction financing for Phase II to be constructed on the Future Leased Property or such other evidence as may be reasonably satisfactory to the Landlord to establish that funds for construction of Phase II are available to Developer to pay all anticipated costs and expenses to construct Phase II. 6.1.4 Developer shall have provided the Landlord with evidence, in the form of an architect's certificate, evidencing that Developer has obtained all governmental permits and approvals required to construct Phase II, including without limitation a building permit, on or before thirty (30) months from the date hereof. ss` 1i 6.1.5 Developer shall have obtained approval from the Landlord, in accordance with Section 3.3 of the Lease, of the Construction Plans for Phase II on or before thirty (30) months from the date hereof. 6.1.6 The subcontractors for Phase II of the Project shall have been selected and Developer shall have demonstrated to the reasonable satisfaction of Landlord on or before thirty (30) months from the date hereof that diligent good faith efforts were put forth to meet the goals established for minority contractor's participation in the Project. 6.2 The date that the Landlord delivers possession of the Future Leased Property to the Developer in accordance with Section 6.1, by notice in writing to the Developer, is herein called "Possession Date". 6.3 Developer's rights with respect to the Future Leased Property shall automatically terminate and be of no further force and effect if any of the following shall occur: 6.3.1 Developer shall have failed to commence construction of Phase II on or before thirty-two (32) months from the date hereof. 6.3.2 Developer shall have failed to complete construction of Phase II and obtain the Certificate of Final Completion for Phase II on or before twenty four (24) months from the date of commencement of construction of Phase II, as same may be extended as a result of Unavoidable Delays. 6.4 Notwithstanding the fact that the conditions set forth in Section 6.1 have not been satisfied, Developer may encumber its future rights to a leasehold interest in the Future Leased Property as additional security to enable Developer to obtain construction financing for the 24 Units provided that the loan documents clearly indicate that Developer's rights with respect to the Future Leased Property are subject to the satisfaction of the conditions contained in Section 6.1 and that such rights will automatically terminate if the conditions set forth in Section 6.3 are not satisfied within the time frames set forth therein. 6.5 Developer acknowledges and agrees that in the event all of the conditions set forth in Section 6.1 are not satisfied within the time frame set forth therein all of Developer's rights and interest in the Future Leased Property shall terminate and be deleted from the Lease for all purposes whatsoever. In addition, in the event that all the conditions set forth in Section 6.3 are not satisfied within the time frame set forth therein all of Developer's rights and interest in the Future Leased Property shall terminate and be deleted from the Lease for all purposes 3 whatsoever. In either such event, the Landlord shall be free to seek to obtain other developers for the Future Leased Property on such terms and conditions as the Landlord may establish, in its sole and absolute discretion. 7. Hotel. Developer may elect, in its sole and absolute discretion, to construct a hotel or extended stay facility on the Future Leased Property, or any combination thereof, containing approximately 125 guest rooms (the "Hotel") provided Developer gives Landlord written notice of Developer's election to construct a Hotel on the Future Leased Property in lieu of 91 condominium units or rental apartments and Developer obtains approval of the Preliminary Plans for the Hotel from Landlord in accordance with Section 3.2 of the Lease on or before twenty four (24) months from the date hereof. 8. Conditions Precedent. Section 2.1(e) of the Lease is hereby deleted in its entirety. 9. Permitted Uses. Section 2.2(c) of the Lease is hereby amended to read as follows: (c) Permitted Use of the Lease. The only uses permitted on the Lease Property are residential, supporting commercial and general commercial as limited by Section 2.1(a) and hotels, extended stay facilities or any combination thereof and rental apartments. 10. Delinquent Rent. Developer acknowledges and agrees that Developer is currently in default in the payment of Annual Basic Rental through December 31, 1997 in the amount of $62,559.78 which is currently due and payable from Developer to Landlord (the "Delinquent Rent"). Landlord agrees to waive 50% of the Delinquent Rent, in the amount of $31,279.89. In lieu of payment of the Delinquent Rent the Developer agrees to give a credit against the applicable purchase price in the amount of $2,000.00 (the "Credit") to any bona fide employee of the City of Miami who purchases a unit constructed in Phase II provided, however, the total number of credits shall not exceed $32,000 (i.e. 16 units) to satisfy, in full, Landlord's claims with respect to the Delinquent Rent. 11. Rental. Notwithstanding anything to the contrary contained in Section 2.5 of the Lease from and after July 1, 1998 until the issuance of the Certificate of Final Completion of the 24 Units, the Annual Basic Rental shall be reduced to 26% of the Annual Basic Rental stated in the Lease, and Developer shall have no obligation to pay the remaining 74% of the Annual Basic Rental. Upon the issuance of the Certificate of Final Completion for the 24 Units, the Annual Basic Rental shall increase to 42% of the Annual Basic Rental stated in the Lease, until the earlier to occur of (a) the issuance of the Certificate of Final Completion of Phase II or 11 98- 01 (b) the termination of the Lease with respect to the Future Leased Property in accordance with Section 6.2 of this Amendment; from and after which time Developer shall be required to pay 100% of the Annual Basic Rental applicable to Phase I. 12. Real Estate Taxes. Developer acknowledges and agrees that pursuant to Section 2.5(e) of the Lease, the Developer is obligated to pay when due and payable all ad valorem real estate taxes and assessments with respect to the Leased Property, including, without limitation, ad valorem real estate taxes and assessments with respect to Developer's Improvements. 13. Public Charges. Simultaneously with the execution of this Amendment, Developer shall provide to Landlord evidence that all Public Charges are current and in good standing with respect to the Leased Property and the Developer Improvements. 14. Security and Police Protection. With respect to Section 2.8 of the Lease, Developer acknowledges that the Landlord's obligation under the Lease with respect to security and police protection with respect to the Leased Property and the Future Leased Property is limited to causing the City to provide the same level of police protection provided to other residents of the City in the same geographic area that the Leased Property and the Future Leased Property are located. 15. Condition of Lease Property. Developer acknowledges that as of the date hereof the Landlord has fulfilled its duties and obligations pursuant to Section 2.9 of the Lease with respect to the Leased Property and Future Leased Property and waives any right to object to same. Developer waives any right to object to any change in the condition of the Future Leased Property arising from and after the date hereof caused by Developer. 16. Approval by the City Manager. All references in the Lease to approvals, consents or other actions to be taken by the City Manager shall be deemed to be approvals, consents or action to be taken by the Landlord. 17. Construction of the 24 Units. Landlord and Developer acknowledge and agree that Landlord has approved the Construction Plans with respect to the partially built 24 units comprising the balance of Phase I (the 1124 Units"). Developer represents and warrants to Landlord that Developer has obtained a building permit which is currently in good standing and all other approvals necessary to allow Developer to complete construction of the 24 Units have been obtained by Developer and same are in good standing. Developer covenants and agrees to commence completion of the 24 Units on or before 60 days from the date hereof and obtain the Certificate of Final Completion within 245 days from the date hereof, as same may be extended as a result of Unavoidable Delays. 5 SS21 18. Phase II. 18.1 Developer covenants and agrees to provide to Landlord Construction Plans with respect to Phase II within thirty (30) months from the date hereof. The Construction Plans with respect to Phase II shall be subject to the same approval requirements as set forth in Section 3.3 of the Lease. 18.2 Developer covenants and agrees to commence construction of Phase II, in accordance with the approved Construction Plans on or before thirty-two (32) months from the date hereof and diligently pursue construction of same until completion of Phase II substantially in accordance with the approved Construction Plans and cause same to be completed as evidenced by Certificates of Final Completion for Phase II on or before twenty four (24) months from the date of commencement of construction of Phase II, as same maybe extended as a result of Unavoidable Delays. 19. Construction Schedule. The Development Schedule attached to the Lease as Exhibit F is hereby deleted and replaced by the Development Schedule attached hereto as Exhibit 19 and made a part hereof. 20. Construction Period. Section 3.7 of the Lease is hereby deleted in its entirety. 21. Certificate of Final Completion. Section 3.9 of the Lease is hereby amended to read as follows: Certificate of Final Completion. Promptly after completion of each phase of construction of the Developer Improvements on the Lease Property in accordance with the provisions of this Lease, the Developer shall furnish to the Landlord a certificate of occupancy issued by the applicable governmental authorities together with a certificate of completion issued by the architect retained by the Developer certifying to Landlord that the respective improvements have been completed substantially in accordance with the approved Construction Plans (collectively the "Certificate of Final Completion.") 22. Extension of Time Requirement. Section 3.13 of the Lease is hereby deleted in its entirety. Developer acknowledges that the time frames set by this Amendment, with respect to the submission of the Preliminary Plans and Construction Plans and completion of the 24 Units and Phase II are a material inducement to Landlord entering this Amendment and Developer acknowledges and agrees that Developer shall not be entitled to any extensions of the time frame set forth herein. 0 SS- 21 Unavoidable Delays. Section 7.4 is hereby deleted in its entirety and replaced by the following: For purposes of the Lease, "Unavoidable Delays" shall mean a delay in the performance of such obligation due to strikes, lockouts, acts of God, inability to obtain labor or materials due to governmental restrictions, enemy action, civil commotion, fire, unavoidable casualty, a substantial increase in crime within a one mile radius of SEOPW, or similar causes beyond the reasonable control of the party (specifically excluding said party's insolvency or financial condition). It being the purpose and intent of this paragraph that upon occurrence of any Unavoidable Delay, the time or times for the performance of covenants, provisions and agreements of this Lease, including without limitation, the obligations of the Landlord with respect to the preparation of the Leased Property and the Future Leased Property for development or of Developer with respect to construction of the Developer Improvements shall be extended for the period of the Unavoidable Delay provided, however, the parties taking the benefit of the provisions of this section shall, within thirty (30) days after such party shall have become aware of such Unavoidable Delay, give notice to the other party thereof, in writing of the cause or causes thereof, and time delay. 23. Financing. The Landlord shall utilize its good faith efforts to assist Developer in obtaining tax exempt financing for the construction of the Developer's Improvements and tax exempt permanent financing for the Developer's Improvements with no assurance of success. 24. Releases. Simultaneously with the execution of this Amendment, Landlord shall deliver to Developer a release in the form of Exhibit 24 attached hereto and made a part hereof. Simultaneously with the execution of this Amendment, Developer shall execute and deliver to Landlord, and cause all of Developer's general partners and Developer's former general partners to execute a release in the form of Exhibit 24A attached hereto and made a part hereof. 25. Reopening Ceremony. Developer covenants and agrees to prepare and organize an appropriate ceremony in concert with Landlord to publicize the recommencement of the construction at the Project (the "Restart Ceremony"). The Landlord shall prepare and submit to Developer a proposed budget for the Restart Ceremony and Landlord will be responsible to pay all third party costs and expenses associated with the Restart Ceremony in accordance with the budget prepared by Landlord. VA 9s- N1 26. Sales Assistance. The Landlord covenants and agrees to utilize its reasonable efforts to assist the Developer in its efforts to market the sale of units at the Project with no guarantee of success. 27. Other CDC. Developer agrees to utilize its good faith efforts to work with and provide technical knowledge in the areas of affordable housing development to the following community development corporations ("CDCs") operating in Overtown: a) BAME Development Corporation of South Florida, Inc.; b) Mt. Zion Community Development Corporation; c) New Washington Heights Community Development Conference; d) St. John Community Development Corporation 28. Agreement. This Amendment and its Exhibits constitutes the sole and only understanding and agreement of the parties with respect to this Amendment and together with the Lease sets forth the rights, duties and obligations of each of the parties as of the date hereof. All prior agreements, promises, negotiations, or representations not expressly set forth in the Lease or this Amendment are of no force and effect. 29. Ratification. Except as herein modified, Landlord and Developer hereby ratify and reaffirm all the terms and provisions of the Agreement. To the extent of a conflict between the terms and provisions of the Agreement and this Amendment, the terms and provisions of the Amendment shall control. IN WITNESS WHEREOF, the Landlord and Developer have executed this Amendment the date and year first above written. Witness Witness LANDLORD: SOUTHEAST OVERTOWN/PARK WEST COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF MIAMI 0 00_ 6 Witness Witness STATE OF FLORIDA ) ) SS: COUNTY OF MIAMI-DADE ) DEVELOPER: POINCIANA VILLAGE OF MIAMI, LTD., a Florida limited partnership By: Indian River Investments of Miami, Inc., a Florida - corporation, its general partner President The foregoing instrument was acknowledged before me this day of , 1998, by , of SOUTHEAST OVERTOWN/PARK WEST COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF MIAMI, on behalf of said agency. He/she is personally known to me or has produced as identification and did not take an oath. My commission expires: Notary Public, State of Florida at Large 9 (NOTARY SEAL) STATE OF FLORIDA ) ) ss: COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me this day of , 1998, by , as President of Indian River Investments of Miami, Inc., a Florida corporation, as general partner of POINCIANA VILLAGE OF MIAMI, LTD., a Florida limited partnership on behalf of the corporation and the partnership. He/she is personally known to me or has produced as identification and who did not take an oath. My commission expires: MIA4-624923.6 Notary Public, State of at Large (NOTARY SEAL) 10 _ " •,� 1 w