HomeMy WebLinkAboutCRA-R-20-0033 Exhibit APrepared By:
William R. Bloom, Esq.
Holland & Knight LLP
701 Brickell Avenue
Suite 3300
Miami, FL 33131
FIRST AMENDMENT TO
AMENDED AND RESTATED COVENANT
This First Amendment to Amended and Restated Covenant (the "First Amendment") is
made as of December , 2020 by and between GRAND CENTRAL MIAMI HOLDINGS, LLC,
a Delaware limited liability company (the "Developer") and the SOUTHEAST
OVERTOWN/PARK WEST COMMUNITY REDEVELOPMENT AGENCY, a public agency
and body corporate created pursuant to Section 163.356, Florida Statutes (the "CRA", together
with the Developer, each a "Party" and collectively, the "Parties").
RECITALS
A. Sawyer's Walk, Ltd., a Florida limited partnership, and Poinciana Village of Miami,
Ltd., a Florida limited partnership (collectively, the "Original Developer") and the CRA entered
into that certain Amended and Restated Covenant dated July 3, 2018 which was recorded July 6,
2018 in Official Record Book 31047, at Page 2103 of the Public Records of Miami -Dade County,
Florida (the "Amended and Restated Covenant").
B. The Original Developer conveyed the Property to the Developer by that certain
Warranty Deed dated January 31, 2019 recorded February 11, 2019 in Official Records Book
31321, at Page 3043 of the Public Records of Miami -Dade County, Florida, subject to the terms
and conditions of the Amended and Restated Covenant.
C. Developer, as successor to the Original Developer, and the CRA desire to modify and
amend the Amended and Restated Covenant, has hereinafter provided.
NOW, THEREFORE, for and in consideration of $10.00 and other good and valuable
consideration, the sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Recitals. The Recitals to this First Amendment are true and correct and hereby
incorporated by reference and made a part hereof.
2. Defined Terms. Defined terms utilized but not defined in this First Amendment
shall have the meaning ascribed to said terms in the Amended and Restated Covenant.
3. Description of the Project. Section 2.1 of the Amended and Restated Covenant is
hereby amended to reflect that the Project shall include eighty (80) Affordable Rental Units.
4. Design of Project. In accordance with Section 2.6 of the Amended and Restated
Covenant, the CRA acknowledges that the plans and specifications for the Project identified on
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Exhibit "A" attached hereto, which were used to apply for the building permit for the Project, are
substantially in accordance with the Conceptual Design Documents.
5. Commencement of Construction. The CRA and Developer acknowledge that
Developer commenced Vertical Construction on September 16, 2019 and the Completion Date is
therefore September 15, 2022, subject to extension for Unavoidable Delays and subject to
extension as provided in Section 3.3 of the Amended and Restated Covenant.
6. Completion Guaranty. The CRA acknowledges that Robert Suris and Estate
General Contractors, LLC, a Florida limited liability company have delivered the Guaranty for the
Project in compliance with the requirements of Section 3.1 of the Amended and Restated
Covenant.
5. RENTAL HOUSING REQUIREMENTS. Section 5 of the Amended and Restated
Covenant is hereby amended and restated in its entirety to read as follows:
" 5. RENTAL HOUSING REQUIREMENTS.
5.1 Housing Restrictions.
(a) The CRA and the Developer agree that with respect to eighty (80)
residential units (the "Affordable Rental Units"): (i) six (6) of the Affordable Rental Units shall
be made available for individuals and/or families earning up to sixty percent (60%) of AMI; (ii)
twenty-four (24) of the Affordable Rental Units shall be made available for individuals and/or
families earning more than sixty percent (60%) of AMI up to eighty percent (80%) of AMI; (iii)
twenty-five (25) of the Affordable Rental Units shall be made available for individuals and/or
families earning more than eighty percent (80%) of AMI up to one hundred percent (100%) of
AMI; and (iv) twenty-five (25) of the Affordable Rental Units shall be made available for
individuals and/or families earning more than one hundred percent (100%) of AMI and up to one
hundred twenty percent (120%) of AMI.
(b) "AMP' shall mean the then applicable median family income for
Miami -Dade County, Florida, standard metropolitan statistical area, determined in a manner
consistent with Section 42(g)(1) of the Internal Revenue Code of 1986, including adjustment for
family size as published annually by the U.S. Department of Housing and Urban Development
Project and consistent with Section 3009 of the Housing and Economic Recovery Act of 2008.
(c) In the event that Developer exceeds the requirements in Section
5.1(a)(i), same will reduce the requirement with respect to Section 5.1(a)(ii).
(d) In the event Developer exceeds the requirements in Section 5.1(a)(i)
and 5.1(a)(ii), in the aggregate, same will reduce the requirements in Section 5.1(a)(iii).
(e) In the event Developer exceeds the requirements in Section
5.1(a)(i), 5.1(a)(ii) and 5.1(a)(iii), in the aggregate, same will reduce the requirements in Section
5.1(iv).
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(f) The eighty (80) Affordable Rental Units shall consist of up to thirty
(30) studio units with a minimum size of 375 square feet; a minimum of thirty-six (36) one
bedroom one bath units with a minimum size of five hundred (500) square feet and a minimum of
fourteen (14) two bedroom two bath units with a minimum size of seven hundred and fifty (750)
square feet. Not all units in the Project will have balconies, provided that the number of units of
the Project that have balconies will be distributed throughout the Project so that the Affordable
Rental Units with balconies will be proportionate to the total number of units in the Project that
have balconies.
(g) The Affordable Rental Units shall be equitable distributed
throughout the Project below the eleventh (111h) floor of the Project.
(h) Six (6) of the two bedroom two bathroom units shall be leased to
Low -Income Tenants, as hereinafter defined. The balance of the seventy-four (74) Affordable
Rental Units shall be proportionally leased to Lower -Income Tenants, Modest Income Tenants,
and Moderate- Income Tenants, as those terms are hereinafter defined. For example after six (6)
of the two bedroom two bath units are leased to Low -Income Tenants there will be seventy-four
(74) Affordable Rental Units to be proportionally leased to Lower -Income Tenants, Modest
Income Tenants and Moderate Income Tenants. Lower -Income Tenants are to be leased twenty-
four (24) of the seventy-four (74) Affordable Units or approximately 32.4% of the seventy-four
(74) Affordable Rental Units. There will be thirty (30) studio units, thirty-six (36) one bedroom
units and eight (8) two bedroom two bath rents. Therefore, up to ten (10) studio units will be
leased to Lower -Income Tenants, a minimum of eleven (11) one bedroom units will be leased to
Lower -Income Tenants, and a minimum of two (2) two bedroom two bath units will be leased to
Lower -Income Tenants, reflecting a proportional distribution of the Affordable Residential Units
to Lower — Income Tenants.
(i) For the purpose of this Section 5.1, a unit occupied by an individual
or family who at the commencement of the occupancy of such unit is a Low -Income Tenant, a
Lower -Income Tenant, a Modest -Income Tenant or a Moderate -Income Tenant such unit shall be
counted as occupied by a Low -Income Tenant, a Lower -Income Tenant, a Modest -Income Tenant
or a Moderate -Income Tenant, as the case may be, during such individual's or family's tenancy in
such unit, even though such individual or family ceases to be a Low -Income Tenant, a Lower -
Income Tenant, a Modest -Income Tenant or a Moderate -Income Tenant, as the case may be. In
addition, a vacant unit that was occupied by a Low -Income Tenant, a Lower -Income Tenant, a
Modest -Income Tenant or a Moderate -Income Tenant shall be counted as occupied by a Low -
Income Tenant, a Lower -Income Tenant, a Modest -Income Tenant or a Moderate -Income Tenant,
as the case may be, for a temporary period of not more than thirty-one (31) days after they vacate
such unit, at which time the unit shall be considered to be occupied by a Low -Income Tenant, a
Lower -Income Tenant, a Modest -Income Tenant or a Moderate -Income Tenant only if the
individual or family then occupying the unit satisfies the definition of a Low -Income Tenant, a
Lower -Income Tenant, a Modest -Income Tenant or a Moderate -Income Tenant, as the case may
be. Notwithstanding anything contained in this Covenant to the contrary, the Developer shall have
the right (at its sole and absolute discretion) from time -to -time, but not obligation, to perform
renovations and maintenance to and in any residential unit in the Project, including, without
limitation any Affordable Rental Units ("Optional Unit Renovations"), and to the extent any
Optional Unit Renovations are being performed on any Affordable Rental Unit that was occupied
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by a Low -Income Tenant, a Lower -Income Tenant, a Modest -Income Tenant or a Moderate -
Income Tenant, as the case may be, at least six (6) months prior to commencement of such Optional
Unit Renovations, then such Affordable Rental Unit shall be counted as occupied by a Low -
Income Tenant, a Lower -Income Tenant, a Modest -Income Tenant or a Moderate -Income Tenant,
as the case may be, until the earlier of (i) the completion of such Optional Unit Renovations and
(ii) the date that is six (6) months after commencement of such Optional Unit Renovations.
5.2 Definitions and Interpretation Applicable to Affordable Rental Units.
(a) The following terms shall have the respective meanings set forth
below:
,,Applicable Income Limit" means, with respect to Low -Income Tenants, the applicable
income limit set forth in the definition of "Low -Income Tenants," with respect to Lower -Income
Tenants, the applicable income limit set forth in the definition of "Lower -Income Tenants" herein,
with respect to "Modest -Income Tenants" the applicable income limit set forth in the definition
section of "Modest -Income Tenant" herein, and with respect to Moderate -Income Tenants, the
applicable income limit set forth in the definition of "Moderate -Income Tenants" herein.
"Available Units" means Affordable Rental Units in the Project that are actually occupied
and Affordable Rental Units in the Project that are unoccupied and have been leased at least once
after becoming available for occupancy.
"Certificate of Continuing Program Compliance" means the certificate required to be
delivered by the Developer to the CRA pursuant to Section 5.4(d) of this Covenant.
"Code" means the Internal Revenue Code of 1986, as amended. Any reference to a Code
section shall include any successor provision; provided that if the Internal Revenue Code is
amended to eliminate corresponding provisions in connection with low income housing tax credits,
then reference shall be to such provision of the Code immediately prior to such amendment.
"County" means Miami -Dade County, Florida.
"FHFC" means the Florida Housing Finance Corporation.
"HUD" means the United States Department of Housing and Urban Development or any
successor agency
"Income Certification" means a tenant income certificate in a form acceptable to the CRA
(the CRA agrees that a tenant income certificate that is in a form acceptable to HUD or FHFC will
be acceptable to the CRA).
"Low -Income Tenants" means one or more natural persons or a family, whose income,
does not exceed sixty percent (60%) of AMI.
"Lower -Income Tenants" means one or more natural persons or a family, whose income,
is greater than sixty percent (60%) of AMI and does not exceed eighty percent (80%) of AMI.
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"Manager" means any agent hired by or on behalf of the Developer to operate and manage
the Affordable Rental Units.
"Moderate -Income Tenants" means one or more natural persons or a family, whose
income, is greater than one hundred percent (100%) of AMI and, does not exceed one hundred
twenty percent (120%) of AMI.
"Modest —Income Tenants" means one or more natural persons or a family, whose
income, is greater than eighty percent (80%) of AMI and does not exceed one hundred percent
(100%) of AMI.
"Qualified Project Period" means the 30-year period beginning on the first day after
Completion.
"State" means the State of Florida.
(b) Unless the context clearly requires otherwise, as used in this
Covenant, words of the masculine, feminine or neuter gender shall be construed to include any
other gender when appropriate and words of the singular number shall be construed to include the
plural number, and vice versa, when appropriate. This Covenant and all the terms and provisions
hereof shall be construed to effectuate the purposes set forth herein and to sustain the validity
hereof during the Qualified Period.
(c) The titles and headings of the sections of this Covenant have been
inserted for convenience of reference only, and are not to be considered a part hereof and shall not
in any way modify or restrict any of the terms or provisions hereof or be considered or given any
effect in construing this Covenant or any provisions hereof or in ascertaining intent, if any question
of intent shall arise.
5.3 Affordable Rental Units. The Developer hereby represents, covenants,
warrants and agrees that, during the term of Qualified Project Period:
(a) The Developer, its successors and assigns will acquire, construct,
own and operate the Affordable Rental Units for the purpose of providing a multifamily residential
rental project, and the Affordable Rental Units shall be continually owned, managed and operated
as multifamily residential rental properties during the Qualified Period.
(b) Each Affordable Rental Unit in the Project shall be contained in one
or more buildings or structures located on the Property and shall be similarly designed, appointed
and constructed as the other residential units in the Project (except as to number of bedrooms and
bathrooms), each of which will contain complete facilities for living, sleeping, eating, cooking and
sanitation for an individual or a family, including a living area, a sleeping area (which living and
sleeping area will be combined for studio units), bathing and sanitation facilities and cooking
facilities equipped with a cooking range, refrigerator and sink, all of which are separate and distinct
from the other units.
(c) None of the Affordable Rental Units in the Project will at any time
be (1) utilized on a transient basis, (2) used as a hotel, motel, dormitory, fraternity or sorority
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house, rooming house, nursing home, hospital, sanitarium, rest home, trailer court or park, or (3)
rented for initial lease periods of less than six months.
(d) All of the Affordable Rental Units will be rented or available for
rent on a continuous basis, except during renovations, to members of the general public, and the
Developer will not give preference to any particular class or group of persons in renting the
Affordable Rental Units, except to the extent that units are required to be leased or rented to Low -
Income Tenants, Lower -Income Tenants, Modest -Income Tenants, or Moderate -Income Tenants.
Low -Income Tenants, Lower -Income Tenants, Modest -Income Tenants and Moderate -Income
Tenants will have equal access to and enjoyment of all common facilities of the Project.
Notwithstanding any of the requirements set forth herein to the contrary, all tenants of the
Affordable Rental Units shall be required to comply with the rules and regulations of the Project
which shall be enforced in a non-discriminatory manner. The Developer will not discriminate
against children of any age when renting the Affordable Rental Units. For the avoidance of doubt,
as a condition of occupancy or leasing, all tenants of the Project, including, but not limited to,
Low -Income Tenants, Lower -Income Tenants, Modest -Income Tenants, or Moderate -Income
Tenants, must prepay one month's rent and a security deposit; provided, that the security deposit
for any Affordable Rental Unit shall not exceed one additional month's rent and all tenants must
obtain renter's insurance in amounts (including applicable deductibles) reasonably required by the
Developer.
(e) The Developer shall maintain "all risk" property insurance on the
Project at 100% of replacement cost, with deductible amounts which are commercially reasonably
consistent with other similar properties.
5.4 Reporting Requirements. During the term of this Qualified Project Period,
the following shall apply to each of the Affordable Rental Units:
(a) Income Certifications shall be obtained from each occupant (i) no
less than one day prior to the time of initial occupancy of the unit by such occupant, and (ii) no
less frequently than once each year thereafter.
(b) The Developer shall maintain on file at the Project copies of the
Income Certifications specified in Section 5.4(a) hereof for a period of time of six (6) years, and
shall provide copies thereof to the CRA promptly upon request.
(c) The Developer shall maintain at the Project complete and accurate
records pertaining to the incomes of (as of the date of initial occupancy of each tenant and not less
than annually thereafter) and rentals charged to Low -Income Tenants, Lower -Income Tenants,
Modest -Income Tenants, and Moderate -Income Tenants residing in the Affordable Rental Units,
and shall permit during normal business hours and upon five business days' prior written notice to
the Developer, any duly authorized representative of the CRA to inspect, at the Project, the books
and records of the Developer pertaining to the incomes of and rentals charged to all tenants residing
in the Affordable Rental Units.
(d) The Developer shall prepare and submit to the CRA at the beginning
of the Qualified Project Period, and on or before the tenth day of each January (and if the tenth of
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January falls on a weekend or holiday, submission must be made the day before) thereafter, a
Certificate of Continuing Program Compliance in the form attached hereto as Exhibit "D,"
executed by the Developer stating (i) the four (4) two bedroom two bath units occupied by Low-
income Tenants, (ii) the number of Affordable Rental Units that were occupied by Lower -Income
Tenants and the unit mix of rental units that were occupied by Lower -Income Tenants; (iii) the
number of Affordable Rental Units that were occupied by Modest -Income Tenants and the unit
mix of rental units that were occupied by Modest -Income Tenants, (iv) the number of Affordable
Rental Units that were occupied by Moderate -Income Tenants and the unit mix of rental units that
were occupied by Moderate -Income Tenants; (v) the percentage of Affordable Rental Units that
were vacant and (vi) that at all times during the previous year, all of the Affordable Rental Units
were occupied (or deemed occupied) by Low -Income Tenants, Lower -Income Tenants, Modest -
Income Tenants, or Moderate -Income Tenants (as determined in accordance with this Section 5)
and of, to the Developer's knowledge, no default has occurred under this Covenant or, if the units
failed to be so occupied, or such a default has occurred, the nature of such failure or default and
the steps, if any, the Developer has taken or proposes to take to correct such failure or default. If
any such report indicates that the vacancy rate at the Affordable Rental Units is 10% or higher, the
CRA shall be permitted during normal business hours and upon five business days' notice to the
Developer, to inspect all or some of the vacant units to determine to its reasonable satisfaction that
such vacant units are ready and available for rental.
(e) No later than one hundred twenty (120) days after the end of each
year, the Developer shall submit to the CRA a certification by an independent compliance agency
which is selected by the Developer and reasonably acceptable to the CRA (the CRA hereby
approves any independent compliance agency selected by the Developer which is then currently
engaged by FHFC as the independent compliance agency for the Project), evidencing compliance
or non-compliance with Section 5.1 and 5.3 hereof.
(f) In the event that the Developer fails to submit to the CRA the items
which the Developer is required to submit under paragraphs (d) and (e) above on or before the date
required, the Developer shall be liable for the payment to the CRA of a late fee of $100.00 per day
which shall be payable within ten business days of written notification from the CRA of the amount
of such late fee.
(g) If the certificate prepared by the independent compliance agency in
accordance with Section 5.4(e) provides that the Developer has failed to comply with the
requirements of Section 5.1, or 5.3, as applicable, then in such event, the Developer shall pay to
the CRA, as a penalty for non-compliance with such requirements, the sum of (i) $1,000 for the
initial unit which is not in compliance, (ii) $2,500 for a second unit which is not in compliance,
and (iii) $5,000 for each additional unit which is not in compliance, all determined on an annual
basis, based upon such certificate. Amounts, if any, due from the Developer in accordance with
this Section 5.4(g) shall be calculated annually as of each January 1 and paid by the Developer
within thirty (30) days of issuance of the certificate in accordance with Section 5.4(e). The failure
of the Developer to timely pay the amount due under this Section 5.4(g) shall constitute a default
under this Covenant and shall bear interest at twelve percent (12%) per annum until paid.
5.5 Fair Housing Laws. The Developer will comply with all applicable fair
housing laws, rules, regulations or orders applicable to the Project and shall not discriminate on
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the basis of race, color, sex, religion, familial status, handicap/disability, or national origin in the
lease, use or occupancy of the Project or in connection with the employment or application for
employment of persons for the operation and management of the Project.
5.6 Tenant Lists. All tenants lists, applications, and waiting lists (if any)
relating to the Affordable Rental Units shall at all times be kept separate and identifiable from
any other business of the Developer which is unrelated to the Project, and shall be maintained, as
reasonably required by the CRA from time to time, in a reasonable condition for proper audit and
subject to examination during business hours by representatives of the CRA. Failure to keep
such lists and applications or to make them available to the CRA will be a default hereunder
unless cured by the Developer within thirty (30) days from the date of the Developer's receipt of
written notice of such breach from the CRA.
5.7 Tenant Lease Restrictions. All tenant leases with respect to the Affordable
Rental Units shall contain clauses, among others, wherein each individual lessee:
(a) Certifies the accuracy of the statements made in the Income
Certification;
(b) Agrees that the family income, family composition and other
eligibility requirements shall be deemed substantial and material obligations of such lessee's
tenancy; that such lessee will comply promptly with all requests for information with respect
thereto from the Developer or the CRA, and that such lessee's failure to provide accurate
information in the Income Certification or refusal to comply with a request for information with
respect thereto shall be deemed a violation of a substantial obligation of such lessee's tenancy; and
(c) Agrees not to sublease to any person or family who does not execute,
and deliver to the Developer or the CRA, an Income Certification.
5.8 Force Majeure. Notwithstanding anything contained this Section 5 to the
contrary, in the event the Developer shall be delayed or hindered in or prevented from the
performance of any act required under this Section 5 by reason of strikes, acts of God, floods,
hurricanes, casualties, fire, acts of the public enemy, lockouts, labor troubles, inability to procure
materials, failure of power, restrictive laws, riots, insurrection, terrorist acts, war or other reason
beyond the reasonable control of and not the fault of the Developer (collectively, "Force
Majeure"), then performance of such act shall be excused for the period of the delay, and the
period for the performance of any such act shall be extended for a period equivalent to the period
of such Force Majeure delay. For the avoidance of any doubt, this definition of Force Majeure
only applies with respect to this Section 5."
6. CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE. Exhibit "D" to
the Amended and Restated Covenant is hereby replaced with Exhibit "D" attached hereto.
7. PAYMENTS TO CRA AND REVERSION OF TITLE. Section 6 of the Amended
and Restated Covenant is hereby deleted.
8. PROJECT INCREMENTAL TIF. The Amended and Restated Covenant is hereby
amended to add the following additional sections:
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"24. CONSTRUCTION OF PROJECT & PROJECT INCREMENTAL TIF.
The following terms used in the Covenant shall have the following meanings:
"Anticipated Development Value" shall have the meaning ascribed to said term
in Section 24.2.
24.1.2 "Assignment Notice" shall have the meaning ascribed to such term in
Section 24.3.4.
24.1.3 "Base Year" shall mean the calendar year preceding the calendar year in
which the tax rolls for the County with respect to Folio Number 01 — 0104 — 060 - 1010 reflects
an increase in the assessed value as a result of the Substantial Completion of the Project.
24.1.4 "Bond Obligations" has the meaning ascribed to such term in Section 25.
24.1.5 "Children's Trust" means that certain independent special district
authorized pursuant to Section 1.01.A.11 of the County Home Rule Charter and Section 125.901,
Florida Statutes, for the purpose of providing funding for children's services throughout the
County.
24.1.6 "City" means the City of Miami, a municipal corporation of the State of
Florida.
24.1.7 "City Approval" means the approval by the City Commission of the City
of the CRA Budget for the applicable year, which CRA Budget includes the applicable Incentive
Payment.
24.1.8 "County" means Miami -Dade County, a political subdivision of the State
of Florida.
24.1.9 "County Approval" means the approval by the Board of County
Commissioners of the County of the CRA Budget for the applicable year which includes the
applicable Incentive Payment.
24.1.10 "CRA Budget Approval" means the approval by the CRA Board of the
annual CRA Budget which includes a line item for the Incentive Payment for the applicable year.
24.1.11 "CRA Board" means the board of commissioners of the CRA.
24.1.12 "CRA Budget" means the annual budget for the operation of the CRA
approved by the CRA Board, subject to City Approval and County Approval.
24.1.13 "Global Agreement" means that certain Interlocal Agreement between the
City, the County, the CRA and the Omni Community Redevelopment Agency dated as of
December 31, 2007.
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24.1.14 "Grant Obligations" shall have the meaning ascribed to such term in
Section 5.1.
24.1.15 "Incentive Payment" shall have the meaning ascribed to such term in
Section 24.3.1.
24.1.16 "Incremental TIF" shall mean, for each tax year, the tax increment
revenues, if any, actually received by the CRA from the County and City with respect only to the
Project after Substantial Completion after deduction for any (i) allocable administrative charges
imposed by the County and the City (but not administrative costs associated with the operation of
the CRA), (ii) all allocable charges and/or payments to or for the benefit of the Children's Trust,
(iii) other adjustments to the assessed value of the Project made by the City and/or County as a
result of challenges or tax contests with respect to the assessed value of the Project, (iv) any
payments that the CRA is required to make to the City and the County under the terms of the
Global Agreement, if any, with respect to the Property; and (v) the tax increment revenues with
respect to the Property without the Project.
24.1.17 "Proiect Incremental TIF" has the meaning ascribed to said term in
Section 24.2
24.1.18 "Substantially Completed" or "Substantial Completion," or words of
like import, means that a temporary or permanent certificate of occupancy, or its equivalent, has
been issued by the City for all of the residential units comprising the Project and a certificate of
completion, or its equivalent, for the retail space included in the Project and the Tax Assessor has
included the assessed value of the improvement on the tax rolls. For the avoidance of doubt,
Substantial Completion does not include Tenant Improvements.
24.1.19 "Tax Assessor" means the Miami -Dade County Property Appraiser.
24.1.20 "Tenant Improvements" means the build -out of the tenant improvements
with respect to retail space or on behalf of a tenant for any retail portion of the Project.
24.1.21 "Term" shall mean the period commencing on July 6, 2018 and terminating
upon the expiration of the life of the CRA which currently is set to expire on March 31, 2030, as
same may be extended with the approval of the City Commission of the City and the Board of
County Commissioners of the County in accordance with all applicable laws to March 31, 2042.
24.1.22 "TIF Agreement" has the meaning ascribed to said term in Section 25.3.
24.2 Construction of Proj ect. Developer anticipates that the assessed value of the
Project once completed will equal approximately Eight Six Million One Hundred Thousand and
No/100 Dollars ($86,100,000.00) (the "Anticipated Development Value"). Developer estimates
that Anticipated Development Value will generate approximately One Million Three Thousand
and No/100 Dollars ($1,003,000.00) in Incremental TIF annually for the Project ("Projected
Incremental TIF"), with such Incremental TIF anticipated to begin January 1, 2022.
Developer acknowledges and agrees that Developer shall bear the entire risk under
this Covenant if the Project is valued at less than the Anticipated Development Value and/or is not
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developed within the time frame anticipated by the Developer resulting in Incentive Payment
payable by the CRA pursuant to this Covenant being less than anticipated by Developer.
Developer acknowledges and agrees that the CRA shall have no liability to Developer if the
Anticipated Development Value as estimated by Developer proves not to be accurate for any
reason and if the estimates provided by the Developer prove to be inaccurate, same shall not relieve
Developer of its obligations pursuant to this Covenant.
24.3 Development Incentive. Subject to CRA Budget Approval by the CRA
Board, City Approval and County Approval, on an annual basis in all cases, as an inducement to
develop the Project and provide the Affordable Rental Units, the CRA agrees to pay Developer a
percentage of Incremental TIF as follows:
24.3.1 Payment of Incremental TIF. On an annual basis for each calendar
year commencing after the Base Year and continuing throughout the Term, subject to reduction
under Section 24.3.2 and Section 24.3.3 below, the CRA shall pay to Developer an incentive
payment equal to sixty-five percent (65%) of the Incremental TIF (the "Incentive Payment"). All
Incentive Payments shall be due and payable within thirty (30) days of the CRA's receipt of
Incremental TIF. Notwithstanding the foregoing, in no event shall the CRA pay the Developer, or
its permitted assigns more than Twenty Million and No/100 Dollars ($20,000,000.00) in the
aggregate.
24.3.2 Penalties. To the extent Developer fails to pay to the CRA any
amount due under this Covenant which is not cured within thirty (30) days of written demand, the
CRA may set off the amount due against the Incentive Payments due to the Developer under this
Covenant.
24.3.3 Reductions of Incentive Payments. If the Project is not Substantially
Completed and on the Tax Rolls on or before January 1, 2024 as such date is extended as a result
of Unavoidable Delays, the Incentive Payments shall be reduced by ten percent (10%) for or the
Term. If the Project is not Substantially Completed and on the Tax Rolls by January 1, 2025 as
such date is extended as a result of Unavoidable Delays, the Incentive Payment shall be reduced
by twenty percent (20%) for the Term. If the Project is not Substantially Completed by January
1, 2027 as such date is extended as a result of Unavoidable Delays, the CRA shall not be obligated
to make any Incentive Payments to the Developer.
24.3.4 Incentive Payments After Assignment or Sale. Developer, in its sole
and absolute discretion, may collaterally assign and reassign the Incentive Payment to any lender
providing financing for the Project. Developer may also assign the Incentive Payment to any
assignee of Developer's entire interest in the Project at any time or from time to time upon written
notice given to the CRA. Any such notice of assignment shall indicate: (i) the name of the
assignee and the assignee's contact information, and (ii) any other terms or provisions applicable
thereto and mutually agreed to as between Developer and the assignee (the "Assignment Notice").
Any assignment by Developer of its rights to the Incentive Payment shall not release Developer of
its duties and obligations under this Covenant.
24.3.5 Limitation on Use of Incentive Payments. Incentive Payments paid
during the Term shall be used for the sole and exclusive purpose of paying and/or reimbursing the
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costs of the construction, maintenance, operation, and debt service/debt issuance costs of the
Project, to the extent such payments are a permitted use of TIF Increment pursuant to Chapter 163
Part III, Florida Statute. Developer may use or allocate the Incentive Payments for any of the
foregoing authorized purposes in its sole discretion, provided such use is consistent with the
limitations above.
25 SUBORDINATION OF INCENTIVE PAYMENT
25.1 Subordination. Developer acknowledges and agrees that the obligations of
the CRA under this Covenant to make Incentive Payments hereunder are junior and subordinate
to the obligations of the CRA to pay debt service with respect to any bonds now existing issued
by the CRA or any bonds now existing or hereafter issued by the City and secured a pledge by the
CRA of tax increment funds including, without limitation, bonds issued by the City pursuant to
the terms of the Interlocal Agency Agreement effective November 8, 2016 between the City, the
CRA and the South Florida Regional Transportation Authority obligating the CRA to pledge
Incremental TIF with respect to a bond issue by the City (collectively the "Bond Obligations")
and junior and subordinate to the payments to be made in connection with the grant to be made by
the CRA in connection with "Mama Hattie" and the Grant Agreement, as amended, by and
between the City and the CRA and with respect to the Gibson Park (collectively, the "Grant
Obligations"), which Grant Obligations are more fully described in Exhibit "B". Under no
circumstances shall the CRA be obligated to make Incentive Payments from its general revenues
or any other sources if Increment TIF is unavailable after the CRA makes all required payments
with respect to the Bond Obligations and the Grant Obligations. To the extent no Incremental TIF
or only a portion of the Incremental TIF is available to pay the CRA's obligations under this
Covenant as a result of the Bond Obligations and the Grant Obligations, the Incentive Payments
shall be reduced to the amount of Incremental TIF available, if any, and the shortfall shall be
deferred to subsequent year(s) to the extent available. If requested by the CRA, the Developer
shall execute a subordination agreement confirming that this Covenant is junior and subordinate
to any Bond Obligations and Grant Obligations within ten (10) business days of written request by
the CRA.
25.2 Pledge of TIF Revenues. In the event the CRA issues additional bonds
subsequent to January 1, 2020, the CRA covenants and agrees not to pledge the Incremental TIF
derived from the Project which will be payable to Developer under this Covenant as collateral for
such bonds.
25.3 Additional Agreements Regarding riding Use of Incremental TIF. Developer
acknowledges and agrees that nothing contained in this Covenant shall be deemed or construed to
prevent the CRA from entering into agreements similar to this Agreement (each a "TIF
Agreement") pursuant to which the CRA commits to pay such developers a portion of the
Incremental TIF generated from their project within the Redevelopment Area. Developer
acknowledges and agrees that Incremental TIF generated from other projects which are subject to
TIF Agreement(s) will not be available to make up for any shortfall under this Section 25.
9. RATIFICATION. Except as modified by this First Amendment, the Amended and
Restated Covenant is hereby ratified and reconfirmed.
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10. CONFLICTS. To the extent of a conflict between the terms of this First
Amendment and the Amended and Restated Covenant, the First Amendment should control.
11. MISCELLANEOUS.
11.1 All of the parties to this First Amendment have participated jointly in the
negotiation and preparation hereof, and, accordingly, this First Amendment shall not be more
strictly construed against any one of the parties hereto and shall be interpreted in accordance with
its plain meaning.
11.2 In the event any term or provision of this First Amendment is determined
by appropriate judicial authority to be illegal or otherwise invalid, such provision shall be given
its nearest legal meaning or be construed as deleted as such authority determines, and the remainder
of this First Amendment shall be construed to be in full force and effect.
11.3 In construing this First Amendment, the singular shall be held to include the
plural, the plural shall be held to include the singular, the use of any gender shall be held to include
every other and all genders, and captions and section headings shall be disregarded.
11.4 All of the exhibits attached to this First Amendment are incorporated in, and
made a part of, this Agreement.
11.5 Time shall be of the essence for each and every provision of this First
Amendment.
11.6 No provision of this First Amendment is intended, nor shall any be
construed, as a covenant of any official (either elected or appointed), director, employee or agent
of the CRA, in an individual capacity.
11.7 This Agreement shall be governed by and construed in accordance with the
laws of the State of Florida. Any action, in equity or in law, with respect to this First Amendment
must be brought and heard in Miami -Dade County, Florida.
11.8 This First Amendment shall be recorded in the Public Records of Miami -
Dade County at the sole cost and expense of Developer.
11.9 This First Amendment may not be changed, altered or modified except by
an instrument in writing signed by the party against whom enforcement of such change would be
sought.
12. ENTIRE AGREEMENT. This First Amendment and the Amended and Restated
Covenant collectively constitutes the entire agreement and understanding between the parties with
respect to the subj ect matter hereof and there are no other agreements, representations or warranties
other than as set forth herein. This First Amendment shall be binding upon the parties hereto and
their respective successors and permitted assigns.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS hereof the parties have executive this First Amendment as of the date first
above written.
DEVELOPER:
GRAND CENTRAL MIAMI HOLDINGS, LLC,
a Delaware limited liability company
By: Grand Central Miami JV, LLC,
a Delaware limited liability company, its sole member
By: EIG Grand Central Management, LLC,
a Delaware limited liability company, its Administrative Member
Bv:
Name: Robert Suris
Title: Manager
CRA:
SOUTHEAST OVERTOWN / PARK WEST
COMMUNITY REDEVELOPMENT AGENCY
M.
Cornelius Shiver, Executive Director
Approved for legal sufficiency:
William R. Bloom, Esq.
Holland & Knight LLP,
Special Counsel to CRA
14
#71752575_v6
STATE OF FLORIDA )
) SS:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me by means of ❑ physical presence
or ❑ online notarization, this day of , 2020, by Robert Suris, Manager
of EIG Grand Central Management, LLC, a Delaware limited liability company, Administrative
Member of Grand Central Miami JV, LLC, a Delaware limited liability company, the sole member
of Grand Central Miami Holdings, LLC, a Delaware limited liability company, on behalf of such
companies. He is personally known to me or has produced
identification.
Notary Public
Print Name:
My commission expires:
STATE OF FLORIDA )
) SS:
COUNTY OF MIAMI-DADE )
KIM
The foregoing instrument was acknowledged before me by means of ❑ physical presence
or ❑ online notarization, this day of , 2020, by Cornelius Shiver,
Executive Director of SOUTHEAST OVERTOWN/PARK WEST COMMUNITY
REDEVELOPMENT AGENCY, a public agency and body corporate created pursuant to Section
163.356, Florida Statutes, on behalf of the agency. He is personally known to me or has produced
as identification.
Notary Public
Print Name:
15
#71752575_v6
JOINDER
The undersigned owner and holder of that Mortgage, Security Agreement, Assignment of Rent
and Fixture Filing from Grand Central Miami Holdings, LLC a Delaware limited liability
company in favor of BANK OZK dated July 31, 2019 and recorded August 1, 2019 in Official
Records Book 31 551, at Page 3593 of the public records of Miami -Dade County, Florida (the
"Mortgage") joins in the execution of this First Amendment to consent to this First Amendment
and subordinate the lien of the Mortgage to the terms and provisions of the Amended and Restated
Covenant as amended by this First Amendment.
BANK OZK, a
By:
Name:
Title:
State of
ss:
County of )
The foregoing instrument was acknowledged before me by means of ❑ physical presence or ❑
online notarization, this day of , 2020, by as
of BANK OZK, a on behalf
personally known to me or produced
of such . He/She is
as identification.
Notary Public
Print Name
16
#71752575_v6
EXHIBIT "A"
DESCRIPTION OF PLANS AND SPECIFICATIONS
17
#71752575_v6
Exhibit "B"
CRA Grant Obligations
Name Par Amount
Mama Hattie $ unknown
Gibson Park Improvement Grant $14.1 million
Annual Debt Service
(est) unknown
(See Exhibit B-1)
Maturity Year
2030
18
#71752575_v6
Exhibit "B-F
015SON PARK'
:PQnt(,q-pQot $Orylbo"
NON,
ZI 0;
go -
Ion
-pom
10�
A IM A
4wo
i
2: f
-2,?Qqj60
024.
Woo
M84,040-
,202&
�419 lu,- o
Q.] -
1-047V541.
208-0
70,126%, Lac)
as,M, Es
Melpolpol Throt*,016)
(PEOP K�ft Ur A I' 01? 0 to)
I P Ip
rho a
.
Q�Q
p 7,00 '646 -,
i6w 10—a
0,op"Poo
61
� 56
I:W
JII YO
Intoroit
46a,20
UQ 371
466"YO4,
22o
4.5200
.44DID59
440,050: :
44Y,060 '
1337.564
-84-7,066,
,860,102.
'8.53;904,
#71752575 v6
19
EXHIBIT D
FORM OF CERTIFICATION OF CONTINUING PROGRAM COMPLIANCE
Witnesseth that on this day of , 20 , the undersigned (the
"Owner"), does hereby certify, the Affordable Rental Units continuing compliance with the
Amended and Restated Covenant dated as of July 1, 2018, as amended (the Original "Covenant")
by and between Sawyer's Walk, Ltd., a Florida limited partnership, Poinciana Village of Miami,
Ltd., a Florida limited partnership, and the Southeast Overtown Park West Community Agency
(the "CRA") as amended by First Amendment to Amended and Restated Covenant (the "First
Amendment") by and between Owner and the CRA (the Original Covenant as amended by the
First Amendment is collectively, the "Covenant") (including the requirement that all of the
Affordable Rental Units remain rental units) that an Income Certification has been obtained for
each new tenant occupying an Affordable Rental Unit. At all times during the previous year 100%
of the Affordable Residential Units were occupied (or deemed occupied) by either Low -Income
Tenants or Lower -Income Tenants, Modest -Income Tenants, and Moderate -Income Tenants
during the Qualified Project Period (as determined in accordance with Section 5 of the Covenant.
At all times during the previous year 100% of the Affordable Rental Units were occupied (or
deemed occupied) only be either Low -Income Tenants, Lower -Income Tenants, Modest -Income
Tenants or Moderate Income Tenants in accordance with the provisions of the Covenant. To the
undersigned's knowledge no default has occurred by the Owner under the Covenant with respect
to the Affordable Residential Units, or, if a default has occurred, the nature of the default and the
steps, if any, Owner has taken or proposes to take to correct such default are outlined on the
Schedule attached hereto. Assuming that the most recent Income Certifications provided by
applicable tenant is accurate as of the date of this Certificate, as of the date of this Certificate, the
following percentages of completed Affordable Residential Units are occupied by Low -Income
Tenants, occupied by Lower -Income Tenants, occupied by Modest -Income Tenants, occupied by
Moderate -Income Tenants, or vacant:
Total number of units available for
occupancy as of 20
is 50.
Low -Income Tenants
Lower -Income Tenants
Modest -Income Tenants
Moderate -Income Tenants
Vacant Units
Total Number of Studio Units
Percentage Number
Number of Occupied Studio Units by
Lower -Income Tenants
#71752575_v6
20
Total Number of One Bedroom Units
Total Number of two Bedroom two Bath
Units
4
Number of Occupied Studio Units by
Modest -Income Tenants
Number of Occupied Studio Units by
Moderate Income Tenants
Number of Occupied 1 Bedroom Units by
Lower -Income Tenants
Number of Occupied 1 Bedroom Units by
Moderate -Income Tenants
Number of Occupied 1 Bedroom Units by
Moderate -Income Tenants
Number of Occupied two bedroom two bath
Units by Low -Income Tenants
21
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GRAND CENTRAL MIAMI HOLDINGS, LLC,
a Delaware limited liability company
By: Grand Central Miami JV, LLC,
a Delaware limited liability company, its
sole member
By: EIG Grand Central Management,
LLC, a Delaware limited liability
company, its Administrative Member
By:
Name: Robert Suris
Title: Manager
22
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