HomeMy WebLinkAboutR-90-0500•
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J-90--592
7/2/90
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RESOLUTION NO.
A RESOLUTION, WITH ATTACHMENT, ALLOCATING AN
AMOUNT NOT TO EXCEED $47r734 IN THE PORK OF A
LOAN TO KOCHEN VENTURES, A PARTNERSHIP FOR
THE PU"OSE OF EXTENSIVELY RENOVATING A
COMMERCIAL PROPERTY LOCATED AT 570-74
NORTHWEST 26TH STREET, MIAMI, FLORIDA, IN
WHICH THE INFRASTRUCTURE HAS DETERIORATED;
WITH FUNDS BEING ALLOCATED FROM THE
FOURTEENTH (14) YEAR COMMUNITY DEVELOPMENT
BLOCK GRANT FUNDS FOR ECONOMIC
DEVELOPMENT/PHYSICAL IMPROVEMENT PROJECTS
POOL FUND AUTHORIZING EXECUTION OF AN
AGREEMENT WITH SAID FIRM, IN SUBSTANTIALLY
THE ATTACHED FORM, WITH TERMS OF SAID LOAN AS
STATED HEREIN.
WHEREAS, the City Commission is committed to economic
development and the expansion of trade and commerce in the City
of Miami; and
WHEREAS, Resolution No. 88-384 established the Economic
Development/Physical Improvement Project Pool Program under the
Fourteenth (14th) Year Community Development Block Grant Fund;
and
WHEREAS, the total projected cost for the rehabilitation of
the infrastructure is $95,468; and
WHEREAS, the City of Miami, via its Mini-UDAG Program will
provide Kochen Ventures one-half (1/2) of the projected project
cost, in an amount not to exceed $47,734; and
WHEREAS, the term of the City's loan will be as follows:
Principal loan amount $47,734 at an interest
rate of five percent (5%);
Principal and interest will be amortized over
a fifteen (15) year period and balloon in the
(10) years;
Principal and interest will be deferred for
six (6) months after closing date;
(ATTACHMENTS
CONTAINED
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The epproxibate monthly payment will be
$377.47 and the approximate balloon amount
will be $20402.79;
WHEREAS, all rehabilitation work performed will be in
accordance with Federal Regulations, specifically Davis -Bacon
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NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY
OF MIAMl y FLORIDAt
Section 1. The recitals and findings contained in the
Preamble to this Resolution are hereby adopted by reference
thereto and incorporated herein as if fully set forth in this
section.
Section 2. An amount not to exceed $471,734 is hereby
allocated in the form of a loan to Kochen Ventures for the
purpose of infrastructure rehabilitation.
Section 3. The City Manager is hereby authorized to
execute an agreementl/, in substantially the attached form, with
the terms of said loan agreement as set forth herein, with said
firm, said agreement to be in substantial accordance with the
attached memorandum and with such other conditions as may have
been imposed by the City Commission at the time of its
consideration of the herein resolution.
Section 4. No City funds shall be released until Kochen
Ventures, a partnership, presents a complete business plan with
detailed financial statements. This commitment will be for three
(3) months from
the date of Commission approval.
Section 5.
All rehabilitation work shall be governed by
Davis -Bacon Federal guidelines.
Section 6.
This Resolution shall become effective
- immediately upon its adoption.
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The herein authorization is further subject
to compliance
with all
requirements that may be imposed
by the City
Attorney,
including nut not limited to those
prescribed by
_ applicable
City Charter and Code provisions.
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XAVIER L. SMAKOR
C01MMUNITY OEV ENT 1�S�tZ AND APPitOVAt,:
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FRANR C STAJJzDADjltECTOR
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DEPARTMENT OF COMMUNITY DEVELOPMENT
FINANCE DEPARTMENT REVIEW AND APPROVAL:
CARLO CIA, DIRECTOR
DEPARTMEW OF FINANCE
BUDGBTA REVIEW AND APPROVAL:
MANOR 1 RANG, DIRE
DEPART OF BUDGET
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PREPARED AND APPROVED BY:
ALBERTINE B . SMITH
CHIEF ASSISTANT CITY ATTORNEY
APPROVED AS TO FORM AND CORRECTNESS:
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J B L. FBIANDBZ
CITY ATTO
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61' MIA I tOAN A01111KI&NT
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This,
t,oAn, ARreettent
is made and entered into this dad.
of
1990,
by and between the City of Mi,
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munietpal
corporation of
the State of Florida, hereinafter celled
"LENDER",
and KOCHEN VENTURES a Florida for -profit corporatioili
hereinafter called "BORROWER".
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RECITAL
WHEREAS, BORROWER is the owner of certain real property (the
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"Property") situated in Dade County, Florida, more particularly
described as follows:
WHEREAS, BORROWER has applied to Lender for a construction.
loan in the principal amount of $47,734 (the "LOAN") to be:. used
by BORROWER to finance the construction of improvements (the
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"Improvements") upon the Land in accordance with certain plans
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and specifications prepared by the architect and reviewed' by the,
LENDER (the Improvement and. Land are hereinafter collectively`.
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referred to as the "Premises").
WHEREAS, the City Commission is committed to economic
development and the expansion of trade and commerce; and
WHEREAS, the promotion of economic revitalization in the,.
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neighborhoods of the City of Miami is an important, part of the
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LENDER's economic development strategy; and
WHEREAS, on July 12, 1990, the City Commission approv*4�
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Resolution No. allocating the $47,734 to BORRO BR a 7"
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low -interest loan��r
LQAN at five percent (SX) per hnnum
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in the financing of the ImpxoveMenxs, and authoriaiAg and ":
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directing the City Manager to execute a coaGract with B$RA�TR;
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and
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UHMAS, the wynwood area vhereift the Premises to loofitedi
designated blighted area utidet Section 163,340(8)0 P16tida
Statutea the "Ctimmunity Redevelopment Act", and
WHEREA36 the purpose of providing the Loan is a puhiiti
purpose to Improve and rehabilitate the Vynvood area and to
sir
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stimulate its economic development,
NOV, THEREPOREt. in consideration of the sum of $10.00 and
1M.
other good, and valuable consideration, the receipt of which to '14 1.
hereby acknowledged, and upon promises and the mutual dovOnanto
and agreements herein contained, the parties hereto- agree' as
follows:
1.1
1.2
1.3
1.4
1.5
'ARTICLE I.
DEFINED TERMS
For the purpose of this Agreement, the following terms
shall be defined as set forth below.
"City of Miami" ("the LENDER") has the meaning -
ascribed to it in the opening paragraph of this,
Agreement.
"Advance" shall mean a disbursement by the LENDER of
a portion of the proceeds of the Loan to'provide funds
for the payment of Construction Cost.
"Architect" - shall mean any architect or engineer
employed by BORROWER to 'prepare the Final Plan and
design and construction of the Improvements who must be
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fully licensed as required by local and -state law.
"Construction Cost" shall mean the actual cost of
labor, materials, demolition, Land Improvements*
equipment, utility installation, architectural,. and'
engineering services and other work to be performed and
,
costs to be incurred in connection with the
construction and completion of the Improvements In
accordance with the Final Plans and this Agreeiment-, *a4
expenses related to the financing of the Projeztv.:
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meting the date on which tEt IN
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delivers Loan to BORROWER,
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1.7
!'ContttAetnx" shall mean the general contractor who
must be fully licensed as is required by 3oeal Ahd
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state law.
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Disbars —lint. —Agent" shall mean LENDER or any suet aeot
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agent designated by LENDER as the party to disburae the
Loan proceeds to BORROWER.
1.9
"Finat Plans" - shall mean the plans and spectficatione
for the construction of the Improvements on the Landjti
which shall be prepared by the Architect and reviewed
and initialed by the LENDER and all amendments and
modificatione.thereto approved by the Lender.
1.10
"General Construction Contract" - shall mean the
general construction contract between BORROWER and
Contractor for construction of the Improvements, and
any General, Supplementary or other conditions to such
contract as well as the drawings, specifications and
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addenda referenced or required by such contract.`
"Inspector" - shall mean any inspection engineer or
Architect appointed or employed by LENDER from time to
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time in its. discretion, which shall be, at the expense
of .the LENDER.
1.12
"Loan Payment" ent" — shall mean the principal and interest
payment due on the Loan to be paid on a monthly basis.
BORROWER shall commence making principal and interest
payments six (6) months after completion of the Project
and Certificate of Occupancy is received by BORROWER.
1.13
"City Loan" - shall mean those monies in the 'amount of
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one $47,734 advanced to BORROWER by the LENDER pursuant
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to the terms and conditions of this Agreement and ttt'ei
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mortgage attached and incorporated herein.'
1.14
"Mortgage" - means the mortgage of even date herewith
made from BURROWER to LENDER in the principal sun of
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$47,734.
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1.16
1.17
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2.1.
2.2
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shall mean the rehab! litnti0ft of tie
commercial property 'located at 570-74 N.h'e 26th Sttoot,
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Miami, Florida
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top ro �r = shall mean the building and other 'telatoA
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structures, now br heteaftbr etected or insta1l#de",1F-,:-
"imtiroyentetttsi' shall mean the rehab l`itatiod-- -of..
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property and the building thereon as legally described
herein.
"Note" - shall mean a promissory note of even date
herewith from BORROWER to the order of LENDER in the
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principal amount of $47,734 evidencing the Loan.. A
form of said Note is attached and incorporated herein.
ARTICLE Its
AUTHORIZATION
LENDER hereby authorizes a loan to BORROWER in the
amount of $47,734 towards the latter-s partial
financing of the construction of the Improvements.
Prior to the disbursement of said Loan, BORROWER must
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demonstrate the availability of funds to complete the
Project based upon the projected development costs -as
determined by BORROWER's Architect or Engineer.:y
LENDER may in its discretion approve all-reasonableand
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necessary funding commitments for the Project, which
approval shall not be unreasonably withheld*
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ARTICLE III.
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TERM
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The term of this Agreement shall be`` thafi' pe-rLo'd
beginning on the date of execution hereby the
'repayment
Manager and shall terminate upon full of tfia
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Loan. Said term shall not exceed ten (fO) years from
completion of construction.
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CONSIDERATION
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As tnnsidcrstion for the $474134 loan made by 1.RNOU to
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SORROWGR toward the 1Attex'9 financing of the Pt:*J#tti
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sod concurrent with the "Closing hate", RORROVER 49t6es
to execute and deliver to LENnR the Note in the 'amount
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of $41,734 to he secured by a first mortgage? A..n f1v0r
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of LENDER on the Project to be promptly recorded in the
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public records of Dhde County, Florida.
ARTICLE V.
THE LOAN
5.1
The Loan to BORROWER shall be in a principal amount not
to exceed $47,734 to assist in the financing of the
Project according to the terms and conditions set forth
in this Article.
5.2
Principal and interest payments shall commence upon the
completion of the Project at such time as BORROWER
_
receives the Certificate of Occupancy. From the t ime
of commencement of principal payments, principal, and
interest payments on the Loan shall be made in equal
monthly installments at a rate of five percent (5X)..per
annum in accordance with a fifteen (15) y.ear,
amortization schedule and payable in year ten (10) with
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the deferred amount added at the end of said Note,
5.3
BORROWER agrees to pay LENDER five percent (Sx)
interest per annum, on the unpaid balance of the Lo;an._
— 5.4
BORROWER hereby Agrees to pay, Documentary Staupa �
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Intangible taxeR, Recording Fees, and any oth,ptr
miscellaneous costs generated in relation to the Loolla
including the purchase of various required title and
general Liability insurance policies from proceeds of.
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Loan.
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executed by AORROWRIt and in favor of LENDER .00 All
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Land, buildings, plant, fixtures, stock, supplies,
peroonel property, equipment And other,--, sA#ets
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comprtsing the tmprovements.1.'
5.6 No loan funds shalt be disbursed to BORROWER for they
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Project until LENDER has first obtained financing or
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commitments in the amount of $47,734 to Complete the
Project,, to the event that the financing is for a
lesser amount, the BORROWER must demonstrate to LBNDI:R
prior to disbursement of the Loan that there are v
sufficient funds allocated to the Project for
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completion. And receive written approval from. LENDER
that the lesser Amount is sufficient to continue the
project.
5.7 The entire balance of the outstanding 'principal of
Loan, and all accrued unpaid interest thereon, shall
become immediately due an payable either upon the
bankruptcy, dissolution, or liquidation of BORROWER; o'r,
~ upon the reorganization of the BORROWER which i's'not'in
accord with this Agreement; or upon the sale, partial
sale, refinancing, exchange, transfer, sale under
foreclosure; or upon the appointment of a receiver for
the BORROWER'S property or assets, which receYver'shail
:
not be discharged within thirty (30) days of
appointment, or upon a writ of execution, garnishment,
attachment or any other writ or process in that nature-
being issued against the BORROWER, which shall not be,
satisfied or removed to bond within twenty`-(20)`dsyi
after service; or other disposition of the site oi'thb
Project, improvements and/oar capital equipment siteat*4
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thereon.
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5.8 BORROWER shall contract for the construction of t6o
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Project. The construction contract shall be -review rind
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approved by LENDER and upon esecotton pti011
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incorporated herein. All rehabilitation -costo
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plan and/at changes in plans must be appr6med by l,gt D91
prior to com*entement of construction. Stith a0ptovils
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shall not be unreasonably delayed or withheld.
5.9
609ROWER shall secure financing for construttio►t ,of the
Project from the folloving sources
City of Miami $474734
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BORROWER 475734
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Total $95,46$
5.10
BORROWER warrants that it will obtain all federal,
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state and local governmental approvals and reviews
.required by law for this Project.
5.11
Davis -Bacon Act, as amended, prevailing wage rates must
be applied to all rehabilitation, demolition,
construction or other wages paid for labor covered by
this act on the Project.
5.12
The Loan may be prepaid at any time without penalty.
5.13
BORROWER shall obtain prior written consent from LENDER
should any transfer, conveyance, encumbrance, mortgage
or sale of the Improvements or part thereof be
contemplated. LENDER may in its sole discretion
consent or deny consent to such proposed action.
5.14
Should the Improvements be sold during the term of this
Agreement, BORROWER agrees to pay the LENDER on or
before such sale one hundred percent (100%) of tb:e
outstanding mortgage balance due ;on the Loan.
ARTICLE VI.
CONSTRUCTION OF IMPROVEMENTS
6.1
"Commencement and Completion" BORROWER shall begin
construction of the Improvements on or before
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1990 and prosecute such
construction with due diligence and dispatch so that
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the Improvements are erected on the Land fully complete
in accordance with the Final Plana and ready for
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occupancy on or before 1990, free
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and clear of all liens or claims for materials, lab4pr
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services, or other items furnished in the tonstructl6a
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of the tmpt6vtments, and in full compliance with all
building, zoning and other applicable local, state snd,
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federhl` o%dinancea and regulations. A complete -set of
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the final plans aha'll have been delivered to LENDERS
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each page of which had been initialed or otherwise
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identified by the LENDER and the. BORROWER, prior toy
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beginning any work on the Improvements. Time is of the
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essence to the performance of this agreement.
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"Compliance with and Changes to the Final Plana" - All'
changes in the Final Plans, including without
limitation change orders under the General Construction
Contract, trust be requested in writing by BORROWER and
shall be conditioned upon the written consent of
LENDER, which consent may be subject to such conditions
and qualifications as the LENDER in its sole and
arbitrary discretion may prescribe, it being underst'ood�
that the LENDER at all times shall have the right'` to
require compliance with the original Final Plans,
except where modified as herein provided.
"Right of LENDER to Inspect" - LENDER, Inspector, and
any other agents or representatives of LENDER shall the
right to enter the Premises for the purpose of
inspection of the construction and the Improvements'
thereon. BORROWER shall cause the Contractor and all
subcontractors to cooperate with LENDER, Inspector'. and
such agents and representatives in the exercise of
their rights and performance of their duties' hereunder.
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This provision shall not impose on' LENDER +aoy-
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obli ation to inspect or to correct any,,
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patent defects, discovered' or to notify` any persona 41t-h
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respect thereto.
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AND To, MOT ADVANCR
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7.1 The edhdttlofto feted bolow Are conditions precedent to
any obltg*tfhn# of the LtNntg And shall bye t6twpIltd
with In the fork and substAnce Awttsfactory' to LSKORN111.
prior to the Pitat Advstnee,
7.1.1 "General Construction Contract" AORROUP.It shall
deliver to LENDER an. executed copy of 'the
Ceneral Construction Contract and Its c1ohtr*et.
with the Architect and if requested, executed
copies of the Contractor's contracts with:all,
"Ithcont ractors for the construction of the
tmprovements, And any amendments or change
orders thereto;
7.1.2 "Note" - shall be duly authorized, executed and
delivered to LENDER*
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7.1.3 "Mortgage's - sha'll be duly authorized, executed,
7.1.4
Acknowledged, delivered to LENDER, and recorded.
which nball he a valid first mortgage lien an
the Premises and all' fixtures and personal
property to be used in connection with the
ImprnvementR.
"Notice of Commencement" required by Section
713.13, Florida Statutes, (1985) shall have been
properly executed. recorded and posted,* at-: the
Job site at least one (1) day subsequent to the
date of recording of the Mortgage and prior to,
but within thirty (30) days of, the commencement
of any work or constructinnon the Land,- and a
copy thereof furnished to LENDER. The Notice Of
Commencement shall designate Title Company, and
LENDER acting through the Depa,rtment of
Community Development as additional parx* as upon
whom notices shall be served.
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1.1.6
"EuOder"s At_oL And,HASstd tnout.$Laee" 9ORROURR'
shall deliver to LENDER the original policy of
the Builder*# Risk and Hazard tnguraotei ' In,,
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completed value form with extended coverage itt
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the amount of ' the full insurable value of
Improvements as completed, issued. by a company
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satisfactory to the LENDER, duly endorsed to',
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show the interest of. LENDER under a standard
noncontributing mortgage clause and provi-ding' .
that such policy will not be cancelled -or
materially modified without ten (10) prior
written days notice to LENDER and that all
Insurance proceeds will be paid directly to
LENDER, BORROWER agrees that LENDER shall have
the right to take any action necessary to
continue said insurance in full force and effect
including, but not limited to, paying premiums•.
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any funds advanced to continue said -policies in
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full force and effect shall be considered; as
Advances hereunder and shall bear interest of
the maximum legal rate under Florida Laws frow,
—' the date of dishurnement at the same rate, as,
other Advances and payment of said Onds and _.
interest shall be secured by the,Mortgage.
7.1.7 "Public Liability and Worker's Compensation:
Insurance Policy" BORROWER shall deliver
- evidence satisfactory to LENDER of the existence
i of Public Liability and Worker's Coppetta,stign
—j Insurance Policy relating to the Premises in
amounts and issued by companies, roved b'
p approved
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LENDER; BORROWER agrees to continue ,
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insurance in full force and effect i,ttcluditt$', 5.
but not limited to, paying premiums, : any ; fundsx ,
( advance to continue said policies ,,in futt� --7snd
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effect shalt he eansideted sa AdvAnceh hetanndet
and shall best interest frog the data bf laid
Ftrnrla end interest shall he Aecutea by the
M�,ttplAge.
7.►.g "Public Requiram into,, �- BORROWER delfvet�°1►;fiiilM
(i) a copy of the building permit euthatta fig
construction of the Improvements together
with a certificate from the public offictot
iasit ing the bit il.ding permit that the
Improvements will conform to existing
zoning laws and specified variancest if
any;
(it) all other authorizations, permits or
7.1.9
7.1.10
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approvals, if any required by governmental
authorities for the construction of the
Improvements and operation of the Premises,
for the purposes contemplated by the Final
Plans, which are presently procurable. -
"Equity Funds" - BORROWER shall pays and
deliver to LENDER satisfactory .evidence. of.
payment of that portion of,the.construction
cost the exceeds the amount provided;. by
LENDER. BORROWER'S Equity_ (the "Equity
Funds"), shall be deposited,by BORROWER In
Trade National Bank until such time as, -said
funds are needed to pay a portion of ;the
construct.ion.,cost.
As a corporation, .BORROWER shall deliver, to
LENDER the following documents=._;
(t) the carttficate of inrorppratian;, �f
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the. BORROWER and - all amen+dMgnts
thereof, certified by the appropriate
official of the State of its
incorporation, together With a F
certificate of such official to the
effect that such sorporatiou is in
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Roost standing therein;
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a
(11) artteles of. incorporation and bylaws
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of BORROWER certified by the Seetetaity
of such corporation;
(iii)an incumbency Certificate by name and
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title of the officers and diractbra of
the BORROWER, certified by the
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Secretary of such corporation; and
(tv) certified resolution of tile,
shareholders and the Board of
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Directors of BORROWER authorizing the
execution and delivery of this
Agreement, the Mortgage, Note$ and all
other documents necessary or desirable
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for the consummation of the
transaction contemplated by this
Agreement.
ARTICLE VIM.
1'
ADVANCES
8.1 "Conditions to Each Advance" - Advances hereunder, shell;
be made not more than once a month upon compliance with,
the following conditions in form and substance,
satisfactory to LENDER, in its sole desertions
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8.1.1 No Default - The warranties and representatiaa.s
contained in this Agreement are correct and
true, all the covenants, .terms and conditions of
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this Agreement remain satisfied, all conditions.
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contained in Article. VII above have b$ea,}�
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satisfied, and no Event of Default (here inaftj
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defined). or circumstances or events upptj if c,h
an Event of Default, has occurred as ;.of the date
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of the Advance.
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any
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uagt an Rviacncc of CDw�aErt�eti n
and _pgyment, -
give (5) business days prior to
each Advance,
BORROWER shall supply LltMDkk with
a wrtttefi tequest executed by RORRONER for an
Advance, which request shall set forth the
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amount sought,
shall constitute a covenant and
affirmation of
BORROWER that the warranties and
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representations
ink this Agreement are correct
and are being
complied with, and that no Event
of Default has occurred as of the date of the t
Advance. Each request for an Advance shall be
accompanied by such other evidence as may from k
time to time be requested by LENDER, including
but not limited to, applications, certificates
and affidavits of BORROWER, Inspector,
Architect, Contractor, Title Company and
independent inspector approved by LENDER,
showing: 't
- (i) the percentage of completion of the
Improvements and the value of that portion
of the Improvements completed at that time;
(ii)that all outstanding claims for labor,
-- materials, and fixtures through the date of
the last Advance have been paid, and liens
therefor waived in writing, except for non`-
paid claims approved by LENDER;
(;;;)that there are no liens outstanding against
the Premises except for LENDER'S lien and
security interest, other than liens for V:
property taxes not yet payable and `atlt�x
liens approved in writing by LENDER;
0 0that BORROWER has complied with ail of
BORROWER'S obligations under the loto
documents as of the date of the request for
an Advance;
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(v)
that all work prior to the date to the
request for an Advance has been done in a
workmanlike manner by the Contractor and
all subcontractorA, and in accordance with
the Final Plans;
(vi)
that the payment and performance bonds, I U
any, required by LENDER are in full force
and effect;
(vii)toples of all bills or statements• for
ter.
y
expenses for which the Advance is required;_
(viii)that all change orders and extras in any,
amount whatsoever have been approvedin
writing by LENDER;,
(ix)
that the amount of un-disbursed Loan,
proceeds are sufficient to pay the cost of
completing the Improvements in accordance
with the Final Plane;
(x)
that each requisition of funds is to, e
used for the specific account, for which the
requisition is made; and
(xi)
and any and all other documentation that may,. -
be reasonably required by LENDER.:.
8.1.3 Subcontractors - If requested . by LENDER.
BORROWER shall furnish copies, certified by
BORROWER to be true and correct, of all,
subcontracts and purchase orders for . the
provision of labor and materials for ahe
�t
construction of the Improvements, and azatement,s
for`each subcontractor and supplier: r
(t) stating the amount of its eontract',`and MW �c
5 ¢'
amount paid to -date, and k:
(it acknowl edging f ul l payment (i.ess% `t*o. a
percent 00%)-retainage) for all work doas {
and/or materials supplied. F
i T .
t
4
P
" 1 4
8.1 .4 Proof.__ of _ AV A,i I abi I f,ty of MateEials � if
j
requested by LRNb R, RO;tROWtk shall furnish to
LENDER evidence reasonably satisfactory to
_
,ENDER that BORROWER and Contractor have
obtained or can obtain all necessary materials
`i
na and when regolred for the completion of the
Improvements in accordance with the Final Plana.
LENDER shall he the sole but reasonable judge of
the sufficiency of such evidence.
8.2 "Right to Withhold Funds" - In addition to the right to
require Equity Funds. LENDER may elect in its sole and.
{_
arbitrary discretion to withhold any Advance,
nothwithstanding the substance of any report of the
Inspector or Architect, or any documentation submitted
-`
i.
8.3
to LENDER in connection with a request Or an Advance,
if LENDER determines at any time that the actual cost
budget or progress of construction differs materially
from that as shown on the'breakdown of costs submitted
to LENDER, or that the percentage progress of
construction of the Improvements differs materially
f rom that as shown on the request for an Advance, for
the period in question. Furthermore, if any instrument
or document submitted by BORROWER in connection with
any Advance request shall not, in the reasonable
exercise of LENDER'S discretion, comply in all respects
with the conditions and requirements of this Agreement'
then LENDER may amend, reduce or withhold funding
discretion. shall deem proper under the circumstances.'
"Payment of Advances" - If all conditions precedent to
LENDER'S obligations hereunder and to the Advance have
been performed to the satisfaction of LENDER,'LENp1R ty
L
shall make the Advance within ten (10) business days
after application by BORROWER payable to BORROWER 'or
,jointly to BORROWER and Contractor, or as LENAKi['may
h 2''
n
1
elect, and shall make each Advance in the ano'une,
j:£
L ax
Justified by the applications, affidavits, certificates"
ft
f t�
90
1
s
8.4
K
"1
y
f
4
and other evidence submitted to LENDER undatr the above
z
i
provisions, but
Lt""Ka may retain until completion the
g neater of (1)
ten percent (lox) of the amounts
requisitioned
for work perforated and materials
furnished or (11)
such amount of the Construction Coat
f:
Contract or aay
subcontractor`s contract,. and furthe
(iti) LENDER
shall have the right to withhold .an
amount of the
Loan sufficient to cover the unpaid
balance of the
Construction Cost and to complete
-
construction.
Notwithstanding the foregoing, the
amount so requested shall not exceed the total amount
of the Construction Cost mieltiplied by the percentage.
of completion then attained leas the aggregate of all
amounts therefore advanced. The proceeds of each
Advance hereunder shall be applied solely and
exclusively to payment, or to reimburaementa> of
BORROWER for payment of the Construction Cost, and
BORROWER agrees at any time from time to time, upon
request nF. LENDER, to exhibit to LENDER rec"eipts,
vouchers, statements, bills of sale, or other evidence
satisfactory to LENDER of actual payment of- such
=1
Construction Cost. Each advance shall be deemed tobe
an Advance under the Note. Notwithstanding the
foregoing, LENDER may apply any amounts due BORROWER:.:
hereunder towards satisfaction of any of the terms or
conditions of this Agreement, and amounts so app,li*4,-,
K
shall be part of the Loan and shall be secured by, the..-_,
lien of the Mortgage, and all disbursements, frog.any.:
{
"contingency" categories shall be made at LENDER'S isole`
{
r
and absolute discretion.
"Final Hard Cost Advance" — When the Improvements have
been completed, BORROWER shall supply LENDER with.,,kh4_,_
x,
following documents in addition to satisfying all the
conditions and supplying all the documents required
�
under the Section entitled Conditions to Each Advance
f �(
prior to payment of the ,final hard cost Advance +sad
`
i�
retainage held by LENDER:
1
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+'
{A
01
:.
SJ .
'4{{
8.4.1
Dertifteates from the Atehiteet and the
9
Inspectors that the tmotovementa have bean
completed to aeeordonce with the Vital ifi'Ana,
in a good and Workmanlike MAnttibr;
AccordAnce with all laws. ordinances, iiul#e 'arid'
v
regulations of all governmental authortti.en
having, or purVorting to havet jurisdiction
Q.
over the Premises*4
8.4.2
A certificate from BORROWER stating the total
Construction Cost.
8.4.3
A photostatic copy of the final certificate of
fi
occupancy for the whole Premises issued by the
appropriate official of the jurisdiction in
which the Premises are located, and any other
governmental. certificates necessary to evidence
that the completed Improvements comply with all
zoning ordinances and building regulations.
8.4.4
Contractor's and BORROWER'S Final Affidavit as
to payment and release of mechanics' liens
excluded by the Contractor and each
subcontractor giving Statutory Notice to
BORROWER in form and substance satisfactory to
=
LENDER.
8.4.5
Policies of fire, lightning and extended
coverage insurance, and such other types of
-
insurance as may be required by,LENDER in such
A.°
amounts And containing such terms as required
}
—
in the Mortgage or otherwise 'required by
—
LENDER, endorsed, to show the interests of
'4g
LENDER and in form and substance and7 xriet`'by
companies satisfactory to LENDER,
_ 8.4.6.
All other instruments and documents requfre+d by
t
—
LENDER.
i�
�7
i }s,it
f f
l
ARTICLE IX.
9.1
10.1
RQUITY FUNDS
Any Equity Funds deposited by BORROWER with It
National flank shalt be disbursed by BORROWER to fund.
all subsequent requests for Advances made by BORROWER,,
after the Loan proceeds have been exhausted and in —a:
Manner so as to comply with Florida Mechanics' Lien
Law. LENDER may at any time and from time to time
require BORROWER to deposit additional Equity Funds
whenever it shall appear to LENDER that the remaining
proceeds of the Loan to be disbursed and remaining
Equity Funds will be insufficient to pay the remaining
portion of the Construction Cost not already paid and
to otherwise complete construction for the Improvements
In accordance with the Federal Plans and BORROWER
hereby covenants and agrees to make such a deposit upon
LENDER'S - request.
ARTICLE X.
SUPERVISION
For the purpose of this Agreement, the City of Miami,
Department of Community Development, will act on behalf
of LENDER in the fiscal control, programmatic
monitoring, and modification of this Agreement, except
as otherwise provided by this Agreement.
r{:
ARTICLE XI.
i
BOOKS OF ACCOUNT
BORROWER agrees to keep in Dade County, Florida
appropriate, full and true books of accounts ,refl,"9 ,ag
kF'
all transactions made with respect to the Project as
may be reasonably required by good accounting
r
practices. LENDER shall have the right at roapappo1*
times, to audit the books and records of 4OJtROIiER at
such places within Dade County, Florida and at any Cleo
A
'e
r
flip
90 f y
12.1
12.2
during the performance of this Agreement and for tk
period of one (1) year after final payment is made
under this Agreement.
The said records shall be made available to LRtfbER08
y
Int.ernaI Audit Department, or its authorized
representatives, and the representatives of the federal
u`
n
government, to audit and examine all contracts,
i�
invoices, materials, payrolls, records of personnel,
•
conditions or employment and other data relating to all
matters contained in this Agreement. The documents and
,records shall be furthermore maintained by BORROWER
within Dade County, Florida for not less that three (3)
years following the termination of this Agreement.
ARTICLE XII.
GENERAL CONDITIONS AND TERMS
"Terms" - The following shall be applicable throughout
the period of this Agreement or thereafter as provided
herein:
"Rights
of Third Parties"
All
conditions of
the
LENDER
hereunder are imposed
solely
and exclusively.for
the benefit of LENDER and its successors and assigns,
and no other person shall .have standing to require
satisfaction of such conditions or be entitled - o
assume that LENDER Will make advances in the absence of
strict compliance with any or all thereof, and no,other
person shall, under circumstances. be deemed to be a
e
beneficiary of this Agreement or the Loan documents,
any provisions of which may be freely waived. in,whgXe
f
or in part by the LENDER at any if, in its sa;a
F
tJS^
,time
desertion, it deems it desirable to do,- so,. In
particular, LENDER makes no representations and Assumes
no duties or obligations ad to third
8 parties. conce�•ning
the gnslity of the construction by SORROVgg of the
S
Improvements or the absenco therefrom of dafect:.
�f *U+ _
12.1 "Le,rWjr .,.not . _ia_abl_c . fo_r. Dams it a o . t,o s" All
Inspections and other services rendered by on behalf of
the LENDER shall be rendered solely for the protection
and benefits of the LENDER. Neither BORROWER nor other
third persons shall be entitled to claim any loss or
damage against the LENDER or against its agents or
employees for failure to properly discharge their
duties;
12.4 "LENDER Not Obligated to, Insure. Proper Disbursement_ of
Funds to Third Parties" - Nothing contained in -this
Agreement, or any Loan document, shall impose upon
LENDER any obligations to oversee the proper use or
application of any disbursements and advances of funds -
made pursuant to the Loan;
12.5 "Rights of Subcontractors, Laborers and Naterialmen"
In no event shall this Agreement be construed to make
LENDER, Title Company or any agent of the LENDER. liable,
to Contractor or any subcontractors, labormer4.
materialmen, craftsmen, or others for labor materials,
or services delivered to the Premises or goods
specially fabricated for incorporation therein, or for
debts or claims accruingor arising to such`
g personaor
parties against BORROWER or Contractor. it is
.�1
distinctly understood and agreed that there is no
relation of any type whatsoever, contractual or
otherwise, either express or implied, primary or
secondary between LENDER and Contractor, any
= materialman, subcontractor, craftsman, laborer or any
other person or entity supplying any other person or
entity supplying any labor, materials or services to ,
the Premises or specially fabricating goods to be
Incorporated therein. No such p persons or entities a1ce
Intended to be third party beneficiaries of this
—! Agreement or any document or instrument related to the
y k
Loan or to have any claim or claims in or to any
y,J
un4isbursa4 or retain Loan proceeds; f
-{:;
i,
12.1
�� �►id nce. f Sat1itf,s tlott.._.twf i:ondit,ions" - BNfililS
shall, at All timer, he free indevendently to estsbtinh
to Its good faith and satisfaction, and to its absolute
discretion, the existence or nonexistence of it fact or
;-
s
facts which Are disclosed in document# or other
evidence required by the terms of. this Agreement;:
All notices or other communications which shall et may
be given pursuant to this Agreement shall be in writing
a
and shall he delivered by personal service, or by
registered mail addressed to the other party at the
address indicated herein or as the same may be changed
-
from time to time. Such notice shall be deemed given
on the day on which perRonall.y served; or, if by mail,
on the f if th (5th) day After being posted or the date
of actual receipt, whichever is earlier.
-
s,°
CITY OF MIAMI KOCNEN VENTURES
Department of Community 2520 N.W. Second Avenue
Development Miami, Florida 33127
1145 N.W. llth Street Telephone: (305) 576-9866
Miami, Florida 33136
Title and paragraph headingR are for convenient
reference and are not a part of this Agreement;
In the event of conflict between the terms of this
Agreement and any terms or conditions contained in any
attached documents, the terms in this Agreement shall
r
control;
Zw
No waiver or breach of any provision of this Agreement
shall conatttute a waiver of any subsequent breach of
�r
the same or any other provision hereof, and no waiver
shall be effective unless made in writing;
=
Should any provisions, paragraphs, sentences, words or
z`
phrases contained in this Agreement be determined by a
court of competent jurisdiction to be invalid, illegal
-,A,-
or otherwise unenforceable under the laws of the State
of Florida or the City of Miami, such provisions,'`
paragraphs, sentences, words or phrases shall be deemed
modified to the extent necessary in order to conform
with such laws, or if not modifiable to Conform with
f
9
y S
ID
K' 1 i
12.12
13.1
6.
M.
41
such lags, then Name shalt he deemed seaecabler slid, in
either event, the remaining terms and ptovislotto ` '6t
this Agreement shallremain unmodified and in to:1
force and effect,
s ram_
-80tROM shall tray, prior to delirknoencyo fill tartan,
;
aoseaaments and other governmental charges that` stab 'be
laid or levied upon the property. #ORROWER shall -itt
all times in the operation and maintenance of the
,T
Project contemplated under this Agreement, abide by` the
£�
laws enacted or promulgated by federal, state, citlr,,
A -
county, or other governmental bodies.
-
ARTICLE XtIT.
'
TERMINATION
If BORROWER at any time during the term of the
Agreement should be in default of any term, provision
or covenant of the Agreement, and shall fail to remedy
such default in a time period to be determined by
LENDER, then, if such default is not fully .and
satisfactorily cured, within thirty (30) days or
written notice thereof the CITY may, at its option
t�
terminate this Agreement and/or institute legal actions
F
against the BORROWER and/or.declare a default under the
Note and accelerate payments thereunder.
3
3-
t=
ARTICLE XIV
INSURANCE
."General Requirements" - All insurance required :by
u'
virtue of this Loan shall be issued by insurance
companies or carriers that are rated "A" to
classification and a "V" at to financial gixe per A91J..
t
4
Best Key Rating Guide, latest edition, and -which-are
3
duly licensed to transact the applicable,, kinds; ;wf
,
insurance business, and issue the appropriate. kinds 10f
insurance coverage in the State of Florida.; A1.1
policies shall be delivered promptly when requl.rre4 tR
*
'�!
r �'''a�•
•ss
i
7
x.
x, f
Y--;
.,.
Sa
t
the LENDER$ One Southeast Third Avenue, Miauis V16fiddi
33131, which shall receive thirty (30) days written
notice of any material modification or cancellation of
such policies (accord form certificates must be
modified accordingly). The BORROWERS agree that the
,'
—
insurance Coverage provided for herein, shall be
'
YS;
maintained in full operative force and effect
throughout the term of this Loan and that the
-
certification and policies reflecting such insurance
coverage will be duly filed, as renewed or replaced
-
from time to time, with the LENDER'S Insurance Manager.
If the LENDER'S insurance manager requires, the
policies for insurance shall name the LENDER as an
additional named insured. The following insurance
coverages will maintained by the BORROWER
a. "Loan" - Proof of worker's compensation coverage
—,
shall be provided as per Chapter. 440, Florida
Statutes, as amended, and proof of federal worker'Fs
compensation coverage shall be provided as per the
-
-
Jones Act and Longshoreman's Act and other
-
—
applicable laws.
14.2
"Insurance Shall be Provided as New Facility and
Improvements are Built and Placed into Public
r
Operation" - From the commencement to the completion of
S
the Construction of Improvements (and acceptance of the
—
Construction of Improvements) in accordance with all
applicable laws and codes, an owner's and contractor's
—:
protection liability policy shall be issued naming, .the
-
LENDER and the BORROWER as additional insured, for
L
single limits of One Million Dollars ($1.000,000):for
bodily injury and property damage. No waiver of the
d
LENDER'S sovereign immunity, as provided above, shall
be intended by such insurance. Additionally, the
1Wt"-m
following insurances shall be in force and af..€ott
-
during all construction periods until completion ;os4 ''
�-
accept�►nca, .
! x��'
d
"23=
4p
'3
14.3
14.4
86 XCU (Explosion, Collapse and underground Coverage)
to be specifically covered naming the LgNDIR and
'
'A
the 901ROWLR as designated insured;
r�
bAll-builders Risk Policy . in which the LENDEtt shall
v
be named as additional insured as its inteteiik adi
appear, and it shall fully cover against the louts
or damage of the course
r
_.
of construction, including fire, extended coverage,
vandalism and malicious mischief. Under thta
insurance, provisions shall be made to continue
coverage after the building and/or buildings,
marina, wet slips, dry storage and other facilities
and improvements to be constructed pursuant to this
-
Loan are completed, for the term of this Loan.
"After Completion of all Improvements, the Additional
Insurance Coverage to be Provided by BORROWER -
-
a. A comprehensive property coverage including fire
_
and extended coverage, vandalism and malicious
mischief, shall be provided to the LENDER based of
-
the replacement cost' of the building and/or
buildings, storage and other facilities and
improvements to be constructed pursuant to this
Loan, naming the LENDER as insured as its interest
{t
may appear. (Business interruption coverage shall
be provided to the LENDER in amounts to be
'-
X
determined by the LENDER'S Insurance Manager
{-
naming the LENDER as insured as its interest
u.
appear). Environment impairment liability
insurance shall be carried at all times by the
s_
f
BORROWER. The City Manager may waive this
'44
requirement upon a showing that such coverage to
impracticable to secure.
i
"Performanca and Payment Bonds" BORROWER shall
procure and deliver to LENDER performance and paymentL
Bonds with respect to general contractor# and,
�aF
2
subcontractors with contracts in excess of $100,000 $,a
yjR
�<
77
8
the full amount of such contracts, I farm and
substance and with sureties satisfactory to LENDER, and
1
LENDER shall be named as co -obligee upon said bonds
14.5 "Cna eret_ion with insurance._ proceeds" w BORROWER and.
LENDER shall cooperate in connection with colleetioh of
f7
Insurance money and proceeds that may become payable In -
the event of a lose, and BORROWER and LENDER will
cooperate in executing such proofs of loss and other k-
documents that may be required by insurance carriers
r
for the purpose of obtaining the recovery of any such -
Insurance monies.
14.6 "Deposit of Certificates and Insurance Documents"
Certificates of insurance evidencing the coverage
required to be maintained by BORROWER hereunder shall
be delivered and deposited with the LENDER'S Insurance
3
Manager an well as receipted bills or other proof
i-
satisfactory to him of payment of premiums of insurance
policies which are required to be maintained under this
lease. All such policies shall provide that any loss _
payable thereunder shall be adjusted by the LENDER, -
BORROWER, and if necessary, other lending institutions,
and that the proceeds of such insurance shall be paid'
to and deposited with the bank or trust company of the, 'rt
LENDER'S selection within the City of Miami, Dade
County, Florida, as insurance trustee (insurance
trustee) which shall hold, apply and make available the -
proceeds of such insurance to the LENDER, the BORROWER
t
and if necessary, other lending institutions as its
respective interest may appear in accordance with the "q
A5
terms of this Loan, The BORROWER shall be required' to �-
file' with the LENDER'S Insurance Manager certified ,x
copies of renewal policies evidencing theirexistence
together with proof of premium payment.
14.7 "Change of coverage" The provisions for insur nco rtF
contained herein may be altered subject to prior
written approval of the City Manager,
q A ,,
16.1
17.1
17.2
18.1
ARTICLE Xii.
AMNbMENTS. AND, A88,1000tLI.Tif
No Amendments to this Agteement shall be btsding ott
.d
either party unleAs fn writing and signed by both
parties.
This Agreement is not assignable by either party=
without the written approval of the other party in -;the
t �=
' fi-
form of an amendment hereto.
ARTICLE XVI.
SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon the parties
herein, their heirs, executors, legal representatives
successors, and assigns.
ARTICLE XVII.
NON-DISCRIMINATION
BORROWER agrees that he shall not discriminate. as to
race, sex, color, creed, national origin, -or handicap
in connection with any performance under this
Agreement.
l
Furthermore, that no otherwise qualified individual
shall solely. by reason of his/her race, sex, color.
creed, national origin, or handicap. be excluded from
the participation of. or be subjected to
.j
discrimination.}l
f
^iffy
ARTICLE XVIII.
INDEPENDENT CONTRACTOR „
try
BORROWER, its employees and agents shall be deemed 'toi
be independent contractors, and not agents or eoploye0a
t
of LENDER, and shall not attain any rights or'benetita
y r}.
r
under the Civil Service or Pension Ordinances` ' bf
�
LENDER, or any rights generally afforded cla'sa`ified'-,or
t
4
t 1 i
r;
r
-
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i
t
nh
unclassified employeeftj futthet they shall trot be
deemed. entttled to Ftorida's Workers' Compenoation
A
benefits an @mployeos of I END1#R.
=ll
fill
ARTME X1X.
INDEMN1FtCATtON
- 19.1
BORROWER shall indemnify and save LENDER harmless from
-
and against any avid all claims, liabilities, losses,
and causes of action which may arise out of BORROWER'S
activities under this Agreement, including all 'acts or
omissions to act on the part of BORROWER or any `of-
them, including any person acting for or on its behalf,
and from and agninnt any orders, judgements, or damages
—
of decrees which may be entered and from and against
all costs, attorneys' fees, expenses and liabilities'
incurred in the defense of any such claims or in the
investigation thereof. Ten Dollars ($10.00) of the
#
v
consideration given by the LENDER hereunder is specific_
and independent consideration for this indemnity.
further
:r
19.2
BORROWER agrees that under no circumstances
will LENDER, its officers and employees be` held liable
—
a for -debts
for any claim for payment- of money, claims
h
associated with the acquisition, legal operation;
—
maintenance and sale of the Project.
t.f•
i{Y
3
ARTICLE XX.
r
CONFLICT OF INTEREST
20.1
BORROWER covenants that no person under Its -employ who
presently exercise any functions or responsiblllties in
connection with this Agreement: has, any personAf
{
h=
f inancial interests, direct or indi.•ect, with LINDAaN.
-
BORROWER further covenants thet, in the petrfornonce, of
this Agreement. no g such conflicting
B person hauls g
t�
interest shall be employed. Any such interest on the
—
part of. BORROWER or its employees must be disclosed -_in
r
whiting, to LENDER. BORROWER is aware of the confl.iCt
io
tt
21.2
21.3
:.All
ed
of interest laws of LENDER (City of Miami Code Chapter
1
26 Article V) Dade County Florida (nods County Code
41
Section 2-11.1) and the State of Florida, and agreed
that it shall fully comply to all respects Frith the
sm
teraa of said laws.
:
e
ARTICLE XXI.—
DEFAULT
"Events of Default" - In any of the following events
(the Events of Default) all obligations on the part of
LENDER to wake any further Advance hereunder shall, if
y
'
LENDER elects, terminate, and LENDER may at its option
_
exercise any of its remedies set forth herein, but
'.
LENDER may make any Advances or parts of Advances after
'9
the happening of any Events of Default without thereby
waiving the right to exercise such remedies withoutt
becoming liable to make any further Advance.
-
"Failure to Satisfy Conditions to an Advance,, - if th%a
BORROWER fails to, or is unable to, satisfy or keep
satisfied any condition town Advance under Section 5,'
6, 8, or 9, or this Agreement for a period in 'excess of*
thirty (30) days; or
"Bankruptcy" - If there is filed by or against BORROWER -
A.
a petition in bankruptcy or, a petition .for the
appointment of a receiver or trustee of the property of..
r
the BORROWER and any such petition not filed . b Y,
BORROWER is not dismissed within sixty (60) days of the
:
zi=
date of filing, or if the BORROWER files a petit;hon for
reorganization under any of the provisions of ,:the,
r
National Bankruptcy Act or of the provisions of the,
-
National Bankruptcy Act or of any similar law, state;
`
federal or foreign, or if BORROWER° wakes' a' geoid
assignment for the' benefit of creditors or waken 'any~
N
insolvency assignment or is adjudged insolvent by asy
V
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3 .t
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21.4
21.6
court or competent jurisdiction, or has a monetary
Judgment not appealed from, of $5,000 or more dollars
entered against it; or
!'Improper, Co.nstruct,ion" - If for any cause whatsoever
the construction of the Improvements is at any time
discontinued or not carried on with diligence and
dispatch, in the reasonable judgment of LENDER, or if
-
the'Improvements, in the reasonable judgment of LENDER,
are not being constructed or have not been completed in
a 'good and workmanlike manner in accordance with the
:-
pinal Plans, this Agreement and all laws, rules,
-
regulations and requirements of all governmental
i
authorities having or claiming jurisdiction, now
i-
existing or hereafter enacted, adopted or promulgated,
or if the certificate or occupancy for the Premises or
other certificates of compliance with zoning ordinances
-
and building regulations have not been issued within
thirty (30) days or the completion dated specified, or
"Breach of Covenants, Warranties and Representations"
If any warranty or representation made by BORROWER in
t.
this - Agreement or pursuant to the terms hereof shall at
any time be false or misleading in any respect, or If
?s
the BORROWER shall fail to keep, observe or perform any
of the terms or covenants contained in this Agreement,
}
•
the Note, the Mortgage, the Commitment Letter, or is
x 19
111
unable or unwilling to meet its obligations thereunder;
;
or
"Material Adverse Change of BORROWER" - If any material
�r
adverse change shall occur in the financial condition
of the BORROWER at any time during the terms of the
Loan from the financial condition revealed to
r,
statements alreadypresented to and accepted by Y.ENAER,
or if BORROWER shall cease to be a legally constituted
entity.
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SO
-
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R914901E8,.OF LENDER
22.1 Upon the happening of an Event of Default, then i.IND'a�
M,
may, at its option, o0on written notice to RORNOVE11
,.mot
22.1.1 Cancel this Agreement;
2.1 Coinoernte erg appropriate legal or egWitabl6
y-�
_
action to enforce performance of this
— Agreement;
22.1.3 Accelerate the payment of the Loam and` any
-
other guns secured by the Mortgage, apply
-
all or any portion of the Equity Mends
toward payment of the Loan, and commence
A_
appropriate legal and equitable action to
foreclose the Mortgage and collect all
—
J-
such amounts due LENDER;
22.1.4 Employ security personnel to protect the
}-
- Premises and any construction material
Al -
-
-- stored on the Land. the cost of which
shall be added to the Loan and secured by
_ the Mortgage; and
22.1.5 Exercise any other rights or remedies.
LENDER may have under the Mortgage or
s
= other Loan documents referred to in this
— Agreement or executed in connection with
the Loan or which may be available under
R�
the law.
�y
ARTICLE XXIII.
ASSURANCES AND WARRANTIES
r_
23.1 BORROWER accepts LENDER'S Loan so appropriated in
$
accordance with the terms of this Agreement;
-
�
23.2 Project will be completed within the scheduled
completion date identified in the Final Plans;
_
23.3 BORROWER shall Irrevocably and unconditionally
— guarantee the repayment of this City Loan as provided
for in this Agreement and exhibits attached ►eret+o;
f�
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�Y � . _.:..- ......:.:e _.-.. __. _ - - '-•---�e.-.gym-�
23.6
23.7
23.8
M.
BORROWER shall obtain prior to LENDER apptoval, in
writing, before obtaining a second loan and/or any
other loan or commitment which would result in an
encumbrance or lien against the project.
-
,r
BORROWER shall obtain LENDER'S prior written approval
before making Improvements, additions, rehabilitation
*j
or renovations to the project, which approval shall not
be unreasonably withheld;
,t
-_
"Orsanizattonal Status" - BORROWER as a corporation,
(i) is duly incorporated,. (11) is in good standing
under the laws of the state of its incorporation, (iii)
i
is qualified to do business and is in good standing
under the laws of the State of Florida and (iv) has
stock outstanding which has been duly issued under the
laws of the State of Florida; -
#
"Construction and Compliance with Laws", - There are no
violations of any applicable zoning, building or other
technical, local, state or federal laws, ordinances -and
regulations which currently exists with respect to the
-
anticipated use and construction thereof; and the
BORROWER will obtain all licensed, permits and
approvals required by all local, state, and federal
agencies regulating such construction and use; and
BORROWER is in compliance with all laws,, regulations,
ordinances and order of all governmental authorities;
"Financial Statements" - The financial statements. of.
the BORROWER heretofore delivered to LENDER are ;true
and correct in all respects, have been prepared in,
{Y:
accordance with generally accepted accounting practices
and principles, and fairly present the reapectIv,et
}
financial conditions of the subjects thereof as of,; ttte
respective dates thereof, and no materially adverse
change has occurred in the financial conditions,
'=
reflected therein since the respective dates thereof,
-31-
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and no additional borroVings
have been made by the
-
8ORkOWHk
since the date thereof
other than the
- borrowing
contemplated hereby
or approved by LENDERt
21.9 ;'Authority
Ant,er_.intd .Loan ._Documents"
- The 8011ROW911
-to
has- full
poser and authority
to enter into the i.oeii';
documents
and consummate the
transactions contemplated
hareb and the facts and matters
expressed or implied
e
23.10
23.11
23.12
In the opinions of its legal counsel are true and
correct;
=
"Validity of Loan Documents" - The Loan documents have
R
been approved by those persons having proper authority,
and to the best of BORROWER'S knowledge are in all
respects legal, valid and binding according to their
terms;
i
t=
"Conflicting Transactions of BORROWER" - The
consummation of the transaction hereby contemplated and
a
the performance of the obligations of BORROWER under.
and by virtue of the Loan documents will not result 4n
any breach of, or constitute a default under, any
t
lease, bank loan or credit agreement or other-
instrument to which BORROWER is a party or by which it
1
may be bound or affected;
"Pending Litigation" - There are no actions,--- suits or.
proceedings pending against the BORROWER or the
Premises, or, to the knowledge of BORROWER, -
circumstances which could lead to such action, suits or,!
proceedings against or affecting the BORROWER of the,
Premises, or involving thn validity or enforceability
of any of the Loan documents, before or by a government
authority, except actions, suits and proceedings Wbich`
,s
have been specifically disclosed to and approved by
f
LENDER in writing; and to the BORROWER'S knowledge it
to not in default with respect to any order, writ,
injunction, decree or demand of any court or any
governmental authority;
}
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23.15
23.16
", ;ndltir n o.f. Ptsp,i,seat' The premiaeh ate nat troy►
damaged of injured as a result of any f ire, +exploaton.
a
accident, flood or other casualty,
ti,on Contractand__.. _Attiiittob'�8i
BORROWER (including any officer a patt%ear.
of BORROWER) has not made any contract or arrangement
of any kind the performance of which.by the other party
thereto, would give rise to a lien on the Premises'
except for the contrnctis with the Architect And the
Contractor. There have been no amendments or
;
modifications to the General Construction Contract,
;
Architect's contract, of any other contract approved by
a.
LENDER, except as approved by LENDER; there is in
d=
existence no default or grounds for default thereunder;
a.
and the General Construction Contract and Architect's41
Contract are in full force and effect.
"No Default" There is no default on the part of the
'
BORROWER under this Agreement, the Note or the
Nortgage, and no event has occurredandis continuing
Which with notice, or the passage of time, or either,
would constitute a default under any provision thereof;-
"Advertising" - LENDER shall have the right to install
}
and maintain on the Premises one (1) or more signs
Identifying LENDER as the institution financing the
Improvements. In connection With any sale or leasing
V�-
of the Premises, or any portion thereof, which has been
72�
Approved by LENDER, AORROWRR wi1.1 not 'use any
:
promotional, advertising, or other material without
1:88
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first obtaining the, LENDER'S prior ,written approval
thereof, which approval shall not be unreasonably,`=
a
withheld; and
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24.1
2412
24.3
i.
ARTMA XXIV4
ADMIONAL
BORROWER covenants and agrees with LENDER to foliowat
BORROWER hereby unconditionally assigns all f tast
plann, architect drawings and surveys to LENDER in e0e
of Default;
"Methanic's Liens" BORROWER will allow no work or
construction to be commenced on the Land, or goods
4
specially fabricated for incorporation therein, which
has not been fully paid for prior to the recordation of
the Mortgage and a Notice of Commencement or which
could constitute a lien on the Premises, (10 will
cause a certified copy of the Notice of Commencement to
be posted an required by Chapter 713, Florida Statute94
as soon as possible after recording of the Notice of
Commencement, (Ili) shall notify LENDER of any and all
Notices to BORROWER as Owner as that term to defined in
Chapter 713, Florida Statutes, within five (5) days of
receipt thereof, and (Iv) will comply with all
provisions of the Florida Mechanics' Lien Law,
including but not limited to, payment and notice
provisions contained herein. BORROWER shall save and
hold the LENDER harmless from the claims of any
mechanic's liens or equitable statutory or other lien
-4
and pay promptly upon demand any lose or losses which
LENDER may incur as a result of the filing of any such
lien, including the reasonable cost of satisfying any
such lien, including the reasonable coot of defending
some and the LENDER's reasonable attorneys' fees In
connection therewith.
In addition, BORROWER agrees, at its. sole cost and
expenses,, to have any mechanic's statutory lien or
equitable lien which may be filed against the Promises
or undisbursed funds of the Loan released or bonded
within fifteen (:5) days of the date of filing Wane#
,essence. -all be under no
time being of the eLENDER ob
"M
fl
-34-
24.4
24.5
s
obligAttos to make further disbursements chile #fry Ruth
lien 'remains outstanding against the Premises t ,.
BORROWER fails, after demand, to cause said lien, ot..
;r
liens to be releaeed or bonded as aforesaid, UNDER may
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take such steps as it deems necessary and atly funds
{_
expended shall be charged to the BORROWRk's Lass
-
necount and shall bear interest as provided by the Losh,
EM
h
documents.
1'
BORROWER hereby authorizes LENDER and/or Disbursing
Agent to demand, on BORROWER's behalf, the statement of
account referred to in Section 713.16(2) of the Florida`
;-
Statutes, of any potential lien or filing a Notice to
Owner. it is specifically understood and agreed,
however, that LENDER and/or Disbursing Agent's right to
request such statements of account will in no way
impose any obligation on LENDER and/or Disbursing Agent
,i
i
to -use such authority, and the exercise of such -
r_
'i
authority on one or more occasions shall not create or
imply any obligation on such party to exercise such
authority on subsequent occasions;
<.
"No- Transfer of the Premises" - The Premises or. any
r3.
be leased, -
pact thereof shall not sold, conveyed,
mortgaged or encumbered in any way without the prior-
written consent of the LENDER except, as , provided
t
elsewhere herein. All contracts., deeds, easements; or
rxd
other agreements affecting the Premises shall, be
submitted to LENDER for their written approval prior to
the execution thereof by the BORROWER accompanied by>; -an
3
�
appropriate survey showing the portion of the Premises
. • �i
affected, and any; other information. requested;
k
"Brokerage Commission" - The BORROWER will,, n.ttt,
r-
knowingly engage in any activity- or enter 1ptp: any ,.
relationship which will give rise ,to any loan or
{
brokerage commission with regard to the Loa"a, and„,
I
ft gL
90,0
!0,0 �S;d
e any rY .
24.7
24.8
}
lip
901RC1l1ER sill indemnify LtR089 from the clatme of
v
brokers arising by reason of the execution hereof of
the consummation of the transactions conteRplgted
hereby;
Ie to pet�4_nttn_lty_.'' gbRROVk% deliver_ - . 6
.will
.
LENDER, on demand, any contracts# bills of Nalk,
x
statements, receipted vouchers or agreements under
ti
which AORROWER claims title to any materials, fixtures
s`
or articles incorporated to the Improvements or subject
to the lien of. the Mortgage and will execute any and
all uniform commercial code and related forms which
would perfect a security interest in favor of the
j--
LENDER on such personalty;
"Correction of Defects and Satisfaction on
Conditions" - BORROWER will, upon demand of LENDER or
-
any departure from the Final Plans not approved by
LENDER, or perform any Condition � of Lender's
=
Obligations hereunder not satisfied or no. longer
satisfied. The Advance of any Loan proceeds shall not
constitute a waiver off LENDER'S right to- require
M_
compliance with this covenant with respect to any such
defects or departures from the Final Plans `not
theretofore discovered by, or called to the attention
of LENDER and the Inspector, or with respect to
BORROWER'a failure to satisfy or continue to satisfy
z,
and condition under this Agreement, whether or., not
;
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LENDER required performance thereof;
"Financial Statements to be Furnished" - BORROWER shall
furnish to Lender:
24.8.1
annually, a complete and current financial
statement of all assets and 11a4ilitl+ti,
contingent or otherwise, prepatrud rp�
accordance with generally accepted accougt*.gg
principles and. verified by affidavit Qf �
4 Y�
BORROWER, its principal. executivo offigp.r 9r
its eneral
R partners, as. the mass
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24.8.`2
and, !it the requent of LENb844 eettifted (Aft
,
for* nAtisfactory to i.ENO$tt) by
R�—
independefit tertifted public �titt�u�it`l� t
—
acceptable to LENDER;
-
within ninety (90) days after the end of Inch
fiscal year, a consolidated balance sheet ehd�
consolidated statements of income, su'r6luts,
.�
and cash flow, together with schedules, all
certified by tndependent certified public
``
—
accountants acceptable to LENDER (the form 'of
such certification to he satisfactory 'tb
LENDER) showing the financial condition of
.
BORROWER and its subsidiaries, if any, at the
close of each year and the results of
-
operations of BORROWER during; each year=
J'
24.8.3 with the statements submitted under (2)
—
above, certificate signed by the president
'.
A
and the principal financial officer of
BORROWER to the effect that no event of
default specified herein, not any event'
which, upon notice of lapse of time or both
would constitute such an event of default,
has occurred;
24.8.4 promptly, from time to time, such other
-
information regarding the operations,
business, affairs and financial condition : of
the BORROWER as the LENDER may reasonably
request; and
24.8,5 annual report on permanent job 'areatien
during the period of this loan.
4
24.9 "Collection of insurance Proceeds" BORROWER` wf1:(
cooperate with LENDER in obtaining for ' LENDER e`,
z
benefits of an insurance or other �
Y proceeds lawFuiiy �r
"
equitably q Y Payable to it in connection Muth the
transaction contemplated hereby and the coileatton of
1'
n
any indebtedness or obligation of BORROWER to LRNDXR,
90
incurred hereunder (including the payment by 26AR VINIt
of the ticpenae of an independent epptaisel on behalf of
-
f,.
LENDER in case of a fire or other casualty affoetiat
the Premises);
4•=�
24.10 "tndebtednese" BORROWER will not incur, create*
assume or permit to exist any indebtedness or liability
on account of advances or deposits, any indebtedness or
liability or borrowed money, any indebtedness
a-
�Ar
constituting the deferred purchase price or any
property of assets, or any indebtedness owed under any
-
conditional sale or title retention agreement, or any
other indebtedness or liability evidenced by notes,
bonds, debentures or similar obligations without the
written approval of LENDER, except!
f-
24.10.1 indebtedness owed the LENDER; and
24.10.2 indebtedness incurred on open accounts for
}'
materials, equipment and supplies purchased
in the ordinary course of business, payment
for which shall be made promptly when doe.
24.11 "Sale of Assets, Consolidation, Merger, etc." -
-
BORROWER will not sell, lease, transfer or otherwise
}
dispose of all or a substantial part of BORROWER'S
properties and assets to any person, consolidatewith
or merge into any other corporation, or permit another
-
corporation to merge into it, or enter into any
xr
—
arrangement, directly or indirectly, with any entity'
-
whereby the BORROWER shall sell or transfer any
property, real or personal, used or useful In its
—
business, whether now owned or hereafter acquired, and
thereafter rent or lease such property or other_
property which the BORROWER intends to use for
substantially the same purpose or purposes an the
property being sold or transferred. BORROWER will not
-
change its corporate structure without the ,pri.9r
y .
written consent of the LENDER,shall oonsti'tat* :-se
Event of Default hereunder;
M �
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24.12 "i�u,etll�eura�r��a ., �.r�d P +�aprve�tion_.t►i..�e�urit " �
�.
BORROWER will do all acts and execute all
documents, for the better and more efficient carrying
out of the intent and purposes of this Agreement, as.
LENDER.shall reasonably require from time to time, -and
i •.
will do such other acts necessary or desirable to
preserve and protect the collateral at any tine
securing or intended to secure the Note, as LENDER may
require;
"Utilization
t
24.13 of Loan Proceeds" - BORROWER will utilise
4`
the proceeds of the Loan solely for Improvement costa,`
-
making withdrawals thereof at regular intervals,` and
BORROWER will not procure a loan or loans from other
-
sources for the work contemplated under this Agreement;
ARTICLE XXV.
j'
COMPLIANCE WITH LAWS
= 25.1
BORROWER will comply promptly with all federal, ata+e
and local laws, ordinances and regulations relating to
j
the construction, use sale and leasing -of the Premises,
:
-
to include but not limited to:
25.1.1 Davis -Bacon Act during construction of the
;-
Project and use U.S. Department of Labor
Forms 257 and 347, and City of Miami Forms A
=
and B described in Exhibits 4, 5, 6, and 7 as
required, which are attached and incorporated
herein.
25.1.2 Minority Procurement Ordinance No. 10062
3
attached and incorporated herein as Exhibit
8.
ARTICLE XXVI
INTEREST OF CERTAIN FEDERAL OFFICIALS
26.1
No member of or Delegate to the Congress of the United
States, and no Resident Commissioner, shall be admitted
:4
to any share or part of this Agreement or to any
benefit to arise from the save.
F
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^/� 9 w.
T39
27.1
41
Ag'f_1C.Lg . XRV t l
INTICREE'f OF MBMBI3R i1plIGERS 8R BMPLOYLg3 0r D1tVRLQ?Ek
MEMBERS OF LOCAL ._00VERNtN0
NODY OR OTHER PUBLIC OP-PICtAL '
1
,r
No ` member, of f ic'er,
of employee of SORROMki dt its
designees of Agents,
no member of the governing body ttif
the LENDER or any
other locality who 'exercises any
functIao or reaporisibIIItI ea with respect t'o the
Project during his or her tenure or for two (2) years '
thereafter, shall
have any interest, direct or
indirect, in any
contract or subcontract, or the
proceeds thereof for
work to be performed in connection
with the Project
assisted under this Agreement,
28.1
29.1
BORROWER shall incorporate or cause to be incorporated,
In all such contracts or subcontracts, a provision
prohibiting such interest pursuant to the purposes of
this Article.
ARTICLE XXVIII.
CONTINGENCY CLAUSE
Funding for this Agreement
is contingent on the
availability of funds and continued authorization of
the Loan and is subject to amendment or termination due
to lack of funds or authorisation, reduction of funds,
and/or change in regulations.
ARTICLE. XXIX.
RECAPTURE OF FUNDS
LENDER shall reserve the right to recapture funds with
interest costs and reasonable attorney's fees for `
counsel for the LENDER when BORROWER shall fail (I) to
comply with the terms of this Agreement or (11) to
accept conditions imposed by LENDER at the direction of
Fs:
the federal, state and local agencies. ,`
A1tfi1CLII -XXK
ENTIRR, AGA99MENT
30.1 This Agreement
is the entire agreement between the
parties with respect to the subject matter hereof and
�
supersedes all
prior agreements between the parties
F
a4
with respect hereto. No alteration, modification, or
4
Interpretation
hereof shalt be binding unless In
,
writing and signed
by both parties.
,-
IN WITNESS WHEREOF,
the parties hereto have caused this
instrument to be executed
by the respective officials thereupto
duly authorized, this the
day and year first above written.
City of Miami, a Municipal
Corporation of the State of
ATTEST:
Florida.
By:
MATTY HIRAI
CESAR H. ODIO
CITY CLERK
CITY MANAGER
r•
BORROWER:
ATTEST:
Kochen Ventures
By:
CORPORATE SECRETARY
PRESIDENT
APPROVED AS TO FORM AND CORRECTNE
JORGE L. FERNANDEZ
LENDER ATTORNEY
REVIEWED AND APPROVED BY:
SEGUNDO PEREZ _
INSURANCE MANAGER,
7/3/90/gJd/rf
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CifRPitItATE_.RKSOLUT1OM
a
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S
2
-
dr41rot; to enter into an
agreement with the City of Miami; and
-"
WIiKH.AS, the Board
of UirectorH at o duly held corporate
meet nit, lins conN I tiered the
mitt ter 1 n accord,tttce with the hy-Laws
or the corporat loom;
;4 j
NOW, 'CHEREFOREt Ise
III' RFSAINKI) 'NY TIIl: BOARD OF DIRECTORS
that the pre4ldent rtnd
Keervtary aria hercby authorized and
instrueLed to enter Into
a contract in the nrme nod on behalf of
s;
thin corpor'atLon with theCityof Miami upon the terms contained
I
In the prop ita'c•d contract
to which tItis resolution is attached.
DATED thl s
day of .. 19
-i
t.
—
ROARU F DIRECTORS CIIAIRPERSflN
5EL'Rh;TARY`
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(CORPORATE SEAL),
5
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P' ^ .41
I
IN
PROM BSORY NOTE
AMOUNTi $47.734
PLACE: MIAMI , PLORtD►A
DATE,.
FOR VALUE RECEIVED,
the
undersigned jointly and severally
promise(s) to pay to the
order of the City of Miami, a Florida
Municipal Corporation, (herein
called the "CITY"), acting by and
through its Department
of
Community Development, or its
!` successors, the sum of $47,734 (hereinafter referred to as "CITY
LOAN") in lawful money
of
the United States, together with
interest thereon at the
rate
of five per centum (5%) per annum
amortized over 15 years.
and
called on year ten (10), in like
lawful money from the
date
hereof until maturity, on the
principal balance outstanding
from time to time. Such principal
and interest shall be due
and
payable as follows:
Principal payment and interest shall be
deferred during first six (6) months.
Thereafter, beginning the seventh (7th) month
on , principal and
interest shall be due and payable in equal
monthly installments of
The final payment and balloon amount will be
due in its entirety on .
The undersigned reserve(s) the right to prepay at any time,
all or any part of the principal amount of this Note without the
payment of penalties or premiums. Except as provided below, all
quarterly installment payments on this Note shall be credited as
of the due date thereof without adjustment of interest because
paid either before or after such due date.
IN THE EVENT the undersigned shall fail to pay the interest
on, or principal amount of this Note when due, and if such
failure continues until the date the next installment payment
under this Note becomes due and payable, the outstanding
principal balance of this Note, together with accrued interests
and late charges, shall become due and payable, at the option of
the City, without notice to the undersigned. Failure of the City
to exercise such option shall not constitute a waiver of such
default."
No default shall exist by reason of nonpayment of any
required installment of principal and/or interest (so long as the
amount of prepayments already made pursuant hereto equals or
exceeds the amount of the required installments.) If any
;?
quarterly installment of principal and/or interest due and
'
payable under this Note is not paid during the quarter which
Includes the due date of such installment, then the undersigned,
shall pay a late charge equal to five percent (5%) of the amount
of each quarterly installment which is past due and remains
unpaid during the quarter (or part thereof) following the Ip4aCIt
such installment is due. If this Note is reduced to judgeseaf.
;
such judgement shall bear interest at a rate of six percent
per annumo
IF suit is instituted by the City to recover on this Note.
R`
the undersigned agree(s) to pay all costa of such coilecttan
including reasonable attorney's fees and court costs.
* MK'
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The Agtiee eint between the Undersigned And the City dated j
__. 199, heteby irted�rpotated into and made a
Batt heteef a
r IN wiTSS WHRRRO►� this Mote hAs been duly executed by Chi
Y
undersigned, as of its dstp• �
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KOCHEN VENTURES
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CI1Y OF MIAMI, FLORIDA
INTEROFFICE MEMORANDUM
Honorable Mayor and Members DATE : JUL FILE:
of the City Commission
sualEct c Resolution authorizing
the City Manager to
enter into contract
with Kochen Ventures
Pow: Cesar B . Od i o REFERENCES:
City Manager
- ENCLOSURES:
RECOMMENDATION:
It is respectfully recommended that the City Commission adopt the
r attached Resolution authorizing the allocation of 44.7,734 to
Kochen Ventures, a partnership and the execution of, a contract
' agreement thereto, to a form acceptable to the City Attorney with
the City of Miami. The purpose of said agreement will be
providing said funds to rehabilitate and correct t;he
-i deterioration of the underground base which has severelq affected
} structural stability of a 20,000 square foot building In the
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Miami Fashion/Garment District.
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BACKGROUND:
The Department of Community Development (DCD) has analyzed the
need to provide funding to Kochen. Ventures, for the purpose- of
rehabilitating and correcting the structural deficiencies of "
-' properties in the City of Miami's Fashion/Garment District.'
Specifically, the existing floor which to now hollow will be np�=
replaced with a 6" slab, properly reinforced. In addition,
an 8'x12' concrete tie beam will be installed, along with an 8"
concrete block wall.
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The building which is located at 570-74 N.W. 26th Street, houses
several businesses that employ well over fifty (50) low and
'. moderate income persons from surrounding target are4sz.
' Presently, 7,700 square feet of space is being occupied by,a belt
' manufacturer* Due to the present structural condition of t#e''
g building, the owners have been unable to rent the additional "vWj
space• Kochen Ventures has identified a shoo importer, and, a.
hosiery manufacturer for retail and wholesale opearstious to
occupy said space. caw:
In providing financial assistance to their for -profit oxat1ty fqr
tbo intended stated purpose, the public benefit derived rill bat
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An Increase of the tax base, InClus v* of prop¢fty�
sales and Iacono taxes. :
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Honorable Mayor and Members
of the City Commission
Page 2
Indirect stimulation of other development and
business attraction to the area.
-- The creation of new permanent jobs for low/moderate
income persons within the target area.
An increase in needed services which result from the
rehabilitation of the aforementioned property.
YyThis
project is eligible under the U.S. Department of Housing and
Urban Development Regulation Number 570.202(a)(3). In addition,
*
the National Objective will be met through the creation and
retention of. employment opportunities. All rehabilitation work
performed will be in accordance with Federal Regulations,
specifically Davis -Bacon guidelines.
The projected cost of the project is $95,408. Approximately"
$47,734 will be provided as a loan from the City's Community
Development Block Grant Fund previously appropriated by
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Resolution No. 87-411. The 734 , remaining $47 g .purportedly .will
come from Kochen Ventures.
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The proposed terms of the City's loan is as follows:
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Loan Amount: $47,734
Interest Rate: Five percent (52)
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Terns: Amortized over fifteen (15) years,
balloon in year ten (10). Interest
and principal payments deferred
first six (6) months.
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