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HomeMy WebLinkAboutR-87-0488'p t J-81-491 5/19/87 RESOLUTION NO. 87 —486 A RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT IN A FORM ACCEPTABLE TO THE CITY ATTORNEY BETWEEN THE CITY, MIAMI CAPITAL DEVELOPMENT, INC., AND INDIAN RIVER INVESTMENTS, A FLORIDA CORPORATION, FOR THE PROVISION OF UP TO $500,000 IN COMMUNITY DEVELOPMENT BLOCK GRANT FLOAT FUNDS (COBG) ON AN INTERIM BASIS FOR THE CONSTRUCTION OF A MULTIFAMILY HOUSING DEVELOPMENT ON PARCEL 46 OF PHASE I OF THE SOUTHEAST OVERTOWN/PARK WEST REDEVELOPMENT PROJECT. WHEREAS, the Community Redevelopment Act of 1969, as amended, requires in Chapter 163.360 that a community redevelopment area shall not be planned or initiated unless the governing body has, by resolution, determined such area to be a slum area, or a blighted area, or a combination thereof, and designated such area as appropriate for a community redevelopment project; and WHEREAS, by Resolution 1179-69 the Board of County Commissioners determined that the Central Miami Urban Renewal Area bounded by Northwest Twenty -Ninth Street on the North, by the FEC Railroad on the East with an extension to Northeast Second Avenue, including the New World Center Campus, on the West by Expressway I-95, and on the South by the Miami River was a slum and blighted area; and WHEREAS, that portion of the City, known as Overtown, bounded on the South by Northwest Sixth Street, on the West by Northwest Third Avenue, on the East by Northwest First Court and on the North by Northwest Eighth Street was included within the Central Miami Urban Renewal Area; and WHEREAS, by Resolution R-39-81 the Board of County Commissioners approved an amendment to expand the Central Miami Urban Renewal Area to include the Park West area bounded on the West and South by the FEC tracks, on the East by Biscayne Boulevard and on the North by I-395, as a slum and blighted area; a nd CITY COMMISSIOX MEETING OF MAY 28,/�1987 SALUTfnN Nn Q'/6-dama lq�aann�u►: r WHEREAS, by Resolution R-1617-82 the Board of County Commissioners, deleted the area within the boundaries set forth in the herein two immediately preceding clauses known as Southeast Overtown/Park West from the Central Miami Urban Renewal Plan in order that said area be established as a separate community redevelopment area for tax increment financing purposes and approved the Southeast Overtown/Park West Community Redevelopment Plan; and WHEREAS, the City Commission by Resolution No. 83-972 approved the Phase I Overtown Transit Station Impact Area Redevelopment Proposal wherein the designated slum and/or blighted areas of Overtown and Park West encompassed the redevelopment area; and WHEREAS, Indian River Investments has been selected to be the developer of Parcel 46 of Phase I of the Southeast Overtown/Park West Redevelopment Project by Resolution No. 85- 393; and WHEREAS, by Resolutions 85-753, 85-754 and 85-755 the City Commission authorized and budgeted the use of up to $10 million in Community Development Block Grant (C .D.B.G. ) Float Funds for financing development actions in Phase I of Southeast Overtown/Park West Redevelopment; and WHEREAS, Indian River Investments has requested that a CDBG Float loan in the amount of $500,000 be made available to make feasible the initial construction on Parcel 46, consisting of 12 for sale townhouse units; and WHEREAS, City staff has reviewed the Indian River Investments proposal for need and eligibility with all applicable regulations and recommends that such a loan be made; NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The City Manager is hereby authorized to execute, on behalf of the City in a form acceptable to the City Attorney, an agreement between Miami Capital Developments Inc. and Indian River Investments for/the provision of a $5009000 CDBG Float loan for the construction of 12 for sale townhouse units on 1/ Failure to breal� ground on the herein construction will result in cancellation of a prior $7.5 million CDB6 Float Grant to Indian River Investments. i Parcel 46 of Phase I of Southeast Overtwon/Park West Redevelopment Project, subject to the approval of the City Attorney as to form and correctness. PASSED AND ADOPTED this 28th day of ATTEST: COMMUNITY DEVELOPMENT REVIEW AND APPROVAL: FRANK ASTANEDA, DIRECTOR COMMUNITY DEVELOPMENT FINANCE REVIEW AND APPROVAL: (VA A, C- L►- CARL CIA, DIRECTOR FINANCE DEPARTMENT BUDGETARY REVIEW AND AP P OVAL: MANOHAR S. S DIRECTOR DEPT. OF MANAGE AND BUDGET PREPARED AND APPROVED BY: te&-4ca 5r - &,aaC ROBERT F. CLARK, CHIEF DEPUTY CITY ATTORNEY APPROVED'A$TO FORM AND CORRECTNESS . wwwwL&"f%4 i , -3- 3 CITY OF MIAMI. FLORIDA INTER-OFFIC19 MIRMORANDUM Honorable Mayor and Members OATS: MAY 2 0 1987 TO: FILE: of the City Commission Authorization of CDBG SUBJECT: Float Loan Agreement Indian River Investments Inc. FROM: Cesar H. Odlo City Manager RECOMMENDATION: REFERENCES: City Commission Agenda May 28, 1987 ENCLOSURES: It is respectfully recommended that the City Commission adopt the attached resolution authorizing the City Manager to execute an agreement between the City, Miami Capital Development, Inc., and Indian River Investments Inc., a Florida Corporation, for the provision of up to $500,000 in Community Development Block Grant (CDBG) Float funds on an interim loan basis for the construction of a multifamily housing development on Parcel 46 of Phase I of the Southeast Overtown/Park West Redevelopment Project. BACKGROUND: The Department of Development has analyzed the need to execute this agreement. Indian River Investments Inc. has been selected by the City to develop Parcel 46 of Phase I of the Southeast Overtown/Park West Redevelopment Project (SO/PW). In lieu of requesting the City to seek an Urban Development Action Grant to reduce development financing costs to make the project feasible at the proposed sale prices, Indian River proposed to the City that a CDBG Float Loan be provided on an interim basis to aid the initial construction on Parcel 46, which consists of 12 condominium units (152 units total project). The loan is to carry an interest rate of one percent per annum and is to extend for a maximum time of 12 months. The loan may be extended until the completion of the full project. The repayment of the loan is to be secured by an unconditional and irrevocable letter of credit of $500,000 supplied by Indian River. Under certain circumstances, the loan may be called by the City in advance of the maturity date. The need for the loan and the eligibility as it relates to CDBG regulations have been reviewed by City staff. 3 -) 41 Honorable Mayor and Members of the City Commission Page 2 Prior Commission actions have laid the groundwork for this specific agreement. On July 18, 1985 the City Commission adopted three resolutions (85-753, 85-754 -and 85-755) resulting in the authorization and budgeting of up to $10 million in CDBG Float Funds for use as interim financing of Phase I development in SO/PW. In addition to the $7.5 million Circa request, a $500#000 CDBG Float loan is being requested by Indian River Investments to help finance initiation of its project on Parcel 46, making the combined total requested amount to be ;8 million. The Community Development Department has estimated that the City's current CDBG Float capacity is approximately $10 million. CDBG Float consists of encumbered but unexpended CDBG funds currently available for advance draws from the US Department of Housing and Urban Development for eligible activities. The funds are CDBG entitlements from current and past CDBG activity years which have been budgeted for use in activities not yet requiring the funds. The Float feature allows entitlement cities to receive advances on these funds for certain allowable interim uses, including loans to private developers for certain eligible activities. By such time that a city needs the funds for the permanent budgeted use, the Float loan is called or retired. Repayment of the Float funds to a city is normally guaranteed by an irrevocable letter of credit arranged by the developer. Attachment: Proposed Resolution 2 r 1 00 ORA&, LOAN AGREEMENT This Agreement entered into this day of , 1986, by and between the City of Miami, a municipal corporation of the State of Florida, hereinafter referred to as "LENDER", Miami Capital Development, Inc., hereinafter referred to as "BORROWER", Indian River Investments, Inc., hereinafter referred to as "DEVELOPER" and Southeast Bank, N.A., hereinafter referred to as "BANK." RECITAL: WHEREAS, BORROWER is a State Development entity eligible to borrow under U.S.C. Chapter 151 Section 683 (Small Business Investment Act of 1958); and WHEREAS, DEVELOPER is a small business concern and is eligible to receive financial assistance under the scope and authority of the Small Business Investment Act; and WHEREAS, BORROWER is desirous of providing construction financing (the LOAN) to the DEVELOPER for developing the improvements, which shall be known as Poinciana Village ("the PROJECT"); in the Southeast Overtown/Park West Redevelopment Area (SEOPW); and WHEREAS, the Project is an eligible Community Development activity in that the SEOPW has been declared an area of slum and blight by Metropolitan Dade County pursuant to Chapter 163, Florida Statutes; and WHEREAS, pursuant to Resolution No. 85-755 LENDER has allocated $425,000 of Community Development Block Grant Funds received from the Federal government to loan to BORROWER for the sole purpose of lending to DEVELOPER to finance the construction of the PROJECT; and WHEREAS, DEVELOPER is required to obtain an unconditional and irrevocable letter of credit from BANK made payable to LENDER and BORROWER as guaranty and security for the LOAN= and WHEREAS, DEVELOPER has received a commitment from BANK for the Letter of Credit. 87-48fi NOW# THEREFORE, in consideration of the mutual covenants and obligations herein contained, and subject to the terms and conditions hereinafter stated, the parties hereto understand and agree as follows: PARTICULAR TERMS; DEFINITIONS: As used in this Agreement, the following terms shall have the respective meanings indicated opposite each of them; where the meaning of any term is stated to be "None", provisions involving the application of that term shall be disregarded: BANK BANK'S ENGINEER CLOSING DATE COMMUNITY DEVELOPMENT ACTIVITIES COMPLETION DATE CONSTRUCTION LOAN OR LOAN CONTRACTOR'S COST BREAKDOWN DISPOSITION AGREEMENT Southeast Bank, N.A., a Florida banking corporation. TO BE IDENTIFIED The date on which Loan Agreements are executed between LENDER and BORROWER and between BORROWER and DEVELOPER. Those activities which are deemed eligible by the Depart- ment of Housing and Urban Development and entitled to receive Community Develop-ment Block Grant Funds. When the Improvements are 100% leased or sold or when cash flow from the Project can support payments under the Note, whichever first occurs. $4250000 to be advanced by LENDER to BORROWER for dis- bursement to DEVELOPER subject to the conditions and limita- tions of this Agreement. A statement approved by LENDER of the maximum monies that are allocated for the various items into which the job is divided and also prescribing the maximum monies to be drawn upon each of the Advances as herein provided, as more particularly set forth in Exhibit The agreement between the City of Miami and Indian River Investments, Inc., dated , 19 , whereby City ownia lAd i8 transferred to DEVELOPER for the development of the Project. 87~488 -2.. DRAW Progressive sums of money requested by DEVELOPER and advanced by LENDER. GENERAL CONTRACT The contract between the DEVELOPER 'and the General Contractor for the construc- tion of the PROJECT. GENERAL CONTRACTOR TO BE IDENTIFIED GOVERNMENTAL AUTHORITY The United States, the State of Florida and any political subdivision thereof, and any agency department, commission, board, bureau or instrumen- tality of any of them. LETTER OF CREDIT An engagement by BANK issued at the request of DEVELOPER as security for the Construction Loan committing BANK to honor demands by LENDER and BORROWER for payment of said Loan pursuant to the conditions set forth in this Agreement. The Letter of Credit shall be irrevocable guaranteeing that BANK shall not withdraw the credit or cancel the letter before its expiration date. LOAN The Construction Loan LOAN DOCUMENTS The Loan Application and other ducuments required by BORROWER to be completed by DEVELOPER prior to the disbursement of funds. The forms of said documents are attached hereto as Exhibits . LOCAL AUTHORITY Any non -Federal Governmental Authority that exercises jurisdiction over the premises or construction thereon. NOTE The Note of even date herewith in the total principal amount of the Loan made by the DEVELOPER to the LENDER and BORROWER, which shall be in the form attached hereto as Exhibit PLANS The final plans and specifi- cations for the construction of the PROJECT. The final plans and specifications for segments of the Developer Improvements. PROJECT A phased development con- sisting of a one hundred and fifty two (152) unit condo- minium housing with supportive parking and recreational amenities known as "Poinciana Village" to be located on Block forty-six (46) of the 87-486 ,,r Southeast Overtown Park West Redevelopment Project. For purposes of this agreement "Project" shall refer to that phase of the development consisting of a nine (9) unit condominium residential building on land in Miami, Florida described as the east half of Block 46 N, Miami, (A.L. Knowlton) as per plat in Plat Book B, page 41 of the Public Records of Dade County, Florida. The Project shall be developed according to the schedule attached hereto and incorporated herein as Exhibit REQUIREMENT OR LOCAL REQUIREMENT Any law, ordinance, order, rule or regulation of a Governmental Authority or Local Authority. REQUEST FOR DRAW A statement of the DEVELOPER setting forth the amount of Draw sought in such form and manner as the Bank, Lender and BORROWER may request, which Request shall constitute and affirm that the representa- tions and warranties of Article hereof remain true and correct as of the date thereof and that unless the Bank, Lender and BORROWER is notified to the contrary prior to the disbursement of the requested Draw, such repre- sentations and warranties and all other representations will be true on the date thereof. REQUISITION FOR DRAW A statement signed by DEVELOPER and, setting forth the amount of Draw sought in such form and manner as the LENDER and BORROWER may request. TERM: The term of this Loan Agreement shall be for a period of twelve (12) months from the Closing Date or upon repayment of the Note, whichever first occurs. LOAN PROVISIONS: A. Amount to be Loaned. LENDER agrees, on the terms and conditions hereinafter set forth, to make a Loan for •construction financing of the 87-488 ..4�- PROJECT to BORROWER in the amount of $425,000. BORROWER shall loan said amount to DEVELOPER in accordance with the terms and conditions hereinafter set forth. DEVELOPER, however, DEVELOPER shall on or before the Closing Date pay an amount equal to one point on the principal of the Construction Loan for LENDER's and BORROWER's expenses at closing. It is understood that the Construction Loan shall be used solely for the actual costs associated with the construction of the Project. DEVELOPER is to pay all costs relative to the Letter of Credit. B. The Note. The DEVELOPER's obligation to repay the indebtedness resulting from the Draws shall be evidenced by the Note. The Note shall be issued to LENDER and BORROWER in the principal amount of $425,000, payable in a lump sum payment upon demand on or before twelve (12) months from the Closing Date. The Note shall be secured by the Letter of Credit in accordance with the requirements set forth in this Agreement. C. Payments and Computations. Each payment hereunder and under the NOTE shall be made on the day when due in lawful money of the United States of America to the BORROWER at the address referred to in Section IV of this Agreement. BORROWER agrees to forward said payments to LENDER immediately upon receipt thereof. DEVELOPER shall not be required to make any payments during the construction period. Payments shall commence upon sale of condominium units in the PROJECT. In no event shall the repayment period exceed one (1) year from the Closing Date. D. Security. As security for the repayment of the loan DEVELOPER shall deliver to BORROWER a Letter of Credit issued by Bank in favor of LENDER and BORROWER. 87-488 ts� LENDER and BORROWER shall have the option to call the Letter of Credit for the amount advanced to DEVELOPER within forty- eight (48) hours if any of the following instances should occur: 1. If one (1) year from the Closing Date DEVELOPER has not repaid the LOAN. 2. If LENDER needs the LOAN amount to fund other Community Development activities. 3. If the Department of Housing and Urban Development determines that financing the construction of the PROJECT is an ineligible Community Development Block Grant activity. 4. If the DEVELOPER is in default under this Agreement. E. Draws. Subject to the provisions of this Agreement, the LENDER shall disburse the proceeds of the Loan to BORROWER for disbursement to DEVELOPER subject to the following conditions: 1. The proceeds shall be advanced as construction progresses, but not more frequently than once a month for the amount approved by Bank. 2. LENDER and BORROWER shall not be obligated to make the first or any subsequent Draws until receipt of: a) A Requisition for Draw from DEVELOPER on the Bank's standard form, signed by DEVELOPER and Bank. b) Written certification from Bank's Engineer to the effect that in his opinion the work performed to the time of the Request for Draw was completed within the approved cost estimates and in substantial accordance with the plans. Bank shall not be obligated to sign the Requisition for Draws or submit the written certification unless the terms and conditions of its Letter of Credit have been satisfied by DEVELOPER. 87-- 480 -6- I At 3. There shall exist no event of default or other default under this Agreement, the Note, the Letter of Credit or any other document evidencing and/or securing the Loan. 4. LENDER, BORROWER, BANK and the Department of Housing and Urban Development (HUD) shall have the right to review any and all business records and related records of DEVELOPER pertaining to any Draws. III. COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS: All parties shall comply with all applicable laws, ordinances and codes of federal, state and local governments. Specifically, DEVELOPER shall comply with all applicable Community Development regulations to include Section 570.901 F(v) and the provisions set forth in HUD Handbook entitled Federal Labor Standards Compliance in Housing and Community Development Programs. DEVELOPER acknowledges that it has been furnished a copy of said handbook and is particularly aware of the Davis - Bacon and Related Acts contained therein and shall require General Contractor to comply accordingly. IV. GENERAL CONDITIONS: A. All notices or other communications which shall or may be given pursuant to this Agreement shall be in writing and shall be 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 personally served; or, if by mail, on the fifth day after being posted or the date of actual receipt, whichever is earlier. CITY OF MIAMI IOU N. B scene Blvd. suite 901 Miami, Florida 33132 MIAMI CAPITAL DEVELOPMENT, 3l,T— E. 13th Terrace Miami, Florida 33132 Wks 87"w4$ INDIAN RIVER INVESTMENTSt SOUTHEAST BANK, N.A. INC. One Southeast Financial 10=N.W. 3rd Avenue Center Miami, Florida 33136 Miami, Florida 33131 B. Title and paragraph headings are for convenient reference and are not a part of this Agreement. C. 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 rule. D. No waiver or breach of any provision of this Agreement shall constitute a waiver of any subsequent breach of the same or any other provision hereof, and no waiver shall be effective unless made in writing. E. Should any provisions, paragraphs, sentences, words or phrases contained in this Agreement be determined by a court of competent jurisdiction to be invalid, illegal 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 such laws, then same shall be deemed severable, and in either event, the remaining terms and provisions of this Agreement shall remain unmodified and in full force and effect. V. CONDITIONS PRECEDENT TO LENDERS AND BORROWERS OBLIGATION: The LENDER or BORROWER shall not be obligated hereunder unless the Disposition Agreement between the City of Miami and Indian River Investments of Miami, Inc. has been fully executed and LENDER and BORROWER shall have received: 1) Unconditional and irrevocable Letter of Credit. 2) The duly executed Note. 3) Loan Documents. 4) Such other documents evidencing and securing the indebtedness as may be required by LENDER and BORROWER's counsel. -867 It. REPRESENTATIONS AND WARRANTIES OF THE BORROWER: The BORROWER represents and warrants that: 1. It is a corporation duly organized and validly existing under the laws of the State of Florida and has full power and authority to consummate the transactions contemplated hereby. 2. It has taken all corporate and other action necessary to authorize the execution and delivery of the Loan Documents, and the transaction contemplated hereby and thereby. VII. REPRESENTATIONS AND WARRANTIES OFTHE_DEVELOPER: The DEVELOPER represents and warrants that: 1. It is a corporation duly organized and validly existing under the laws of the State of Florida; DEVELOPER has full power and authority to consummate the transactions contemplated hereby; and, all documentation (if any) prerequisite to DEVELOPER's undertaking the construction contemplated hereby has been duly executed, delivered and, where necessary, recorded. 2. The Plans are satisfactory to DEVELOPER, have been approved by the appropriate Authority to the extent required by applicable law and by all Governmental and Local Authorities; the Plans so approved have been identified and accepted by DEVELOPER and by the General Contractor. 3. There are no actions, suits, or proceedings pending before any court of law or equity or any administrative board, or threatened against or affecting DEVELOPER or before or by any Governmental Authority or Local Authority; and DEVELOPER is not in default under any other indebtedness or with respect to any order, writ, injunction, decree, or demand of any court or any Governmental Authority or Local Authority. 87-4KA 1 1% 4. The consummation of the transactions hereby contemplated and performance of this Agreement and the Note will not result in any breach of, or constitute a default under, any mortgage, deed of trust, lease, bank loan, or credit agreement, corporation charter, by-laws, or other instrument to which DEVELOPER is a party or by which LENDER and BORROWER may be bound or affected. 5. Each request for a Draw, or the receipt of the funds requested thereby, shall have the effect stated in the definition of the term Request for Draw. 6. Except as to liens heretofore made known to LENDER and BORROWER and approved by LENDER and BORROWER, DEVELOPER has made no contract or arrangement of any kind the performance of which by the other party thereto would give rise to a lien on the PROJECT except for its arrangements with DEVELOPER's Architect, the General Contractor and contractors or subcontractors. 7. All roads necessary for the full utilization of the Project for their intended purposes have either been completed or the necessary rights of way therefor have either been acquired by the appropriate Local Authority or have been dedicated to public use and accepted by said Local -Authority and all necessary steps have been taken by the BORROWER and said Local Authority to assure the complete construction and installation thereof; or, if by private street, all adequate easements of ingress and egress have been afforded same; all platting requirements and the Requirements of Local Authorities have been duly met, and upon completion of the PROJECT in accordance with the Plans a proper certificate or certificates of occupancy will be issued. 8. There is no default on the part of the DEVELOPER under this Agreement or the Note, and no event has occurred and is continuing which with notice or the passage of time or both would constitute a default under any thereof; 9. DEVELOPER will employ the Construction Moan proceeds to complete the PROJECT and, except to the extent of proposed borrowings heretofore disclosed to LENDER and BORROWER, if any, DEVELOPER will not require and will not avail itself of any additional extension of credit for such purpose. 10. The DEVELOPER has taken all corporate and other action necessary to authorize the execution and delivery of the Loan Documents, and the transaction contemplated hereby and thereby; and this Agreement, the Note, and all other Loan Documents will be valid and binding obligations of the DEVELOPER upon execution and delivery, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and other laws for the relief of debtors heretofore or hereafter enacted to the extent that the same may be constitutionally applied. Neither the execution and delivery of this agreement nor the consummation of the transactions contemplated hereby will constitute a violation or breach of (i) the DEVELOPER's Articles of Incorporation or By-laws, (ii) any provision of any contract or other instrument to which the DEVELOPER is a party or by which it is bound or (iii) any order, writ, injunction, decree, statute, rule or regulation. 11. The DEVELOPER is not a party to any agreement or instrument, or subject to any charter or other corporate restriction which may have a materially adverse effect on the PROJECT, financial or otherwise. The DEVELOPER is not in default in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any agreement or instrument relating to the PROJECT to which it is a party. Vitt. NONDELEGABILITY: Neither this Agreement nor the Note shall be assigned by DEVELOPER without the prior written consent of LENDER and BORROWER. Upon the assignment of this Agreement, or upon the sale, transfer or other conveyance of the Project or any part thereof by DEVELOPER, or upon the withdrawal, addition or removal of any general partner, without the prior written consent of LENDER and BORROWER, which consent shall not be unreasonably withheld or delayed, LENDER and BORROWER may, within forty-eight (48) hours call the Letter of Credit. IX. AUDIT RIGHTS: LENDER, BORROWER, and BANK reserves the right to audit the records of DEVELOPER at any time during the performance of this Agreement and for a period of one year after final payment is made under this Agreement. X. AWARD OF AGREEMENT: DEVELOPER warrants that it has not employed or retained any person employed by the LENDER to solicit or secure this Agreement and that it has not offered to pay, paid, or agreed to pay any person employed by the LENDER any fee, commission percentage, brokerage fee, or gift of any kind contingent upon or resulting from the award of this Agreement. XI. CONSTRUCTION OF AGREEMENT: This Agreement shall be construed and enforced according to the laws of the State of Florida. XII. SUCCESSORS AND ASSIGNS: This Agreement shall be binding upon the parties herein, their heirs, executors, legal representatives, successors, and assigns. 87-488 _l�� INDBMNIFICATIONt DEVELOPER shall indemnify and save LENDER and BORROWER harmless from and against any and all claims, liabilities, losses, and causes of action which may arise out of DEVELOPER's activities under this Agreement, including all other acts or omissions to act on the part of DEVELOPER, including any person acting for or on its behalf, and, from and against any orders, judgments, or 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. XIV. CONFLICT OF INTEREST: A. DEVELOPER covenants that no person under its employ who presently exercises any functions or responsibilities in connection with this Agreement has any personal financial interests, direct or indirect, with LENDER and BORROWER. DEVELOPER further covenants that, in the performance of this Agreement, no person having such conflicting interest shall be employed. Any such interests on the part of DEVELOPER or its employees, must be disclosed in writing to LENDER and BORROWER. B. DEVELOPER is aware of the conflict of interest laws of the City of Miami (City -of Miami Code Chapter 21 Article V), Dade County Florida (Dade County Code Section 2-11.1) and the State of Florida, and agrees that it shall fully comply in all respects with the terms of said laws. XV. INDEPENDENT CONTRACTOR: DEVELOPER and its employees and agents shall be deemed to be independent contractors, and not agents or employees of LENDER or BORROWER, and shall not attain any rights or benefits under the �13.. Civil Service or pension Ordinances of LENDER, or any rights generally afforded classified or unclassified employees; further DEVELOPER shall not be deemed entitled to the Florida Workers' Compensation benefits as an employee of LENDER. XVI. TERMINATION OF CONTRACT: LENDER and BORROWER retain the right to terminate this Agreement at any time prior to Construction. After construction has commenced, LENDER and BORROWER have the right to terminate this Agreement if LENDER fails to comply with each and every term of this Agreement the Note, Letter of Credit, Loan Documents, or any other document evidencing and securing the DEVELOPER'S indebtedness. Under all circumstances notice of termination shall be in writing to DEVELOPER and BANK. Where the DEVELOPER has commenced construction, payment shall be made for only the construction completed prior to the date of its receipt of the notice of termination. In no case, however, will LENDER and BORROWER advance to DEVELOPER an amount in excess of the total sum provided by this Agreement. It is hereby understood by and between LENDER, BORROWER and DEVELOPER that any disbursement to LENDER for payment made in accordance with this Section to DEVELOPER shall be made to only if said DEVELOPER is not in default under the terms of this Agreement. If DEVELOPER is in default, then CITY shall in no way be obligated and shall not disburse to LENDER and BORROWER for DEVELOPER any sum whatsoever. XVII. NONDISCRIMINATION: DEVELOPER agrees that it shall not discriminate as to race, sex, color, creed, national origin, or handicap in connection with its performance under this Agreement. 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 in, be denied benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance. XVIII. MINORITY PROCUREMENT COMPLIANCE: A. DEVELOPER acknowledges that it has been furnished a copy of Ordinance No. 10062, the Minority Procurement Ordinance of the City of Miami, and agrees to comply with all applicable substantive and procedural provisions therein, including any amendments thereto. B. MINORITY PARTICIPATION GOALS: DEVELOPER shall make diligent, good faith efforts to achieve the following goals established for the SEOPW Projects to ensure Minority Participation: 50% - Equity investment goal in Project development. 50% - Black construction goal in City sponsored activitiies. 25% - Black contracting goal overall. 50% - Black construction hiring goal. 60% - Black retail space ownership goal. 25% - Hispanic construction, management or operation goal. XIX. CONTINGENCY CLAUSE: Funding for this Agreement is contingent on the availability of funds and continued authorization for program activities and is subject to amendment or termination due to lack of funds, or authorization, reduction of funds, and/or change in regulations. XX. DEFAULT PROVISION; The following events shall constitute a default of this Agreements T � $7--4811, urea AqJ A. The failure of DEVELOPER to pay or perform any obligation hereunder or under the terms of the Note, Letter of Credit or any other document executed in connection herewith or therewith. B. The falsity of any material representation or breach of any material warranty or covenant made by DEVELOPER , hereunder or under the terms of the Note, or any other document executed in connection herewith or therewith. C. If an order or relief shall be entered upon any petition filed by or against DEVELOPER, as debtor, seeking relief (or instituting a case) under Chapters 7, 9, 11 or 13 of the Bankruptcy Code of 1978, 11 U.S.C. (Sec. 10 et seg.) or any successor thereto. D. If DEVELOPER admits its inability to pay its debts, or if a receiver, trustee or other court appointee is appointed for all or a substantial part of DEVELOPER's property; or E. If DEVELOPER makes an assignment for the benefit of creditors or takes the benefit of any insolvency act. F. If DEVELOPER shall abandon the project during the term of this Agreement. G. If DEVELOPER shall assign this Agreement, except as permitted herein. If DEVELOPER fails to cure a monetary default within ten (10) days after receipt of written notice thereof, or fails to cure a default within ten (10) days after receipt of written notice thereof? LENDER and BORROWER may declare the entire principal balance then unpaid under the terms of the Note and this Loan Agreement as evidenced by the Note and this Loan Agreement, immediately due and payable. In the event of default LENDER and BORROWER shall pursue whatever action in law or in equity as may appear necessary or desirable in LENDER's and BORROWER's opinion to include calling the Letter of Credit within forty-eight (48) hours. '"" 486 C io XXI. ENTIRE AGREEMENT: This instrument and its attachments constitute the sole and only Agreement of the parties hereto relating to said Loan and correctly sets forth the rights, duties, and obligations of each to the other as of its date. Any prior agreements, promises, negotiations, or representations not expressly set forth in this Agreement are of no force or effect. XXII. AMENDMENTS: No amendments to this Agreement shall be binding on any party unless in writing and signed by the parties. IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed by the respective officials thereunto duly authorized, this the day and year first above written. ATTEST: NATTY HIRAI City Clerk ATTEST: Corporation Secretary ATTEST: Corporation Secretary CITY OF MIAMI, a municipal Corporation of the State of Florida By CESAR H. ODIO City Manager INDIAN RIVER INVESTMENTS, INC. By (T t e) (Seal) MIAMI CAPITAL DEVELOPMENT, INC. By (Title) (Seal) 87--48F - 1 Wly ti _ _ _ "'li.Rii99WWff ATTESTS Corporat on Secretary APPROVED AS TO INSURANCE REQUIREMENTS: Insurance Manager LGK/wpc/pb/P006 4/10/86 3:45 P.M. SOUTHEAST BANKt N.A. By (T t e) (Seal) APPROVED AS TO FORM AND CORRECTNESS: LUCIA A. DOUGHERTY City Attorney