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HomeMy WebLinkAboutexecutive summary,resolution, agreementsEXECUTIVE SUMMARY SETTLEMENT AGREEMENT BY AND BETWEEN SAWYER'S WALK. LTD. ("SAWYER'S WALK"), POINCIANA VILLAGE AND MIAMI, LTD. ("POINCIANA"), SOUTHEAST/OVERTOWN PARKWEST REDEVELOPMENT AGENCY ("CRA") AND THE CITY OF MIAMI ("CITY"). PURPOSE: Settle existing litigation between the CRA/City and Poinciana regarding the Poinciana Village project (the "Poinciana Litigation") and settle existing litigation between CRA/City and Sawyer's Walk regarding the Sawyer's Walk project (the "Sawyer's Walk Litigation") and promote prompt development of the balance of the Poinciana Village project and the Sawyer's Walk project. PURPOSED DEVELOPMENT: The proposed development, which will be constructed in phases on the property (the "Property") which shall be made up of approximately 1,050 consisting of apartments, townhouses, lofts, live/work units (i.e., commercial units which are bundled with a residential unit) (the "Live/Work Units") (collectively, the "Residential Units"), which Residential Units will be constructed in mid -rise structures and high-rise structures and approximately seventy-five thousand (75,000) square feet of retail and office space (the "Project"). The price range for the Residential Units, excluding the live/work units, shall be between $130,000.00 and $300,000,00. TIME FRAME: Commence construction promptly after obtaining the MUSP approval (estimated to occur on or before April 15, 2006) and complete construction within five (5) years from the date of the Settlement Agreement. DEVELOPER: Although Sawyer's Walk, Ltd., is part of the transaction, 95% of the partnership interest in Sawyer's Walk, Ltd, will be transferred to an entity owned or controlled by Crosswinds at Poinciana, LLC. A 5% interest shall be retained by the existing partners of Sawyer's Walk, Ltd. RESTATED LEASE: CRA and Developer will enter into an amended and restated lease (the "Lease") with respect to the undeveloped portion of Poinciana Project and the Sawyer's Walk Project. The Lease will not be executed until the Executive Director is satisfied that financing of the first phase of the Project is in place, the Developer has adequate equity for the Project and the Executive Director has approved the plans and specifications for Phase I, compliance with minority participation requirements and MUSP approval has been obtained. DEVELOPMENT APPROVAL: Preliminary Development Plans are attached to the Settlement Agreement. Within one hundred twenty (120) days from the Effective Date of the Settlement Agreement, the Developer is required to provide detailed development plans to the Executive Director of the CRA for approval, which will include a block -by -block breakdown of the project, a phasing plan for the project, a project schedule, and a breakdown of the Affordable Units and the Subsidized Units to be included in each phase of the Project which shall include a breakdown of the square footage and unit mix of the Affordable Units and the Subsidized Units. The Developer will be required to develop the Property in accordance with the detailed Development Plan as approved by the Executive Director and the MUSP. MUSP APPROVAL: The Developer has ninety (90) days from end of the Inspection Period, to file a MUSP application with the City of Miami. The application for MUSP approval must be consistent with the detailed Development Plan approved by the Executive Director. The Developer shall have until March 15, 2006 to obtain MUSP approval from the City. AFFORDABLE HOUSING: The Developer shall be required to sell no less than 20% of the residential units in each phase to qualified buyers whose gross income is between 80.01% and 120% of the Miami -Dade County mean income (the "Affordable Housing Requirement"). First preference shall be given to Overtown and former Overtown residents followed by City residents. The minimum penalty for non-compliance is Twenty Thousand and No/00 Dollars ($2f ,000.00) per unit. SUBSIDIZED HOUSING: The Developer is required to convey a total of fifty (50) units of the Affordable Units to the CRA, or its designee (the "Subsidized Units"). The CRA, or its designee, shall sell the Subsidized Units to purchasers whose gross income is not greater than eight percent (80%) of the Miami -Dade County median income. First preference shall be given to Overtown and former Overtown residents followed by City residents, FORMER OVERTOWN RESIDENTS: The Developer is required to use its best efforts to sell 20% of the residential units to former Overtown residents or their family members. The Developer will be required to obtain written certification from community based organizations that the potential buyer is a former Overtown resident or a family member of a former Overtown resident. The Developer may sell the Residential Unit to a former Overtown resident or a family member of a former Overtown resident at market rates. Any sale of a Residential Unit to a former Overtown resident or a family member of a former 2 Overtown resident shall qualify towards the Affordable Housing Requirement, notwithstanding their income level. MINORITY PARTICIPATION: A 51% minority participation requirement has been established with respect to construction and property management aspects of the Project (B28/F8/H15). A 25% minority/female participation requirement has been established with respect to the design aspects of the Project (B101F5/H10). A 20% African American participation requirements has been established with respect to Developer's sales and marketing staff. The requirements are mandatory and penalties apply for failure to meet the requirements. FIRST SOURCE HIRING AGREEMENT: The Developer will be required to enter into a First Source Hiring Agreement requiring priority be given first to Overtown residents and then to residents of the City. EMPLOYMENT TRAINING PROGRAM: Developer, in coordination with the South Florida Work Force or such similar job creation and training program, shall participate in existing programs or establish a "Skills Training and Employment Program" which shall provide for training of construction personnel for residents in the CRA Redevelopment Area and in the City and property management training for residents in the CRA Redevelopment Area and in the City. COUNTY REVERTER LITIGATION: The Developer bears all risk associated with the County Reverter Litigation which requires three of the blocks included in this transaction to be developed prior to August 1, 2007, or title reverts to Miami -Dade County. The Developer is required to develop these blocks as part of Phase I of the Project. TAX INCREMENT FUNDS: The CRA has agreed to pay to the Developer 100% of the tax increment funds generated from the Project through September 30, 2013, which funds are to be used in accordance with the requirements of applicable law governing the use of TIF Funds, The obligation of the CRA to make the TIF payments will be junior and subordinate to the obligations of the CRA to pay debt service with respect to the $11,500,000.00 City of Miami, Florida, Community Redevelopment Revenue Bonds, Series 1990, the Grand Central Obligations, and junior and subordinate to the obligations of the CRA to- pay debt service on any bonds issued in the future by the CRA. The TIF Funds will not be made available unless the City Attorney concludes that the proposed use is a legally permissible use of tax increment funds. CHALLENGES: The Developer bears all risks associated with any challenges with in respect to the Settlement Agreement, the Lease, and the proposed sale 3 if reversionary interests and releases the City/CRA from liability. If a Challenge is filed, either party may terminate the Agreement. COUNTY APPROVAL: The Developer is subject to approval by the County as required under the Interlocal Agreement and the County Reverter Settlement, which approval is to be obtained within sixty (60) days after the end of the Inspection Period or either party may terminate. STANDSTILL: Existing Poinciana Litigation and Sawyer's Walk Litigation are abated until Settlement is consummated or Settlement Agreement terminates with an outside date of April 30, 2006. If the Settlement Agreement is terminated the CRAICity have option of resolving Poinciana Litigation and Sawyer's Walk Litigation by payment of $6,500,000.00 to Poinciana and Sawyer's Walk or continuing the litigation. OUTSIDE DATE: If the Developer has not obtained MUSP approval and satisfied all of the requirements for the execution of the Amended Lease by April 30, 2006, the CRA/City may elect to terminate the Agreement. #2427929_v9 4 ,.<I,,;:,,6. ,, _ City of Miami Legislation Resolution 5f7 teat Vic, I City Hall 1 7 C5 3500 Pan American Drive Miami, FL 33133 www.ci.miami.fl.us File Number: 05-00009 Final Action Date: A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), AUTHORIZING THE CITY MANAGER TO EXECUTE A SETTLEMENT AGREEMENT, IN SUBSTANTIALLY THE ATTACHED FORM, WITH POINCIANA VILLAGE OF MIAMI, LTD., SAWYER'S WALK, LTD., AND THE SOUTHEAST OVERTOWN/PARK WEST COMMUNITY REDEVELOPMENT AGENCY ("CRA") IN THE CASES STYLED CITY OF MIAMI V. SAWYER'S WALK, LTD., CASE NO. 00-28860 CA 9, AND SOUTHEAST OVERTOWN/PARK WEST COMMUNITY REDEVELOPMENT AGENCY V. POINCIANA VILLAGE OF MIAMI, LTD., CASE NO. 02-06846 CA 9, BOTH PENDING IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI DADE-COUNTY, FLORIDA; SAID SETTLEMENT TO REQUIRE SAWYER'S WALK, LTD. TO PROCEED WITH THE DEVELOPMENT OF THE SAWYER'S WALK PROJECT AND THE BALANCE OF THE POINCIANA VILLAGE PROJECT IN ACCORDANCE WITH THE TERMS OF THE SETTLEMENT AGREEMENT, AND, IF CERTAIN CONTINGENCIES ARE SATISFIED, RESULT IN SAWYER'S WALK AND THE CRA ENTERING INTO A LONG TERM LEASE WITH RESPECT TO THE SAWYER'S WALK PROJECT AND THE POINCIANA VILLAGE PROJECT IN FULL AND COMPLETE SETTLEMENT OF ANY AND ALL CLAIMS AND DEMANDS AGAINST THE CITY OF MIAMI (" CITY") AND THE CRA, AT WHICH TIME THE SAWYER'S WALK LITIGATION AND THE POINCIANA LITIGATION SHALL BE DISMISSED WITH PREJUDICE, ALL AS MORE PARTICULARLY SET FORTH IN THE SETTLEMENT AGREEMENT; FURTHER PROVIDING THAT, IF THE CONTINGENCIES ARE NOT SATISFIED, THE CITY AND THE CRA SHALL HAVE THE OPTION OF PURSUING THE SAWYER'S WALK LITIGATION AND THE POINCIANA LITIGATION OR PAYING $6 ,500,000 IN FULL SETTLEMENT OF BOTH THE SAWYER'S WALK LITIGATION AND THE POINCIANA LITIGATION. WHEREAS, the City of Miami ("City") and the Southeast Overtown/Park West Community Redevelopment Agency ("CRA") filed a complaint for declaratory judgment against Sawyer's Walk, Ltd. ("Sawyer's Walk") styled City of Miami v. Sawyer's Walk, Ltd., Case No. 00-28860 CA 9 pending in the 11-th Judicial Circuit in and for Miami -Dade County, Florida ("Sawyer's Walk Litigation"); and WHEREAS, Sawyer's Walk has filed counterclaims against the City and the CRA in the Sawyer's Walk Litigation; and WHEREAS, the CRA filed a complaint for ejectment and quiet title against Poinciana Village of Miami, Ltd. ("Poinciana Village") styled Southeast Overtown/Park West Community Redevelopment Agency v. Poinciana Village of Miami, Ltd., Case No. 02-06846 CA 9 pending in the 1 lth Judicial Circuit in and for Miami -Dade County, Florida ("Poinciana Litigation"); and WHEREAS, Poinciana Village has filed counterclaims against the City and the CRA in the Poinciana Litigation; and City of Miami Page 1 of 2 Printed On: 1/27/2005 File Number: 05-00009 WHEREAS, the Poinciana Litigation and the Sawyer's Walk Litigation have been administratively consolidated; and WHEREAS, pursuant to Section 18-232 of the Code of the City of Miami, Florida, both claims and lawsuits have been investigated by the City Attorney's Office, and the City Attorney's Office recommends that the Poinciana Litigation and the Sawyer's Walk Litigation be settled in accordance with the terms of the Settlement Agreement attached hereto; NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The recitals and findings contained in the Preamble to this Resolution are adopted by reference and incorporated as if fully set forth in this Section. Section 2. The City Manager is authorized{1 } to execute a Settlement Agreement, in substantially the attached form, between Poinciana Village, Sawyer's Walk, the CRA, and the City, which shall require Sawyer's Walk to proceed with the development of the Sawyer's Walk Project and the balance of the Poinciana Village Project in accordance with the terms of the Settlement Agreement and, if certain contingencies are satisfied, result in Sawyer's Walk and the CRA entering into a long term tease with respect to the Sawyer's Walk Project and the Poinciana Village Project in full and complete settlement of any and all claims and demands against the City, at which time the Sawyer's Walk Litigation and the Poinciana Litigation shall be dismissed with prejudice, all as more particularly set forth in the Settlement Agreement; and further providing that, if the contingencies are not satisfied, the City and the CRA shall have the option of pursuing the Sawyer's Walk Litigation and the Poinciana Litigation or paying $6,500,000 in full settlement of both the Sawyer's Walk Litigation and the Poinciana Litigation. Section 3. This Resolution shall become effective immediately upon its adoption and signature of the Mayor.{2} APPROVED AS TO FORM AND CORRECTNESS: JORGE L. FERNANDEZ CITY ATTORNEY Footnotes: {1} The herein authorization is further subject to compliance with all requirements that may be imposed by the City Attorney, including but not limited to those prescribed by applicable City Charter and Code provisions. {2} If the Mayor does not sign this Resolution, it shall become effective at the end of ten calendar days from the date it was passed and adopted. If the Mayor vetoes this Resolution, it shall become effective immediately upon override of the veto by the City Commission. City of Miami Page 2 of 2 Printed On: 1/27/2005 SETTLEMENT AGREEMENT THIS SETTLEMENT AGREEMENT (the "Agreement") is made as of the 27th day of January, 2005, by and between SAWYER'S WALK, LTD., a Florida limited partnership ("Sawyer's Walk"); POINCIANA VILLAGE OF MIAMI, LTD., a Florida limited partnership ("Poinciana"); SOUTHEAST OVERTOWN/PARK WEST COMMUNITY REDEVELOPMENT AGENCY, a public agency and body corporate created pursuant to Section 163.356, Florida Statutes (the "CRA"); and the CITY OF MIAMI, a municipal corporation of the State of Florida (the "City"): RECITALS: A. In the 1980's the Southeast Overtown/Park West Project area was designated as a community redevelopment area (the "CRA Redevelopment Area") by Miami -Dade County, a political subdivision of the State of Florida (the "County"). A redevelopment plan was approved by the Commissioners of the City of Miami and the Commissioners of Miami -Dade County with certain redevelopment authority granted by the County to the City for project implementation. The City invited interested parties to submit proposals for the development of residential and commercial structures on properties in the vicinity of the Overtown Transit Station in a portion of the CRA Redevelopment Area. B. In response to requests for proposals issued by the City, Indian River Investments of Miami, 'Inc., a Florida corporation ("Indian River"), acting in the capacity of general partner on behalf of Poinciana, was selected as the "developer" with respect to the development of that certain real property described on Exhibit "A" attached hereto and made a part hereof (the "Poinciana Village Project"). Indian River, as general partner on behalf of Poinciana and the City entered into that Southeast Overtown/Park West Lease and Development Agreement dated June 15, 1988 (the "Original Lease"), as amended by Amendment No. 1 dated February 17, 1989 ("Amendment No. 1"), as amended by Amendment No. 2 dated July 13, 1989 ("Amendment No. 2"), as amended by Amendment No. 3 dated January 11, 1990 ("Amendment No. 3"). C. In 1990, the City issued a request for proposals for the development of Blocks 45, 55, and 56 in the CRA Redevelopment Area, which real property is more particularly described on Exhibit "B" attached hereto and made a part hereof (the "Sawyer's Walk Project"). Sawyer's Walk's proposal dated January 18, 1991, was the sole response to the request for proposals issued by the City with respect to the Sawyer's Walk Project and, by City of Miami Resolution No. 91-509 (the "Sawyer's Walk Resolution"), the City 1 selected Sawyer's Walk as the developer of the Sawyer's Walk Project, subject to complying with the terms and conditions of the Sawyer's Walk Resolution. D. On or about January of 1996, the City transferred authority to implement projects within the CRA Redevelopment Area to the CRA. The City conveyed all of its right, title and interest in the Poinciana Village Project and the Sawyer's Walk Project, together with other lands, to the CRA by Warranty Deed dated January 9, 1996, and recorded January 17, 1996, in Official Records Book 17064, at Page 152 of the Public Records of Miami -Dade County, Florida (the "CRA Warranty Deed"). The City assigned to the CRA all of the City's right, title and interest with respect to all leases pertaining to -the real property conveyed by the CRA Warranty Deed, including the lease with respect to the Poinciana Village Project, by virtue of the Assignment of Leases dated January 9, 1996, and recorded January 17, 1996 in Official Records Book 17064, at Page 208 of the Public Records of Miami -Dade County, Florida. E. The CRA and Poinciana executed an Amendment dated as of September 23, 1998, and recorded October 14, 1998, in Official Records Book 18312, at Page 444 of the Public Records of Miami -Dade County, Florida (the "Poinciana Amendment"), amending certain terms and provisions of the lease with respect to the Poinciana Village Project (the Original Lease, as amended by Amendment No. 1, Amendment No. 2, Amendment No. 3, and the Poinciana Amendment, are collectively referred to as the "Poinciana Lease"). F. Poinciana has developed Phase I of the Poinciana Village Project, as defined in the Poinciana Lease, consisting of 64 residential condominium units in two buildings of four stories each. The Poinciana Lease provides that Poinciana is to develop 91 condominium units or rental apartments in a single low-rise building and/or a single building of ten to twelve floors as a hotel, extended stay facility, or any combination thereof, containing approximately 125 guest rooms as Phase II, as defined in the Poinciana Lease, which is more particularly described on Exhibit "C" attached hereto ("Phase II of the Poinciana Village Project"). G. Disputes have arisen between the CRA and Poinciana with respect to the development of Phase II of the Poinciana Village Project and the obligation of the CRA to add Phase II to the Poinciana Lease as contemplated under the Poinciana Lease. As a result of these disputes, the CRA filed a complaint for ejectment and quiet title with respect to Phase II of the Poinciana Village Project styled Southeast Overtown/Park West Community Development Agency vs. Poinciana Village of Miami, Ltd., Case No, 02-06846 CA 9 pending in the Circuit Court in and for Miami -Dade County, Florida and Poinciana has filed counterclaims against the CRA and the City in connection with the Poinciana Village Project (collectively the "Poinciana Litigation"). 2 H. Disputes have arisen between the CRA and Sawyer's Walk with respect to the obligation of the CRA to enter into a lease with Sawyer's Walk with respect to the Sawyer's Walk Project. The CRA claims that the requirements of the Sawyer's Walk Resolution have not been satisfied. Sawyer's Walk claims that the requirements of the Sawyer's Walk Resolution have been satisfied and that the CRA had agreed to add the Sawyer's Walk Project to the Poinciana Lease. As a result of these disputes, the City and the CRA filed a declaratory judgment action styled The City of Miami vs. Sawver's Walk, Ltd., Case No. 00-28860 CA 9 in the Circuit Court in and for Miami -Dade County, Florida and Sawyer's Walk has filed counterclaims against the CRA and the City in connection with the Sawyer's Walk Project` (collectively the "Sawyer's Walk Litigation"). I. The City, the CRA, Poinciana and Sawyer's Walk desire to settle the Poinciana Litigation and the Sawyer's Walk Litigation, including without limitation the counterclaims filed in connection therewith, as hereinafter provided. NOW THEREFORE, for and in consideration of the $10.00 and other good and valuable consideration and of the covenants and agreements hereafter set forth, the parties agree as follows: 1. RECITALS. The Recitals to this Agreement are true and correct and are incorporated herein by reference and made a part hereof. This Agreement shall be effective as of the date of execution hereof by all parties hereto (the "Effective Date"). 2. NATURE OF THIS AGREEMENT. 2.1. Nature of Agreement. This Agreement constitutes the entire agreement of the parties regarding the settlement of the Poinciana Litigation, the settlement of the Sawyer's Walk Litigation and the agreement to enter into an amended and restated Poinciana Lease upon the terms and conditions set forth herein. This Agreement shall not constitute a lease of any portion of the Poinciana Village Project and/or the Sawyer's Walk Project (collectively the "Project") and shall not impose any encumbrance on the Project nor entitle Poinciana and/or Sawyer's Walk to file a lis pendens in connection with this Agreement or any alleged breach or default hereunder. The term of this Agreement shall commence on the Effective Date and terminate upon the Lease Delivery Date, as hereinafterdefined, unless sooner terminated in accordance with the terms hereof (except with respect to any obligations hereof which expressly survive such termination). 2.2. Settlement Purposes. The language in this Agreement and all communications and all information exchanged in connection with the 3 negotiation of this Agreement, written, oral, electronic or otherwise, by and between Sawyer's Walk or Poinciana or anyone representing or acting in concert or on behalf of either of them, on the one hand, and the CRA or the City or anyone representing or acting in concert or on behalf of any of them, on the other, (1) for all purposes in the lawsuits referred to in Recitals G and H or any related litigation, other than litigation to enforce this Agreement, will be treated as offers to compromise or relevant conduct or statements made in negotiations concerning a compromise, as provided in Section 90.408, Florida Statutes, and (2) regardless of Section 90.408, will not be used in any way by any of the parties to this Agreement in such lawsuits or in connection with any dispute involving the properties at issue in the lawsuits, unless otherwise agreed in writing, and all rights, claims and legal positions of the parties shall continue to exist to the same extent as if this Agreement had never been executed. This Section 2.2 shall survive the termination of this Agreement. 2.3. Amended and Restated Lease. Attached hereto as Exhibit "D" is the form of amended and restated Poinciana Lease (the "Restated Poinciana Lease") which (i) the parties have fully negotiated and approved, (ii) has been approved by the Board of Directors of the CRA (the "CRA Board") at a CRA Board meeting, (iii) has been approved by the City of Miami Commission at a regularly scheduled meeting, and (iv) which the CRA and Sawyer's Walk intend to execute and deliver to each other, subject to the satisfaction or waiver of the Poinciana/Sawyer's Walk Conditions Precedent, as hereinafter defined, and the satisfaction or waiver of the CRAICity Conditions Precedent, as hereinafter defined, and compliance with the other terms and provisions of this Agreement. 2.4. Settlement of Litigation. 2.4.1. Delivery of Settlement Documents. Subject to the satisfaction or waiver of all of the Poinciana/Sawyer's Walk Conditions Precedent and subject to the satisfaction or waiver of all of the CRA/City Conditions Precedent, on or prior to the Lease Delivery Date, the parties to this Agreement shall: 2.4.1.1. Execute a Stipulation of Settlement and Dismissal with Prejudice of the Poinciana Litigation in the form of Exhibit "E" attached hereto (the "Poinciana Stipulation"). 2.4.1.2. Execute a Stipulation of Settlement and Dismissal with Prejudice of the Sawyer's Walk Litigation in the form of Exhibit "F" attached hereto (the "Sawyer's Walk Stipulation"). 2.4.1.3. Obtain a court order approving the settlement in the Poinciana Litigation after a court hearing regarding the terms of this settlement in substantially the form of Exhibit "G" attached hereto (the "Poinciana Order") or obtain such other court order dismissing the Poinciana Litigation with prejudice as the parties may approve. 2.4.1.4. Obtain a court order approving the Settlement in the Sawyer's Walk Litigation after a court hearing regarding the terms of this settlement in substantially the form of Exhibit "H" attached hereto (the "Sawyer's Walk Order") or obtain such other court order dismissing the Sawyer's Walk Litigation with prejudice as the parties may approve. 2.4.1.5. Execute a mutual release with respect to the Poinciana Litigation in the form of Exhibit "I" attached hereto (the "Poinciana Mutual Release"). 2.4.1.6. Execute a mutual release with respect to the Sawyer's Walk Litigation in the form of Exhibit "J" attached hereto (the "Sawyer's Walk Mutual Release"). 2.4.2. Abatement of Litigation. From the date of this Agreement until the earlier to occur of the termination of this Agreement or the Lease Delivery Date, the City, the CRA, Poinciana and Sawyer's Walk covenant and agree to fully abate taking any and all action in connection with the Poinciana Litigation and the Sawyer's Walk Litigation, except to the extent required by applicable law to keep the Poinciana Litigation and the Sawyer's Walk Litigation from being dismissed for lack of prosecution during the abatement period. 2.5. Termination of this Agreement. 2.5.1. Termination by Poinciana and Sawyer's Walk. In the event Poinciana and Sawyer's Walk elect to terminate this Agreement as a result of (i) their Inspections, as hereinafter defined, pursuant to Section 3.7; (ii) as a result of any title defect(s) under Section 4.2 or 4.3; (iii) as a result of their failure to obtain approval of the County pursuant to Section 6.5; (iv) as a result of their failure to obtain approval of the County pursuant to Section 7.2; (v) as a result of a Challenge, as hereinafter defined, pursuant to Section 11.1; or (vi) as a result of the failure to satisfy any of the Poinciana/Sawyer's Walk Conditions Precedent pursuant to Section 19, then in such event, the City and the CRA may elect within sixty (60) days after receipt of notice of termination from Poinciana Village and Sawyer's Walk to settle the Poinciana Litigation and the Sawyer's Walk Litigation by making settlement payments in the total amount of Six Million Five Hundred Thousand and 00/100 Dollars ($6,500,000.00) (the "Settlement Payment") to be paid as follows: (i) an initial payment of Four Million, Four Hundred Thousand and 00/100 Dollars ($4,400,000.00) to be made no later than sixty (60) days after receipt of notice of 5 termination from Poinciana Village and Sawyer's Walk (the "Initial Settlement Payment") and (ii) four (4) annual payments of Five Hundred Twenty-five Thousand and 00/100 Dollars ($525,000.00), which payments shall commence one (1) year from the Initial Settlement Payment. In the event the City and the CRA elect to make the Settlement Payment, the Settlement Payment shall be due and payable within sixty (60) days of the making of the election by the City and the CRA, and such Settlement Payment shall be made in exchange for the Poinciana Stipulation, the Sawyer's Walk Stipulation, the Poinciana Order, the Sawyer's Walk Order, the Poinciana Mutual Release and the Sawyer's Walk Mutual Release, except all of the foregoing documents shall be amended to reflect that the Settlement Payment will be made in lieu of executing the Restated Poinciana Lease. In the event that the City and the CRA do not elect to make' the Settlement Payment within the sixty (60) day period, this Agreement shall terminate and be of no further force and effect except with respect to those obligations which expressly survive termination. 2.5.2. Termination by CRA and City. In the event the City and the CRA elect to terminate this Agreement (i) as a result of the failure to satisfy the City Attorney that the Proposed TIF Use will be in compliance with all applicable laws, as provided in Section 8.6 of this Agreement; (ii) as a result of the failure to obtain approval of the County pursuant to Section 6.5; (iii) as a result of the failure to obtain approval of the County pursuant to Section 7.2; (iv) as a result of a Challenge, as hereinafter defined, pursuant to Section 11.1; (v) as a result of the failure to satisfy any of the CRA/City Conditions Precedent pursuant to Section 20; (vi) as a result of the failure of the Lease Delivery Date in accordance with Section 21; or (vii) as a result of a default in accordance with Section 27, the City and the CRA may elect within sixty (60) days after making the election to terminate this Agreement, to make the Settlement Payment. In the event the City and the CRA elect to make the Settlement Payment, the Settlement Payment shall be due and payable within sixty (60) days of the making of the election by the City and the CRA and such Settlement Payment shall be made in exchange for the Poinciana Stipulation, the Sawyer's Walk Stipulation, the Poinciana Order, the Sawyer's Walk Order, the Poinciana Mutual Release and the Sawyer's Walk Mutual Release, except all of the foregoing documents shall be amended to reflect that the Settlement Payment will be made in lieu of executing the Restated Poinciana Lease. In the event that the City and the CRA do not elect to make the Settlement Payment within the sixty (60) day period, this Agreement shall terminate and be of no further force and effect except with respect to those obligations which expressly survive termination. If the CRA and the City do not proceed in accordance with this Section 2.5, Poinciana, Sawyer's Walk, the CRA and the City shall not be deemed to have waived any of their rights, claims or defenses associated with the Poinciana Litigation and/or the Sawyer's Walk Litigation. 3. INSPECTION PERIOD. 6 3.1. Inspections. Poinciana and Sawyer's Walk shall have until 5 p.m. on the one hundred and twentieth (120th) day after the Effective Date (the "Inspection Period") to perform, at Poinciana's and Sawyer's Walk's sole cost and expense, such investigations and inspections of the Phase II of the Poinciana Village Project and the Sawyer's Walk Project, (Phase II of the Poinciana Village Project and the Sawyer's Walk Project are collectively the "Real Property"), the physical condition thereof, matters of zoning, title, survey and all other matters with respect to the Real Property, including, without limitation, environmental matters (collectively the "Inspections") to determine whether the Real Property is acceptable to Poinciana and Sawyer's Walk in their sole discretion. Prior to performing any on -site Inspections, Poinciana and Sawyer's Walk shall provide at least three (3) business days' prior written notice to the Executive Director of the CRA (the "Executive Director") at 49 N.W. 5th Street, Suite 100, Miami, Florida 33128, Phone: 305-679.6800; Facsimile: 305-679-6835 (or such other CRA representatives as designated by the Executive Director), which written notice shall provide reasonable detail regarding the type and scope of Inspection(s) to be performed and the scheduled date and time for such Inspection(s) and provide the Executive Director the opportunity to have a representative from the CRA present at any such Inspection(s). 3.2. Restoration. Following any such Inspections, Poinciana and Sawyer's Walk shall promptly restore the Real Property to the condition existing immediately prior to such Inspections. Poinciana and Sawyer's Walk shall promptly forward copies of any of the reports prepared in connection with any of their Inspections directly to the Executive Director. The Inspections shall be conducted in accordance with all applicable laws and by licensed and insured professionals, and Poinciana and Sawyer's Walk shall cause its inspectors to obtain, at Poinciana's and Sawyer's Walk's sole cost and expense, any and all licenses and permits required to conduct the Inspections, as applicable. 3.3. Environmental Audit. Should Poinciana and Sawyer's Walk conduct a Phase I environmental audit ("Phase I Report") and such audit reflects a recommendation for further environmental audits (a "Phase II Report"), the CRA and the City acknowledge that Poinciana and Sawyer's Walk shall be authorized, at Poinciana's and Sawyer's Walk's sole cost and expense, to obtain the Phase II Report during the Inspection Period. 3.4. Disclosure. Poinciana and Sawyer's Walk agree that in the event the need arises to notify, under applicable laws, any federal, state or local public agencies of any conditions at the Real Property as a result of the Inspections performed by Poinciana and Sawyer's Walk, their agents, employees, contractors and/or representatives, Poinciana and Sawyer's Walk shall notify the Executive Director, and such disclosure shall be made directly 7 by the CRA, if deemed necessary thereby, and not Poinciana and Sawyer's Walk, to any such public agencies. 3.5. Indemnification. Poinciana and Sawyer's Walk shall assume all risks associated with the Inspections and agree to indemnify and hold harmless the CRA and the City of, from and against any and all costs, losses, claims, damages, liabilities, expenses and other obligations (including, without limitation reasonable attorney's fees and court costs) arising from, out of or in connection with or otherwise relating to the Inspections, including, without limitation, the entry by any one or more of Poinciana's and/or Sawyer's Walk's agents, employees, contractors and other representatives in or upon the Real Property for the purpose of the Inspections. The foregoing shall not apply to any diminution in the value of the land or costs or expenses which might arise due to the uncovering of the existence of adverse conditions (e.g., environmental conditions), provided, however, the foregoing is not intended to relieve Poinciana and Sawyer's Walk from liability if Poinciana and Sawyer's Walk, their agents, employees, contractors or other representatives cause such condition to exist. The foregoing indemnification obligations of Poinciana and Sawyer's Walk shall survive the expiration or termination of this Agreement. 3.6. Insurance. Poinciana and Sawyer's Walk shall, prior to entering the Real Property and performing any Inspections, provide to the CRA evidence of insurance by Poinciana, Sawyer's Walk, and their contractors, as applicable, as specified on Exhibit "K" attached hereto, insuring against any liability by any one or more of Poinciana, Sawyer's Walk, their agents, employees, contractors or other representatives arising from, out of or in connection with or otherwise relating to the entry by any one or more of Poinciana, Sawyer's Walk, their agents, employees, contractors or other representatives in or upon the Real Property for the purpose of the Inspections. Poinciana and Sawyer's Walk shall provide the CRA with a certificate of insurance evidencing such insurance coverage, naming CRA and the City as additional insureds thereon and which insurance coverage shall be kept in force until the expiration or early termination of this Agreement. 3.7. Acceptance of Real Property. If for any reason whatsoever Poinciana and Sawyer's Walk, in their sole discretion, determine during the Inspection Period that they do not wish to proceed with the transaction contemplated by this Agreement as a result of the physical condition of the Real Property, Poinciana and Sawyer's Walk shall have the absolute right to terminate this Agreement by giving written notice of such termination to the CRA and the City in the manner hereinafter provided to give notices prior to the expiration of the Inspection Period. Upon the CRA's and the City's receipt of such notice prior to the end of the Inspection Period, this Agreement shall be deemed terminated and of no further force and effect and the parties shall be released and relieved from any liability or obligations hereunder, except for 8 those obligations which expressly survive the termination, unless the City and the CRA elect to proceed in accordance with Section 2.5 of this Agreement. If Poinciana and Sawyer's Walk do not terminate this Agreement prior to the expiration of the Inspection Period, then it shall be presumed conclusively that Poinciana and Sawyer's Walk have had adequate opportunity to review and inspect all portions of the Real Property, including, without limitation, the environmental condition of the Real Property and, based upon its Inspections, Poinciana and Sawyer's Walk have determined that the condition of all portions of the Real Property are satisfactory to Poinciana and Sawyer's Walk and, subject to satisfaction of the Poinciana/Sawyer's Walk's Conditions Precedent, Poinciana and Sawyer's Walk shall accept every portion of the Real Property in its "AS IS, WHERE IS, WITH ALL FAULTS" condition, without requiring any action, expense or other thing or matter on the part of the CRA or the City to be paid or performed. 3.8. No Lien. Poinciana and Sawyer's Walk shall use reasonable efforts not to create or permit to be created any mechanic's liens upon the Real Property, or any part thereof, as a result of the Inspections. If any lien shall at any time be filed against the Real Property, or any party thereof in connection with the Inspections, Poinciana. and Sawyer's Walk shall cause same to be discharged or transferred to bond in accordance with applicable laws within thirty (30) days of recording. 3.9. CRA/City Deliveries. Prior to the date of this Agreement, the CRA and the City have provided to Poinciana and Sawyer's Walk for inspection and review copies of all surveys, tests, studies and reports which the CRA and the City have been able to locate with respect to the Real Property (collectively the "CRA/City Deliveries"). Any reliance upon the CRA/City Deliveries is at the sole risk of Poinciana and Sawyer's Walk and the CRA and the City make no representations or warranties, express or implied, with respect to the accuracy or completeness of the CRA/City Deliveries, and any reliance upon same is at the sole risk of Poinciana and Sawyer's Walk. 3.10. Deposit. Simultaneously with the execution of this Agreement, Poinciana and Sawyer's Walk shall deposit with Holland & Knight LLP (the "Escrow Agent") an initial deposit in the amount of One Hundred Fifty Thousand and No/100 Dollars ($150,000.00) (the "First Deposit"). If Poinciana and Sawyer's Walk elect to terminate this Agreement prior to the end of the Inspection Period by giving written notice of termination to the CRA, the City and Escrow Agent, Escrow Agent shall return the First Deposit to Poinciana and Sawyer's Walk. In the event Poinciana and Sawyer's Walk do not elect to terminate this Agreement prior to the expiration of the Inspection Period, then on or before the last day of the Inspection Period, Sawyer's Walk and Poinciana shall deposit with Escrow Agent an additional deposit in the amount of One Hundred Fifty Thousand and no/100 Dollars ($150,000.00) (the 9 "Second Deposit") and Poinciana and Sawyer's Walk shall deliver to Escrow Agent, the City and the CRA evidence substantiating that Sawyer's Walk and Poinciana have expended (versus contracted to expend) Five Hundred Thousand and no/100 Dollars ($500,000.00) in connection with the Project (the "Initial Expenditure"). If Poinciana and Sawyer's Walk do not terminate this Agreement at the end of the Inspection Period, the failure of Poinciana and Sawyer's Walk to make the Second Deposit and provide detailed evidence substantiating the Initial Expenditure shall constitute a default under this Agreement, entitling the CRA and the City to proceed in accordance with Section 27 of this Agreement. Upon submission of the MUSP Application to the City, Poinciana and Sawyer's Walk shall deposit with Escrow Agent an additional deposit in the amount of One Hundred Fifty Thousand and no/100 Dollars ($150,000.00) (the "Third Deposit") and shall deliver to Escrow Agent, the City and the CRA evidence substantiating that Poinciana and Sawyer's Walk has expended (versus contracted to expend) One Million and no/100 Dollars ($1,000,000.00), in the aggregate, in connection with the Project (the "Expenditure"). The failure of Poinciana and Sawyer's Walk to make the Third Deposit and provide detailed evidence substantiating the Expenditure shall constitute a default under this Agreement, entitling the CRA and the City to Proceed in accordance with Section 27 of this Agreement. Within ten (10) days of the date Poinciana and Sawyer's Walk receive notice that the MUSP Application has been approved, Poinciana and Sawyer's Walk shall deposit with Escrow Agent an additional deposit in the amount of One Hundred Fifty Thousand and no/100 Dollars ($150,000.00) (the "Fourth Deposit"). (The First Deposit, Second Deposit, Third Deposit and Fourth Deposit are collectively referred to as the "Deposit"). The failure of Poinciana and Sawyer's Walk to make the Fourth Deposit shall constitute a default under this Agreement, entitling the CRA and the City to proceed in accordance with Section 27 of this Agreement. At the election of Poinciana and Sawyer's Walk, Poinciana and Sawyer's Walk may provide an irrevocable, unconditional letter of credit issued by a financial institution acceptable to the CRA and the City, with an expiration date no earlier than June 1, 2006, which shall be in form and substance reasonably acceptable to the CRA and the City (the "LC") in the required amounts in lieu of making the Deposit in cash. To the extent the Deposit is in the form of cash, Escrow Agent shall hold the Deposit in an interest bearing account. Escrow Agent shall deliver the Deposit, or the LC, as appropriate, together with the interest accrued thereon, if any, to the CRA and the City upon the occurrence of a default by Poinciana and/or Sawyer's Walk under the terms of this Agreement. Escrow Agent shall return the Deposit, or the LC, as appropriate, together with the interest accrued thereon, if any, to Poinciana and Sawyer's Walk if they terminate this Agreement in accordance with its terms or in the event the CRA and Sawyer's Walk execute the Restated Poinciana Lease. 10 3.11. Disclaimer of Representations by Poinciana and Sawyer's Walk. Poinciana and Sawyer's Walk hereby expressly acknowledge and agree that in connection with this Agreement or otherwise: 3.11.1. The CRA and the City make and have made no warranty or representation whatsoever as to the condition or suitability of any portion of the Real Property for the Development Plan, as hereinafter defined. 3.11.2. The CRA and the City make and have made no warranty, express or implied, with regard to the accuracy or completeness of any information furnished to Poinciana and Sawyer's Walk, and the CRA and the City shall not be bound by any statement of any broker, employee, agent or other representative of the CRA or the City. 3.11.3. The CRA and the City have made no representations, warranties or promises to Poinciana and Sawyer's Walk not explicitly set forth in this Agreement. 3.11.4. The CRA and the City have made no representations or warranties, express or implied, with regard to the neighborhood, that the CRA Redevelopment Area will be developed, or as to the precise type or quality of improvements that will be constructed within the CRA Redevelopment Area or the timing thereof. 3.11.5. The CRA and the City make and have made no representation or warranty, express or implied, concerning any portion of the Real Property, their condition or other things or matters directly or indirectly relating thereto or hereto, including, without limitation, no warranty as to merchantability or fitness for any particular purpose or relating to the absence of latent or other defects. 4. TITLE AND SURVEY. 4.1. Poinciana and Sawyer's Walk shall obtain a title insurance commitment (the "Commitment") and a survey (the "Survey") of the Real Property. The Commitment and the Survey shall show the CRA to be vested in fee simple title to the Real Property, subject to each of the following (the "Permitted Exceptions"): subsequent years. 4.1.1. Ad valorem real estate tax for the year 2005 and 4.1.2. All applicable laws, ordinances and governmental regulations, including, but not limited to, all applicable building, zoning, land use, environmental ordinances and regulations. 11 4.1.3. Restrictions, reservations, easements, covenants, agreements, limitations and other matters appearing of record, none of which shall interfere with the Development Plan, as hereinafter defined. 4.1.4. Any matters arising by, through, or under Poinciana and/or Sawyer's Walk. 4.1.5. The restrictions, coupled with a reverter, contained in that deed from the County to the City recorded May 24, 1988, in Official Records Book 13689, at Page 3728, of the Public Records of Miami -Dade County, Florida. 4.1.6. The restrictions, coupled with a reverter, contained in that deed from the County to the Cityrecorded in Official Records Book 13689, at Page 3731, of the Public Records of Miami -Dade County, Florida. 4.1.7. The terms and conditions of the County Litigation and the County Settlement, as hereinafter defined. 4.2. Poinciana and Sawyer's Walk, shall have thirty (30) days after Poinciana and Sawyer's Walk obtain the Commitment and the Survey to examine same, but in no event later than the end of the Inspection Period. Poinciana and Sawyer's Walk shall promptly provide the CRA and the City a copy of the Commitment and the Survey upon Poinciana and Sawyer's Walk's receipt of same. If the Commitment and Survey reflect defects in the title to the Real Property (i.e., matters which render title unmarketable in accordance with the standards of the Florida Bar which are not Permitted Exceptions, Poinciana and Sawyer's Walk shall, no later than the expiration of the Inspection Period, notify the CRA and the City in writing of the defect(s). If Poinciana and Sawyer's Walk fail to give the CRA and the City written notice of the defect(s) prior to the end of the Inspection Period, the defect(s) shown in the Commitment and the Survey shall be deemed to be waived as title objections and same shall be deemed to constitute Permitted Exceptions for all purposes under this Agreement. If Poinciana and Sawyer's Walk have given CRA and the City written notice of defect(s) rendering title other than as required by this Agreement prior to the end of the Inspection Period, the CRA shall elect within ten (10) days after receipt of written notice of the title defect(s) whether the CRA will elect to attempt to cure the title defect(s). If the CRA elects to attempt to cure the title defect(s), the CRA shall have sixty (60) days from receipt of the written notice of defect(s) to use reasonable efforts to cure same (the "Cure Period"). The CRA shall discharge any lien(s) or judgment(s) against the Real Property in a liquidated amount provided that the CRA shall not be required to expend more than Fifty Thousand and No/100 Dollars ($50,000.00) in connection therewith to cure any title defect(s). In the event the CRA elects not to cure any of the title defects, or, if the CRA elects to attempt to cure the 12 title defects and the CRA is not able to cure the defect(s) prior to the end of the Cure Period, Poinciana and Sawyer's Walk shall have the option, to be exercised within ten days after the end of the Cure Period, of either (i) waiving the defect(s), in which event the defect(s) shall be deemed to constitute a Permitted Exception under this Agreement, or (ii) canceling this Agreement, whereupon the parties shall be released from any further obligations under this Agreement, except for those obligations that expressly survive the termination of this Agreement, unless the City and the CRA elect to proceed in accordance with Section 2.5 of this Agreement. If the CRA and the City do not proceed in accordance with Section 2.5, Poinciana, Sawyer's Walk, the CRA and the City shall not be deemed to have waived any of their rights, claims, or defenses associated with th.e Poinciana Litigation and/or the Sawyer's Walk Litigation. 4.3. In the event of any new title defect(s) arising from and after the effective date of the Commitment and prior to the delivery of the Restated Lease, the CRA shall use reasonable efforts to cure such title defect(s) prior to the Lease Delivery Date. The CRA shall discharge any lien(s) or judgment(s) against the Real Property in a liquidated amount, provided that the CRA shall not be required to expend more than Fifty Thousand and No/100 Dollars ($50,000.00) in connection therewith. The CRA shall not be required to bring any lawsuit(s) to cure any title defect(s) or expend any funds to cure any title defect(s) not in a liquidated amount. In the event that the CRA is unable to cure the title defect(s) prior to the Lease Delivery Date, Sawyer's Walk and Poinciana shall have the option on the Lease Delivery Date of either (i) waiving the title defect(s) and accepting title "as is'' whereupon the title defect(s) will be deemed to constitute a Permitted Exception under this Agreement or (ii) canceling this Agreement, whereupon the parties shall be released from all further obligations under this Agreement, except for those obligations that expressly survive the termination of this Agreement, unless the City and the CRA elect to proceed in accordance with Section 2.5 of this Agreement. If the CRA and the City do not proceed in accordance with Section 2.5, Poinciana, Sawyer's Walk, the CRA and the City shall not be deemed to have waived any of their rights, claims, or defenses associated with the Poinciana Litigation and/or the Sawyer's Walk Litigation. 5. MUSP APPROVAL. 5.1. MUSP Approval. From and after the Effective Date, Poinciana and Sawyer's Walk shall use good faith reasonable efforts to obtain the approval of the Major Use Special Permit by the applicable governmental authorities for the Development Plan which shall be final and not subject to appeal (such approval shall be referred to herein as the "MUSP Approval"). Poinciana and Sawyer's Walk shall promptly and diligently undertake, at their sole cost and expense, the necessary effort to prepare all required plans, 13 documents, covenants and 'supporting materials to apply for the MUSP for the Development Plan which has been approved by the CRA pursuant to Section 12.3. 5.2. Approval by CRA. Poinciana and Sawyer's Walk shall obtain the prior written approval of the Executive Director for the application for the MUSP, which shall include all applications for zoning changes or variances and/or amendments to the Comprehensive Plan currently in effect for the City of Miami (collectively the "the MUSP Application") prior to submitting the MUSP Application to any governmental and/or quasi -governmental agency. The MUSP Application must be consistent with the Development Plan which has been approved by the CRA pursuant to Section 12.3. Poinciana and Sawyer's Walk shall provide the Executive Director with at least thr-ee (3) copies of the proposed MUSP Application for review. The Executive Director shall have ten (10) business days from the receipt of the MUSP Application to approve or reject same. The failure of the Executive Director to respond to Poinciana and Sawyer's Walk within the ten (10) business day period shall be deemed approval of the MUSP Application. If the CRA does not approve the MUSP Application, the Executive Director shall provide Poinciana and Sawyer's Walk with notice stating the reasons for such rejection. Poinciana and Sawyer's Walk shall revise the MUSP Application to address the comments raised by the CRA. Poinciana, Sawyer's Walk and the CRA shall continue this process until the Executive Director has approved the MUSP Application. The CRA, Poinciana and Sawyer's Walk agree to use good faith, reasonable efforts to agree upon the necessary modifications, if any, to the MUSP Application, provided the application is consistent with the Development Plan which has been approved by the CRA pursuant to Section 12.3. If the Executive Director has rejected the MUSP Application three (3) times, Poinciana and Sawyer's Walk may elect to submit any dispute regarding the approval of the MUSP Application to the CRA Board for resolution. 5.3. Filing MUSP Application. Poinciana and Sawyer's Walk covenant and agree to utilize their best efforts to obtain the CRA's approval of the MUSP Application pursuant to Section 5.2 and then file the MUSP Application with -the City of Miami within ninety (90) days from the end of the Inspection Period. The Executive Director, in his sole discretion, may extend the time for filing the MUSP Application with the City for a period of up to sixty (GO) days. 5.4. Joinder in Application. The CRA as the owner of the Real Property shall join in any MUSP Application provided the MUSP Application is consistent with the Development Plan as provided in Section 5.2. 5.5. City Impact Fees. Sawyer's Walk may apply for an exemption from impact fees in accordance with Section 13-2 of the City of 14 Miami Municipal Code. In the event it is determined by the City, in its governmental capacity, that Poinciana and Sawyer's Walk qualify for the exemption set forth therein, the City hereby agrees to exempt any impact fees associated with the Project, as provided in the City of Miami Municipal Code. 5.6. Preparation of MUSP Application. Poinciana and Sawyer's Walk shall be responsible to pay all costs and expenses associated with the preparation of the MUSP Application, including, without limitation, all architecture fees, engineering fees and traffic consulting fees and pay all costs and expenses incurred in connection with processing the MUSP Application. Poinciana and Sawyer's Walk shall have no right to recover any of these costs and expenses from the City and/or the CRA for any reason whatsoever, 5.7. Amendment to MUSP Application. In the event Poinciana and Sawyer's Walk desire to modify the MUSP Application once it has been filed with the City of Miami as a result of proposed changes to the Development Plan requested by Poinciana and Sawyer's Walk or as a result of changes Poinciana and Sawyer's Walk desire to make to address any comments from any governmental entities, Poinciana and Sawyer's Walk shall submit three (3) copies of the proposed revisions to the MUSP Application to the Executive Director for his review and approval. The Executive Director shall have ten (10) business days from the receipt of the requested modifications, and all backup information required to analyze the proposed modifications, to approve or reject same. The failure of the Executive Director to respond within the ten (10) business day period shall be deemed an approval of the proposed MUSP Application amendment. If the CRA does not approve the proposed amendment to the MUSP Application such notice shall state the reason for such rejection. Poinciana and Sawyer's Walk shall revise the amendment to the MUSP Application to address the comments raised by the CRA and the process shall continue until the Executive Director has approved the amendment to the MUSP Application. The parties agree to use reasonable, good faith effort to agree upon necessary modifications to the MUSP Application which result from any governmental or quasi -governmental process, provided in no event shall the Executive Director be required to consent to any changes which deviate materially from the Development Plan. If the Executive Director has rejected the amendment to the MUSP Application three (3) times, Poinciana and Sawyer's Walk may elect to submit the dispute regarding the amendment to the MUSP Application to the CRA Board for resolution. 5.8. Governmental Function of the City. Notwithstanding the agreement of the City to assist Poinciana and Sawyer's Walk with respect to the MUSP Application, as hereinafter provided, Poinciana and Sawyer's Walk acknowledge and agree that the City's agreement to provide assistance with respect to processing the application for the MUSP Approval shall in no way imply that the City will approve the applications, nor shall same obligate the 15 City to expend any monies or to take any actions with regard thereto. Sawyer's Walk and Poinciana acknowledge that the City shall undertake actions in connection with the MUSP Application in accordance with the established requirements of state and municipal law in the exercise of the City's jurisdiction under its police power. Nothing in this Agreement is intended to limit or restrict the power and responsibilities of the City against such application by virtue of being a party to this Agreement. The parties further acknowledge and agree that these proceedings with respect to the MUSP Application shall be conducted openly, fully and fairly in full accordance with all applicable laws, with both procedural and substantive due process to be accorded the applicant and any member of the public. Nothing contained in this Agreement shall entitle Poinciana and/or Sawyer's Walk to compel the City to take any action in connection with the MUSP Application. 5.9. Covenant Not to Sue. Poinciana and Sawyer's Walk covenant and agree not to sue the City for any action taken, or inaction by the City, in its governmental capacity in the exercise of the City's jurisdiction under its police power, and should either Poinciana or Sawyer's Walk institute any legal proceedings against the City in connection with the application for MUSP Approval, same shall constitute a default under this Agreement in which event the City and CRA may pursue their remedies pursuant to Section 27 of this Agreement. 6. COUNTY LITIGATION. 6.1. Reverter. Poinciana and Sawyer's Walk acknowledge that the portion of the Real Property which is more particularly described on Exhibit "L" attached hereto and made a part hereof (the "Reverter Property") is subject to a right of reverter in favor of the Miami -Dade County (the "County"). Pursuant to the terms of the Settlement Agreement reached between the County and the City, Case No. 01-13810 CA 08, in the Eleventh Judicial Circuit in and for Miami -Dade County, Florida (the "County Litigation"), the Reverter Property is to be developed on or before August 1, 2007, or title to the Reverter Property will automatically revert to the County in accordance with the terms of the Settlement Agreement attached hereto as Exhibit "M" (the "County Settlement"). 6.2. Deed in Escrow. Poinciana and Sawyer's Walk acknowledge that pursuant to the terms of the County Settlement, the CRA has delivered or will deliver to the County a quitclaim deed conveying the Reverter Property to the County and should the terms and provisions of the County Settlement not be complied with title to the Reverter Property shall be conveyed to the County. 6.3. Acknowledgement of Risk. Poinciana and Sawyer's Walk acknowledge and agree that Sawyer's Walk shall bear all risk of compliance 16 with the terms of the County Settlement and Sawyer's Walk will bear all risk should the terms of the County Settlement not be complied with, and Poinciana and Sawyer's Walk waive any claims against the CRA and the City in connection therewith. 6.4. County Approval. Poinciana and Sawyer's Walk acknowledge that the terms and provisions of the County Settlement require that any proposed developer of the Reverter Property be approved by the Board of County Commissioners of the County. The City and the CRA covenant and agree to promptly request that the County approve Sawyer's Walk as the developer of the Project pursuant to the terms of the County Settlement within ten (10) days after the end of the Inspection Period. Poinciana and Sawyer's Walk covenant and agree to assist the City and the CRA in connection with such request and Poinciana and Sawyer's Walk covenant and agree to provide to the County any information that the County may reasonably request in connection therewith. 6.5. Failure to Obtain County Approval. In the event that all necessary approvals required from the County as,required by the terms of the County Settlement have not been obtained from the County within sixty (60) days after the end of the Inspection Period, any party to this Agreement may elect to terminate this Agreement at any time thereafter and prior to the time approval from the County has been obtained pursuant to the terms of the County Settlement by written notice to the other parties in which event this Agreement shall terminate and the parties shall be released from all further obligations under this Agreement except for the obligations which expressly survive termination, unless the City and the CRA elect to proceed in accordance with Section 2.5 of this Agreement. If the CRA and the City do not proceed in accordance with Section 2.5, Poinciana, Sawyer's Walk, the CRA and the City shall not be deemed to have waived any of their rights, claims, or defenses associated with the Poinciana Litigation and/or the Sawyer's Walk Litigation. 6.6, Amendment to County Settlement. The City and the CRA acknowledge that Poinciana and Sawyer's Walk intend to request that the County amend the terms and provisions of the County Settlement to require the County to give the construction lender for the Reverter Property notice of default and cure rights in the event Sawyer's Walk does not comply with the requirements of the County Settlement. At the request of Poinciana and Sawyer's Walk, the City and the CRA shall request the County agree to a modification of the terms of the County Settlement to provide notice of default and reasonable cure rights to the construction lender for the Reverter Property. Poinciana and Sawyer's Walk covenant and agree to assist the City and the CRA in connection with such request and Poinciana and Sawyer's Walk covenant and agree to provide to the County any information that the County may request in connection therewith. Poinciana and Sawyer's Walk 17 acknowledge that they bear the entire risk as to whether the County will agree to amend the terms and provisions of the County Settlement and further acknowledge and agree that they will comply with the time frame for the development of the Reverter Property. 7. APPROVAL UNDER INTERLOCAL AGREEMENT. 7.1. Approval of Poinciana and Sawyer's Walk . Poinciana and Sawyer's Walk acknowledge that the terms of the Interlocal Agreement between the County and the City (the "Interlocal Agreement") require that the Board of County Commissioners of the County approve the selection of the developer for the Sawyer's Walk Project. The City and the CRA covenant and agree to promptly seek to obtain the approval required of the Board of County Commissioners under the terms of the Interlocal Agreement within ten (10) days after the end of the Inspection Period. Poinciana and Sawyer's Walk covenant and agree to cooperate with the City and the CRA in obtaining the required approval. Poinciana and Sawyer's Walk covenant and agree to provide the County any information that the County may request in connection therewith. 7.2. Failure to Obtain County Approval. In the event that the City and the CRA have not obtained all necessary approvals required from the County pursuant to the terms of the Interlocal Agreement within sixty {WO) days after the end of the Inspection Period, any party to this Agreement may elect to terminate this Agreement at any time thereafter and prior to the time Poinciana and Sawyer's Walk are approved by the County pursuant to the terms of the Interlocal Agreement by written notice to the other party, in which event this Agreement shall terminate and the parties shall be released from all further obligations under this Agreement except for the obligations which expressly survive termination, unless the City and the CRA elect to proceed in accordance with Section 2.5 of this Agreement. If the CRA and the City do not proceed in accordance with Section 2.5, Poinciana, Sawyer's Walk, the CRA and the City shall not be deemed to have waived any of their rights, claims, or defenses associated with the Poinciana Litigation and/or the Sawyer's Walk Litigation. 8. TAX INCREMENT FUNDS. 8.1. Incremental Increase in Tax Increment Funds. Subject to Sections 8.2, 8.3, and 8.5 below, the CRA covenants and agrees to make available to Sawyer's Walk one hundred percent (100%) of the incremental increases in tax increment funds actually received by the CRA from the County and the City, generated by the increase above the assessed value for the Real Property and any improvements constructed thereon over and above the assessed value for the Real Property set forth in the Miami -Dade County ad 18 valorem property tax rolls for the year 2005 ("Incremental TIF") for qualifying uses under applicable laws for use of tax increment funds until September 30, 2013. The CRA covenants and agrees to make the Incremental TIF available to Sawyer's Walk within sixty (60) days of the CRA's actual receipt of the Incremental TIF from the County and the City to be utilized by Sawyer's Waik for qualifying uses permitted under applicable law for use of tax increment funds with respect to the Project, and at the election of Sawyer's Walk, within the Overtown project area, identified on Exhibit "N" attached hereto (the "Overtown Project Area"). Sawyer's Walk acknowledges that the County and the City withhold from the tax increment funds an administrative fee and funds for the Children's Trust. 8.2. Use of Incremental TIF. Sawyer's Waik acknowledges and agrees that the Incremental TIF may only be utilized in accordance with qualifying uses under applicable law for use of tax increment funds and that Sawyer's Walk shall not be entitled to, and the CRA will not disburse any of the Incremental TIF to Sawyer's Walk unless and until Sawyer's Walk has been able to establish to the CRA and, to the extent required by law or the Interlocal Agreement, the County, that the use of said funds for the use proposed by Sawyer's Walk is permissible under applicable law. Sawyer's Walk shall submit to the CRA and, to the extent required by law or the Interlocal Agreement, the County, any and all documentation that the CRA and/or the County may request to establish that the proposed use of the Incremental TIF qualifies for such use under applicable law. Sawyer's Walk further acknowledges that all Incremental TIF shall be used solely in connection with the development of the Project or within the Overtown Project Area. 8.3. Failure to Qualify. To the extent that Sawyer's Walk is not able to establish to the CRA, and to the extent required under applicable laws or the Interlocal Agreement, the County, that its proposed expenditures of the Incremental TIF qualifies for use of the Incremental TIF under applicable laws with respect to some or all of the Incremental TIF, the CRA agrees to make such portions of the Incremental TIF funds which Sawyer's Walk is unable to utilize under applicable law governing the use of tax increment funds available for use by any governmental agency which can legally use the Incremental TIF funds in connection with the Project, which entity is identified to the CRA by Sawyer's Walk and which entity requests the funds from the CRA. If Sawyer's Waik is unable to identify such an entity which wants to utilize the Incremental TIF in connection with the Project, the CRA shall be entitled to utilize that portion of the Incremental TIF for which Sawyer's Walk is unable to qualify for use in connection with the Project for improvements within the Overtown Project Area and the CRA shall not be required to make such funds available to Sawyer's Walk. 19 8.4. Extension of the CRA. Sawyer's Walk acknowledges that it will have no right to receive any Incremental TIF after the expiration of the CRA which is to incur by September 30, 2013. In the event that the duration of the CRA is extended, Sawyer's Walk acknowledges that notwithstanding the extension of the term of the CRA, the CRA is not obligated to pay to Sawyer's Walk any Incremental TIF generated from and after September 30, 2013. In the event the term of the CRA is extended beyond September 30, 2013, Sawyer's Walk shall have the right to request that the CRA pay to Sawyer's Walk all or a portion of the Incremental TIF generated by the Project after September 30, 2013, which request shall be treated like that of any other property owner within the CRA Redevelopment Area. The Executive Director shall present such request to the CRA Board for consideration with the recommendation that the Executive Director deems appropriate under the circumstances. The CRA Board shall not be obligated to approve the request or be under any obligation to Sawyer's Walk as a result of the payment of the Incremental TIF to Poinciana and Sawyer's Walk prior to September 30, 2013. 8.5. Subordination of Incremental TIF. Sawyer's Walk acknowledges and agrees that the obligation of the CRA to make the payments to Sawyer's Walk contemplated by Section 8.1 of the Agreement are junior and subordinate to the obligations of the CRA to pay debt service with respect to the $11,500,000.00 City of Miami, Florida, Community Redevelopment Revenue Bonds, Series 1990, the obligations of the CRA with respect to the Grand Central Project, and the obligations of the CRA to pay debt service on any bonds issued in the future by the CRA or the City on the CRA's behalf. The CRA covenants and agrees that the debt service coverage ratio on any new bonds issued in the future by the CRA or the City on the CRA's behalf, which are secured by tax increment funds based upon the estimated tax increment funds shall not exceed One Hundred Twenty -Five Percent (125%). Under no circumstances shall the CRA be obligated to make payments to Sawyer's Walk from its general revenues or any other sources if tax increment revenues are unavailable after the CRA makes all required payments under any obligations which are senior to the Incremental TIF. 8.6. - Proposed Use of Incremental TIF. Within thirty (30) days of the Effective Date, Poinciana and Sawyer's Walk shall deliver to the CRA and the City a detailed explanation of their proposed use of the Incremental TIF (the "Proposed TIF Use") together with an opinion letter (the "Attorney Opinion Letter") from an attorney licensed to practice in the State of Florida stating that the Proposed TIF Use is a permissible expenditure under all applicable laws governing the use of the tax increment funds. The CRA and the City shall have One Hundred (100) days from the Effective Date of this Agreement (the "TIF Period") to analyze the Proposed TIF Use, to consult with the County regarding the Proposed TIF Use, and to obtain a letter from the Office of the County Attorney (the "County Letter") indicating whether the Proposed TIF 20 Use is a permissible expenditure under all applicable laws governing the use of the Incremental TIF. If the City Attorney is not satisfied that the Proposed TIF Use is a permissible expenditure under all applicable laws, irrespective of the content of the County Letter, if the CRA and the City are able to obtain the County Letter, the CRA and the City shall give Poinciana and Sawyer's Walk written notice. that the City Attorney does not agree that the Proposed TIF Use is a permissible expenditure under applicable laws prior to the expiration of the TIF Period, in which event Sawyer's Walk shall have no right to use all or any portion of the Incremental TIF. In such event, the sole remedy to Poinciana and Sawyer's Walk shall be to terminate this Agreement on or before the expiration of the Inspection Period. If Poinciana and Sawyer's Walk do not terminate this Agreement during the Inspection Period, the CRA shall be under no obligation to make the Incremental TIF available to Sawyer's Walk as contemplated by this Section 8, unless there is a change in the law or Poinciana and Sawyer's Walk propose an alternative Proposed TIF Use and such change or alternative Proposed TIF Use is acceptable to the City Attorney and the City Attorney renders an opinion to the CRA that the Proposed TIF Use is a permissible expenditure under applicable laws. 8.7. In the event the City Attorney concludes that the Proposed TIF Use is not a permissible expenditure under the applicable laws, so that the Incremental TIF shall not be made available to Sawyer's Walk, Poinciana, Sawyer's Walk, the City and the CRA agree to utilize their good faith efforts to identify other sources of funds that may be available to fund or finance the garage structures to be developed as part of the Project, with no guaranty that any other funding sources will be identified or committed to the Project by the City and the CRA. 8.8. Change in Use of Incremental TIF. Sawyer's Walk shall not be permitted to change the Proposed TIF Use without the consent of the Executive Director and the City Attorney, which consent shall not be granted unless the City Attorney is satisfied that the new use proposed for the Incremental TIF is a permissible expenditure under applicable laws governing the use of tax increment funds. 8.9. Indemnification. Sawyer's Walk covenants and agrees to indemnify, defend and hold the CRA harmless from any loss or damage that the CRA may sustain, including attorney fees and costs, as a result of the actual use of the Incremental TIF differing from the Proposed TIF Use, as such use may be modified in accordance with Section 8.7 of the Agreement. 9. OMBUDSMAN. The parties recognize complexities associated with the establishment of the Development Plan. It is also acknowledged that the MUSP Approval and the other governmental approvals required in connection with the Development Plan, as well as submission and approval of 21 building plans for the purpose of obtaining building permits for the Development Plan, involves many departments and governmental agencies. In order to assist in expediting the process, the City shall designate an employee who is knowledgeable about the approvals process within the City to serve as an ombudsman (the "Ombudsman") for the purpose of assisting in the expediting of the processing of all applications filed with the City by Sawyer's Walk with respect to the Development Plan. The City will establish a reasonable level of authority in the Ombudsman so that this person has the ability to serve in the role of expediter, with the ability to communicate with the necessary departments and officials, and with Sawyer's Walk's representatives in an attempt to expedite the approval process. 10. SALE OF FEE SIMPLE INTEREST. 10.1. Receipt of Proposal. Sawyer's Walk has made a proposal to the CRA to purchase the fee simple interest of the CRA in the Real Property, subject to the terms of the Restated Poinciana Lease. The CRA covenants and agrees, after the Effective Date of this Agreement, to solicit proposals to acquire the fee simple interest of the CRA in the Real Property, subject to the terms of the Restated Poinciana Lease (the "Fee Simple Interest"). Subject to the requirements of applicable laws, the CRA covenants and agrees to solicit proposals to acquire the Fee Simple Interest within thirty (30) days after the Effective Date of this Agreement. The CRA will utilize its good faith efforts to complete the process of analyzing the proposals received with respect to the Fee Simple Interest, or reject all proposals, within ninety (90) days after the Effective Date of this Agreement. 10.2. No Commitment to Sawyer's Walk. Sawyer's Walk and Poinciana acknowledge that the CRA has made no commitment whatsoever to Sawyer's Walk and Poinciana with respect to the sale of the Fee Simple Interest beyond agreeing to solicit proposals and no commitment to Sawyer's Walk or Poinciana should be inferred by the inclusion of this Section 10 in this Agreement. 10.3, Rejection of Proposals. Poinciana and Sawyer's Walk acknowledge and agree that CRA has the right to reject all proposals with respect to the sale of the Fee Simple Interest and the selection of a proposal, if any, is subject to the approval of the CRA Board. 10.4. Award Contingent on Execution of Restated Poinciana Lease. Notwithstanding any decision by the CRA Board to accept a proposal to acquire the Fee Simple Interest, such transaction shall not occur until the execution of the Restated Poinciana Lease and if the Restated Poinciana Lease is not executed for any reason whatsoever, the CRA shall not be obligated to complete the transaction contemplated by the proposal. All proposals shall be 22 required to be expressly subject to the execution of the Restated Poinciana Lease. 10.5. Payments under the Restated Poinciana Lease. It is specifically acknowledged that any conveyance of the Fee Simple Interest shall occur after the payment of rent due upon execution of the Restated Poinciana Lease and the CRA shall retain all right with respect to such payment, and the CRA shall retain all rights with respect to the Subsidized Units, as hereinafter defined, which Subsidized Units are to be conveyed to the CRA pursuant to the Restated Poinciana Lease. 10.6. Covenant. Any conveyance of the Fee Simple Interest by the CRA shall be expressly subject to that certain covenant in the form of Exhibit "0" attached hereto and made a part hereof (the "Covenant"). 10.7. Governmental Function of CRA. Poinciana and Sawyer's Walk acknowledge that the CRA shall undertake actions in connection with the Fee Simple Interest in accordance with the established requirements of state law. Nothing in this Agreement is intended to limit or restrict the power and the responsibility of the CRA against such application by virtue of being a party to this Agreement. The parties further acknowledge that the proceedings with respect to the Fee Simple Interest shall be conducted openly, fairly and in full accordance with all applicable laws. Nothing contained in this Agreement shall entitle Poinciana and/or Sawyer's Walk to compel the CRA to take any action with respect to Fee Simple Interest. 11. CHALLENGES. 11.1. Challenge. In the event that any person or entity files a challenge (the "Challenge") with respect to (i) this Settlement Agreement; (ii) the Restated Poinciana Lease; (iii) the proposed execution of the Restated Poinciana Lease between the CRA and Sawyer's Walk; (iv) the solicitation of proposals regarding the Fee Simple Interest; (v) the selection of a proposal regarding the Fee Simple Interest; (vi) the Proposed TIF Use; or any of the foregoing, either judicially or administratively prior to the Lease Delivery Date, and such Challenge is not dismissed within sixty (60) days of filing, or if more than one Challenge is filed, all Challenges are not dismissed within One Hundred Twenty (120) days from the filing of the first Challenge, any of the parties to this Agreement shall have the right to terminate this Agreement by written notice to the other parties to this Agreement, in which event this Agreement shall be of no further force and effect and the parties shall be released from any further obligations under this Agreement, except for the obligations that expressly survive the termination of this Agreement, unless the City and the CRA elect to proceed in accordance with Section 2.5 of this Agreement. In the event of a termination of this Agreement, if the City and the 23 CRA elect not to proceed in accordance with Section 2.5, Poinciana, Sawyer's Walk, the CRA and the City shall not be deemed to have waived any of their rights, claims or defenses associated with the Poinciana Litigation or the Sawyer's Walk Litigation. 11.2. No Liability. Poinciana and Sawyer's Walk acknowledge and agree that the CRA and the City shall have no liability whatsoever to Poinciana and Sawyer's Walk in connection with. any Challenge and Poinciana and Sawyer's Walk hereby forever waive and release the CRA and the City from any liability whatsoever, now or hereafter arising in connection with any Challenge and covenant and agree not to initiate any legal proceedings against the City and/or the CRA in connection with any Challenges. 11.3. Waiver of Claim. Poinciana and Sawyer's Walk waive any and all claims which they now have or may hereafter have against the CRA and/or the City as a result of any Challenge, and Poinciana and Sawyer's Walk acknowledge and agree to assume the risk of any Challenge to the extent that they do not elect to terminate this Agreement as provided in Section 11.1 above. Under no circumstances shall Poinciana or Sawyer's Walk be entitled to any recovery with respect to any claims or any cause of action against the City or the CRA resulting from any Challenge, all such claims being expressly waived by Poinciana and Sawyer's Walk. 12. DEVELOPMENT PLAN. 12.1. Preliminary Development Plans. Sawyer's Walk intends to construct approximately one thousand fifty (1,050) residential units on the Real Property (collectively, the "Residential Units") consisting of apartments, townhouses, lofts, live/work units (i.e., commercial units which are bundled with a residential unit) (the "Live/Work Units"), which Residential Units will be constructed in mid -rise structures and high-rise structures and approximately seventy-five thousand (75,000) square feet of retail and office space substantially in accordance with the preliminary plans attached hereto as Exhibit "P" (the "Preliminary Development Plans"). Sawyer's Walk intends that the Residential Units will be primarily for sale with the possibility of some rental units with the sales prices initially intended to be within the One Hundred Thirty Thousand and No/100 Dollars ($130,000.00) to Three Hundred Thousand and No/100 Dollars ($300,000.00) price range, excluding Live/Work Units. Sawyer's Walk contemplates completing the Project within five (5) years from the Effective Date. 12.2. Detailed Development Plan. Within one hundred and twenty (120) days from the Effective Date, Sawyer's Walk shall submit to the Executive Director for review and approval a detailed plan for the entire Project which shall be substantially consistent with the Preliminary Development 24 Plans (the "Detailed Development Plans") which shall include, without limitation, the following: (i) site plan for the entire Project; (ii) a block by block breakdown of the Project, including, without limitation, the number, type, style and size of the units to be constructed in each block; (iii) a phasing plan for the Project; (iv) a project schedule for the overall Project; (v) a project schedule with respect to each phase of the Project; (vi) a break down of the Affordable Units, as hereinafter defined, and Subsidized Units, as hereinafter defined, to be included in each phase of the Project, which shall include a breakdown of the square footage and unit mix of the Affordable Units and Subsidized Units. The Detailed Development Plans shall reflect that Phase 1, as defined in Section 13.1, includes all of the Reverter Property. 12.3. Approval by CRA. All aspects of the Detailed Development Plans, including, without limitation, the unit mix, the Project design, the phasing plan and the proposed project schedule, shall be subject to the approval of the Executive Director, which approval shall not be unreasonably withheld provided that the Detailed Development Plans are consistent with the Preliminary Development Plans, consistent with the proposed amended redevelopment plan for the CRA Redevelopment Area currently being finalized for the CRA (the "CRA Development Requirements") and comply with the requirements regarding the Affordable Units and Subsidized Units. The parties agree to use reasonable, good faith efforts to agree on the necessary modifications to the Detailed Development Plans to satisfy the requirements of the Executive Director. Sawyer's Walk shall provide to the Executive Director such additional backup information as the Executive Director may reasonably request to enable the Executive Director to analyze all aspects of the Project, including but not limited to, the phasing plan, the project schedule for the entire Project, the project schedule for each phase of the Project, and the affordable housing component of the Project. The Executive Director shall have fifteen (15) days after receipt of the Detailed Development Plans to approve same. In the event of disapproval, the Executive Director shall specify the specific reasons for such disapproval. In the event of disapproval, Sawyer's Walk shall modify the Detailed Development Plans, as appropriate, to address the comments and concerns of the Executive Director and to insure that the Detailed Development Plans comply with the CRA Development Requirements. Any resubmission shall be subject to approval by the Executive Director in accordance with the procedure outlined above for the original submission until same is approved by the Executive Director. The Executive Director and Sawyer's Walk shall in good faith attempt to resolve any disputes regarding the Detailed Development Plans, If the Executive Director has rejected the Detailed Development Plans three (3) times, Poinciana and Sawyer's Walk may elect to submit any dispute regarding the approval of the Detailed Development Plans to the CRA Board for resolution. The Detailed Development Plans, as approved by the Executive Director, shall mean the "Development Plan". 25 12.4. Failure to Respond. In the event the Executive Director fails to approve or disapprove the Detailed Development Plans within fifteen (15) days of receipt, such failure to respond shall automatically extend the time frame for submission of the MUSP Application to the City and the outside date in Section 19.2 and 20.2 one day for each day of delay until the Executive Director approves or disapproves the Detailed Development Plans. 12.5. Development Requirements. Sawyer's Walk will be required to develop the Project substantially in accordance with the Development Plan. Any variations to the Development Plan shall require the approval of the Executive Director, which approval shall not be unreasonably withheld or delayed, provided the same are in accordance with the spirit and intent of the Development Plan and in accordance with the CRA Development Requirements. The Development Plan shall be incorporated into the Restated Poinciana Lease. 12.6. Development Time Frame. 12.6.1. Project Schedule. Sawyer's Walk shall be required to develop the Project in accordance with 'the project schedule which is incorporated into the Development Plan (the "Project Schedule") subject to extension as a result of Unavoidable Delays, as defined in the Restated Poinciana Lease. 12.6.2. County Settlement. Sawyer's Walk shall be required to develop the Reverter Property as part of Phase I of the Project prior to commencing development on any other portions of the Project. 13. DEVELOPMENT AND FINANCIAL APPROVALS. 13.1. Phase I. Sawyer's Walk and the CRA contemplate that the first phase of the Project, to be identified by Sawyer's Walk in the Detailed Development Plans, shall contain approximately four hundred (400) units ("Phase I"). Prior to the Lease Delivery Date, Sawyer's Walk shall submit to the Executive Director for review and approval, which shall not be unreasonably withheld, the following: 13.1.1. Budget. A detailed budget reflecting all hard and soft costs anticipated to be incurred by Sawyer's Walk in connection with the development of Phase I (the "Phase I Budget"). 13.1.2. Plans and Specifications. The proposed plans and specifications for all units comprising Phase I which shall be completed in accordance with the Development Plan and MUSP Approval and which shall be of sufficient detail to apply for a building permit with respect to all units comprising Phase I (the "Phase I Plans and Specifications"). 26 13.1.3. Project Team. The names, together with background information, with respect to all proposed members of the development team for Phase I (the "Development Team"), including without limitation, the architect, the structural engineer, the civil engineer, and the general contractor for Phase I. The Executive Director may withhold approval with respect to (i) an individual who has committed a material breach or any material contract with the City and/or the CRA; (ii) has been convicted of any criminal felony within the immediate preceding ten (10) years; (iii) has a widespread reputation, as evidenced by newspaper articles or other media reports of mainstream press which are not subsequently retracted, for corruption or unlawful business dealings; or (iv) is on any terrorist list. 13.1.4. Construction Contract. The Construction Contract for Phase I (the "Construction Contract"), together with the "schedule of values" for Phase I, which shall include the obligation of the general contractor to comply with the minority participation requirements set forth in Section 15.2.1 of this Agreement. 13.1.5. Construction Schedule. A detailed schedule for development and construction of Phase I (the "Phase I Construction Schedule"). 13.1.6. Payment and Performance Bonds. The Payment and Performance Bonds in the amount equal to one hundred percent (100%) of the hard construction costs for Phase I which shall name the CRA as a dual obligee. The forms of Payment and Performance Bonds shall be issued by a surety having a credit rating of "A" or higher with a financial strength of X or higher (the "Payment and Performance Bonds") and shall be approved by the Executive Director and the City Attorney. 13.1.7. Minority Participation. Evidence of compliance with the minority participation goals under Section 15.2.1, 15.2.2 and 15.2.4 with respect to architectural services, construction services and marketing staff. 13.1.8. Loan Commitment. Sawyer's Walk shall have provided the Executive Director with a loan commitment from a financial institution evidencing that Sawyer's Walk has obtained a construction loan commitment for the development of Phase I (the "Loan Commitment") which shall be in form and substance acceptable to the Executive Director. 13.1.9. Equity. Sawyer's Walk shall have provided the Executive Director with evidence reasonably satisfactory to the Executive Director that Sawyer's Walk has sufficient equity available to meet the equity requirement of the Loan Commitment. 27 14, AFFORDABLE HOUSING. 14.1. Affordable Housing Requirement. Sawyer's Walk shall sell not less than twenty percent (20%) of the Residential Units comprising the Project (the "Affordable Units") to: (a) qualified buyers whose gross income is between 80.01% and 120% of the Miami -Dade County mean income at a purchase price which will enable the purchaser to have a housing debt ratio of not greater than thirty-five percent (35%) and a gross income to total debt ratio of less than forty-five percent (45%) and to a purchaser who has a total net worth not to exceed Fifty Thousand and no/100 Dollars ($50,000.00) as set forth in Section 14.9; or (b) to purchasers whose gross income is between 80.01% and 120% of the Miami -Dade County mean income and who qualify for SHIP Funds, as hereinafter defined, HOME Funds, as hereinafter defined, Surtax Funds, as hereinafter defined, and/or any similar federal, state or county programs available for affordable housing, pursuant to the applicable criteria for whatever loan program is used to finance the acquisition of the unit (collectively the "Affordable Housing Requirement"). None of the Live/Work Units shall be Affordable Units; however, the Live/Work Units shall be included in the total number of Residential Units which, is utilized to calculate the number of Affordable Units that Sawyer's Walk is required to provide. By way of example, if the Project includes 1050 Residential Units, including 150 Live/Work Units, Sawyer's Walk shall be required to provide 210 Affordable Units notwithstanding the fact that none of the Live/Work Units shall be designed as Affordable Units. The Affordable Units which are sold to satisfy the Affordable Housing Requirement shall be reasonably distributed in each block comprising a portion of the Project and shall be identified in the Detailed Development Plans submitted to the CRA for approval and shall be comprised of a mix virtually identical to the unit mix (based upon the number of bedrooms, type of units and square footage of the smallest of the market rate units of that unit type provided that the market rate units comprise not less than 50% of the unit type of that size) of the respective Residential Units, excluding the Live/Work Units, which are to be sold at market rates in each block of the Project and which shall in all other respects be completed with the same fit and finish as the other units in such block of the Project which are to be sold at market rates. Sawyer's Walk shall be required to satisfy the Affordable Housing Requirement notwithstanding the unavailability of governmental subsidies. Sawyer's Walk acknowledges and agrees that Sawyer's Walk is required to satisfy the Affordable Housing Requirement irrespective of Sawyer's Walk's ability to obtain Miami -Dade County surtax funds ("Surtax Funds"), Community Development Department funds ("HOME Funds") and/or State Housing Incentive Program ("SHIP Funds"). Sawyer's Walk further acknowledges that the City and the CRA have made no representations to Sawyer's Walk regarding the availability of housing subsidy funds including Surtax Funds, HOME Funds, SHIP Funds or other sources of funds and Sawyer's Walk assumes the risk as to whether housing subsidies will 28 be available for the Project. Units sold to Overtown Residents, as hereinafter defined, shall be deemed to comply with the Affordable Housing Requirement. 14.2. Subsidized Units. Sawyer's Walk shall construct fifty (50) units as part of the Project, comprising a portion of the Affordable Units included in the Affordable Housing Requirement, comprised of a mix of units virtually identical to the unit mix (based upon the number of bedrooms, type of unit, and square footage of the smallest of the market rate units of that unit type provided that the market rate units comprise not less than 50% of the unit type of that size) of the respective Residential Units, excluding the Live/Work Units, which are to be sold at market rates in each block of the Project, which Subsidized Units are to be conveyed to the CRA, or its designee, upon completion of construction of the prospective phase of the Project and which units are to be resold by the CRA, or its designee, to qualified purchasers whose gross income is not greater than eighty percent (80%) of the Miami -Dade County median income (the "Subsidized Units") or (b) a purchase price which qualifies for use of SHIP Funds, HOME Funds, Surtax Funds, and/or any similar federal, state or County programs available for affordable housing, pursuant to the applicable criteria for whichever. loan program is utilized to finance the acquisition of the unit. The Subsidized Units conveyed by Sawyer's Walk to the CRA, or its designee, shall be deemed to comprise a portion of the Affordable Units and shall in all respects be identical to the Affordable Units and shall in all respects be completed with the same fit and finish as the other Residential Units in such block of the Project which are to be sold at market rates. 14.3. Implementation. Sawyer's Walk agrees to (i) engage an affordable housing consultant, which consultant shall be subject to the approval of the Executive Director, which approval shall not be unreasonably withheld or delayed, to assist Sawyer's Walk in implementing a program to comply with the Affordable Housing Requirement; and (ii) retain a full-time recruiter and loan processor to identify and qualify potential purchasers of the Affordable Units to be sold by Sawyer's Walk and Subsidized Units to be sold by the CRA, or its designee, and implement the program developed by Sawyer's Walk to satisfy the Affordable -Housing Requirement until Sawyer's Walk's obligations regarding the Affordable Housing Requirements have been satisfied. 14.4. Housing Subsidies. The CRA covenants and agrees to utilize its good faith efforts to obtain Surtax Funds, HOME Funds, SHIP Funds and other housing assistance with respect to the Subsidized Units. 14.5. Assistance Program. The CRA agrees to work with the Collins Center, the Knight Foundation and other not -for -profit organizations to develop a program to make the Subsidized Units viable. 29 14.6. Affordable Units. Sawyer's Walk shall first offer the Affordable Units to residents of the area of the City of Miami which is more particularly described in Exhibit "Q", attached hereto and incorporated herein (the "Overtown Area"), and then to other residents of the City prior to making the Affordable Units available to other residents of Miami -Dade County. 14.7. Overtown Residents. The CRA, or its designee, shall first offer the Subsidized Units to existing residents of the Overtown Area and then to former Overtown Residents, before offering the Subsidized Units to other residents of the City of Miami. 14.8. Intentionally Deleted. 14.9. Reporting Requirements and Compliance. 14.9.1. Affordable Housing Reports. From and after the issuance of the first certificate of occupancy for any Residential Unit comprising a portion of the Project until the satisfaction of the Affordable Housing Requirement, Sawyer's Walk shall be required to submit to the Executive Director on an annual basis, phase by phase reports evidencing compliance with the Affordable Housing Requirement (the "Affordable Housing Reports"). The Affordable Housing Reports shall consist of a certification to the CRA from the financial institution that performed the underwriting with respect to the Affordable Unit which shall include the following: (A) Purchaser of an Affordable Unit not utilizing SHIP Funds, HOME Funds or Surtax Funds: i. certification that the income for the purchaser for the previous six (6) months is less than the maximum income threshold. ii, the total net worth of the purchaser does not exceed Fifty Thousand and no/100 Dollars ($50,000.00) inclusive of all gifts. iii. there are no financial guarantees or other independent support for the loan. iv. the purchaser is not the beneficiary of any trust. v. that the purchase price will enable the purchaser to have a housing debt ratio of not greater than thirty-five percent (35%) and a gross income to total debt ratio of less than forty-five percent (45%). 30 (B) Purchaser's utilizing SHIP Funds, HOME Funds and/or Surtax Funds i. certification that the income for the purchaser for the previous six (6) months is less than the maximum income threshold. ii. that the purchaser has satisfied the criteria for SHIP Funds, HOME Funds, Surtax Funds and/or similar federal, state or county programs available for affordable housing, as applicable, with respect to the financing of the acquisition of the unit. 14.9.2. Disputes. To the extent of any disputes between Sawyer's Walk and the Executive Director with respect to whether the purchasers of the units meet the applicable requirements of Sections 14.1, 14.2 and this Section 14.9, the dispute will be submitted to arbitration for resolution, which resolution shall be binding on the parties. 14.10. Penalties for Non -Compliance.' To the extent that Sawyer's Walk fails to comply with the Affordable Housing Requirement on a phase by phase basis as determined in accordance with Section 14.9 above, then in such event, Sawyer's Walk shall pay to the CRA, as a penalty for non-compliance with the Affordable Housing Requirement with respect to each comparable unit required to bring Sawyer's Walk into compliance, one hundred twenty-five percent (125%) of the difference between the average sales price that Sawyer's Walk is currently offering the applicable unit for sale to the general public of the type unit(s) in question, less the maximum purchase price that a purchaser earning one hundred percent (100%) of the Miami -Dade County mean income would be able to pay for such a unit at a purchase price which will enable the purchaser to have a housing debt ratio of not greater than thirty-five percent (35%) and a gross income to total debt ratio of less than forty-five percent (45%) and to a purchaser with a total net worth not to exceed Fifty Thousand and no/100 Dollars ($50,000.00) as set forth in Section 14.9 (e.g., the average sale price for a two bedroom unit less the maximum price that a purchaser whose gross income is one hundred percent (100%) of the Miami -Dade County mean income would be able to pay for a two bedroom unit at a purchase price which will enable the purchaser to have a housing debt ratio of not greater than thirty-five percent (35%) and a gross income to total debt ratio of less than forty-five percent (45%) and to a purchaser with a total net worth not to exceed Fifty Thousand and no/100 Dollars ($50,000.00) as set forth in Section 14.9 multiplied by one hundred twenty-five percent (125%)), but in no event less than Twenty Thousand and No/00 Dollars ($20,000.00) per unit. The penalty with respect to any phase of the Project shall be due and payable one hundred 31 eighty (180) days after the issuance of a temporary certificate of occupancy for the last Residential Unit included in the applicable phase. 14.11. Deed Restrictions. All of the Affordable Units, other than the Subsidized Units, shall be conveyed subject to a deed restriction which will restrict the ability to sell the units except to a purchaser who meets the Affordable Housing Requirements of Section 14.1 and 14.9, as applicable, for a period of ten (10) years from the date of closing of each respective unit (the "Deed Restriction"). Any violation of the Deed Restriction shall require the purchaser to pay to the CRA, or its designee, Twenty Thousand and No/100 Dollars ($20,000.00) as a result of the violation of the Deed Restriction. The CRA agrees to impose the same Deed Restriction, which will restrict the ability to sell the Subsidized Units except to a purchaser who meets the Affordable Housing Requirements of Sections 14.2 and 14.9, as applicable, for a period of ten (10) years from the date of closing of each respective unit. The Deed Restriction shall provide that any violation of the restriction shall require the purchaser to pay to the CRA, or its designee, Twenty Thousand and No/100 Dollars ($20,000.00) as a result of the violation of the Deed Restriction. 14.12. Overtown Residents. Sawyer's Walk shall utilize its best efforts to sell twenty percent (20%) of the units comprising the Project to residents of the Overtown Area or former residents of the Overtown Area or their family members (collectively "Overtown Residents") at market rates. Sawyer's Walk shall utilize real estate professionals as well as community based organizations such as churches and community development corporations (collectively "CBO") located within or concentrated on serving the Overtown Area to identify Overtown Residents. Any Overtown Residents, as certified by a CBO, or who are otherwise established to the reasonable satisfaction of the Executive Director to be Overtown Residents based upon school records, birth records, tax records or other documentation, who purchase a unit shall be counted as complying with the Affordable Housing Requirement notwithstanding that the criteria for Affordable Housing has not been complied with. The provisions of Section 14.11 shall not apply to the sale of any units to Overtown Residents. 14.13. Prosperity Based Initiative. In connection with the sales and marketing of the Units, Sawyer's Walk covenants and agrees to utilize its best efforts to work with African American realtors to reach out and market the Project to African Americans to relocate to the Overtown community. This effort shall include the sale of Affordable Units as well as market rate units to African Americans. 15. MINORITY AND WOMEN'S PARTICIPATION AND EQUAL EMPLOYMENT OPPORTUNITY. 32 15.1. Minority and Women Participation and Equal Opportunity. Sawyer's Walk agrees that it will: (i) Take definitive action in the recruitment, advertising and to attract and retain minority and female contractors and subcontractors; (ii) Provide a reasonable opportunity in the recruitment, advertising and hiring of professionals, contractors and subcontractors residing within the CRA Redevelopment Area and within the City of Miami; (iii) Take reasonable definitive action in retaining employees regardless of race, color, place of birth, religion, national origin, sex, age, marital status, veterans and disability status; (iv) Maintain equitable principles in the recruitment, advertising, hiring, upgrading, transfer, layoff, termination, compensation and all other terms, conditions and privileges of employment; (v) Monitor and review all personnel practices to guarantee that equal opportunities are being provided to all employees regardless of race, color, place of birth, religion, national origin, sex, age, marital status, veterans and disability status; (vi) Post in conspicuous places, availability to employees and applicants for employment, notices in a form to be provided to the Executive Director, setting forth the non- discrimination clauses of this Section 15.1; and (vii) In all solicitations and advertisements for employment placed by or on behalf of Sawyer's Walk, state that all applicants will receive consideration for employment without regard to race, creed, color or national origin. 15.2. Participation Requirements. - 15.2.1. Construction. Sawyer's Walk agrees to comply with the following minority and female participation requirements (the "Minority Participation Requirements") with respect to construction: 28% Black participation 8% Female participation 15% Hispanic participation 15.2.2. Design. Sawyer's Walk agrees to comply with the following minority and female participation requirements with respect to design: 33 10% Black participation 5% Female participation 10% Hispanic participation 15.2.3. Property Management. Sawyer's Walk agrees to comply with the following minority and female participation requirements with respect to property management: 28% Black participation 8% Female participation 15% Hispanic participation 15.2.4. Sales and Marketing. Sawyer's Walk agrees to comply with the following minority participation requirement with respect to its sales and marketing staff: 20% Black participation 15.3. Report Requirements. The Restated Poinciana Lease shall require that Sawyer's Walk provide on an annual basis such documentation as the Executive Director may reasonable request to evidence compliance with the Minority Participation Requirements with respect to each of the categories described in Section 15.2 during the preceding year (the "Minority Participation Reports") on a phase by phase basis. To the extent of any disputes between Sawyer's Walk and the Executive Director with respect to the compliance with the Minority Participation Requirements, the dispute shall be submitted to arbitration for resolution, which resolution shall be binding upon the parties. 15.4. Penalties for Non -Compliance. To the extent that Sawyer's Walk fails to comply with the Minority Participation Requirements on a phase by phase basis in each of the categories described in Section 15.2, Sawyer's Walk shall pay to the CRA as a penalty Five Thousand and No/100 Dollars ($5,000.00) for each percentage point below the requirements set forth in Section 15.2.1, 15.2.2, 15.2.3, and 15.2.4 in each respective category Sawyer's Walk fails to meet the applicable Minority Participation Requirement (the "Non -Compliance Funds"). The Non -Compliance Funds shall be calculated by the Executive Director and shall be due within thirty (30) days from the date of Sawyer's Walk's receipt of written statement from the Executive Director stating the amount of Non -Compliance Funds due. To the extent of any dispute between the Executive Director and Sawyer's Walk with respect to compliance with the Minority Participation Requirements, the dispute shall be submitted to arbitration for resolution, which resolution shall be binding upon the parties. The CRA covenants and agrees to utilize any Non -Compliance Funds paid to CRA pursuant to this Section for a job training program for residents of the CRA Redevelopment Area. 34 15.5. Impossibility to Perform. Sawyer's Walk acknowledges that the Minority Participation Requirements are mandatory requirements and not an obligation to utilize best efforts. In the event that Sawyer's Walk, in good faith, believes that it is impossible to satisfy some or all of the Minority Participation Requirements for any phase as a result of there not being a sufficient number of minority and female job candidates available to comply with the Minority Participation Requirements, Sawyer's Walk may request that the City Manager reduce the applicable Minority Participation Requirements, in the applicable category, for that respective phase provided that Sawyer's Walk is able to provide to the City Manager irrefutable evidence that there was not a sufficient number of minority and/or female job candidates available to comply with the applicable Minority Participation Requirements. The decision of the City Manager shall be binding on Sawyer's Walk and the CRA with respect to the phase in question. 16. FIRST SOURCE HIRING AGREEMENT. Simultaneously with the execution of the Restated Poinciana Lease, Sawyer's Walk and the CRA shall execute a First Source Hiring Agreement in the form of Exhibit "R" attached hereto (the "First Source Hiring Agreement"). 17. EMPLOYMENT TRAINING PROGRAM. 17.1. Construction. Sawyer's Walk, in coordination with the South Florida Work Force or such similar entity involved in job creation and training, shall participate in an existing program or establish a "Skills Training and Employment Program" at or near the Project which shall provide for training of construction personnel for residents in the CRA Redevelopment Area and in the City. Sawyer's Walk shall submit the detailed plan for the Skills Training and Employment Program to the Executive Director for his review and approval within sixty (60) days from the Effective Date. The Executive Director shall not unreasonably withhold his consent to the plan for the Skills Training and Employment Program proposed by Sawyer's Walk provided that the plan contemplates a training program for advancement of skills for construction personnel at the Project which shall include, without limitation, a curriculum for safety, fundamental skills for untrained workers, advanced skills for trained workers, additional skills for certificates in alternate trades and management of construction operations. Sawyer's Walk shall be required to comply with the terms and provisions of the Skills Training and Employment Program as approved by the Executive Director. 17.2. Property Management. Sawyer's Walk, in coordination with the South Florida Work Force or such similar entity involved in job creation and training, shall participate in an existing program or establish a "Property Management Training and Employment Program" at or near the Project which shall provide for training of property management personnel for residents in 35 the CRA Redevelopment Area and in the City. Sawyer's Walk shall submit the detailed plan for the Property Management Training and Employment Program to the Executive Director for his review and approval within sixty (60) days from the Effective Date. The Executive Director shall not unreasonably withhold his consent to the plan for the Property Management Training and Employment Program proposed by Sawyer's Walk provided that the plan contemplates a program for participants within the program to advance to more sophisticated positions within the property management field during the course of completion and operation of the Project. Sawyer's Walk shall be required to comply with the terms and provisions of the Property Management Training and Employment Program as approved by the Executive Director. 17.3. Professionals. Sawyer's Walk shall utilize its best efforts to employ African American and other minorities to provide professional services to Sawyer's Walk in connection with the Project, including, without limitation, lawyers and accountants. Sawyer's Walk shall utilize its best efforts to cause existing professionals employed by Sawyer's Walk to joint venture with African Americans and other, minorities to expand minority participation in the Project in connection with the provision of professional services. 18. SALES TRAILER AND MARKETING ACTIVITIES. 18.1. Sales Trailer. The CRA and Sawyer's Walk will enter into a revocable license agreement (the "Trailer License") which will permit Sawyer's Walk to maintain a sales trailer and signs on a portion of the Real Property to be agreed upon between Sawyer's Walk and the Executive Director. The Trailer License shall be in the form of Exhibit "S" attached hereto and made a part hereof and shall be cancelable by the CRA at any time upon thirty (30) day prior written notice to Sawyer's Walk. The Trailer License shall be executed by Sawyer's Walk and the Executive Director on behalf of the CRA at such time as Sawyer's Walk has submitted the MUSP Application to the City for approval. 18.2. Marketing. From and after the date that Sawyer's Walk has submitted the MUSP Application to the City for approval, Sawyer's Walk may, at its sole cost and expense, (i) place signage on the Real Property at such locations as the Executive Director may approve; and (ii) engage in marketing activities for the Project, provided that all such signage and marketing activities shall comply with all applicable building and zoning codes and provided the Executive Director has approved all marketing material, which approval shall not be unreasonably withheld. In the event that this Agreement is terminated prior to the Lease Delivery Date, Sawyer's Walk shall promptly remove all signage from the Real Property. 36 19. POINCIANA/SAWYER'S WALK CONDITIONS PRECEDENT. 19.1. The obligations of Poinciana and Sawyer's Walk, under the terms and provisions of this Agreement, are subject to the satisfaction or waiver by Poinciana and Sawyer's Walk of the following conditions precedent (the "Poinciana/Sawyer's Walk Conditions Precedent"): 19.1.1. Sawyer's Walk shall have obtained all approvals required from the County pursuant to the terms of the County Settlement. 19.1.2. Sawyer's Walk shall have obtained all approvals required by the County under the terms of the Interlocal Agreement. 19.1.3. Sawyer's Walk shall have obtained the MUSP Approval which shall be final and not subject to appeal. 19.2. In the event all of the Poinciana/Sawyer's Walk Conditions Precedent have not been satisfied or waived by Poinciana and Sawyer's Walk on or before the date specified in Section 19.1 above or, if no date is specified, on or before March 15, 2006, then Poinciana and Sawyer's Walk may terminate this Agreement by providing written notice to the CRA and the City on or before March 15, 2006, in which event Escrow Agent shall return the Deposit to Poinciana and Sawyer's Walk and this Agreement shall terminate and the parties shall have no further obligations under the Agreement except for the obligations which expressly survive the termination of this Agreement unless the City and the CRA elect to proceed in accordance with Section 2.5 of this Agreement. In the event of a termination of this Agreement, if the City and the CRA do not elect to proceed in accordance with Section 2.5, Poinciana, Sawyer's Walk, the CRA and the City shall not be deemed to have waived any of their rights, claims or defenses associated with the Poinciana Litigation or the Sawyer's Walk Litigation. 20. CRA/CITY CONDITIONS PRECEDENT. 20.1: The obligations of the CRA and the City to enter into the Restated Poinciana Lease and contemplate the transaction contemplated by this Agreement are subject to the satisfaction or waiver of the following conditions precedent (the "CRA/City Conditions Precedent"): 20.1.1. The County shall have approved Sawyer's Walk under the terms of the County Settlement. 20.1.2. The County shall have approved Sawyer's Walk under the terms of the Interlocal Agreement. 37 20.1.3. The Executive Director shall have approved the Phase I Budget. 20.1.4. The Executive Director shall have approved the Skill Training and Employment Program. 20.1.5. The Executive Director shall have approved the Property Management Training and Employment Program. 20.1.6. The Executive Director shall have approved the Phase I Plans and Specifications. the Project Team. 20.1.7. The Executive Director shall have approved 20.1.8. The Executive Director shall have approved the Construction Contract. 20.1.9. The Executive Director shall have approved the Phase I Construction Schedule. 20.1.10. The Executive Director shall have approved the Payment and Performance Bonds. 20.1.11. The Executive Director shall have confirmed compliance with the minority participation goals with respect to construction for Phase I pursuant to Section 15.2.1. 20.1.12. The Executive Director shall have confirmed compliance with minority participation goals with respect to architectural services for Phase I pursuant to Section 15.2.2. 20.1.13. The Executive Director shall have approved the Loan Commitment. 20.1.14. The Executive Director shall have confirmed that Sawyer's Walk has sufficient equity to meet the requirements under the Loan Commitment for the construction of Phase I. 20.1.15. MUSP Approval has been obtained and be final and not subject to appeal. 20.1.16. The Executive Director shall have approved the Detailed Development Plans. 38 20.1.17. The Lender under the Loan Commitment is prepared to close the construction loan with respect to Phase I in accordance with terms of the Commitment Letter. 20.1.18. The Executive Director shall have confirmed that partners comprising Sawyer's Walk are the New Sawyer's Walk Partners, as hereinafter defined. 20.2. In the event the CRA/City Conditions Precedent are not satisfied or waived by the CRA and the City on or before April 15, 2006, then the CRA and the City may either (i) terminate this Agreement in which event Escrow Agent shall return the Deposit to Poinciana and Sawyer's Walk and the parties shall be released from all further obligations under this Agreement except for the obligations under this Agreement which expressly survive the termination of this Agreement or (ii) proceed in accordance with Section 2.5 of this Agreement. In the event of a termination of this Agreement if the City and the CRA do not elect to proceed in accordance with Section 2.5, Poinciana, Sawyer's Walk, the CRA and the City shall not be deemed to have waived any of their rights, claims or defenses associated with the Poinciana Litigation or the Sawyer's Walk Litigation. 21. LEASE DELIVERY DATE. 21.1. Closing. The closing of the transaction contemplated by this Agreement (the "Lease Delivery Date") will occur on or before April 30, 2006, time being of the essence, provided all the CRA/City Conditions Precedent to closing have been either satisfied or waived by the CRA and the City. On the Lease Delivery Date, the following shall occur: 21.1.1. The CRA, the City, Poinciana and Sawyer's Walk shall execute and deliver the Poinciana Stipulation, the Sawyer's Walk Stipulation, the Poinciana Order, the Sawyer's Walk Order, the Poinciana Mutual Release and the Sawyer's Walk Mutual Release. 21.1.2. Poinciana will assign to Sawyer's Walk all of its right, title and interest in the Poinciana Lease. 21.1.3. The CRA and Sawyer's Walk will execute the Restated Poinciana Lease. 21.1.4. The CRA and Sawyer's Walk will execute the First Source Hiring Agreement. 21.2. If the Lease Delivery Date does not occur on or before April 30, 2006, then in such event, the CRA and the City may elect either to (i) terminate this Agreement in which event the parties shall have no further 39 obligations under this Agreement except the obligations which expressly survive the termination of this Agreement or (ii) proceed in accordance with Section 2.5 of this Agreement. In the event of a termination of this Agreement if the City and the CRA do not elect to proceed in accordance with Section 2.5, Poinciana, Sawyer's Walk, the CRA and the City shall not be deemed to have waived any of their rights, claims or defenses associated with the Poinciana Litigation or the Sawyer's Walk Litigation. 22. ASSIGNMENT OF POINCIANA LEASE. On or before the Lease Delivery Date, Poinciana shall assign to Sawyer's Walk all of its right, title and interest under the Poinciana Lease with respect to Phase II and the Sawyer's Walk Project, which assignment shall be in the form of Exhibit "T" attached hereto and made a part hereof. 23. ORGANIZATIONAL DOCUMENTS. 23.1. Poinciana. As of the Effective Date, the documents attached as Exhibit "U" hereto constitute all the existing organizational documents with respect to Poinciana and all amendments thereto, including, without limitation, all organizational documents with respect to its general partner, Indian River. Attached hereto as Exhibit "V" is a list identifying all individuals and entities having a partnership interest in Poinciana. 23.2. Sawyer's Walk. As of the Effective Date, the documents attached as Exhibit "W" attached hereto constitute all the existing organizational documents with respect to Sawyer's Walk and all amendments thereto, including, without limitation, all organizational documents with respect to its general partner, Indian River. Attached hereto as Exhibit "X" is a list identifying all individuals and entities having a partnership interest in Sawyer's Walk (the "Existing Sawyer's Walk Partners"). The CRA hereby approves the transfer of the partnership interest in Sawyer's Walk to the New Sawyer's Walk Partners, as defined in Section 24. In addition, the New Sawyer's Walk Partners will be entering into an amended and restated partnership agreement for Sawyer's Walk in the form of Exhibit "Y" attached hereto and made,a part hereof. 24. ASSIGNMENT OF PARTNERSHIP INTEREST. The CRA acknowledges that prior to the Lease Delivery Date the Existing Sawyer's Walk Partners will be assigning ninety five percent (95%) of their partnership interest in Sawyer's Walk to the persons and entities identified on Exhibit "Z" attached hereto and made a part hereof (the "New Sawyer's Walk Partners") with Indian River Investment Communities, Inc. retaining a five percent (5%) interest, The CRA hereby approves the transfer of the partnership interest in Sawyer's Walk to the New Sawyer's Walk Partners. No other transfer of the 40 partnership interest in Sawyer's Walk shall be permitted without the approval of the CRA and the City. 25. REPRESENTATIONS OF CRA AND CITY OF MIAMI. 25.1. The CRA makes the following representations: 25.1.1. The CRA is duly organized and validly existing under the laws of the State of Florida and has full power and capacity to own its properties and to carry on its business as presently conducted by the CRA. 25.1.2. The CRA's execution, delivery and performance of this Agreement have been duly authorized by all necessary legal actions and does not and shall not conflict with or constitute a default under any indenture, agreement or instrument to which the CRA is a party or by which the CRA or CRA's property may be bound or affected, except for such approvals required by this Agreement. 25.1.3. This Agreement constitutes the valid and binding obligation of the CRA, enforceable against the CRA, and its successors and assigns, in accordance with their respective terms, subject to bankruptcy, insolvency and other similar laws affecting the rights of creditors generally. 25.2. The City makes the following representations: 25.2.1. The City is duly organized Municipal corporation, validly existing under the laws of the State of Florida and has full power and capacity to own its properties and to carry on its business as presently conducted by the City. 25.2.2. The City's execution, delivery and performance of this Agreement have been duly authorized by all necessary legal actions and does not and shall not conflict with or constitute a default under any indenture, agreement or instrument to which the City is a party or by which the City or City's property may be bound or affected, except for such approvals required by this Agreement. - 25.2.3. This Agreement constitutes the valid and binding obligation of the City, enforceable against the City, and its successors and assigns, in accordance with their respective terms, subject to bankruptcy, insolvency and other similar laws affecting the rights of creditors generally. 26. SAWYER'S WALK AND POINCIANA'S REPRESENTATIONS. Sawyer's Walk and Poinciana make the following representations to the CRA and the City as follows: 41 26.1. Sawyer's Walk and Poinciana are limited partnerships duly organized and validly existing under the laws of the State of Florida, and have full power and capacity to own their properties, to carry on their business as presently conducted, and to enter into the transactions contemplated by this Agreement. 26.2. Sawyer's Walk's and Poinciana's execution, delivery and performance of this Agreement have been duly authorized by all necessary partnership actions and does not and shall not conflict with or constitute a default under any indenture, agreement or instrument to which such entities are a party or by which they may be bound or affected. 26.3. This Agreement constitutes the valid and binding obligation of Sawyer's Walk and Poinciana, enforceable against Sawyer's Walk and Poinciana and their successors and assigns, in accordance with their respective terms, subject to bankruptcy, insolvency and other similar laws affecting the rights of creditors generally. 27. DEFAULT. 27.1. In the event of a default by Sawyer's Walk and Poinciana under this Agreement which is not cured within ten (10) days of written notice from the City and the CRA, or if there is any material misrepresentation. by Sawyer's Walk and Poinciana contained in this Agreement, without any default of the CRA and/or the City, the CRA and the City shall, as their sole and exclusive remedy, be entitled to retain the Deposit, as liquidated damages and terminate this Agreement in which event the parties shall be released from all further obligations under this Agreement except for the obligations that expressly survive the termination unless the CRA and the City elect to proceed in accordance with Section 2.5 of this Agreement. In the event of a termination of this Agreement if the City and the CRA do not proceed in accordance with Section 2.5, Poinciana, Sawyer's Walk, the CRA and the City shall not be deemed to have waived any of their rights, claims or defenses associated with the Poinciana Litigation or the Sawyer's Walk Litigation. 27.2. In the event of a default by the CRA and/or the City under this Agreement which is not cured within thirty (30) days of written notice from Poinciana and Sawyer's Walk, without any default on the part of Sawyer's Walk and/or Poinciana, Poinciana and Sawyer's Walk, as their sole and exclusive remedy, shall be entitled to (i) terminate this Agreement in which event Escrow Agent shall return the Deposit to Poinciana and Sawyer's Walk and the parties shall be released from all further obligations under this Agreement except for the obligations that expressly survive the termination unless the CRA and the City elect to proceed in accordance with Section 2.5 of this Agreement; or (ii) pursue the remedy of specific performance. Poinciana 42 and Sawyer's Walk waive any other remedies they may have against the City and the CRA at law or in equity as a result of a breach of this Agreement. In the event of a termination of this Agreement, in which event the parties shall be released from all further obligations under this Agreement except for the obligations that expressly survive the termination unless the CRA and the City elect to proceed in accordance with Section 2.5 of this Agreement. In the event of termination, if the CRA and the City do not proceed in accordance with Section 2.5 of this Agreement, Poinciana, Sawyer's Walk, the CRA and the City shall not be deemed to have waived any of their rights, claims or defenses associated with the Poinciana Litigation or the Sawyer's Walk Litigation. 28. BROKERS. The parties each represent and warrant to the other that there are no real estate broker(s), salesman (salesmen) or finder(s) involved in this transaction. If a claim for commissions in connection with this transaction is made by any broker, salesman or finder claiming to have dealt through or on behalf of one of the parties hereto ("Indemnitor"), Indemnitor shall indemnify, defend and hold harmless the other party hereunder ("Indemnitee"), and Indemnitee's officers, directors, agents and representatives, from and against all liabilities, damages, claims, costs, fees and expenses whatsoever (including reasonable attorney's fees and court costs at trial and all appellate levels) with respect to said claim for commissions. Notwithstanding anything to the contrary contained in this Agreement, the provisions of this Paragraph shall survive the delivery of the Restated Lease and any termination of this Agreement. 29. ASSIGNABILITY. Neither Sawyer's Walk or Poinciana shall be entitled to assign its rights hereunder nor to admit any new partners, investors or other beneficial owners, except as herein provided, without the prior written consent of the CRA and the City, and such consent shall not be unreasonably withheld or delayed. 30. NOTICES. Any notices required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been given if delivered by hand, sent by recognized overnight courier (such as Federal Express) or mailed by certified or registered mail, return receipt requested, in a postage prepaid envelope, and addressed as follows: POINCIANA VILLAGE OF MIAMI, LTD. Ted Weitzel, Poinciana Village 269 NW 7th Street Miami, Florida 33136 With a copy to: William Walker, Jr., Esq. White & Case, LLP 43 200 S. Biscayne Boulevard 4900 First Union Fin. Center Miami, FL 33131-2352 With a copy to: CROSSWINDS AT POINCIANA, LLC Attention: Tirso San Jose 600 Corporate Drive, Suite 102 Ft. Lauderdale, Florida 33334 With a copy to: I. Barry Blaxberg, Esq. Blaxberg, Grayson, Kukoff & Segal, P.A. 25 SE Second Avenue, Suite 730 Miami, Florida 33131 SAWYER'S WALK, LTD Ted Weitzel, Poinciana Village 269 NW 7th Street Miami, Florida 33136 With a copy to: William Walker, Jr., Esq. White & Case, LLP 200 S. Biscayne Boulevard 4900 First Union Fin. Center Miami, FL 33131-2352 With a copy to: CROSSWINDS AT POINCIANA, LLC Attention: Tirso San Jose 600 Corporate Drive, Suite 102 Ft. Lauderdale, Florida 33334 With a copy to: I. Barry Blaxberg, Esq. Blaxberg, Grayson, Kukoff & Segal, P.A. 25 SE Second Avenue, Suite 730 Miami, Florida 33131 SOUTHEAST OVERTOWN 1 PARK WEST COMMUNITY REDEVELOPMENT AGENCY Attention: Frank Rollason, Executive Director 49 N.W. 5th Street 44 Suite 100 Miami, FL 33128 With a copy to: Jorge L. Fernandez, City Attorney City of Miami 444 SW 2nd Avenue, Suite 945 Miami, Florida 33130 William R. Bloom, Esq. Holland & Knight, LLP Suite 3000 701 Brickell. Avenue Miami, FL 33131 James H. Villacorta, Esq. 49 N. W. 5th Street Suite 100 Miami, FL 33128 CITY OF MIAMI Attention: Joe Arriola, Chief Administrator/City Manager — City of Miami 3500 Pan American Drive Miami, Florida 33133-5595 With a copy to: Jorge L. Fernandez, City Attorney City of Miami 444 SW 2nd Avenue, Suite 945 Miami, Florida 33130 With a copy to: Rafael Q. Diaz, Assistant City Attorney City of Miami 444 SW 2nd Avenue, Suite 945 Miami, Florida 33130 Notices personally delivered or sent by overnight courier shall be deemed given on the date of delivery and notices mailed in accordance with the foregoing shall be deemed given upon receipt or the date delivery is refused. 31. ADMINISTRATIVE EXPENSES. Sawyer's Walk covenants and agrees to reimburse the CRA, on a quarterly basis, for all out of pocket costs 45 and expenses incurred by the CRA from and after the execution of this Agreement through the completion of construction of the Project and the sale of the Affordable Units, in connection with overseeing and monitoring the activities of Sawyer's Walk, pursuant to the terms of this Agreement, and the documents executed in connection herewith, which costs and expenses shall not exceed Seventy Five Thousand and No/100 Dollars ($75,000.00) per year. The CRA shall submit to Sawyer's Walk, evidence of such out of pocket expenses not more often than quarterly. Sawyer's Walk shall reimburse the CRA for such expenses within thirty (30) days of receipt of such documentation, subject to the annual reimbursement limitation of Seventy Five Thousand and No/100 Dollars ($75,000.00) per year. If there is a dispute between Sawyer's Walk and the Executive Director regarding any such expenses, the dispute shall be submitted to the City Manager for resolution. The decision of the City Manager shall be binding on the parties. Any payment not made by Sawyer's Walk within thirty (30) days of when due shall bear interest at eighteen percent (18%) per annum until paid. 32. MISCELLANEOUS. 32.1. This Agreement shall be construed and governed in accordance with the laws of the State of Florida. All of the parties to this Agreement have participated fully in the negotiation and preparation hereof, and, accordingly, this Agreement shall not be more strictly construed against any one of the parties hereto. 32.2. In the event any term or provision of this Agreement is determined by appropriate judicial authority to be illegal or otherwise invalid, such provision shall be given its nearest legal meaning or be construed as deleted as such authority determines, and the remainder of this Agreement shall be construed to be in full force and effect. 32.3. In the event of any litigation between the parties under this Agreement, the prevailing party shall be entitled to reasonable attorney's fees and court costs at all trial and appellate levels. 32.4: In construing this Agreement, the singular shall be held to include the plural, the plural shall be held to include the singular, the use of any gender shall be held to include every other and ail genders, and captions and Paragraph headings shall be disregarded. 32.5. All of the exhibits attached to this Agreement are incorporated in, and made a part of, this Agreement. 32.6. Time shall be of the essence for each and every provision of this Agreement. 46 32.7. This Agreement may not be recorded in the Public Records of Miami -Dade County. 33. ESCROW AGENT. 33.1. Escrow Account. All deposits received by Escrow Agent shall be deposited in such accounts Escrow Agent may select, with any interest on same to accrue on behalf of Sawyer's Walk, provided however, that if Sawyer's Walk defaults and such deposits are paid to the CRA and the City, interest on same, if any, shall be paid to the CRA and the City. 33.2. Duties of Escrow Agent. Escrow Agent undertakes to perform only such duties as are expressly set forth in this Agreement and no implied duties or obligations shall be read into this Agreement against Escrow Agent. Escrow Agent is also the law firm representing the CRA and the City. In the event of a dispute between the parties, the parties consent to Escrow Agent continuing to represent the CRA and the City, notwithstanding the fact that it also shall have the duties provided for in this Agreement. 33.3. Reliance of Escrow Agent on 'Documents. Escrow Agent may act in reliance upon any writing or instrument or signature which it, in good faith, believes to be genuine; may assume the validity and accuracy of any statement or assertion contained in such a writing or instrument; and may assume that any person purporting to give any writing, notice, advice, or instructions in connection with the provisions of this Agreement has been duly authorized to do so. Escrow Agent shall not be liable in any manner for the sufficiency or correctness as to form, manner and execution, or validity of any instrument deposited in escrow, nor as to the identity, authority, or right of any person executing the same; and its duties under this Agreement shall be limited to those provided in this Agreement. 33.4. Indemnification of Escrow Agent. Unless Escrow Agent discharges any of its duties under this Agreement in a grossly negligent manner or is guilty of willful misconduct with regard to its duties under this Agreement, the parties shall indemnify Escrow Agent and hold it harmless from any and all claims, liabilities, losses, actions, suits or proceedings at law or in equity, or other expenses, fees or charges of any character or nature, which they may incur or with which they may be threatened by reason of its acting as Escrow Agent under this Agreement; and in such connection the parties shall indemnify Escrow Agent against any and all expenses including reasonable attorneys' fees and the cost of defending any action, suit or proceedings or resisting any claim in such capacity. The Escrow Agent shall be vested with a lien on all property deposited under this Agreement for indemnification, for reasonable attorneys' fees and court costs, for any suit, interpleader or otherwise, or any other expense, fees or charges of any 47 character or nature, which may be incurred by Escrow Agent in its capacity as Escrow Agent by reason of disputes arising between the parties to this Agreement as to the correct interpretation of this Agreement and instructions given to Escrow Agent under this Agreement, or otherwise, with the right of Escrow Agent, in its sole discretion, regardless of any instructions, to hold the property deposited in escrow until and unless said additional expenses, fees and charges shall be fully paid. 33.5. Interpleader Action in the Event of Dispute. If the parties shall be in disagreement about the interpretation of this Agreement, or about their respective rights and obligations, or the propriety of any action contemplated by Escrow Agent, Escrow Agent may, but shall not be required to, file an action in interpleader to resolve the disagreement. Escrow Agent shall be indemnified for all costs and reasonable attorneys' fees in its capacity as escrow agent in connection with any such interpleader action and shall be fully protected in suspending all or part of its activities under this Agreement until a. final judgment in the interpleader action is received. 33.6. Consultation with Counsel. Escrow Agent may consult with counsel of its own choice and shall have full and complete .authorization and protection in accordance with the opinion of such counsel. Escrow Agent shall otherwise not be liable for any mistakes of fact or errors of judgment, or for any act or omissions of any kind unless caused by its gross negligence or willful misconduct. 33.7. Resignation of Escrow Agent. Escrow Agent may resign upon thirty (30) days' written notice to the CRA and Sawyer's Waik. If a successor escrow agent is not appointed jointly by Poinciana, Sawyer's Walk, the City and the CRA within the thirty (30) day period, Escrow Agent may petition a court of competent jurisdiction to name a successor and upon such appointment the Escrow Agent shall deliver the Deposit to the successor escrow agent and be relieved of all further liabilities and obligations as Escrow Agent hereunder. 34. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and there are no other agreements, representations or warranties other than as set forth herein. This Agreement may not be changed, altered or modified except by an instrument in writing signed by the party against whom enforcement of such change would be sought. This Agreement shall be binding upon the parties hereto and their respective successors and permitted assigns. 48 [SIGNATURE PAGES TO FOLLOW] 49 IN WITNESS hereof the parties have executed this Agreement as of the date first above written. CITY OF MIAMI, a Municipal Corporation of the State of Florida By: Joe Arriola, Chief Administrator/City Manager Date Executed: ATTEST: Priscilla A. Thompson, City Clerk Approved for legal sufficiency By: SOUTHEAST OVERTOWN / PARK WEST COMMUNITY REDEVELOPMENT AGENCY By: Frank K. Rollason Title: Executive Director ATTEST: Priscilla A. Thompson, Clerk of the Board Approved for legal sufficiency 50 By: William R. Bloom, Esq. Holland & Knight LLP, Special Counsel to CRA SAWYER'S WALK, LTD., a Florida limited partnership BY: INDIARIVER INVESTMENT COMMUNITIES, INC., a Flori corporation, its general p rtner By NaYne; Ted H. Weitzel Title: President Date Executed: // 7/,P 2 WITNES ES:a' `1f Print Na Pri t Na C r sl Q A • 0,4:vs !lt POINCIANA VILLAGE OF MIAMI, LTD., a Florida limited partnership BY: INDI: N RIVER INVESTMENTS OF MIAMI, INC., a F1or,+ : corporation, its gener 1 partner By N:f e: Ted H. tzel Title: President l l�'� Date Executed: / , APPROVED AS TO INSURANCE REQUIREMENTS: , Risk Management Administrator 51 Schedule of Exhibits A. Poinciana Village Legal Description B. Sawyer's Walk Legal Description C. Phase II of Poinciana Village Legal Description D. Restated Poinciana Lease E. Poinciana Stipulation F. Sawyer's Walk Stipulation G. Poinciana Order H. Sawyer's Walk Order I. Poinciana Mutual Release J. Sawyer's Walk Mutual Release K. Insurance Requirements L. Reverter Land Legal Description M. County Settlement Agreement N. Overtown Project Area 0. Covenant P. Preliminary Development Plans Q. Overtown Area R. First Source Hiring Agreement S. Trailer License T. Poinciana Lease Assignment U. Poinciana Partnership Documents V. Poinciana Partners W. Sawyer's Walk Partnership Documents X. Sawyer's Walk Partners Y. New Sawyer's Walk Partners Z. Amended and Restated Partnership Agreement for Sawyer's Walk 52