HomeMy WebLinkAboutexhibits I-PEXHIBIT I
POINCIANA/SAWYER'S WALK RELEASE
KNOW ALL MEN BY THESE PRESENTS that SAWYER'S WALK, LTD., a
Florida limited partnership ("Sawyer's Walk") and POINCIANA VILLAGE OF
MIAMI, LTD., a Florida limited partnership ("Poinciana") [INSERT NAMES OF
PARTNERS OF EACH] (Sawyer's Walk and Poinciana, and their respective
partners, are collectively referred to as the "first party") and CITY OF MIAMI, a
Florida municipal corporation (the "City") and SOUTHEAST OVERTOWN/PARK
WEST COMMUNITY REDEVELOPMENT AGENCY, an agency of the State of
Florida (the "CRA') (the City and the CRA are collectively referred to as the "second
party"), for and in consideration of Ten and 00/100 Dollars ($10.00), and other good
and valuable consideration, received from or on behalf of the, as more particularly
described in the Settlement Agreement dated as of
2005 by and between Poinciana, Sawyer's Walk, the CRA and the City (the
`Settlement Agreement"), the receipt and adequacy of which is hereby
acknowledged, remises, releases, acquits, satisfies, and forever discharges the said
second party and their officers, directors, commissioners, agents and employees, of
and from all, and all manner of action and actions, cause and causes of action, suits,
debts, dues, sums of money, accounts, agreements, promises, damages, judgments,
executions, claims and demands whatsoever, in law or in equity, which said first
party ever had, now has, or which said first party hereafter can, shall or may have,
against said second party, for, upon or by reason of any matter, cause or thing
whatsoever, from the beginning of the world to the date of these presents relating to
or arising out of, directly or indirectly: (i) that in response to a request for proposals
(the "RFP") issued by the City with respect to that certain real property located in
Miami -Dade County, Florida more particularly described on Exhibit "A" attached
hereto and made a part hereof (the "Poinciana Village Project"); (ii) the response to
the RFP submitted by Indian River Investments of Miami, Inc., a Florida
corporation ("Indian River"), acting in the capacity of general partner on behalf of
Poinciana; (iii) the selection of Poinciana as a successful proposer to the RFP by the
City for the Poinciana Village Project; (iv) the approval by the City Commission of
Poinciana as the successful proposer with respect to the RFP and Poinciana Village
Project; (v) the Southeast Overtown/Park West Lease and Development Agreement
dated June 15, 1988, as amended by Amendment No. 1 dated February 17, 1989, as
amended by Amendment No. 2, dated July 13, 1989, as amended by Amendment
No. 3, dated January 11, 1990, as amended by an Amendment dated September 23,
1998; and as assigned from the City to the CRA by that certain Assignment of
Leases dated January 9, 1996 (collectively the "Poinciana Lease"); (vii) RFP issued
by the City with respect to that certain real property located in Miami -Dade
County, Florida, more particularly described on Exhibit "B", attached hereto and
made a part hereof (the "Sawyer's Walk Project"); (viii) the sole response to the RFP
Page 1 of 4
submitted by Sawyer's Walk with respect to the Sawyer's Walk Project; (ix) the City
of Miami Resolution No. 91-509 selecting Sawyer's Walk as the developer of the
Sawyer's Walk Project; (x) matters raised and the matters that could have been
raised in the action styled Southeast Overtown/Park West Community;
Redevelopment Agency v. Poinciana Village of Miami, Ltd., Case No. 02-06846 CA.
9, pending in the Circuit Court of the Ilth Judicial Circuit in and for Miami -Dade
County, Florida; and (xii) matters raised and the matters that could have been
raised in the action styled The City of Miami vs. Sawyer's Walk, Ltd., Case No. 00-
28860 CA 9, pending in the 11th Judicial Circuit in and for Miami -Dade County,
Florida.
This Release shall not release the second party from its obligations under the
Settlement Agreement, which obligations are not subject to this Release.
The Release shall not release the CRA from its obligations under (i) the
Amended and Restated Southeast Overtown/Park West Lease and Development
Agreement dated by and between the CRA and Sawyer's Walk;
(ii) the First Source Hiring Agreement dated by and between the CRA
and Sawyer's Walk; (iii) Trailer License Agreement dated by and
between CRA and Sawyer's Walk; and (iv) the Covenant Running with the Land
dated by and between the CRA and Sawyer's Walk, which
obligations are not subject to this Release.
First party hereby represents and warrants that they are fully competent and
able to understand the terms of this Release, that first party is not relying upon any
statements or representations (whether express or implied) of the second party,
their employees and attorneys regarding this Release and that first party is
entering into this Release under their own free will believing that this Release to be
in their best interest.
The terms of this release are contractual and not a mere recital.
This Release shall be governed by and construed in accordance with the laws
of the State of Florida.
First party understands that the second party admits no liability of any sort
by reason of the matters raised and the matters that could have been raised in the
action styled Southeast Overtown/Park West Community Redevelopment Agency v.
Poinciana Village of Miami, Ltd., Case No, 02-06846 CA 9, pending in the Circuit
Court of the 11th Judicial Circuit in and for Miami -Dade County, Florida and in the
action styled The City of Miami vs. Sawyer's Walk, Ltd., Case No. 00-28860 CA 9,
pending in the llth Judicial Circuit in and for Miami -Dade County, Florida and that
said settlement in compromise is made to terminate further controversy respecting
all claims that the first party has heretofore asserted or that the first party, or their
representatives, might or could have asserted in connection therewith.
Page 2 of 4
IN WITNESS WHEREOF, we have hereunto set out hand and seal this
day of , 2005. —`
WITNESSES: SAWYER'S WALK LTD.
a Florida limited partnership
Print Name:
By:
Name:
Print Name: Title:
Print Name:
Print Name:
Print Name:
Print Name:
Print Name:
Print Name:
Print Name:
Print Name:
Partners of Sawyer's Walk, Ltd.
By:
Name:
By:
Name:
By:
Name:
POINCIANA VILLAGE OF MIAMI, LTD.,
a Florida limited partnership
By:
Name:
Page 3 of 4
Print Name:
Print Name:
Print Name:
Print Name:
Print Name:
Print Name:
Partners of Poinciana Village of Miami,
Ltd.
By:
Name:
By:
Name:
By:
Name:
Page 4 of 4
# 1828482_v2
EXHIBIT "A"
LEGAL DESCRIPTION
Page 5 of 4
EXHIBIT J
CITY/CRA RELEASE
KNOW ALL MEN BY THESE PRESENTS that CITY OF MIAMI, a Florida
municipal corporation (the "City") and SOUTHEAST OVERTOWN/PARK WEST
COMMUNITY REDEVELOPMENT AGENCY, an agency of the State of Florida
(the "CRA') (the City and the CRA are collectively referred to as the "first party"),
for and in consideration of Ten and 00/100 Dollars ($10.00), and other good and
valuable consideration, received from or on behalf of the SAWYER'S WALK, LTD.,
a Florida limited partnership ("Sawyer's Walk") and POINCIANA VILLAGE OF
MIAMI, LTD., a Florida limited partnership ("Poinciana") (INSERT NAMES OF
PARTNERS OF EACH) (Sawyer's Walk and Poinciana, and their respective
partners, are collectively referred to as the "second party"), as more particularly
described in the Settlement Agreement dated as of , 2005
by and between Poinciana, Sawyer's Walk, the CRA and the City (the `Settlement
Agreement"), the receipt and adequacy of which is hereby acknowledged, remises,
releases, acquits, satisfies, and forever discharges the said second party and their
officers, directors, commissioners, agents and employees, of and from all, and all
manner of action and actions, cause and causes of action, suits, debts, dues, sums of
money, accounts, agreements, promises, damages, judgments, executions, claims
and demands whatsoever, in law or in equity, which said first party ever had, now
has, or which said first party hereafter can, shall or may have, against said second
party, for, upon or by reason of any matter, cause or thing whatsoever, from the
beginning of the world to the date of these presents relating to or arising out of,
directly or indirectly: (i) that in response to a request for proposals (the "RFP")
issued by the City with respect to that certain real property located in Miami -Dade
County, Florida more particularly described on Exhibit "A" attached hereto and
made a part hereof (the "Poinciana Village Project"); (ii) the response to the RFP
submitted by Indian River Investments of Miami, Inc., a Florida corporation
("Indian River"), acting in the capacity of general partner on behalf of Poinciana;
(iii) the selection of Poinciana as a successful proposer to the RFP by the City for the
Poinciana Village Project; (iv) the approval by the City Commission of Poinciana as
the successful proposer with respect to the RFP and Poinciana Village Project; (v)
the Southeast Overtown/Park West Lease and Development Agreement dated June
15, 1988, as amended by Amendment No. 1 dated February 17, 1989, as amended
by Amendment No. 2, dated July 13, 1989, as amended by Amendment No. 3, dated
January 11, 1990, as amended by an Amendment dated September 23, 1998; and as
assigned from the City to the CRA by that certain Assignment of Leases dated
January 9, 1996 (collectively the "Poinciana Lease"); (vii) RFP issued by the City
with respect to that certain real property located in Miami -Dade County, Florida,
more particularly described on Exhibit "B", attached hereto and made a part hereof
(the "Sawyer's Walk Project"); (viii) the sole response to the RFP submitted by
Page 1 of 4
Sawyer's Walk with respect to the Sawyer's Walk Project; (ix) the City of Miami
Resolution No. 91-509 selecting Sawyer's Walk as the developer of the Sawyer's
Walk Project; (x) matters raised and the matters that could have been raised in the
action styled Southeast Overtown/Park West Community Redevelopment Agency v.
Poinciana Village of Miami Ltd , Case No. 02-06846 CA 9, pending in the Circuit
Court of the 11th Judicial Circuit in and for Miami -Dade County, Florida; and (xii)
matters raised and the matters that could have been raised in the action styled The
City of Miami vs. Sawyer's Walk, Ltd., Case No. 00-28860 CA 9, pending in the 11th
Judicial Circuit in and for Miami -Dade County, Florida.
This Release shall not release the second party from its obligations under the
Settlement Agreement, which obligations are not subject to this Release.
The Release shall not release Sawyer's Walk from its obligations under (i) the
Amended and Restated Southeast Overtown/Park West Lease and Development
Agreement dated by and between the CRA and Sawyer's Walk;
(ii) the First Source Hiring Agreement dated
CRA and Sawyer's Walk; (iii) Trailer License by and between the
and between CRA and Sawyer's Walk; and (iv) the ,Covenant Runningwith he Land dated the
by and between the CRA and Sawyer's Walk, which
obligations are not subject to this Release.
First party hereby represents and warrants that they are fully competent and
able to understand the terms of this Release, that first party is not relying upon any
statements or representations (whether express or implied) of the second party,
their employees and attorneys regarding this Release and that first party is
entering into this Release under their own free will believing that this Release to be
in their best interest.
The terms of this release are contractual and not a mere recital.
This Release shall be governed by and construed in accordance with the laws
of the State of Florida.
First party understands that the second party admits no liability of any sort
by reason of the matters raised and the matters that could have been raised in the
action styled Southeast Overtown/Park West Community Redevelopment Agency v.
Poinciana Village of Miami, Ltd., Case No. 02-06846 CA 9, pending in the Circuit
Court of the 11th Judicial Circuit in and for Miami -Dade County, Florida and in the
action styled The City of Miami vs. Sawyer's Walk. Ltd., Case No. 00-28860 CA 9,
pending in the 11th Judicial Circuit in and for Miami -Dade County, Florida and that
said settlement in compromise is made to terminate further controversy respecting
all claims that the first party has heretofore asserted or that the first party, or their
representatives, might or could have asserted in connection therewith.
Page 2 of 4
Priscilla A. Thompson
WITNESSES: CRA:
IN WITNESS WHEREOF, we have hereunto set out hand and seal this
day of , 2005.
WITNESSES: CITY:
CITY OF MIAMI, a Municipal
Print Name: corporation of the State of Florida
By:
Print Name:
ATTESTATION: APPROVED FOR LEGAL
SUFFICIENCY:
City Clerk City Attorney
Print Name: SOUTHEAST OVERTOWN/
PARK WEST COMMUNITY
REDEVELOPMENT AGENCY
OF THE CITY OF MIAMI
Print Name:
ATTESTATION:
Priscilla A. Thompson,
Clerk of the Board
By:
Frank K. Rollason
Executive Director
APPROVED FOR LEGAL
SUFFICIENCY
William R. Bloom
Special Counsel to the CRA
Page 3 of 4
# 1922764 v3
EXHIBIT "A"
LEGAL DESCRIPTION
Page 4 of 4
EXHIBIT K
1 Commercial General Liability insurance on a commercial general
liability coverage form with "broad form" coverage, or its equivalent,
including contractual liability, products and completed operations,
personal injury, and premises coverage against those sums that the
insured becomes legally obligated to pay as damages in connection with
any and all claims, demands or actions, bodily injury, death or property
damage occurring in the Property, the limits of which shall not be less
than One Million Dollars ($1,000,000) per occurrence combined single
limit for bodily injury and property damage.
2. Pollution/Environmental Impairment Liability insurance coverage to be
provided by Poinciana's and Sawyer's Walk's contractors performing the
Inspections on a claims basis (provided that such policy period must be
for a minimum of six (6) years from and after the date of the Inspections)
with limits of One Million Dollars ($1,000,000) per occurrence, providing
coverage for the damage caused by spillage of any fuel, petroleum,
products or any other "hazardous substances," "hazardous materials" or
"toxic substances" (as defined in any and all state, local, or federal laws,
rules, regulations and orders pertaining to environmental, public health
or welfare matters), whether those substances are solid, liquid or
gaseous. Said policy of insurance shall also provide coverage for the cost
52
of cleanup of the affected area and for the removal, transportation and
safe disposal of any contaminated area.
3. Automobile Liability insurance covering all owned, non -owned, and hired
vehicles used in conjunction with Inspections of the Property. The policy
or policies of insurance shall contain such limits as may be reasonably
requested by the City from time to time but not Less than One Million
Dollars ($1,000,000). Worker's Compensation insurance in the amounts
and types required by Chapter 440, Florida Statutes.
4. The Limits set forth in paragraphs (1), (2), (3) and (4) above shall be
issued by an Insurance Company maintaining an "A" rating and
Financial Strength of "7".
53
EXHIBIT L
Reverter Legal Description
LOTS 1 THROUGH 12, INCLUSIVE, BLOCK 45, NORTH CITY OF MIAMI, ACCORDING
TO THE PLAT THEREOF, AS RECORDED IN PLAT BOOK "B", PAGE 41 OF THE
PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA.
AND
LOTS 1 THROUGH 12, INCLUSIVE, BLOCK 56, NORTH CITY OF MIAMI, ACCORDING
TO THE PLAT THEREOF, AS RECORDED IN PLAT BOOK "B", PAGE 41 OF THE
PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA,
# 2574187_0
• •
•
r EX�3�BTT M
County Sett1ement A5reement
MIAMI-DADE COUNTY, a
political subdivision of the State
of Florida,
VS.
Plaintiff,
IN THE CIRCUIT COURT OF THE 11TH
JUDICIAL CIRCUIT OF FLORIDA IN AND
MIAMI-DADE COUNTY.
GENERAL JURISDICTION -DIVISION.
CASE NO. 01-13810 (CA-08)
CITY OF MIAMI, Florida, a Florida
Municipal corporation,and
SOUTHEAST OVERTOWN/PARK
WEST COMMUNITY REDEVELOPMENT
AGENCY, an agency 'of the State of
Florida,
1
Defendants.
sErtummiT ACfiREEMENT
Florida Bar No.180724
Plaintiff, MIAMI-DADE COUNTY, a political subdivision of die State of Florida,
and the Defendants, CITY OF MIAMI, Florida, a Florida municipal corporation and
SOUTHEAST OVERTOWN/PARK WEST COMMUNITY REDEVELOPMENT
AGENCY, an agency of the State of Florida, Defendants, agree to the following terms in
EXHIBIT A
OFFICE Of COUNTY ATYW NLY. MIAMI-DADC COUNTY. FLORIDA
11LCPHONs 130N1 37111-5151
Miami -Dade County vs.City of Miami
Case No. 01-13810
Page No. 2 •
full and complete settlement of the above -designated quiet title suit;
1. The CITY OF MIAMI. and SOUTHEAST OVERTOWN/PARK WE:S
T
COMMUNITY REDEVELOPMENT AGENCY willexecute quit claim deeds to M
IAMI-
DADE COUNTY in the forms attached hereto as Exhibits 1 and 2 of this Settlement
Agreement and made a part hereof for those certain lots of Block 36 of P.W.
Resubdivision, Plat Book 'B' at Page 34 and for Lots 1 through 12of Blocks 4
Sl1T and 56N
of A. L. Knowlton's Map of Miami, Plat Book 'B' at Page 41 (the "P Said
�'�•
Property being the subject of this quiet title suit and more particularly described on Exhibit
s
A to thequit claim deeds attached as Exhibits 1 and 2 to this Agreement.
2• The quit claim deeds will be held by Mianti-Dade County General Services D
Administration (GSA) in escrow for a;ieriod o f four (4) years,. said
... Period to begin August.
1, 2003 and end not later than August 1, 2007.
3. Unless the CITY` bF MIAMI and/or SOUTHEAST OVERTOWN PARK
WEST CO REDEVELOPMENT AGENCY shall have or caused to have
Commenced construction of development on all of the Property by August 1, 2007 then
GSA shall file the escrowed quit claim deeds in the public records of Miami -Dade County,
Florida and the fee simple title to the Property shall be deemed legally quieted in MIAMI-
DADE COUNTY without further order of the Court. Alternatively, should the
Y CITY OF
MIAMI and SOUTHEAST OVERTOWN/PARK WEST CO
MMUNITY
REDEVELOPMENT AGENCY have commenced or caused to have commenced
convict Of COUNTY ATTORNEY. MIAMI-DADE COUNTY. FLORIDA
TELEPHONE 13051 375-5151
•
Miami -Dade County vs.City of Miami
Case No. 01-13810
Page No. 3
construction of development on all of the Property, the quit claim deeds will be deemed
null and void and of no further legal force or effect and the deeds shall be stricken throve!'
and returned to the office of the city attorney together with a copy of this settlement
agreement. In such event MIAMI-DADE COUNTY shall provide the city a document, in
a recordable form, that provides that the terms of the reverter provisions have been
satisfied and the reversionary interest of MIAMI DADE COUNTY is extinguished without
further order of the Court.
4. The phrase "comrnenced construction of development" shall meanthat all
• required constructionanddevelopment permits have been issued on a complete set or set;
of plans for a specific project or projects of one or more constructed floors of residential,
�ttal,
commercial, retail, office or mixed us4 on all of the Property, and that actual physical
construction work is taking place on a continuing basis on all oldie Property.
5. In the event that any development on the Property requires payment for the
Property, solely as a result of the sale of the. fee simple interest in the Pro to the
Property, CITY
OF MIAMI and/or SOUTHEAST OVERTOWN/PARK WEST COMMUNITY
REDEVELOPMENT AGENCY from the chosen developer(s), then the CITY OF M - IAMI
and/or SOUTHEAST OVERTOVVN/PARK WEST COMMUNITY REDEVELOPMENT
AGENCY shall, prior to entering into any development agreement(s) for the Prop
erty,
submit said proposed agreement(s) to the Board of County Conunissioners for its approval
prior to entering into said agreement. Upon delivery of the proposed development
ODIC[ Or COUNTY ATTb11NEY. MIAMI-DADE Comm 1.OillDA
TEL(PHONE (.7OS, 375.51 S
•
1
•
Miami Dade County vs.City of Miami
Case No. 01-13810
Page No.:4
agreement(s) to the County Manager, the time period identified in paragraph 3 herein shall
be tolled only up to .the time the Board of County Commissioners shall approve the sale
under the proposed development agreement(s).
7. Resolutions of the Board of County Commissioners of Miami -Dade County,
the Commission, of the City of Miami and the SOUTHEAST OVERTOWN/PARK WEST
COMMUNITY REDEVELOPMENT AGENCY approving this settlement are attached
hereto and incorporated herein by reference.
DATED .this day of July, 2003.
ROBERT A. GINSBURG
Miami -Dade County. Attorney:
Stephen P. Clark Center
Suite 2810,
III N.W. First Street
Miami, Florida 33128-1993
B
Thomas Goldstein
Assistant County Attorney
Attorney for Plaintiff
CITY OF MIAMI ATTORNEY'S OFFICE
444 S.W. 2nd Avenue, Suite 945
Miami, Florida 33130
By:
Charles C. Mays
cornet OIL COUNTY ATIontar." MIAMI-DAD[ COUNTY. FLORIDA
T`LCPRONE (3051 D75-1101
Miami -Dade County vs. FEC
Case No..9940100
Page No. 5
Assistant City Attorney
City of Wand, Florida
THOMPSON COBURN LLP
One Firstar Plate
Suite 3100
St. Louis, MO 63101
i, Esquire
or Southeast Ovettawl.
ark West Community Redevelopment
AgerleY
n:approved
R:879-03
Loners of
copy.
Exhibit.3.
approved
�t €�vv� � �on No.�
ammunity
v t Agency ofthe
State of 'F1 de, n. atUiMi -J :adc County,
Florida, A certified :copy:of said resolution
Is attached hereto as Exhibit- 5.
Orrice OF COUNTY AITONNNY, MIAMI'DADR COUNTY. FLORsoA
TaLtPNONC 1305) a70•5151
z
E+
H
F4
1I
x
- URBAN VILLAGE
- "FOLKUKE VILLAGE (BLOCKS F & G) HIGHUGHT
AFRICAN AND CARIBBEAN IMMIGRANT
HISTORICAL TIES TO NEIGHBORHOOD
- BOUTIQUE HOTEL ACTIVITIES NW 2ND & NW 8TH
BY PLACING RESTAURANT ON CORNERS
- COMMERCIAL CENTERED ADJACENT TO
LYRIC AND 8TH CORRIDOR
- CLOSURE OF NW 10TH ALLOWS FOR DEVELOPABLE
PARCEL ON BLOCK 25
- PARK INCLUDES INTERPRATIVE WALK FOCUSING ON
THE HISTORY OF OVERTOWN NEIGHBORHOOD
EXHIBIT 0
THIS INSTRUMENT PREPARED BY:
William R. Bloom, Esq.
Holland & Knight LLP
701 Brickell Avenue
Miami, Florida 33131
Space Above This Line For Recording Data
COVENANT RUNNING WITH THE LAND AGREEMENT
THIS COVENANT, made this day of 2005 by and
between
(hereinafter
referred to as "Developer"), and the SOUTHEAST OVERTOWN/PARK WEST
COMMUNITY REDEVELOPMENT AGENCY, an agency of the State of
Florida (hereinafter referred to as "the CRA").
RECITALS
A. The CRA solicited proposals pursuant to that certain request for
proposal, dated , 200 (the "RFP"), for the sale of
that certain real property which is more particularly described in Exhibit "A",
attached heretoand incorporated herein by this reference (the "Property"),
which Property is to be sold subject to the terms of that certain Amended and
Restated Southeast Overtown/Park West Lease and Development Agreement
(the "Lease") dated as of , 200_ by and between the CRA and
Sawyer's Walk, Ltd., a Florida limited partnership.
Subject to conforming to the terms of the Settlement Agreement within 30
days of the Effective Date of the Settlement Agreement.
(the "Lease') dated as of , 200_ by and between the CRA and
Sawyer's Walk, Ltd., a Florida limited partnership.
B. The RFP provides that the Property is to be conveyed by the
CRA subject to the terms and conditions of the Lease and this Covenant.
C. The Developer was selected by the CRA as the successful
respondent to the RFP.
D. Simultaneously with the execution of this Covenant, the CRA is
conveying fee simple title to the Property to Developer and Developer has
accepted the conveyance of the Property from the CRA, subject to the Lease
and subject to the covenants, obligations and requirements as more
particularly set forth in this Covenant, which the CRA and the Developer
agree shall constitute covenants running with the land as hereinafter
provided.
NOW THEREFORE, in consideration of the foregoing and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the CRA and the Developer hereby agree as follows:
ARTICLE I
RECITALS
Section 1.1 Recitals. The Recitals to this Covenant are true and
correct and are hereby incorporated by reference and made a part hereof.
2
ARTICLE II
EXHIBITS AND DEFINITIONS
Section 2.1 Exhibits. Attached hereto and forming a part of this
Covenant are the following Exhibits:
Exhibit "A" — Legal Description for Property
Exhibit "B" -- Development PIan
Exhibit "C" — Overtown Area
Exhibit "D" — First Source Hiring Agreement
Exhibit "E" — STE Program
Exhibit "F" — PMTE Program
Exhibit "G" — Overtown Project Area
Exhibit "H" — Reverter Property
Exhibit "I" — Subsidized Units
Section 2.2 Defined Terms. As used herein, the term:
"Affordable Housing Reports" has the meaning ascribed to
it in Section 8.9.
"Affordable Housing Requirement" has the meaning
ascribed to it in Section 8.1.
"Affordable Units" has the meaning ascribed to it in
Section 8.1.
"Block(s)" means those City Blocks which are comprise
the Land which are identified on the Development Plan.
"CBO" has the meaning ascribed to it in Section 8.12.
"Certificate of Final Completion" has the meaning
ascribed to it in Section 6.4.
"City" means the City of Miami.
"Completion" shall have the meaning ascribed to it in
Section 6.5.
3
"Completion Date" shall have the meaning ascribed to it
in Section 6.5.
"Construction Budget" shall have the meaning ascribed to
it in Section 6.1.2.
"Construction Contract" has the meaning ascribed to it in
Section 6.1.3.
Section 6.1.1.
Section 6.1.4.
"Construction Plans" has the meaning ascribed to it in
"Construction Schedule" has the meaning ascribed to it in
"County" means Miami -Dade County, a political
subdivision of the State of Florida.
"CRA" means the Southeast Overtown/Park West
Community Redevelopment Agency.
"CRA Board" shall mean the Board of Directors of the
CRA.
"CRA Default" shall have the meaning ascribed to it in
Section 12.3.
"Developer" has the meaning
, and, except as otherwise expressly limited elsewhere in
this Covenant, all references to the Developer shall include the successors
and assigns of the Developer.
"Developer Default" shall have the meaning ascribed to it
in Section 12.1.
"Developer Improvements" shall have the meaning
ascribed to it in Section 4.1.
"Development Plan" has the meaning ascribed to it in
Section 4.1.
"Effective Date" means the date this Covenant is last
executed by Developer and the CRA.
"Executive Director" means the Executive Director of the
CRA.
"First Source Hiring Agreement" shall have the meaning
ascribed to it in Section 9.1.
"Incremental TIF" has the meaning ascribed to it in
Section 11.1.
"Interlocal Agreement" shall mean the agreement
between the County and the City required by the Board of County
Commissioners of the County approving the selection of the developer for the
Project.
"Loan Commitment" shall have the meaning ascribed to it
in Section 6.1.6.
"Minority Participation Reports" has the meaning
ascribed to it in Section 7.3.
"Minority Participation Requirements" has the meaning
ascribed to it in Section 7.2.1.
"MUSP" has the meaning ascribed to it in Article 17 of
Ordinance 11000, as amended, of the Zoning Ordinance of the City of Miami,
Florida.
in Section 7.4.
Section 6.5.
Section 8.6.
Section 11.1.
Section 8.12.
"Non -Compliance Funds" has the meaning ascribed to it
"Non -Compliance Fee" has the meaning ascribed to it in
"Overtown Area" has the meaning ascribed to it in
"Overtown Project Area" has the meaning ascribed to it in
"Overtown Residents" has the meaning ascribed to it in
5
"Phase" means a portion of the Project to be developed at
the same time by the Developer as identified on the Development Plan.
"Phase I" means the first Phase of the Project as
identified on the Development Plan, which shall contain four hundred (400)
units.
"Phase Proiect Schedule" shall have the meaning ascribed
to it in Section 4.1.
"Project Schedule" has the meaning ascribed to it in
Section 4.1.
"Proiect" means the improvements to be constructed by
Developer consisting of approximately one thousand fifty (1,050) Residential
Units and approximately seventy five thousand (75,000) square feet of retail
and office space, with a variety of housing products which will be developed
in accordance with the Development Plan.
"PMTE Program" has the meaning ascribed to it in
Section 10.2.
"Residential Units" shall consist of apartments,
townhouses, lofts, live/work units (Le., commercial units which are bundled
with a residential unit) (the "Live/Work Units"), which will be constructed in
mid -rise structures and high-rise structures on the Property.
"Reverter Property" shall mean the property which is
more particularly described on Exhibit "H" attached hereto and made a part
hereof, which is -subject to a right of reverter in favor of the Miami -Dade
County.
Section 8.1.
Section 10.1.
Section 8.2.
"SHIP Funds" has the meaning ascribed to it in
"STE Program" has the meaning ascribed to it in
"Subsidized Units" has the meaning ascribed to it in
"Surtax Funds" has the meaning ascribed to it in
Section 8.1.
"Unavoidable Delay" has the meaning ascribed to it in
Section 14.1.
ARTICLE III
RESTRICTIVE COVENANTS
Section 3.1 Use Prohibitions of the Property. The Property shall not
be used for any unlawful or illegal business, use or purpose, or for any
business, use or purpose which is immoral or disreputable (including, without
limitation, "adult entertainment establishments") or extra -hazardous, or in
such manner as to constitute a nuisance of any kind (public or private), or for
any purpose or in any way in violation of the certificates of occupancy, the
MUSP or other similar approvals of applicable governmental authorities or
the Development Plan, as same may be amended from time to time, pursuant
to the terms of this Covenant.
Section 3.2 No Discrimination No covenant, lease, agreement,
conveyance or other instrument shall be affected or executed by Developer, or
any of its successors or assigns, whereby the Property or any portion thereof
is restricted by Developer, or any successor in interest, upon the basis of race,
color, religion, sex, national origin or handicap in the sale, lease, use or
occupancy thereof. Developer will comply with all applicable state and local
laws, in effect from time to time, prohibiting discrimination or segregation by
reason of race, color, religion, sex, national origin or handicap in the sale,
lease or occupancy of the Property.
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ARTICLE IV
DEVELOPMENT RESTRICTIONS
Section 4.1 Development Plan. Development of the Property (the
"Developer Improvements") shall be limited to the construction
approximately one fifty thousand (1,050) Residential Units on the Property,
consisting of townhomes, lofts, 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, in accordance with the detailed development plan for the Project which
is attached hereto as Exhibit "B" and made a part hereof (the "Development
Plan"). The Development Plan includes (i) the site plan for the entire Project;
(ii) the Block by Block breakdown of the Project, including without limitation,
the number, type, style and size of units to be constructed in each Block; (iii)
the Phasing Plan for the Project, including the number, type, style and size of
units to be included in each Phase; (iv) the Project schedule for the overall
Project (the "Project Schedule"); (v) the Project schedule with respect to each
Phase (the "Phase Project Schedule"); and (vi) the breakdown of the
Affordable Units and the Subsidized Units to be included in each Phase of the
Project, which includes a breakdown of the square footage and unit mix of the
Affordable Units and the Subsidized Units. Developer 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.
Section 4.2 Conformity of Plans. Any and all construction plans and
all work by Developer with respect to the Property and the construction of the
Developer Improvements shall be in strict conformity with the Development
Plan, all applicable governmental approvals, the MUSP, the Miami Charter
and Code, applicable building codes, and all other applicable state, county
and local laws and regulations.
Section 4.3 Amendment to Development Plan. Any and all
amendments to the Development Plan shall be submitted to the Executive
8
Director for review and approval. The Developer shall provide to the
Executive Director such additional backup information as the Executive
Director may reasonably request to enable the Executive Director to analyze
and approve the amendment to the Development Plan. The Executive
Director shall have fifteen (15) days from the receipt of the proposed
amendment to the Development Plan to review and approve same. The
failure of the Executive Director to respond within the fifteen (15) day period
shall be deemed denial. The Executive Director may approve all proposed
amendments to the Development Plan which are less than five percent (5%)
provided same do not change the overall character of the Project (i.e. an
increase or decrease in the number of units by up to five percent (5%) or an
increase or decrease in the square footage of the Project by up to five percent
(5%) which changes do not substantially change the character or site plan for
the Project). Any changes in excess of five percent (5%) shall be submitted to
the CRA Board for approval, in which event CRA shall have ninety (90) days
from the receipt of the proposed amendment to the Development Plan to take
CRA Board action. The failure of the CRA Board to take action within ninety
(90) days shall be deemed denial of the requested change to the Development
Plan.
ARTICLE V
PROJECT SCHEDULE
Section 5.1 Project Schedule. Developer shall develop the Project in
accordance with the Project Schedule, subject to extension as a result of
Unavoidable Delays.
Section 5.2 Extensions of Project Schedule. Any and all amendments
to the Project Schedule, other than those occurring as a result of Unavoidable
Delays, shall be submitted to the Executive Director for review and approval.
The Developer shall provide to the Executive Director such additional back-
up information as the Executive Director may reasonably require to enable
the Executive Director to analyze the request for an extension to the Project
9
Schedule, other than as a result of Unavoidable Delays. Any proposed
extension to the Project Schedule shall be submitted to the CRA Board for
approval, which approval may be granted or denied in the sole discretion of
the CRA Board.
ARTICLE VI
CONDITIONS FOR DEVELOPMENT OF PHASE
Section 6.1 Requirements to be Satisfied Prior to the Development of
each Phase. Prior to commencing construction of the Developer
Improvements with respect to each Phase of the Project, Developer shall
comply with each of the following requirements with respect to such Phase:
6.1.1 Construction Plans. For purposes of this Covenant,
with respect to each Phase, the "Construction Plans" shall consist of final
working drawings and specifications, including without limitation, the
following information:
a. Final site plan for the Phase;
b. Floor by floor layouts of each building included in
the Phase;
c. Exterior elevations of each building included in the
Phase; and
d. Final landscape plans for the Phase.
With respect to each Phase, Developer shall submit to the
Executive Director three (3) sets of the Construction Plans for review and
approval. The Executive Director shall have fifteen (15) days from receipt of
the Construction Plans to notify Developer of its approval or disapproval,
setting forth in detail its reasons for any disapproval. The Executive
Director's right to disapprove the Construction Plans submitted shall be
limited to matters depicted on the Construction Plans which: (i) do not
conform to the Development Plan, as same may be amended; (ii) do not
conform to previously approved Construction Plans; or (iii) are in violation of
this Covenant or of governmental ordinances, codes, plans or regulations. If
10
no response from the Executive Director is delivered to the Developer within
fifteen (15) days after the submission of such Construction Plans, or any
resubmission thereof as hereinafter provided, the Construction Plans shall be
deemed approved, except that no violations of applicable laws, ordinances,
codes, regulations of this Covenant shall be deemed waived thereby. In the
event of disapproval, Developer shall promptly resubmit the Construction
Plans to the Executive Director, altered to address and/or satisfy the grounds
for disapproval. Any resubmission shall be subject to the review and
approval by the Executive Director in accordance with the procedures
outlined herein for the original submission until same have been approved by
the Executive Director. The Executive Director and the Developer shall in
good faith attempt to resolve any disputes regarding the Construction Plans.
No approval by the Executive Director of any Construction Plans, pursuant to
this Section, shall relieve the Developer of any obligation it may have
pursuant to applicable law to file such Construction Plans with any
department of the City or any other governmental authority having
jurisdiction or to obtain a building or other permit or approval required by
applicable law. The Developer acknowledges that the approval given by the
Executive Director, pursuant to this Section, shall not constitute an opinion
or agreement by the CRA that the Construction Plans are structurally
sufficient or in compliance with any laws, codes, or other applicable
regulations and no such approval shall impose any liability on or waive any
rights of the CRA. The Developer agrees that it shall provide to the CRA
copies of all plans and specifications used in the construction of the Developer
Improvements upon completion of each Phase of the Project.
6.1.2 Phase Construction Budget. Developer shall submit to
the Executive Director for its review and approval, a detailed budget
reflecting all hard and soft costs anticipated to be incurred by Developer in
connection with the development of the respective Phase (the "Construction
Budget"). The Developer shall provide to the Executive Director such
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additional backup information as the Executive Director may reasonably
request to enable the Executive Director to analyze the Construction
Budget. The Executive Director shall have fifteen (15) days after receipt of
the Construction Budget to approve same, which approval shall not be
unreasonably withheld. If no response from the Executive Director is
delivered to the Developer within fifteen (15) days after submission of the
Construction Budget, same shall be deemed approved. In the event of
disapproval, the Executive Director shall specify the specific reasons for
such disapproval. In the event of disapproval, the Developer shall
resubmit the Construction Budget to the Executive Director, amended to
address and/or satisfy the grounds for disapproval specified by the
Executive Director. Any resubmission shall be subject to agreement and
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 Developer shall in good
faith attempt to resolve any disputes regarding the Construction Budget.
6.1.3 Construction Contract. Developer shall submit to the
Executive Director for its review and approval the construction contract for
the respective Phase (the "Construction Contract"), which shall include the
schedule of values for the Phase. The Developer shall provide to the
Executive Director such additional backup information as the Executive
Director may reasonably request to enable the Executive Director to
analyze and approve the Construction Contract. The Executive Director
shall have fifteen (15) days after receipt of the Construction Contract to
approve same, which approval shall not be unreasonably withheld. The
Executive Director shall approve any Construction Contract that is
substantially similar in form to the Construction Contract for Phase I,
which has been approved by the Executive Director. If no response from
the Executive Director is delivered to the Developer within fifteen (15) days
after submission of the Construction Contract, same shall be deemed
12
approved. In the event of disapproval, the Executive Director shall specify
the specific reasons for such disapproval. In the event of disapproval, the
Developer shall resubmit the Construction Contract to the Executive
Director revised to address and/or satisfy the grounds for disapproval
specified by the Executive Director. Any resubmission shall be subject to
agreement and 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 Developer
shall in good faith attempt to resolve any disputes regarding the
Construction Contract,
6.1.4 Construction Schedule. Developer shall submit to the
Executive Director for its review and approval the specific schedule for
development of such Phase (the "Construction Schedule"). The Developer
shall provide to the Executive Director such additional backup information
as the Executive Director may reasonably request to enable the Executive
Director to analyze the Construction Schedule. The Executive Director
shall have fifteen (15) days after receipt of the Construction Schedule to
approve same, which approval shall not be unreasonably withheld. If no
response from the Executive Director is delivered to the Developer within
fifteen (15) days after submission of the Construction Schedule, same shall
be deemed approved. The Executive Director's right to disapprove the
Construction Schedule shall be limited to matters which do not conform
with the Project Schedule. In the event of disapproval, the Executive
Director shall specify the specific reasons for such disapproval. In the
event of disapproval, the Developer shall resubmit the Construction
Schedule to the Executive Director, altered to address and/or satisfy the
grounds for disapproval specified by the Executive Director. Any
resubmission shall be subject to agreement and 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
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Executive Director and Developer shall in good faith attempt to resolve any
disputes regarding the Construction Schedule.
6.1.5 Minority Participation. Developer shall submit evidence
to the Executive Director evidence of compliance with the Minority
Participation Requirements of Sections 7.2.1, 7.2.2, 7.2.3 and 7.2.4 with
respect to the Phase. The Developer shall provide to the Executive Director
such additional backup information as the Executive Director may
reasonably request to enable the Executive Director to confirm compliance
with the Minority Participation Requirements. The Executive Director shall
have fifteen (15) days after receipt of the minority participation
documentation to approve same, which approval shall not be unreasonably
withheld. If no response from the Executive Director is delivered to the
Developer within fifteen (15) days after submission of the minority
participation documentation, same shall be deemed approved. The Executive
Director shall approve the minority participation documentation if it
evidences compliance with requirements of Sections 7.2.1, 7.2.2, 7.2.3 and
7.2.4. In the event of disapproval, the Executive Director shall specify the
specific reasons for such disapproval. In the event of disapproval, the
Developer shall resubmit the minority participation documentation to the
Executive Director, revised to address and/or satisfy the grounds for
disapproval specified by the Executive Director. 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 Developer shall in
good faith attempt to resolve any disputes regarding compliance with the
Minority Participation Requirements. Notwithstanding the Executive
Director's approval of the minority participation documentation, the
Developer shall be required to comply with the Minority Participation
Requirements set forth in Sections 7.2.1, 7.2.2, 7.2.3 and 7.2.4.
14
6.1.6 Loan Commitment. Developer shall have provided to the
Executive Director a loan commitment prepared by an institution evidencing
that Developer has obtained a construction loan commitment for the
development of the respective Phase (the "Loan Commitment"), which shall
be in form and substance acceptable to the Executive Director and evidence
reasonably satisfactory to the Executive Director that Developer has
sufficient equity available to meet the equity requirements of the Loan
Commitment (the "Equity Requirement"). The Developer shall provide to the
Executive Director such additional backup information as the Executive
Director may reasonably request to enable the Executive Director to analyze
and approve the Loan Commitment and the Equity Requirement
documentation. The Executive Director shall have fifteen (15) days after
receipt of the Loan Commitment and Equity Requirement documentation to
approve same, which approval shall not be unreasonably withheld. The
Executive Director shall approve the Loan Commitment and Equity
Requirement documentation if it is substantially equivalent to the
documentation submitted and approved by Executive Director with respect to
Phase I. If the Executive Director does not respond to the Developer within
fifteen (15) days after Developer's submission of the Loan Commitment and
Equity Requirement documentation, same shall be deemed approved. In the
event of disapproval, the Executive Director shall specify the specific reasons
for such disapproval. In the event of disapproval, Developer shall resubmit
the Loan Commitment and Equity Requirement documentation to the
Executive Director, altered to address and/or satisfy the grounds for
disapproval specified by the Executive Director. 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 Developer shall in
good faith attempt to resolve any disputes regarding the Loan Commitment
and Equity Requirement documentation.
15
Section 6.2 Phase I. The CRA acknowledges and agrees that the CRA
has approved the Construction Contract, the Budget, the Loan Commitment,
the Equity Requirement, the Construction Contract, Minority Participation
documentation and the Construction Schedule with respect to Phase I.
Section 6.3 Progress of Construction. Developer shall not commence
construction of the Developer Improvements for any Phase until all of the
requirements of Section 6.1 are satisfied for such Phase. Upon the
satisfaction of all the requirements set forth in Section 6.1, the Developer
shall promptly commence construction of such Phase. Until completion of
construction of the respective Phase, Developer shall keep the Executive
Director apprised of the progress of Developer with respect to such
development and construction. During such period, the work of Developer
shall be made available for inspection by representatives of the Executive
Director. Developer shall provide suitable work space and utilities for the
representative of the CRA, at Developer's sole cost and expense.
Section 6.4 Certificate of Final Completion. Promptly after the
completion of each Phase of the Developer Improvements in accordance with
the terms of this Covenant and the issuance of certificates of occupancy for all
units included in the respective Phase and the issuance of a certificate of
completion for all commercial space included in the respective Phase by the
City, the Executive Director will furnish Developer with an appropriate
instrument certifying the completion of the Developer Improvements in such
Phase (the "Certificate of Final Completion"). With respect to each Phase,
the Certificate of Final Completion shall be in such form as will enable it to
be recorded in the Public Records of Miami -Dade County, Florida. If the
Executive Director shall refuse or fail to provide Developer with the
Certificate of Final Completion in accordance herewith, the Executive
Director shall, within fifteen (15) days after written request by Developer,
provide Developer with a written statement specifying in adequate detail any
deficiencies in the Developer Improvements for the respective Phase in
16
accordance with the provisions of this Covenant, and what measures and
actions, in the opinion of the Executive Director, are necessary for the
Developer to take or perform in order to obtain such certification.
Section 6.5 Penalties for Non -Compliance with Project Schedule. In
the event that the Developer is not able to complete a Phase within six (6)
months of the scheduled completion date for such Phase in accordance with
the Construction Schedule, as extended for Unavoidable Delays, as evidenced
by the issuance of the Certificate of Final Completion (the "Completion
Date"), Developer shall pay to the CRA a non-compliance fee of $10,000.00
per month (the "Non -Compliance Fee") for each month after the Completion
Date until the Completion Date is achieved. For purposes of this Section, a
Phase shall be deemed complete ("Completion") when temporary certificates
of occupancy have been issued for all of the Residential Units included in the
respective Phase and certificates of completion have been issued for all
commercial space included in the respective Phase and the issuance of a
Certificate of Final Completion. The Non -Compliance Fee shall be paid
monthly on the first day of each and every month until the Completion is
achieved. The Non -Compliance Fee shall be prorated for partial months.
The Non -Compliance Fee shall apply on a Phase by Phase basis.
Section 6.6 Termination of Restriction. Upon Completion of
construction of all Phases of the Project in accordance with the approved
Development Plan, as evidenced by the issuance of Certificates of Final
Completion for each Phase, the provisions of this Article VI shall be of no
further force and effect.
ARTICLE VII
MINORITY PARTICIPATION
Section 7.1 Minority and Women Participation and Equal
Opportunity. The Developer agrees that, during the course of construction of
the Developer Improvements, Developer will:
17
7.1.1 Take definitive action in the recruitment, advertising
and to attract and retain minority and female contractors and
subcontractors;
7.1.2 Provide a reasonable opportunity in the recruitment,
advertising and hiring of contractors and subcontractors residing within
the CRA Redevelopment Area and within the City of Miami;
7.1.3 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;
7.1.4 Maintain equitable principles in the recruitment,
advertising, hiring, upgrading, transfer, layoff, termination, compensation
and all other terms, conditions and privileges of employment;
7.1.5 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;
7.1.6 Post in conspicuous places, availability to employees
that applicants for employment, notices in a form to be provided to the
Executive Director, setting forth this non-discrimination clause; and
7.1.7 In all solicitations and advertisements for employment
placed by or on behalf of Developer, state that all applicants will receive
consideration for employment without regard to race, creed, color or
national origin.
Section 7.2 Participation Requirements.
7.2.1 Construction. Developer 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
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7.2.2 Design. Developer agrees to comply with the following
minority and female participation requirements with respect to design:
10% Black participation
5% Female participation
10% Hispanic participation
7.2.3 Property Management. Developer 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
7.2.4 Sales and Marketing. Developer agrees to comply with
the following minority participation requirement with respect to its sales
and marketing staff
20% Black participation
Section 7.3 Report Requirements. The Developer shall 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 construction, design and property management during the
preceding year (the "Minority Participation Reports"). To the extent of any
disputes between Developer 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.
Section 7.4 Penalties for Non -Compliance. To the extent that
Developer fails to comply with the Minority Participation Requirements on a
phase by phase basis in each category described in Section 7.2, Developer
shall pay to the CRA as a penalty Five Thousand and No/100 Dollars
($5,000.00) for each percentage point below the requirement set forth in
Sections 7.2.1, 7.2.2, 7.2.3 and 7.2.4, in each respective category Developer
19
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
Developer'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 Developer 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.
Section 7.5 Report Requirements. Developer shall submit to the
Executive Director, on an annual basis, such documentation as the Executive
Director may reasonably request to evidence of compliance with the Minority
Participation Requirements with respect to each of the categories described
in Section 7.2 during the preceding year (the "Minority Participation
Reports") on a Phase by Phase basis. The Developer shall provide to the
Executive Director such additional backup information as the Executive
Director may reasonably request to enable the Executive Director to confirm
compliance with the Minority Participation Requirements. To the extent of
any disputes between the Developer 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 on the parties.
Section 7.6 Termination. The Minority Participation Requirements of
Sections 7.2.1 and 7.2.2 shall terminate upon Completion of all Phases of the
Project.
Section 7.7 Impossibility to Perform. Developer acknowledges that
the Minority Participation Requirements are mandatory requirements and
not an obligation to utilize best efforts. In the event that Developer, in good
20
faith, believes that it is impossible to satisfy some or all of the Minority
Participation Requirements for any given year as a result of there not being a
sufficient number of minority and female job candidates available to comply
with the Minority Participation Requirements for that year, Developer may
request that the City Manager reduce the applicable Minority Participation
Requirements, in the applicable category, for that year provided that
Developer 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 during the respective year to comply with the applicable Minority
Participation Requirements. The decision of the City Manager shall be
binding on Developer and the CRA with respect to the year in question.
Section 7.8 Professionals. Developer shall utilize its best efforts to
employ African American and other minorities to provide professional
services to Developer in connection with the Project, including, without
limitation, lawyers and accountants. Developer shall utilize its best efforts to
cause existing professionals employed by Developer to joint venture with
African Americans and other minorities to expand minority participation in
the Project in connection with the provision of professional services.
ARTICLE VIII
AFFORDABLE HOUSING
Section 8.1 Affordable Housing Requirement. Developer 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 8.9; or (b) to purchasers whose gross income is between
21
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 Developer
is required to provide. By way of example, if the Project includes 1,050
Residential Units, including 150 Live/Work Units, Developer 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 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
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. Developer shall be
required to satisfy the Affordable Housing Requirement notwithstanding the
unavailability of governmental subsidies. Developer acknowledges and
agrees that Developer is required to satisfy the Affordable Housing
Requirement irrespective of Developer'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").
Developer further acknowledges that the City and the CRA have made no
representations to Developer regarding the availability of housing subsidy
22
funds including Surtax Funds, HOME Funds, SHIP Funds or other sources of
funds and Developer assumes the risk as to whether housing subsidies will
be available for the Project. Residential Units sold to Overtown Residents, as
hereinafter defined, shall be deemed to comply with the Affordable Housing
Requirement.
Section 8.2 Subsidized Units. Developer shall construct fifty
(50) units as part of the Project, comprising a portion of the Affordable Units,
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 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 Developer 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.
Section 8.3 Implementation. Developer 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 Developer in implementing a program to
comply with the Affordable Housing Requirement; and (ii) retain a full-time
23
recruiter and loan processor to identify and qualify potential purchasers of
the Affordable Units to be sold by Developer and Subsidized Units to be sold
by the CRA, or its designee, and implement the program developed by
Developer to satisfy the Affordable Housing Requirement until Developer's
obligations regarding the Affordable Housing Requirements have been
satisfied
Section 8.4 Housing Subsidies. The CRA covenant and agree
to utilize its good faith efforts to obtaining Surtax Funds, HOME Funds,
SHIP Funds and other housing assistance with respect to the Subsidized
Units.
Section 8.5 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.
Section 8.6 Affordable Units. Developer shall first offer the
Affordable Units to residents of the area of the City of Miami which is more
particularly described in Exhibit "C", 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.
Section 8.7 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.
Section 8.8 Reporting Requirements and Compliance.
8.8.1 Reporting Requirements. 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, Developer shall be required to submit to the Executive
24
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 or Subsidized 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%).
(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
25
applicable, with respect to the financing of
the acquisition of the unit.
8.8.2 Disputes. To the extent of any disputes between
Developer and the Executive Director with respect to whether the
purchasers of the units meet the applicable requirements of Sections 8.1,
8.2 and this Section 8.8, the dispute will be submitted to arbitration for
resolution, which resolution shall be binding on the parties.
Section 8.9 Penalties for Non -Compliance. To the extent that
Developer fails to comply with the Affordable. Housing Requirement on a
phase by phase basis as determined in accordance with Section 8.8 above,
then in such event, Developer 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 Developer into compliance, one hundred
twenty-five percent (125%) of the difference between the average sales price
that Developer 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
8.8 (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 8.8 multiplied by one hundred twenty-five percent
26
(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 eighty (180) days after the issuance of
a temporary certificate of occupancy for the last Residential Unit included in
the applicable phase.
Section 8.10 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 8.1 and 8.9, 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 8.2 and 8.8, 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.
Section 8.11 Overtown Residents. Developer shall utilize its best
efforts to sell twenty percent (20%) of the Residential 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. Developer 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
27
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 8,10 shall not
apply to the sale of any units to Overtown Residents.
Section 8.12 Prosperity Based Initiative. In connection with the sales
and marketing of the Units, Developer 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.
ARTICLE IX
FIRST SOURCE HIRING AGREEMENT
Section 9.1 FIRST SOURCE HIRING AGREEMENT. Developer and
the CRA have entered into a first source hiring agreement for the Property
which is attached hereto as Exhibit "D" and incorporated herein by reference
(the "First Source Hiring Agreement"). Developer covenants and agrees to
comply with the requirements of the First Source Hiring Agreement.
ARTICLE X
EMPLOYMENT TRAINING PROGRAM
Section 10.1 Construction. Developer, 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 which is described on Exhibit "E"
attached hereto and made a part hereof (the "STE Program"). The
obligations of the Developer with respect to the STE Program shall terminate
upon completion of construction of the Project in accordance with the
28
Development Plan and the issuance of Final Certificates of Completion with
respect to all Phases of the Project.
Section 10.2 Property Management. Developer, 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 which is described on
Exhibit "F" attached hereto and made a part hereof (the "PMTE Program").
The obligations of the Developer with respect to the PMTE Program shall
terminate two (2) years after the completion of construction of the Project in
accordance with the Development Plan and the issuance of Final Certificates
of Completion with respect to all Phases of the Project.
ARTICLE XI
TAX INCREMENT FUNDS
[THIS ARTICLE MAY BE REMOVED FROM THE COVENANT IN
THE EVENT THE CITY ATTORNEY DETERMINES THE PROPOSED
USE OF INCREMENTAL, TIF IS NOT IN ACCORDANCE WITH
APPLICABLE LAW]
Section 11.1 Incremental Increase in Tax Increment Funds. Subject to
Sections 11.2, 11.3, and 11.5 below, the CRA covenants and agrees to make
available to Developer 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 Property and any improvements constructed thereon over and above the
assessed value for the Property set forth in the Miami -Dade County ad
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 Developer within sixty (60) days of the CRA's
actual receipt of the Incremental TIF from the County and the City to be
utilized by Developer for qualifying uses permitted under applicable law for
29
use of tax increment funds with respect to the Project, and at the election of
Developer, within the Overtown Project Area. Developer acknowledges that
the County and the City withhold from the tax increment funds an
administrative fee and funds for the Children's Trust.
Section 11.2 Use of Incremental TIF. Developer 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
Developer shall not be entitled to, and the CRA will not disburse any of the
Incremental TIF to Developer unless and until Developer 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
Developer is permissible under applicable law. Developer 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. Developer further acknowledges that all
Incremental TIF shall be used solely in connection with the development of
the Project or within the Overtown Project Area.
Section 11.3 Failure to Qualify. To the extent that Developer 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 Developer 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 Developer and which entity requests the funds from
the CRA. If Developer is unable to identify such an entity which wants to
utilize the Incremental TIF in connection with the Project, the CRA shall be
30
entitled to utilize that portion of the Incremental TIF for which Developer 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 Developer.
Section 11.4 Extension of the CRA. Developer 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, Developer acknowledges that notwithstanding the
extension of the term of the CRA, the CRA is not obligated to pay to
Developer any Incremental TIF generated from and after September 30,
2013. In the event the term of the CRA is extended beyond September 30,
2013, Developer shall have the right to request that the CRA pay to
Developer 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 Developer as a result of the payment of
the Incremental TIF to Developer prior to September 30, 2013.
Section 11.5 Subordination of Incremental TIF. Developer
acknowledges and agrees that the obligation of the CRA to make the
payments to Developer contemplated by Section 11.1 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,
31
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
Developer 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.
Section 11.6 Change in Use of Incremental TIF. Developer shall not
be permitted to change the use of the Incremental TIF 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.
Section 11.7 Indemnification. Developer 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 use of the
Incremental TIF.
ARTICLE XII
VIOLATION OF COVENANT
Section 12.1 Violation by Developer. Developer shall be in default
under this Covenant (a "Developer Default") in the event that the Developer
fails to comply with any of the covenants, conditions and agreements which
are the obligation of the Developer under this Agreement, and the
continuance of such failure for a period of thirty (30) days after notice thereof,
in writing, from the CRA to the Developer (which notice shall specify the
respects in which the CRA contends that Developer has failed to perform any
such covenants, conditions and agreements), or such longer time as is
reasonably required (not to exceed one hundred twenty (120) days) if the
default, by its nature, cannot be cured within the thirty (30) day period,
provided Developer shall have commenced the curative action within the
32
thirty (30) day period and thereafter shall have continued diligently to
prosecute all actions necessary to cure such default until completion, but in
no event beyond one hundred twenty (120) days after notice thereof from the
CRA.
Section 12.2 Remedies for Developer Default. Upon the occurrence of a
breach of a Developer Default, the CRA may pursue all remedies available at
law or in equity as a result of such Developer Default, including without
limitation, specific performance, without waiving any action for damages
resulting from Developer's breach of this Covenant.
Section 12.3 Violation by CRA. The CRA shall be in default under this
Covenant (a "CRA Default") in the event that the CRA fails to perform any of
the covenants, conditions and agreements of this Covenant which are to be
performed by the CRA and the continuance of such failure for a period of
thirty (30) days after written notice from the Developer to the CRA (which
notice shall specify the respects in which Developer contends that the CRA
has failed to perform any of such covenants, conditions and agreements) or
such longer time as is reasonably required (not to exceed one hundred fifty
(150) days) if the Default, by its nature, cannot be cured within thirty (30)
days period, provided the CRA shall have commenced the curative action
within the thirty (30) day period and thereafter shall have continued
diligently to prosecute all actions necessary to cure such default until
completion, but in no event beyond one hundred fifty (150) days notice
thereof from the Developer.
Section 12.4 Remedies for CRA Default. Upon the occurrence of a CRA
Default, the Developer may pursue all remedies available at law or in equity
as a result of such CRA Default, including, without limitation, specific
performance, without waiving any action for damages resulting from the
CRA's breach of this Covenant.
ARTICLE XIII
ARBITRATION
33
Section 13.1 Panel. A panel of arbitrators ("Arbitration Panel") shall
be established when required by this Covenant.
(a) The appointments to the panel shall be made in the
following manner:
(i) The CRA shall name one member;
(ii) Developer shall name one member; and
(iii) The aforesaid members shall promptly name a
third member.
(b) Every member of the Arbitration Panel must be either an
attorney in good standing licensed to practice law in the State of Florida for
at least fifteen (15) years; a retired State of Florida or U.S. District Court
Judge; a CPA with at least fifteen (15) years experience; a developer with like
kind experience as the Developer; a MAI certified appraiser licensed in the
State of Florida; or any other person stipulated to by Developer and the CRA.
(c) If either party shall fail to designate a member within
fifteen (15) days after a written request so to do by the other party, then such
other party may request the Chief Judge of Circuit Court of the Eleventh
Judicial Circuit in and for Miami -Dade County, Florida to designate a
member, who when so designated shall act in the same manner as if he had
been the member designated by the party so failing to designate an
arbitrator. If the two members are unable to agree upon a third member
within ten (10) days from the last date of designation, such third member
shall be designated by the Chief Judge of Circuit Court of the Eleventh
Judicial Circuit in and for Miami -Dade County, Florida, upon the request of
either of the two members.
ARTICLE XIV
UNAVOIDABLE DELAY
Section 14.1 Unavoidable Delay. For the purpose of any of the
provisions of this Covenant, the term "Unavoidable Delay" shall mean a delay
in the performance of such obligation which has a reasonably demonstrable
34
effect on the Project due to area wide strikes, area wide lockouts, acts of God,
inability to obtain labor or materials due to governmental restrictions, enemy
action, civil commotion, fire, unavoidable casualty, hurricanes, unusual
weather conditions, earthquakes or other natural catastrophes, and
governmental or court imposed moratorium or injunction which materially
effects Developer's construction of the Developer Improvements and other
similar causes beyond the reasonable control of the party (specifically
excluding said parties solvency or financial condition and typical ordinary
delays in obtaining permits and other approvals from governmental
authorities). In the event of the occurrence of any such Unavoidable Delay,
the time or times for the performance of the covenants, provisions and
agreements of this Covenant, shall be extended for the period of delay
actually caused by the Unavoidable Delay; provided, however, that the party
seeking the benefit of the provisions of this Section shall, within ten (10)
days after such party shall have become aware of such Unavoidable Delay,
give written notice to the other party, stating the event purportedly
constituting the Unavoidable Delay and as soon as reasonably possible
thereafter provide written notice to the other party of the additional period of
time required for any performance as a result of the Unavoidable Delay. The
failure to provide such notice shall constitute the waiver of the right of that
party to claim that an Unavoidable Delay has occurred. Any dispute between
the Developer and the CRA as to whether an Unavoidable Delay has occurred
and/or the duration of the delay caused by the Unavoidable Delay shall be
decided by arbitration pursuant to Article XIV of this Covenant at the
request of either party.
ARTICLE XV
MISCELLANEOUS PROVISIONS
Section 15.1 Notice. Any notice required or permitted to be given
under this Covenant shall be delivered either by hand, by registered or
certified mail, postage prepaid, return receipt requested, or delivered by a
35
nationally recognized overnight delivery service and addressed as described
below; notices shall be deemed effective only upon receipt or refusal of
delivery.
If to the Developer:
c/o
With a copy to:
, Esq.
If to the CRA and Executive Director:
SOUTHEAST OVERTOWN/PARK WEST
COMMUNITY REDEVELOPMENT AGENCY
Attention: Executive Director
49 N.W. 5th Street
Suite 100
Miami, Florida 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
701 Brickell Avenue
Suite 3000
Miami, Florida 33131
James H. Villacorta, Esq.
49 N.W. 5th Street
Suite 100
36
Miami, Florida 33128
Section 15.2 Estoppel Certificates. The CRA and Developer shall at
any time and from time to time, within thirty (30) days after written request
by the other, execute, acknowledge and deliver a certificate to the party
which has requested the same or to any prospective Mortgagee, assignee or
subtenant designated by Developer. The certificate shall state (i) that the
Covenant is in full force and effect and has not been modified, supplemented
or amended in any way, or, if there have been modifications, that this
Covenant is in full force and effect as modified, identifying such modification
Covenant, and if this Covenant is not in force and effect, the certificate shall
so state; (ii) that this Covenant, as modified, represents the entire Covenant
between the parties as to the covenants running with the Property, or, if it
does not, the certificate shall so state; (iii) the dates on which the term of this
Covenant commenced and will terminate; (iv) that all conditions under this
Covenant to be performed by the CRA or Developer, as the case may be, have
been satisfied and, as of the date of such certificate, there are no existing
defenses or offsets which the CRA or Developer, as the case may be, has
knowledge against the other party preventing enforcement of this Covenant
by such other party, or, if any conditions contained in this Covenant and
required to be performed by a party have not been satisfied or if there are any
defenses or offsets, the certificate shall so state. The party to whom any such
certificate shall . be issued may rely on the matters therein set forth and
thereafter the party issuing the same shall be estopped from denying the
veracity or accuracy of the same. Any certificate required to be made by the
CRA pursuant to this paragraph may be made on its behalf by the Executive
Director.
Section 15.3 Waiver of Jury Trial. THE PARTIES HEREBY
KNOWINGLY, IRREVOCABLY, VOLUNTARILY AND INTENTIONALLY
WAIVE ANY RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY ACTION, PROCEEDING OR COUNTERCLAIM BASED
37
ON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
COVENANT OR ANY AMENDMENT OR MODIFICATION OF THIS
COVENANT, OR ANY OTHER COVENANT EXECUTED BY AND
BETWEEN THE PARTIES IN CONNECTION WITH THIS COVENANT, OR
ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTION OF ANY PARTY
HERETO. THIS WAIVER OF JURY TRIAL PROVISION IS A MATERIAL
INDUCEMENT FOR THE CRA AND THE DEVELOPER TO ENTER INTO
THE SUBJECT TRANSACTION.
Section 15.4 Covenants to Run with the Land. All covenants,
agreements, conditions and undertakings contained herein shall extend and
inure to the benefit of and be binding upon the parties hereto and their
respective successors and assigns and shall be construed as covenants
running with the Property. Wherever in this Covenant reference is made to
any of the parties, it shall (unless expressly provided to the contrary in such
reference) be held to include and apply to, wherever applicable, also the
successors and assigns of each party.
Section 15.5 Attorneys' Fees and Expenses. In the event of any
litigation between the parties, all expenses, including reasonable attorneys'
fees and court costs at both the trial and appellate levels, incurred by the
prevailing . party, shall be paid by the non -prevailing party. The term
"attorneys' fees," as used in this Covenant, shall be deemed to include,
without limitation, any paraprofessional fees, investigative fees,
administrative costs and other charges billed by the attorney to the
prevailing party (including any fees and costs associated with collecting such
amounts).
Section 15.6 Administrative Expenses. Developer covenants and
agrees to reimburse the CRA, on a quarterly basis, for all out of pocket costs
and expenses incurred by the CRA from and after the execution of this
Covenant through the completion of construction of the Project and the sale
38
of the Affordable Units, in connection with overseeing and monitoring the
activities of Developer, pursuant to the terms of this Covenant, 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 Developer, evidence of such out of pocket expenses
not more often than quarterly. Developer 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 Developer and
the Execution 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
Developer within thirty (30) days of when due shall bear interest at eighteen
percent (18%) per annum until paid.
Section 15.7 Severability. If any of the provisions of this Covenant or
the application thereof to any person or situation shall, to any extent, be held
invalid or unenforceable, the remainder of this Covenant and the application
of such provision to persons or situation other than those as to which it shall
have been held invalid or unenforceable, shall not be affected thereby and
shall continue valid and be in force to the fullest extent permitted by law.
Section 15.8 Caption. The Covenant headings and captions contained
in this Covenant are for convenience and reference only and in no way define,
limit or describe the scope of intent of this Covenant.
Section 15.9 Construction. All pronouns and any variations thereof
shall be deemed to refer to the masculine, feminine, or neuter, singular or
plural, as the identity of the party or parties may require.
Section 15.10 Governing Law. The validity of this Covenant and
all of its terms or provisions, as well as rights and duties of the parties
hereunder shall be interpreted and construed in accordance with the laws of
the State of Florida. Venue shall be in Miami -Dade County, Florida.
39
Section 15.11 Termination of the CRA. Upon the termination of
the CRA, all rights and obligations of the CRA under this Covenant shall
automatically transfer to the City and upon such transfer all references in
this Covenant to the CRA shall be deemed references to the City and all
references to the Executive Director shall be deemed references to the City
Manager.
Section 15.12 Cooperation. The parties to this Covenant hereby
covenant and agree to utilize their good faith efforts to cooperate with each
other to carry out the spirit and intent of this Covenant.
Section 15.13 Amendments. This Covenant may not be amended,
modified, altered or changed in any respect except by further agreement in
writing duly executed by all parties hereunder and their respective
mortgagees. No amendment, modification, alteration or change to this
Covenant shall be binding upon any holder of any mortgage unless approved
in writing by such mortgagee. Such approval shall not be delayed, charged
for or unreasonably withheld.
[SIGNATURE PAGES TO FOLLOW[
40
IN WITNESS WHEREOF, Developer and the CRA have executed this
Covenant as of the day and year first above written.
Signed in the presence of:
DEVELOPER:
By:
Print Name: Its:
By:
Print Name: Title:
CRA:
SOUTHEAST OVERTOWN / PARK
WEST COMMUNITY
REDEVELOPMENT AGENCY, an
agency of the State of Florida
By:
Print Name: Frank Rollason
Title: Executive Director
Print Name:
ATTEST:
Priscilla A. Thompson
Clerk of the Board
41
APPROVED AS TO LEGAL APPROVED AS TO INSURANCE
SUFFICIENCY: REQUIREMENTS:
Holland & Knight LLP, as Insurance Manager
special counsel
STATE OF FLORIDA )
)SS
COUNTY OF MIAMI-DADE )
Sworn to (or affirmed) and subscribed before me this day of
200, by , the of
, the of ,
a , on behalf of the
and the , who is personally
known to me or has produced as Identification.
(SEAL)
Notary Public -State of
Commission Number:
STATE OF FLORIDA )
)SS
COUNTY OF MIAMI-DADE )
Sworn to (or affirmed) and subscribed before me this day of
, 200_, by Frank Rollason, as Executive Director for
Southeast Overtown/Park West Community Redevelopment Agency, who is
personally known to me or has produced as
Identification.
(SEAL)
Notary Public -State of
Commission Number:
# 1700723_v9
42
ARQUITECTONICA
550 Brickef Avenue, Suite 200
Miami, Florida 33131
305.372.1812 TEL
305.372.1175 FAX
www.argint.com
THE DESIGNS INDICATED N TMESE CROAKS ARE PROPERTY Of
ARQUITECTONICA WiERKVIO UCILLLOOPYRIONi'8RESERVED2004,
Q 2004 AROURECTONICA afrESSOUONN,..Inc
CRQSS1NDS
C 0 MM UP11TIES
11.29.04
OVERTOWN MASTERP LAN
Overtown Masterplan - Capacity Study
1/27/2005
Block
2 Level LIveI Work
6 Levels (above)
subtotal
6 Level Midrtse (above)
Stacked 2 Level Live/Work
Commercial
,subtotal
Tower
15/17 Levels
(GSF)
Mldrtse
8 Levels
(GSF)
107,400
107,400
156,400
158,430
Live/Work
2 Levels
(GSF)
Commercial
(GSF)
Untt Count
Subtotal
Area
(GSF)
Required
Parking
Provided Parkis_._^
Street 1 Garage 1 Levels
71,600 111.11111.11.1111.11111.1111111111111
71,600
42,000
147,600
2 Level Live/Work - 252,000
8 Level Mtdrise (above)
16 Level Tower (above)
Commercial
315,000
234,000
2,280
2,250
5,400
subtotal
315,000
234,000
252,000
5,400
28
84
112
128
20
186
71,600
107,400
179,000
158,400
42,000
2,250
308,250 ,
35
105
140
158
26
233
8
8
140
237
98 252,000 120
668 808,400 703 887
192
270
234,000
315,000
6,400
240
338
5
4
I
2 Level Live/Work - 108,000 42 108,000 53 - 2376 Level Midrise (above)
Stacked 2 Level Live/W
Commerotal
subtotal
Block
46
45
55
56
TOTAL
15 Tower 55
ark
Reeks. FAR
Allowable
4,3
2.0
4.0
2.0
Avail. Lot
Area (GSF)
77,000
122,500
215,250
122,600
537,250
162,000
182,000
Resid. Area
Allowable
331,100
246,000
861,000
245,000
1,682,100
42,000
150,000
Resld. Area
Provided
179,000
308,000
801,000
312,000
1,598,000
1.2
GSF/FL Units/Floor Untt Slze Pub Unit Size GSF
21,000 17 1,235.29 1,029.41
2 Level LW+B Midrlse 45 26,400 21 1,257.14 1,047.82
2 Level LW+B Midrise 58 27,000 21 1,255.71 1,071.43
2 Level LW+B Mldrlse 55 39,000 32 1,218.75 1,016.63
2 Level LW 45 21,000 10 2,100.00 1,750.00
2 Level LW 68 21,000 10 2,100.00 1,760.00
2,250
2,260
Coral Area
Provided
2,260
5,400
2,250
9,900
132
20
194
Available
Acres
1.53
2.07
3.44
2.07
9.11
162,000
42,000
2,260
314,250
Units
Provided
112
188
558
194
1,060
165
25
243
Density
(du/ac)
73
90
182
94
115
237
Average Unit 8
GSF
1,598
1,845
1,436
1,808
1,622
Izs
IVSF
11