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HomeMy WebLinkAboutExhibit2• _ INT&R LOCAL AGR 1f/ENT AMONG THE CITY OF MVIIAMI, fORIDA AND M AMI DADE COUNTY, FLORIDA AND MIDTOWN MIAMI COMMUNITY DEVELOPMENT DISTRICT DATED MM*Ry 146 3004 jNTER9CL AGUEMETT TMS INTERLOCAL AGREEMENT (the "Agreementis made and executed this, day of May , 2004 among The City of Miami, Florida, s ratmicipal corporation (the "C 1ty"), Miami -Dade County, Florida, a political subdivision of the Stereo of Florida (tile "Comity"), and the Midtown Miami Community Development District (the "District), a local unit of special pmapose govemmunt established pursuant to Section I.01(A)(21) of the Comity's Rome Role Charter (tine °Chatter") and Chapter 190, Florida Statutes, u amended, known as the Uniform Community Development District Act of 1980 (tree "Act"). WITNESSETH: WHEREAS, it is the propose and intent of this Agree onst to pernntm jnd authorize the sty, the sty and the District to make the roost efficient use of their respective powers, resources, authority and capabilities by enabling them to cooperate on the basis of mutual advantage and to achieve the results provided for in this Agreement pure tort to Section I63.01, Florida Statutes, known as the Florida Intearlocai Cooperation Art of 1969 (the "Cooperation Act'"); and WHEREAS, it is the purpose of the Cooperation Act to provide a meads by which the City, the county and the District may cx vise their respective powers, privileges. and authority which they may have separately, but which pursuant to this Agiteillellt and tire Coopeationt Act they may exercise collectively; and 'WBEREAS, Section I63.01(5)(i) of the Cooperation Act provides than an interlocal agreement may contain a method or fancuds for equitably providing for and allocating and financing capital and operating costs for capital projects and for the; payment of debt service, including establishment of reserves on bonds, on the basis of the amount of beneftts received or conferred by each participating government; and SAS, all of the lauds contained within the boundaries of the District are located entirely within the boundaries of the City; and WHEREAS, the lvfiarni City Coon adopted Resolution No. It-03-135 on November 13, 2003, which supported the petition submitted to the County by Biscayne Development Partners LLC for the creation of the District; and WHEREAS, the District was created by the County pursuant to Ordinawe No. 03-271 adopted by the Board of County Cozumissioners of the County on December I6, 2003 and effective on December 26, 2003, for the pmposs of delivering certain coon nunity development services and lba7itios within and outside the boundaries of the District and WHEREAS, the District bits decided to undertake the construction of curtain roadways (within and outside the boundaries of the District), water and sewer fscilitiaa, a stonuwater management system, ape sud landscape of parking garages ptueat to the Act as more fhlly described in Exhibit A —Part 1 attached to this Agreement (the "Project"); and I t WHEREAS, in connection with the construction of the Project, Biscayne Development Partners LLC, a Florida limited liability company and previous owner of all the lands within the boundaries of the District, or one or more of its affiliates, expects to develop a portion of a mixed -use development within the boundaries of the District to be iaaawn as Midtown Miami (the "Development") and has sold a portion of the lands within the District to Developers Diversified Realty Cotporatian, an Ohio corporation, or one or more of its affiliates, which is expected to develop the remaining portion of the Development (Biscayne Developnment Partners LLC and Developers Diversified Realty Corporation and any applicable affiliate being collectively referred to as the "Developer"); and WHEREAS, without construction ofthe Project the Development cannot be built; and WHEREAS, upon completion, the Development is expected to contain a retail shopping center, residential condominium units with retail areas, an office tower with retail areas, rental apartments, a hotel, an entertainment facility which w ul include retail areas and a spa, public plazas, and parking facilities; and WHERL4S, the Development is erg to stimulate economic development and growth within the City and the County benefiting their citizens and to generate significant revenues for the City and the County, including without limitation, increased ad valorem tax revenue, sales tax revenue, .gas tax revenue, tourist or convention devolopnma t tax revenue and other fees and charges related to the Devdopnnerr4 and WHEREAS, in light of these significant material benefits to be received and enjoyed by the County and the City and their respective residents and the fiscal benefit anticipated to be received by the County and the City as a result of the developman of the Devehrperatt, and in consideration for the performance by the District of its obligations described in this Agreement, the County and the City have agreed to participate in the development of the Project by staking amnia! Boononde Incentive Payments (defined herein) to the District to help defray a portion of the costs of the Project and as an additional source of security for the Bonds (defined herein), all in accordance with the terms of this Agreement; and WHEREAS, pursuant to Chapter 163, Part M. Florida Statutes. as amended (the "Redevelopment Act"), the City and the County desire to cause the Community Redevelopment Agency (defined herein) to establish the Ccanemmity Redevelopment Area (defined herein), and a community redevelopment plan, to enable the Community Redevelopment Agency to rrarove slum and blight within the boundaries of the Cow► Redevelopment Area; and WHEREAS, the Redevelopment Act transfers redevelopment powers to counties with home rule charters such as the County, which is authorized to delegate certain of those powers to a municipality such as the City; and WHEREAS, in the event that the Community Redevelopment Area is established, the County and the City shall cause the Community Redevelopment Agency to contribute Tax Increment Revenues (defined herein) to the District, and the County and the City shall reduce the 2 amount of Economic Incentive Payments to be paid to the Diettiot in proportion to the amount of Tax Increment Revenues paid to the District and shall, under certain circumstances, terminate their obligations to pay Economic incentive Payments entirely, all in accotdanc a with Article in of this Agreement; and WHEREAS, the District intends to finance a portion of the costs of the Project as set forth in more detail in Exhibit A — Part 2 (the "Parking Garage Pr ject"), from, the proceeds of one or more resits of Bonds, and a portion of the oats of the Project as set forth in more detail in Exhibit A — Part 3 (the "General %atlrasttuct ue Project", from the proceeds of the County Loan (defused herein); and WHEREAS, in the event that the County Loot is not provided to the District, the District intends to finance the General infrastructure Project from the proceeds of General Infrastructure Project Bonds (defined herein); and WHEREAS, the District intends to secure payment of the County Loan through the levy of next -ad valorem special assessments (the "Special Assessments") and to secure payment of the Bonds through Special Assessments, Bconornic incentive Payments and Tax batman Revenues received under this Agreement, as provided in the Indenture and the Loan Documents; and SAS, the parties have matted this Aft for the purpose of setting forth ( ) the obligations ofthe District is providing the Project; (0i) the conditions under which the County and the City shall be required to make Economic Incentive Payments to the District; (iii) the conditions tinder which the Comity and the City shall cause the Community Redevelopment Agency to pay Tax Incsme at Revenues to the District; (iv) the aawmnts to be paid by the County and the City and the sources from which the County and the CSty may, and may not, make such payments; (v) the obligation of the City and the County to cause the sty Redevelopment Agency to establish the Community Redevelopment Area; and (vi) other specific provisions relating to the payment of funds by the County and the tfty to the District; and WHEREAS, in order to equitably apportion the bunko of the costs of the Parking Garage Projet, the District shall use the Economic Incentive Payments received from die City and the County and the Tax increment Revenues received front the unity Redevelopment Ageocy to reduce the annonnt of Special Aaasarueets actually collected on each pared of land specially benefited by the Parking Garage Project in proportion to the amount of Economic incentive Payments and/or Tax Increment Revenues generated by each such benefited parcel, all in awe with the terns and conditions of the Indenture (defined herein) and the Special Assessenait psoceedinga ethic District; and WHEREAS, the acquisition, won, equipping and manning of the Project constitutes a public purpose in ace o danoc with Section 166.021, Florida Statutes, and Section 125.045, Florida Statutes, and is in the best interests of all of the parties and their respective residents and citizens; 3 NOW MEREFORE, for and in consideration of the mutual premises set forth above and the covenants, obligations, duties and benefits set forth in this Agreement, the District, the City and the County agree as follows: ARTICLE I DEFINITIONS Section 1.1 Dentitions. In addition to tams defined within the text of this Agreement and in the Indenture, the capitalised tams set forth below shall have the following meanings, unless the context requires a different wing: "Anniud Debt Service" shall mean level paymeate of principal and interest on the Bonds each year in accordance with the debt service schedule determined at the time the Bonds are issued. 'Bonds" shall MCI the I+didtown Miami Community Development District Special Assessment Bonds issued initially in one or more waits pursuant to the provisions of the Indenture to finance the Ping Garage Project "Bonds" shall not include the amend Infrastructure Project Bond& Dante of Occupancy" shall mean a certificate of occupancy issued by the City pursuant to Section 106.1 of the Florida Building Code, "Community Redevelopment Agetrey" shall mean a community redevelopment agency established by the City pursuant to the Redevelopment Act, with such powers delegated to it by the County pursuant to the Redevelopment Act. "Community Redevelopment Area" shall mama the tiunnmity redevelopment area established by the County and the City pursuant to the Redevelopment Act that has the same boundaries as the District and from which Tax Increment Revenues shall be derived. "Completed Development Component* shall mean. a Development Component with respect to which a C tificate of Occupancy has been issued. "County Loan" shall mean the loan by the County to the District dived from the proceeds of the Section 108 Loan and sectored by a pledge of Special Assessments in accxacdasnce with the Loan Documents. "Development Component" shall mean each of the development components listed in Schedule 1. "Economic Incentive Payment" shall mean annual payments to be made by the sty and the County, respectively, from legally available Non -Ad Valorem Revenues, payable in accordance with Schedule I and and Article in of this Agrreement. 4 "Event of Impossibility" shall mean any official governmental action, whether legislative; executive or judicial, with regard to environmental contamination or adverse zoning changes that renders construction of the office component of Phaae Il impossride "Flxanciai Advisor" shall mean an independent financial advisor engaged by the District, the (Sty and the County for the purpose of delivering the certification in Section 3.4.1(BX4) of this Agreement; provided, however, that the fees and expenses of the Financial Advisor shall be paid by the District. "dal Year" shall mean October I through September 30 dead year. "General Infrastructure Project Bones" shall mean one or more series of bonds issued under the Indeanture to finance the General Infrastructure Project, and any additional bonds issued to refund all or a portion of the General Infrastructure Project Bonds or to complete the General Infrastructure Project. Neither Economic Incentive Payments nor Tax Increment Revenues shall be pledged to nay such bonds. "Indenture" shell mean the Master Trust 1 acute„ as amp and supplemented from time to time;, to be entered into by and between the District and Wadrovis Banlr, National Association, as Trustee, in connection with the issuance of the Bands and the General Infrastructure Project Bonds, if any. "Leen Docamenls" shall mean the note, loan agreement and offer related documents with respect to the County Loan. "Maximum Annual Debt Service" shall mean, as of any particular date of calculation, the greatest amount of Annual Debt Service for the then current or any future bond year. "Nan -Ad Valorem Revenues" shall mean, with respect to the City and the County, as applicable, all revenues of the City and the County derived from any source whatsoever, other than ad valorem taxation on real or personal property, which is legally available to make the Economic incentive Payments rewired herein, but only after provision has been made by the City or the County to pay for services and programs which are necessary for a! public purposes affecting the health, welfare and safety of the inhabitants of the City or the County or which are legally mandated by applicable law. "Progress Report" shall mean the progress report required to be delivered by the District to the City pursuant to Section 3.2.2 which shall include a description of the Development Component and a copy of the Certificate of pteupamcy for the described Development C.ompunart "Redevelopment Trust Pend" shall mean the redevelopment trust fund to be established pursuant to Section 163.387 of the Redevelopment Act in which all Tax Increment Revenuer shall be deposited by the Community Redevelopment Agency. 5 "Section 108 Lou" shall mean a loan by the U.S. Department of Housing and Urban Development to the County under Section 108 of the Housing and Community Development Act of 1974 for approximately S20,600,000. "Tax Increment Revenues" shall mean the tax increment revenues generated within the Comm m ity Redevelopment Area and deposited in the Redevelopment Trust Fund ptusuant to the RedevelopmentAct. ARTICLE II REPRESENTATIONS; FINDINGS Section 2.1 The County represents and warrants as follows: 2.1.1 The County is duly organized and valialiexisting as a political subdivision of the State of Florida. 2.12 The County has fall power and authority to enter into the transactions contemplated by this Agreement and to carry out its obligations under this Agreemeai. 2.1.3 The County has duly authorized the execution and delivery of this Agreement, and assuming its due authorization, eon and delivery by the City and the District, this Agreement constitutes a valid and legally binding obligation of the County, enforceable in accordance with its teens, except to the extent that its enforceability may be limited by any applicable bankruptcy, insolvency, moratorium, reorganization or other similar laws abating creditors' rights generally, or by the exercise of judicial discretion in accordance with general principles of equity. Section 2.2 The City represents and warrants as follows: 22.1 The City is duly organized and validly existing as municipal corporation winder the laws of the State of Florida. 2.2.2 The City has full power and authority to enter into the transactions contemplated by this Agreement and to carry ont its obligations under this Agreement 22.3 The City has duly authorized the execution aid delivery of this Agreement, and assuming its due authorization, execution and delivery by the County and the District, this Agreanent constitutes a valid and legally binding obligation of the aty, enforceable in accordance with its tams, except to the extent that its enforceability may be limited by any applicable baaiauptcy, insolvency, morato inn, reorganization or other simile/ laws affecting creditors' rights generally, or by the exercise of judicial discretion in accordance with geaaexal principles of equity. Section 23 The District represents and warrants as follows: 6 23.1 The District is duly organised and validly existing as a local unit of special purpose government under the Act and the Charter and as en indent spacial district under Chapter 189, Florida Statutes. 2.32 The District has full power and authority to enter into the transactions contemplated by this Agreement and to carry out its obligations under this Agreement and to issue the Bonds and the General Infrastructure Project Bonds, nay, pursuant to the Act, 23.3 The District has duly authorized the execution and delivery of this Aft, and assuming its due authorization, execution and delivery by the County and the City, this Agreement constitutes a valid and legally binding obligation of the District, enforceable in accordance with its terms, except to the extent that its azlbreeabifiy may be limited by m applicable lanimptcy, insolvency, moratorium, reorganizatiaa or other similar laws affecting creditors' rigbits genially, Of by the exercise of judicial discretion in accordance with general principles of equity. Section 2.4 The City and the County agree as follows: 2.4.1 The County and City shall take all action necessary to cause the Community Redevelopment Agency to establish the Community Redevelopment Area as soon as practicable, and to amend this Agreement to iachzde the Community Redevelopment Agency as a party, if necessary. 2.42 The County and the sty shall caznse the annual budget for the Community Redevelopment Agency to require the Community Redevelopment Agency to pay Tax Increment Revenues from the Community Redevelopment Area to the District al malty in accordance with Article 1I1 of this Agreement. Excess Tax Inrnxneunt Revenues shall be retained by the Community Redevelopment Agency in the Redevelopment Trust Fund and rethsided to the City and the County at the end of each fiscal year of the Community Redevelopment Agency on a pro-rata basis in accordance with the annual budget and the Redevelopment Act: 2.43 The County and the City dealt came the City Redevelopment Area and the Conununity Redevelopment Agency to remain in existence and the Tax Increment Revalues to remain unenamtbered (except as contemplated by this Agreement) for so long as the Bonds are outstanding under the Indenture. 2r4.4 The County and the City shall enter into such agreetneres, and cause the Community Redevelopment Agency to enter into such agreements, and provide such annual information, and cause the Community Redevelopment Agency to provide such annual infatuation, as shall be necessary to comply with Securities and Excitauge Commies'ion Rule 15c2-12 with respect to the Beards. The County and the City shalt provide, and cause the Conmumi y Redevelopment Agency to provide, won to the District necessary for inclusion in the Preliminary Limited Offering lutemorandunn and the Limited Offering Memorandum relating to the Bonds, and shall execute such closing irerrdfiextes at the time of issuance: of the Bonds as shall be reasonably requested by the District and the underwriter of the Bonds as to the accuracy of the information provided by each for inclusion 1htail 7 Section 2.5 The District agrees as follows: 2.5.1 The indenture shell provide that the holders of the Bonds will be on a parity with the County Loan and the General Infrastructure Project Bonds, if any, with respect to the Special Assessments, The District shall not pledge, permit a lien to be f kd against or eatct mbar in any manner the Special dents, other than as provided in this Agtieantnrt, the Indenture and the Loan Documents. 2.5.2 The District approves the establishment of a Community Redevelopment Area and the Community Redevelopment .Agency by the County and the City to fund the Tax Increment Rcvecoea and agrees to emend this Agreement to add the C`,ommunity ltedcvelopmnent Agency es a party, if necessary. 2.5.3. The District shall not dissolve or expand or contract its bouutdarics for so long as the County Loan is outstanding under the Loan Documents and the Bonds are outstanding under the Indenture. Seeder 2.6 It is found and declared that: 2.6.1 Expending public ftmds to fmance the construction of the Project is in the best isuarsts of the City, the Cotmty and the District and their respective citizens and residents. 2.6.2 Expending public ft ds to fine the construction of the Project will save the valid and important publicpiupose of economic development and redevelopment by improving the local infrastructure of the City and the County and faciEtating the development of the Development. 2.6.3 The construction of the Project and the dovelopmnatt of the Development will serve the valid and important public purpose of pmtec Ling the health and welfare of the citizens of the City, the County and the District by fostering economic growth within the District and eliminating blight by attracting, creating and retaining retail and commercial business enterprises and residential development in the City and the County. 2.6.4 As part of the development of the Project, lands within the District will be designated as a "bmwnfretd site" and wd} be subject to nwedistion ofenvironmental haunts ARTICLE Ili FINANCING PLAN Secdon 3.I Generafl r% 3.1.1 Pursuant to the terms of the Indenture, the District shall issue the Bonds to pay a portion of the costs of the Project, and shall levy Special Assessments pursuant to the Act and Chapter I70, Florida Statutes, to the extent and in the amount necessary to pay amending debt service on the Bonds, the County Loan and the General Infrastructure Project Bonds, if any. As provided in the Indents, for each bond year, the District shall evidence and certify to the tax s collector or cause the property appraiser to certify to the tax collector for colUect on pursuant to Chapter 197, Florida Statutes, or any successor statutes, as applicable, an amount equal to the Special Assessmats levied by the District less the amount of Economic Incentive Payments and Tax Increment Revenues received by the District and available for payment in such bond year. In accordance with Section 3.2.3 below, the amount of Economic Incentive Payments to be paid by the County and the City each year shall be reduced by the amount of Tax inch eot Revalues paid by the Comrmnuty Redevelopment Agency in such year, and in the event the conditions set forth in Section 3.4 below are satisfied, the obligations of the County and the City to coolnbnte Economic incentive Payments shall be released. As provided in the due, all Economic Incentive Payments and Tax Incranent Revenues received by the District will be held by the Trustee ill the finds and accounts established under the Indenture and disbarred by the Trustee in accordance with the terms and conditions of the Indenture. 3.1.2 In the event that the County Loan is not provided to the District, the District may issue the General Infrastructure Project Bondi or make alternate snangewents satisfactory to the County and the City to finance the costs of the General Infasizucture Pmject, as set forth in more detail in Section 32.4 below. The General Infrastructure Project Bonds shall be secured by Special Assessments on a parity with the Bonds. 3.1.3 The County and City are rat responsible for any other costs or expenses of any kind with respect to the Parking Garage Project other than debt service on the Bonds as expressly provided for in this Agreement. 3.1.4 In the event Economic Incentive Payments and/or Tax ins mnem Revenues are insufficient to meet the Ammar Debt Service on the Bondi, the District shall be responsible for the deficiency, and the District may collect Special Assessments to pay for each deficiency. Section 3.2 Eamon* Incentive Pa w n1s. 32.1 Subject to Subsection 3.2.4 and 3.2.5, and Section 3.4 below. the City and the County shall each pay the Economic Incentive Payments to the District in the amounts set forth in Schedule I for each Coniplcted Development Component, provided that such Economic Incentive Payments do not exceed the corresponding Annual Debt Service requirements on the Bonds. The Economic incentives Payments for cach Completed Development Component as set forth in Schedule I shall become payable to the District annually as deser sod in Subsection 32.2 below, coxumauting as follows: (i) Economic Incentive Payments for the Completed Development Components for Phase I shall commence in the calendar year fallowing the calendar year in which Certificates; bf Occupancy have been issued for at least ninety percent (90%) of the Development Components for Phase I, which shall include the retail component, as described in Schedule I of this Agreement, continidag each and every year. thereafter (irrespective of Certificates of Occupancy for Development Components in future phases) through the tam of this Agreement, subject to reduction in accoadamc a with Subsection 3.2.3 below and elimination pursuant to Section 3.4 below, (i) Economic Incentive Payments for Completed Development Components for Phase A shall commence in the calendar year following the calendar year in which Certificates of Occupancy have been issued for at least ninety percent (90'h) of the Development Components for Phase I1, which shall include the 9 office component unless development of the office component is subject to the occurrence of an Event of Impossibility (such an Event of Impossibility shall not reduce the keeping 90% requirement), cantinuin each and even? year thereafiex (irrespective of Cadfc ates of Occupancy for Development Components nts in future phases) ffimugh the term of this Agreeent nt, subject to reduction in accordance with Subsection 3.2.3 below and elimination pursuant to Section 3.4 below. 322 No later than January 314 of each year during the term of this Agreement, the District shall submit a pmgccss report (thee "progress Report's to the City, the County and the Comtruucety Redevelopment Agency set* forth the Completed Devetopancat Components, if any, as of January 1 of that year. For each Completed Dever Cbmpone nt identified in. such Progress Report, the City abaft verify that a Certificate of Occupancy was issued for each.. No later than December 31' of that same year, the City and the Cauntyjli pay to the District, subject to reduction in aocordance with Subsection 3.23 below, the Economic Incentive Payments set forth in Schedule I due b each Completed Develocanent Component do anted is the Progress Report, as well as for all Completed Development Components described in all prior Progress Reports. The District shall use the Economic Incentive Payment* received from the City and the County solely to pay corresponding Anrmal Debt Service on the Bonds. 3.2.3 ' In the event that the Community Redevelopment Area end the Redevelopment Toast Fund are established on or before June 30, 2005, and the conditions set forth in Section 3.4.1(A) are satisfied, or in the event that the Community Redevelopmrart Area and the Redevelopment Trust Fund are established after June 30, 2005 and the conditions set forth in Section 3A.I(B) are satisfied, the obligation of the County and the City to contribute Economic Incentive Payments to the District shall be extinguished. In the event that the City Redevelopment Area and the Redevelopment Trust Pod are established after June 30, 2005, and Tax IIICTCMind Revenues are paid to the District pursuant to Section 3.3 below, the County and the City slcall not be required to contribute Economic 1nceentive Payer to the District m any year in which the Thud Increment Revenues contributed to the District am at least equal to the debt service due on the Bonds for that year. Select to Section 3.3.1. below, if the anoount of Tax Increment Revenues contributed to the District in any year is less than the Annual Debt Service on the Bonds for that year and the Economic Incentive Payment; have not been released pursuant to Section 3.4 below, the County and the City shall make Economic Incentive Payments to the District in an amount equal to the tfifference between the Annual Debt Service on the Bonds for that year and the Tax Increment Revenues received by the District in that year, provided that the sum of the Tax hummed Revenues and the Economic Incentive Payments contributed to the District in any year shall not exceed the total Economic Incentive Payments due to the District in that year pursuant to Schedule I attached to this Agreement. 32.4. As a precondition to the obligation of the County and the City to pay Economic Incentive Payments under this Section 3.2, the County shall have received approval from the U.5. Department ofHousing and Urban Development for the Section 208 iota, or (i) the District or the Developer shall have roadie alternate arrangements saiisfnctory to the County and the City to finance the General Infrastructure Project, which may include; without limitation, a loan from a third party louder or the issuance of General Infrastructure Project Bondi, notes, bond anticipation notes or other indebtedness under the Indenture secured by Special Assessments on 10 a parity basis with the Bonds, and (i) the Developer shall have delivered a letter of intent to the County and the City regarding certain community incentives. 3.2.5. Notwithstanding anything contained in this Agreement to the contrary, the amount of Economic Incentive Payments contributed by the County and the City to the District in each year shall not exceed Anneal Debt Service fit that year. Section 3.3 Tex Jnertneipt keveines. 3.3.1 The City and the County desire to establish the Community Redevelopment Area and to cause the Commnaityy Redevelopment Agency to contribute Tax Increment Revenues to the District from the Redevelopment Tnrst Fund annually in an amount not to armed Annual Debt Service on the Bonds. Thoumy and the City shall cause the Community Redevelopment Agency to include such Tax Incmnent Revenue payments m the Community Re developineut Agency's annual budget, end to require that such Tax Increment Revenues received by the Community Redevelopment Agency by 3aauaty 1 of each year be ttansfened to the District no later than January 15 of the same year. Notwithstanding anything to the contrary herein, the Community Redevelopment Agency shall not be obligated to conttiibutc Tax Increment Revenues to the District until such time as Certificates of Occupancy hive been issued for at least ninety parent (90%) of the Development Components for Phase I, including the retail component, as described in Schedule I of this Agreement. Upon the issuance of such Certificates of Occupancy, the Community Redevelopment Agency shall contribute Tax Increment Revenues to the District in accordance with this Secdon 3.3 in each and every year until the termination of the Agrearent provided, however, in the event that the ire of Certificates of Occupancy for at least ninety percent (90%) of the total Development Components for Phase II is not achieved by December 31, 2007, which shall include the office fit, unless the development of the office component is subject to the occurrence of an Event of Impossibility, the Commwzuity Redcvelopintart Agency shall contribute Tax Increment Revenues in accotdanc a with Section 3.3 only tor those Development Components for which a Certificate of Occupancy has been issued by Dooarnbe r 31, 2006. Upon the issuance of Certificates of Occupancy for at least ninety percent (90%) of the total Development Components fit Please II, the Coenmtnnity Redevelopment Agency shall contribute Tax Increment Revenues to the District in axordattce with this Section 3.3 in each and every year until the you delis Agreement 3.3.2 In the event that the amount of Tax Increment Revenues deposited in the Re de:velopnne nt Trost Fund are insufficient to pay debt service on the Bonds and the obligations of' the City and the County to contribute Economic Incentive Payments have not been eztinguisbed pursuant to Section 3.4, all of the Tax Increment Revenues on deposit in the Redevelopment Trust Pond shall be contributed to the District provided the conditions for such ront»3ution set fdtth in Section 3.3.1 abova have been satisfied and the County and the City shall presides Economic Incentive Payments to the District in an amount necessary to satisfy such deficiency in accordance with Section 3.2 above. 11 3.3.3 Any Tax Increment Revcrsuues on deposit in the Redeyelopmad Trost Raid in any calendar year in excess of the amounts due anal transferred to the District under this itgrearrent in such year shall be refunded to the Cutmty and the City at the and of each fiscal year of the Community Redevelopment Agency on a pro-rata basis in aceoldance with the mural budget and the Redevelopment Act. 3.3.4 In no event shall the amount of payments of Tax Incceznent Revenues contributed to the District exceed the Annual Debt Service requirement on the Bonds. The obligation to transfer Tax Increment Revenues shall cease when the Bonds are no longer ontstaeding, Section 3.4 Release of Benton& Incentive Payment ObJhratipne. 3.4.1 'The obligations of the County and City to contribute Economic Incentive Payments to the District parrsw at to Section 3.2 above shalt be wed and replaced by the Community Redevelopment Agency's obligation to contribute Tax Increment Revenues parsutiant to Section 3.3 above, if: (A) In the event that the Community Redevelopment Area and the Redevelopment Trust Fond are established no later than bane 30, 2005 and each of the following conditions is satisfied: (1) this Agreement is amended to add the Community Redevelopment Agency as a patty; and (2) the District, the county and the City agree that the perceaatage of Tax l'ccrcmca t Revenues to be c ontrlbutcd to the Redevelopment Truest Fiend by the County and the City in each calendar ndar year while the Bonds are mdstend ng under the hrtlsature shall be equal to the lesser of (i) the maximum percentage authorized by Section 163387 of the Redevelopment Act, which ewrently is 95% (the "Marrinumn Percentage), or (ii) a parentage less than the Maxie Percentage but sufficient to arable the Community Redevelopment Agency to pay to the District in each calendar year Tax eat Revenues equal to the debt service an the Bonds in each such year for the remaining term of the Bonds. (B) In the event that the Comunmity Redevelopment Area and the Redevelopment Trust Fond are established after June 30, 2005 and each of the following conditions is satisfied: (1) the County and the City arc current on all Economic Incentive Payments due under this Agreement; Agency as a party; (2) this Agreement is amended to add One Community Redevelopment (3) the District, the County and the Caty agree that the percentage of Tax Increment Revenges to be contn'buted to the Redevelopment Trust Fund by the County and the City in each caJemdar year while the Bonds are outstanding render the Indenture, shall be 12 equal to the lesser of (1) to maxinaom percentage authorized by Section 163387 of the Redevelopment Act, which currently is 95% (the "Maxima Percentage'), or (u) a parentage less than the Maximum Pecentage but sufficient to enable he Community Redevelopment Agency to pay to the District in each calendar year Tax Increment Revenues equal to the debt service on the Bonds in each such year for the remaining term of the Brads; and (4) the Financial Advisor certifies in writing to the District and the Trustee for the Bonds, that funds on deposit in the Redevelopment Trust Pend in the anent calendar year are sufficient to enable the Community Redevelopmatt Agency to pay to the District Tax Ili rement Revenues equal to the Maximum Annual Debt Service on the Bonds. Upon won of the conditions under paragraph (A) or (13) above, the County's and the City's obligations to contribute Economic Incentive Payments under this Agreement shall terminate. Section 3.5 Issuance of Bonds. 3.5.1 The District may issue Bonds in one orruore series to pay the capital coats ofthe Parking Garage Project inchiding all costa and expe sea related to the ils81181nce of the Bonds; provided, however, the County and the City have an opportunity to participate in discussions relating to the structuring and pricing of the Bonds mad have an opportunity to review and discuss costs and expanses related to the issuance of the Bonds. The obligations of the County and the City to cootn'bute Economic Incentive Payments and the obligation of the Community Redevelopment Agency to contribute Tax increment Revenues shall not exceed the Annual Debt Service on the Bonds in any year. The District may also issue General Infrusttucture Project Bonds to finance the cost of the General Infrastructure Project and all costs and expenses related thereto in the event that the County Loan is not provided to the District. 3.5.2 The District may issue additional refunding Bonds provided the maturity on the refunding Bonds does not exceed the maturity on the retbnded Bonds and the aggregate debt service on the refunding Bonds in equal to, or less than, the debt service on the refcmded Bonds. 3.53 The District may, subject to Subsection 3.5.1 above, issue completion bonds under the Indenture to pay costs that exceed 01,204,019, the estimated cost of the Paring Garage Project to be financed t rough the issuance of the Bonds. The County and the City shall not be obligated to contribute Boonoarnic Incentive Payments and the Community Redevelopment Agency shall not be obligated to contribute Tax Increment Revenues to pay debt service on such completion bonds. 13 ARTICLE IV COVENANT TO BUDGET AND APPROPRIATE Senn 4.1. The City and the County each covenant and agree in appropriate in their respective annual budgets, by amendment, if necessary, from Non -Ad Valorem Revenues lawfully. available in each Fiscal Year, amounts sufficient to pay the Economic Incentive Payments when due pursuant to this Agreement, provided, tint such Economic Incentive Payments shall not exceed the debt service on the Bonds in any Fiscal Year, leas the amount of Tex Illerentent Reveilles paid to the District in such year. Such covenant and ague neet on the part of the City and the County to budget and appropriate such amounts of Nona -Ad Valorem Revenues shall be cumulative to the extent Economic Incentive Payments pursuant to this Agreement remain unpaid, and shall continue until such Economic incentive Payments are paid, provided, however, such covenant and agreement shall terminate once the obligations of the County and the City to make Economic Incentive Payments are extinguished pursuant to gccdon 3.4. Notwithstanding the foregoing coveting of the City and the Canty, the City and the County do not covenant to maintain any services or programs, now provided or maintained by either the City or the County, which generate rate Non -Ad Valorem Reveanues. Section 42. Such coved to budget and approbate does not matte any lien upon or pledge of Non -Ad Valorem Revenues,, nor does it preclude the County or the City from pledging in the fnt= their Non -Ad Valorem Revenues, nor does it require the City or the County to levy and collect any particular Non -Ad Valorem Revenues, nor does it give the District a prior claim on the Nora -Ad Valorem Rove sec of the City and the County as opposed to clrrians of genend creditors of the City or the County. Such covenant of the City and the County to appropriate Non -Ad Valorem Revenues is subject in all respects to the payment of any obligations snared by a pledge of Non -Ad Wotan Revenues prior to or subsequent to the date of this hgroanent (mcluding the payment of debt service on bonds and other debt instruments). However, the covenant to budget and appropriate in the City's and the Caunrty's gennnnt annual budget for the mows and in the manner stated in this Agmement shall have the Ant of malting available in the manner described in this Agreema t, Non -Ad Valorem Revenues and plaint ore the City and the County a positive duty to appropriate and budget, by amendment, if necessary, amounts sufficient to meet their respective obligatioona of making the Economic Incentive Payments, to the extent required by this Aft, subject, however, in all respects to the restrictions of Section 166.241, Florida Statutes, and Section 129.07, Florida Statues, which provide, in part, that the governing body of each such municipality and oowzty, respectively, make appropriations for each Fiscal Year which, in any one fiscal year, shall not exceed the amount to be received from taxation or other reveling sources, and subject fluter, to payments for services and programs which are essential public purposes affecting the health, welfare and safety of the inhabitants of the County and the City our which ar^e legally mandated by applicable haw. Sena* 43. The Bonds shall not constitute a gemeaa1 obligation of the City, the County or the Disnict within the meaning of any constitutions, or scat dozy provision or limitation or a pledge of the City's, the County's or the District's full faith and credit, but shall be secured by and payable as to principal, premium, if any. and interest solely from the "Pledged Revenues" as defined in the Indenture, e, including primarily the Special Armaments, the Economic Incentive Payments, and the Tax increment Revnmes in the manner described in the Indenture. 14 r ARTICLE V PUBLIC INFRASTRVCTIIRE IMPROVEMENTS Section 5.1. Rose sad lc Woes, As part of the Project, and pursuant to the Act, the District shall find and construct new roadways within the boundaries of the District and fund and improve certain existing roadways outside the boundaries of the District. In particular, the District shall find and construct certain new roadways within the boundaries of the District They are East Coast Avenue (NE 356 Street to NE 30' Street); Midtown Boulevard (NE 3616 Street to NE 296 Street); NE 3266 Street (East Coast Avenue to North Mani Avenue); NE 34th Street (East Coast Avenue to North Miami Avenue); NE 316 Street (Midtown Boulevard to North Miami Avarme); Buena Vista Avenue (NE 366 Street to NE 3216 Street); NE 356 Street (East Coast Avenue to Midtown Boulevard); NE 3O6 Street (East Coast Avenue to Midtown Boulevard) (collectively, the "New Roadways») Except for East Coast Avenue, wlrich shall be owned and maintained by the District, the New Roadways shall be corstructed within public rights away. The District shall also fend and improve certain roadways, which are located outside the boundaries of tkc District. They are NE 29'6 Street (between East Coast Avenue and North Miami Avenue) and NE 34t Street (between the District's eastern boundary line and NE 2'a Avenue) both of which are owned and operated by the City (the "Improved City Roadways"); and North Miami Avenue (between NE 29t' Avenue and NE 3616 Street) and NE 2 d Avenue (approximately 50' north and south of the int ec on), both of which are owned and operated by the County (the "Improved County Roadways"). The improvements s to the Improved County Roadways and the hnproved City Roadways shall be within public rights of way of the County and the City, respectively. See Exhu'bit B prepared by the District's Ong Engineer for a more complete description of the madway improvements. The District shall also fund and construct throe new traffic signals at North Miami Avenue & NB 346 Street; NE ei Avenue and NE 346 Stree4 and Bueoa Vista Avenue and NE 3616 Street. The District shall agree to fund the costs of enhanced maintenance for the roadway improvements pursuant to a subsequent agreartent to be entered into by the City and the District. Section 5.2. POlie Setwear As part of the Project, and pursuant to the Act, the District shall also find and construct public spaces, which will be owned and maintained by the District. The spaces are genteelly described as three public plazas on the east edge of Midtown Boulevard located at the intersections of contiguous development parcels; one public space located on the west side of Buena Vista Avenue between NE 3261 Street and NE 346 Street; one public space with a fountain located in the block abutting NE 36m Street between Buena Vista Avenue and M dtown Boulevard; and two or three linear parks along the west side of Midtown Boulevard. The public spaces may consist of Iamdacapin& fountains, benches,, parking, decorative lighting, pavers and other appurtenances. 15 ARTICLE VI GENERAL PROVISIONS Section 6.1 Tenn of Agreement. The tam of this Agreement shall expire on the date that the Bonds are no longer outata uding under the Indenture and the County Lout has been satisfied (due "Term"). Sine obligation of tine City and the County to make Economic Incentive Payments and the obligation of the Community Redevelopment Agency to make tram of Tax Increment Revenues shall cease on the date the Bonds are no longer outstanding under the Indenture, even if such date is earlier than the end of the 'Term, provided, however, that the obligations of the County and the aty to make Economic Incentive Payments may cease earlier pwsoant to Section 3.4. SSeedon 6.2. )3xecution In Couunterpa t& This Agreement may be simultaneously executed in several counterparts, rparts, each of which shall be an original and all of which shall constitute but one and the same instrument. Seddon 6.3. Limitation on Governmental I iability. Nothing in this Agmement shall be deemed a waiver of iitnmuaity limits of liability of either the City, the County or the District beyond any statutory limited waiver of immunity or limits of liability contained in Section 768.28, Florida Statutes, as amended, or other statute Nothing in this .Atnent shall hare to the benefit of any third party for the purpose of allowing any claim, which would otherwise be barred under the Doctrine of Sovereign Jmmmiity or by option of law. No covenant, stipulation, obligation or agreement contained in this Agreement shall be deemed to be a covenant, stipulation, obligation or agreement of any presort or future member of the governing body or agent or employee of the County, the City or the District in its, his or their individual capacity, and neither the members of the governing body of the County, the City or the District nor any official executing this Agreement shall be liable personally et shall be subject to any accountability for reason of the execution by the County, the City or the District of this Agreement or any related act. Seetioa 6.4. Detbnit. Each of the parties shall give the otter patties written notice of any default under this Agreement and shall allow the itereelting patty 30 days from the date of its receipt of such notice within which to cure any such default or, if it cannot be cured within the 30 days, to commence and thereafter diligently pursue to completion good faith efforts to effect such cure and to thereafter notify the other parties of the anent euro of any such default. Section 6.5. Notice. All notices. requests, consents and other communications shall be in writing and shall be delivered, mailed by First Class Mail, postage prepaid, or overnight delivery service, to the parties, as follows. ifto the City. line City of Miami, Florida 3500 Pan American Drive Miami, Florida 33133 Attention: City Manager 16 With Copy to: If to the County: With a Copy to: City Attorney's Office The CityofMiami, Florida 444 S.W. 214 Avenue, Suite 945 Mimi, Florida 33130 Attention: City Attorney Miami Dade County, Florida Stephen P. Clark Ceuntrr 111 N.W. la Street, Suite 2910 ittami, Florida 33128 Attention: County Manager Office of the County Attorney Mine Dade County, Florida Stephen P. Clark Canter 111 N.W.1'` Street, Suite 2810 Miami, Florida 33128 Attention: County Attorney If to the District_ Midtown Miami Cainmmtity Development District c/o Seve to Trait Services Inc. 210 N. University Drive, Suite SO2 Cord Springs, Florida 33071 Attention: District Manager With a Copy to: 8iliing, Cochran, Heath, Lyles, Mauro & Anderson, PA. 888314 Avenue, Suite 301 Foot Lauderdale, Florida 33316 Attn: Dennis Lyles Section 6.6. Assi urnent or Transfer. Except with respect to the District's pledge of Economic Incentive Payments and Tax Increment RCITMICS to the Trustee under the indenture to secure the Bonds a party may not assign or transfer its rights or obligations under this Agreement to another unit of local goventment, political subdivision or agency of the State of Florida without the prior written consent of the other party or to a private party or entity. Section 6.7. »jndiug Effect. This Agree vent shall be binding upon and shall inure to the befit of the City, the County, the District, and Mar respective noun.. Section 6.8. Aprendrnent and Waives. Any amendment to or waiver of any provision of this Agreement must be in writing and mutually agreed to by the District, the City Manager and the County Manager; provided, however, that any amendment or waiver that is material or results in a substantive change in the County's or the City's obligations under this Agreement shall be subject to the approval of the County Commission or the City Conte, as the case may be. Per the purpose of this Section 6.8, "'material" and "substantive change" 17 shall refer to amendments or modifications to this Agreement that affect the amount or duration *ism Economic incentive Payments, the tam of this Agr ewe tt, or an increase in the size or scope of the Parking Garage Project Section 6.9. Wig. After approval of this Agreement by the respective governing bodies of the City, the County, and the District and its execution by the duly qualified and authorized officers of each of the parties, the District shall cause this Agreement to be filed with the Clerk of the Circuit Court of Miami -Dade County, Florida, im accordance with the requirements of Section 163.01(11), Florida Statutes. Section 6.10. Mnlicable Law aqd Venpe. This Agreement and its provisions shall be governed by and construed in accordance with the laws of the State of Florida. In any action, in equity or law, with respect to the enforcement or inteipr tstion of this Agreement, venue shall be in the County. Section 6.11. Severabi1ity. If any part of tbia Aft is held by a coral of competent jurisdictionto be invalid, illegal or unenforceable, such invalid, illegal or unenforceable part shall be deemed severable and the remaining parts of this Agreement shall continue in frill force and effect provided that the rights and obligations of the parties are not materially prejudiced and the intentions of the parties can continue to be effected. Section 6.12. brims Armament. Ibis instntmeut and all the attached exhibits and schedules constitute the entire agreement between the parties and supersedes all previous discussions, understandings and agreements between the parties relating to the subject matter of this Agreement. [Rem inuder of Page Intentionally Left Blank] 18 IN WITNESS WHEREOF; the City, the County, and the District have each caused this Agreement to be executed and delivered as of the date indicated above: (SEAL) Inkils �'•'' OMM14+~•. jmZ fit? ,t NZ. �I * • ATTEST: 41 Priscilla A. Thompsoy AN. S i1 I U tli1`i / • • Dania Carrillo, RIX& est Administrator ‘-‘ 19 MIAMI DADE COUNTY, FLORIDA � ga manager APPROVED AS TO FORM AND LEGAL T. He enaan, " County Attu CITY OF i 1) A, a hohmicipal Co of State of Joe t : 'may Manager (SEAL) 20 MIDTOWN WA COMMUNITY DEVELOPMENT DISTRICT