Loading...
HomeMy WebLinkAboutCRA-R-05-0001 CRA Settlement AgreementSUBMITTED INTO THE PUBLIC RECORD FOR SETTLEMENT AGREEMI M05_OODb1.ON - L7 -d5, THIS SETTLEMENT AGREEMENT (the "Agreement") is made as of the 27th day of January, 2005, by and between SAWYER'S WALK, LTD., a Florida • limited partnership ("Sawyer's Walk"); POINCIANA VILLAGE OF MIAMI, LTD., a Florida limited partnership ("Poinciana"); SOUTHEAST OVERTOWN/PARK WEST COMMUNITY REDEVELOPMENT AGENCY, a public agency and body corporate created pursuant to Section 163.356, Florida Statutes (the "CRA"); and the CITY OF MIAMI, a municipal corporation of the State of Florida (the "City"): RECITALS: A. In the 1980's the Southeast OvertownlPark West Project area was designated as a community redevelopment area (the "CRA Redevelopment Area") by Miami -Dade County, a political subdivision of the State of Florida (the "County"). A redevelopment plan was approved by the Commissioners of the City of Miami and the Commissioners of Miami -Dade County with certain redevelopment authority granted by the County to the City for project implementation. The City invited interested parties to submit proposals for the development of residential and commercial structures on properties in the vicinity of the Overtown Transit Station in a portion of the CRA Redevelopment Area. B. In response to requests for proposals issued by the City, Indian River Investments of Miami, Inc., a Florida corporation ("Indian River"), acting in the capacity of general partner on behalf of Poinciana, was selected as the "developer" with respect to the development of that certain real property described on Exhibit "A" attached hereto and made a part hereof (the "Poinciana Village Project"). Indian River, as general partner on behalf of Poinciana and the City entered into that Southeast Overtown/Park West Lease and Development Agreement dated June 15, 1988 (the "Original Lease"), as amended by Amendment No. 1 dated February 17, 1989 ("Amendment No. 1"), as amended by Amendment No. 2 dated July 13, 1989 ("Amendment No. 2"), as amended by Amendment No. 3 dated January 11, 1990 ("Amendment No. 3"). C. In1990, the City issued a request for proposals for the development of Blocks 45, 55, and 56 in the CRA Redevelopment Area, which real property is more particularly described on Exhibit "B" attached hereto and made a part hereof (the "Sawyer's Walk Project"). Sawyer's Walk's proposal dated January 18, 1991, was the sole response to the request for proposals issued by the City with respect to the Sawyer's Walk Project and, by City of Miami Resolution No. 91-509 (the "Sawyer's Walk Resolution"), the City 1 selected Sawyer's Walk as the developer of the Sawyer's Walk Project, subject to complying with the terms and conditions of the Sawyer's Walk Resolution. D. On or about January of 1996, the City transferred authority to implement projects within the CRA Redevelopment Area to the CRA. The City conveyed all of its right, title and interest in the Poinciana Village Project and the Sawyer's Walk Project, together with other lands, to the CRA by Warranty Deed dated January 9, 1996, and recorded January 17, 1996, in Official Records Book 17064, at Page 152 of the Public Records of Miami -Dade County, Florida (the "CRA Warranty Deed"). The City assigned to the CRA all of the City's right, title and interest with respect to all leases pertaining to the real property conveyed by the CRA Warranty Deed, including the lease with respect to the Poinciana Village Project, by virtue of the Assignment of Leases dated January 9, 1996, and recorded January 17, 1996 in Official Records Book 17064, at Page 208 of the Public Records of Miami -Dade County, Florida. E. The CRA and Poinciana executed an Amendment dated as of September 23, 1998, and recorded October 14, 1998, in Official Records Book 18312, at Page 444 of the Public Records of Miami -Dade County, Florida (the "Poinciana Amendment"), amending certain terms and provisions of the lease with respect to the Poinciana Village Project (the Original Lease, as amended by Amendment No. 1, Amendment No. 2, Amendment No. 3, and the Poinciana Amendment, are collectively referred to as the "Poinciana Lease"). F. Poinciana has developed Phase I of the Poinciana Village Project, as defined in the Poinciana Lease, consisting of 64 residential condominium units in two buildings of four stories each. The Poinciana Lease provides that Poinciana is to develop 91 condominium units or rental apartments in a single low-rise building and/or a single building of ten to twelve floors as a hotel, extended stay facility, or any combination thereof, containing approximately 125 guest rooms as Phase II, as defined in the Poinciana Lease, which is more particularly described on Exhibit "C" attached hereto ("Phase II of the Poinciana Village Project"). G. Disputes have arisen between the CRA and Poinciana with respect to the development of Phase II of the Poinciana Village Project and the obligation of the CRA to add Phase II to the Poinciana Lease as contemplated under the Poinciana Lease. As a result of these disputes, the CRA filed a complaint for ejectment and quiet title with respect to Phase II of the Poinciana Village Project styled Southeast Overtown/Park West Community Development Agency vs. Poinciana Village of Miami, Ltd., Case No. 02-06846 CA 9 pending in the Circuit Court in and for Miami -Dade County, Florida and Poinciana has filed counterclaims against the CRA and the City in connection with the Poinciana Village Project (collectively the "Poinciana Litigation"). 2 H. Disputes have arisen between the CRA and Sawyer's Walk with respect to the obligation of the CRA to enter into a lease with Sawyer's Walk with respect to the Sawyer's Walk Project. The CRA claims that the requirements of the Sawyer's Walk Resolution have not been satisfied. Sawyer's Walk claims that the requirements of the Sawyer's Walk Resolution have been satisfied and that the CRA had agreed to add the Sawyer's Walk Project to the Poinciana Lease. As a result of these disputes, the City and the CRA filed a declaratory judgment action styled The City of Miami vs. Sawyer's Walk, Ltd., Case No. 00-28860 CA 9 in the Circuit Court in and for Miami -Dade County, Florida and Sawyer's Walk has filed counterclaims against the CRA and the City in connection with the Sawyer's Walk Project (collectively the "Sawyer's Walk Litigation"). I. The City, the CRA, Poinciana and Sawyer's Walk desire to settle the Poinciana Litigation and the Sawyer's Walk Litigation, including without limitation the counterclaims filed in connection therewith, as hereinafter provided. NOW THEREFORE, for and in consideration of the $10.00 and other good and valuable consideration and of the covenants and agreements hereafter set forth, the parties agree as follows: 1. RECITALS. The Recitals to this Agreement are true and correct and are incorporated herein by reference and made a part hereof. This Agreement shall be effective as of the date of execution hereof by all parties hereto (the "Effective Date"). 2. NATURE OF THIS AGREEMENT. 2.1. Nature of Agreement. This Agreement constitutes the entire agreement of the parties regarding the settlement of the Poinciana Litigation, the settlement of the Sawyer's Walk Litigation and the agreement to enter into an amended and restated Poinciana Lease upon the terms and conditions set forth herein. This Agreement shall not constitute a lease of any portion of the Poinciana Village Project and/or the Sawyer's Walk Project (collectively the "Project") and shall not impose any encumbrance on the Project nor entitle Poinciana and/or Sawyer's Walk to file a lis pendens in connection with this Agreement or any alleged breach or default hereunder. The term of this Agreement shall commence on the Effective Date and terminate upon the Lease Delivery Date, as hereinafter defined, unless sooner terminated in accordance with the terms hereof (except with respect to any obligations hereof which expressly survive such termination). 2.2. Settlement Purposes. The language in this Agreement and all communications and all information exchanged in connection with the 3 negotiation of this Agreement, written, oral, electronic or otherwise, by and between Sawyer's Walk or Poinciana or anyone representing or acting in concert or on behalf of either of them, on the one hand, and the CRA or the City or anyone representing or acting in concert or on behalf of any of them, on the other, (1) for all purposes in the lawsuits referred to in Recitals G and H or any related litigation, other than litigation to enforce this Agreement, will be treated as offers to compromise or relevant conduct or statements made in negotiations concerning a compromise, as provided in Section 90.408, Florida Statutes, and (2) regardless of Section 90.408, will not be used in any way by any of the parties to this Agreement in such lawsuits or in connection with any dispute involving the properties at issue in the lawsuits, unless otherwise agreed in writing, and all rights, claims and legal positions of the parties shall continue to exist to the same extent as if this Agreement had never been executed. This Section 2.2 shall survive the termination of this Agreement. 2.3. Amended and Restated Lease. Attached hereto as Exhibit "D" is the form of amended and restated Poinciana Lease (the "Restated Poinciana Lease") which (i) the parties have fully negotiated and approved, (ii) has been approved by the Board of Directors of the CRA (the "CRA Board") at a CRA Board meeting, (iii) has been approved by the City of Miami Commission at a regularly scheduled meeting, and (iv) which the CRA and Sawyer's Walk intend to execute and deliver to each other, subject to the satisfaction or waiver of the Poinciana/Sawyer's Walk Conditions Precedent, as hereinafter defined, and the satisfaction or waiver of the CRA/City Conditions Precedent, as hereinafter defined, and compliance with the other terms and provisions of this Agreeme nt. 2.4. Settlement of Litigation. 2.4.1. Delivery of Settlement Documents. Subject to the satisfaction or waiver of all of the Poinciana/Sawyer's Walk Conditions Precedent and subject to the satisfaction or waiver of all of the CRA/City Conditions Precedent, on or prior to the Lease Delivery Date, the parties to this Agreement shall: 2.4.1.1. Execute a Stipulation of Settlement and Dismissal with Prejudice of the Poinciana Litigation in the form of Exhibit "E" attached hereto (the "Poinciana Stipulation"). 2.4.1.2. Execute a Stipulation of Settlement and Dismissal with Prejudice of the Sawyer's Walk Litigation in the form of Exhibit "F" attached hereto (the "Sawyer's Walk Stipulation"). 2.4.1.3. Obtain a court order approving the settlement in the Poinciana Litigation after a court hearing regarding the 4 terms of this settlement in substantially the form of Exhibit "G" attached hereto (the "Poinciana Order") or obtain such other court order dismissing the Poinciana Litigation with prejudice as the parties may approve. 2.4.1.4. Obtain a court order approving the Settlement in the Sawyer's Walk Litigation after a court hearing regarding the terms of this settlement in substantially the form of Exhibit "H" attached hereto (the "Sawyer's Walk Order") or obtain such other court order dismissing the Sawyer's Walk Litigation with prejudice as the parties may approve. 2.4.1.5. Execute a mutual release with respect to the Poinciana Litigation in the form of Exhibit "I" attached hereto (the "Poinciana Mutual Release"). 2.4.1.6. Execute a mutual release with respect to the Sawyer's Walk Litigation in the form of Exhibit "J" attached hereto (the "Sawyer's Walk Mutual Release"). 2.4.2. Abatement of Litigation. From the date of this Agreement until the earlier to occur of the termination of this Agreement or the Lease Delivery Date, the City, the CRA, Poinciana and Sawyer's Walk covenant and agree to fully abate taking any and all action in connection with the Poinciana Litigation and the Sawyer's Walk Litigation, except to the extent required by applicable law to keep the Poinciana Litigation and the Sawyer's Walk Litigation from being dismissed for lack of prosecution during the abatement period. 2.5. Termination of this Agreement. 2.5.1. Termination by Poinciana and Sawyer's Walk. In the event Poinciana and Sawyer's Walk elect to terminate this Agreement as a result of (i) their Inspections, as hereinafter defined, pursuant to Section 3.7; (ii) as a result of any title defect(s) under Section 4.2 or 4.3; (iii) as a result of their failure to obtain approval of the County pursuant to Section 6.5; (iv) as a result of their failure to obtain approval of the County pursuant to Section 7.2; (v) as a result of a Challenge, as hereinafter defined, pursuant to Section 11.1; or (vi) as a result of the failure to satisfy any of the Poinciana/Sawyer's Walk Conditions Precedent pursuant to Section 19, then in such event, the City and the CRA may elect within sixty (60) days after receipt of notice of termination from Poinciana Village and Sawyer's Walk to settle the Poinciana Litigation and the Sawyer's Walk Litigation by making settlement payments in the total amount of Six Million Five Hundred Thousand and 00/100 Dollars ($6,500,000.00) (the "Settlement Payment") to be paid as follows: (i) an initial payment of Four Million, Four Hundred Thousand and 00/100 Dollars ($4,400,000.00) to be made no later than sixty (60) days after receipt of notice of 5 termination from Poinciana Village and Sawyer's Walk (the "Initial Settlement Payment") and (ii) four (4) annual payments of Five Hundred Twenty-five Thousand and 00/100 Dollars ($525,000.00), which payments shall commence one (1) year from the Initial Settlement Payment. In the event the City and the CRA elect to make the Settlement Payment, the Settlement Payment shall be due and payable within sixty (60) days of the making of the election by the City and the CRA, and such Settlement Payment shall be made in exchange for the Poinciana Stipulation, the Sawyer's Walk Stipulation, the Poinciana Order, the Sawyer's Walk Order, the Poinciana Mutual Release and the Sawyer's Walk Mutual Release, except all of the foregoing documents shall be amended to reflect that the Settlement Payment will be made in lieu of executing the Restated Poinciana Lease. In the event that the City and the CRA do not elect to make the Settlement Payment within the sixty (60) day period, this Agreement shall terminate and be of no further force and effect except with respect to those obligations which expressly survive termination. 2.5.2. Termination by CRA and City. In the event the City and the CRA elect to terminate this Agreement (i) as a result of the failure to satisfy the City Attorney that the Proposed TIF Use will be in compliance with all applicable laws, as provided in Section 8.6 of this Agreement; (ii) as a result of the failure to obtain approval of the County pursuant to Section 6.5; (iii) as a result of the failure to obtain approval of the County pursuant to Section 7.2; (iv) as a result of a Challenge, as hereinafter defined, pursuant to Section 11.1; (v) as a result of the failure to satisfy any of the CRA/City Conditions Precedent pursuant to Section 20; (vi) as a result of the failure of the Lease Delivery Date in accordance with Section 21; or (vii) as a result of a default in accordance with Section 27, the City and the CRA may elect within sixty (60) days after making the election to terminate this Agreement, to make the Settlement Payment. In the event the City and the CRA elect to make the Settlement Payment, the Settlement Payment shall be due and payable within sixty (60) days of the making of the election by the City and the CRA and such Settlement Payment shall be made in exchange for the Poinciana Stipulation, the Sawyer's Walk Stipulation, the Poinciana Order, the Sawyer's Walk Order, the Poinciana Mutual Release and the Sawyer's Walk Mutual Release, except all of the foregoing documents shall be amended to reflect that the Settlement Payment will be made in lieu of executing the Restated Poinciana Lease. In the event that the City and the CRA do not elect to make the Settlement Payment within the sixty (60) day period, this Agreement shall terminate and be of no further force and effect except with respect to those obligations which expressly survive termination. If the CRA and the City do not proceed in accordance with this Section 2.5, Poinciana, Sawyer's Walk, the CRA and the City shall not be deemed to have waived any of their rights, claims or defenses associated with the Poinciana Litigation and/or the Sawyer's Walk Litigation. 3. INSPECTION PERIOD. 6 3.1. Inspections. Poinciana and Sawyer's Walk shall have until 5 p.m. on the one hundred and twentieth (120th) day after the Effective Date (the "Inspection Period") to perform, at Poinciana's and Sawyer's Walk's sole cost and expense, such investigations and inspections of the Phase II of the Poinciana Village Project and the Sawyer's Walk Project, (Phase II of the Poinciana Village Project and the Sawyer's Walk Project are collectively the "Real Property"), the physical condition thereof, matters of zoning, title, survey and all other matters with respect to the Real Property, including, without limitation, environmental matters (collectively the "Inspections") to determine whether the Real Property is acceptable to Poinciana and Sawyer's Walk in their sole discretion. Prior to performing any on -site Inspections, Poinciana and Sawyer's Walk shall provide at least three (3) business days' prior written notice to the Executive Director of the CRA (the "Executive Director") at 49 N.W. 5th Street, Suite 100, Miami, Florida 33128, Phone: 305-679-6800; Facsimile: 305-679-6835 (or such other CRA representatives as designated by the Executive Director), which written notice shall provide reasonable detail regarding the type and scope of Inspection(s) to be performed and the scheduled date and time for such Inspection(s) and provide the Executive Director the opportunity to have a representative from the CRA present at any such Inspection(s). 3.2. Restoration. Following any such Inspections, Poinciana and Sawyer's Walk shall promptly restore the Real Property to the condition existing immediately prior to such Inspections. Poinciana and Sawyer's Walk shall promptly forward copies of any of the reports prepared in connection with any of their Inspections directly to the Executive Director. The Inspections shall be conducted in accordance with all applicable laws and by licensed and insured professionals, and Poinciana and Sawyer's Walk shall cause its inspectors to obtain, at Poinciana's and Sawyer's Walk's sole cost and expense, any and all licenses and permits required to conduct the Inspections, as applicable. 3.3. Environmental Audit. Should Poinciana and Sawyer's Walk conduct a Phase I environmental audit ("Phase I Report") and such audit reflects a recommendation for further environmental audits (a "Phase II Report"), the CRA and the City acknowledge that Poinciana and Sawyer's Walk shall be authorized, at Poinciana's and Sawyer's Walk's sole cost and expense, to obtain the Phase II Report during the Inspection Period. 3.4. Disclosure. Poinciana and Sawyer's Walk agree that in the event the need arises to notify, under applicable laws, any federal, state or local public agencies of any conditions at the Real Property as a result of the Inspections performed by Poinciana and Sawyer's Walk, their agents, employees, contractors and/or representatives, Poinciana and Sawyer's Walk shall notify the Executive Director, and such disclosure shall be made directly 7 by the CRA, if deemed necessary thereby, and not Poinciana and Sawyer's Walk, to any such public agencies. 3.5. Indemnification. Poinciana and Sawyer's Walk shall assume all risks associated with the Inspections and agree to indemnify and hold harmless the CRA and the City of, from and against any and all costs, losses, claims, damages, liabilities, expenses and other obligations (including, without limitation reasonable attorney's fees and court costs) arising from, out of or in connection with or otherwise relating to the Inspections, including, without limitation, the entry by any one or more of Poinciana's and/or Sawyer's Walk's agents, employees, contractors and other representatives in or upon the Real Property for the purpose of the Inspections. The foregoing shall not apply to any diminution in the value of the land or costs or expenses which might arise due to the uncovering of the existence of adverse conditions (e.g., environmental conditions), provided, however, the foregoing is not intended to relieve Poinciana and Sawyer's Walk from liability if Poinciana and Sawyer's Walk, their agents, employees, contractors or other representatives cause such condition to exist. The foregoing indemnification obligations of Poinciana and Sawyer's Walk shall survive the expiration or termination of this Agreement. 3.6. Insurance. Poinciana and Sawyer's Walk shall, prior to entering the Real Property and performing any Inspections, provide to the CRA evidence of insurance by Poinciana, Sawyer's Walk, and their contractors, as applicable, as specified on Exhibit "K" attached hereto, insuring against any liability by any one or more of Poinciana, Sawyer's Walk, their agents, employees, contractors or other representatives arising from, out of or in connection with or otherwise relating to the entry by any one or more of Poinciana, Sawyer's Walk, their agents, employees, contractors or other representatives in or upon the Real Property for the purpose of the Inspections. Poinciana and Sawyer's Walk shall provide the CRA with a certificate of insurance evidencing such insurance coverage, naming CRA and the City as additional insureds thereon and which insurance coverage shall be kept in force until the expiration or early termination of this Agreement. 3.7. Acceptance of Real Property. If for any reason whatsoever Poinciana and Sawyer's Walk, in their sole discretion, determine during the Inspection Period that they do not wish to proceed with the transaction contemplated by this Agreement as a result of the physical condition of the Real Property, Poinciana and Sawyer's Walk shall have the absolute right to terminate this Agreement by giving written notice of such termination to the CRA and the City in the manner hereinafter provided to give notices prior to the expiration of the Inspection Period. Upon the CRA's and the City's receipt of such notice prior to the end of the Inspection Period, this Agreement shall be deemed terminated and of no further force and effect and the parties shall be released and relieved from any liability or obligations hereunder, except for 8 those obligations which expressly survive the termination, unless the City and the CRA elect to proceed in accordance with Section 2.5 of this Agreement. If Poinciana and Sawyer's Walk do not terminate this Agreement prior to the expiration of the Inspection Period, then it shall be presumed conclusively that Poinciana and Sawyer's Walk have had adequate opportunity to review and inspect all portions of the Real Property, including, without limitation, the environmental condition of the Real Property and, based upon its Inspections, Poinciana and Sawyer's Walk have determined that the condition of all portions of the Real Property are satisfactory to Poinciana and Sawyer's Walk and, subject to satisfaction of the Poinciana/Sawyer's Walk's Conditions Precedent, Poinciana and Sawyer's Walk shall accept every portion of the Real Property in its "AS IS, WHERE IS, WITH ALL FAULTS" condition, without requiring any action, expense or other thing or matter on the part of the CRA or the City to be paid or performed. 3.8. No Lien. Poinciana and Sawyer's Walk shall use reasonable efforts not to create or permit to be created any mechanic's liens upon the Real Property, or any part thereof, as a result of the Inspections. If any lien shall at any time be filed against the Real Property, or any party thereof in connection with the Inspections, Poinciana and Sawyer's Walk shall cause same to be discharged or transferred to bond in accordance with applicable laws within thirty (30) days of recording. 3.9. CRA/City Deliveries. Prior to the date of this Agreement, the CRA and the City have provided to Poinciana and Sawyer's Walk for inspection and review copies of all surveys, tests, studies and reports which the CRA and the City have been able to locate with respect to the Real Property (collectively the "CRA/City Deliveries"). Any reliance upon the CRA/City Deliveries is at the sole risk of Poinciana and Sawyer's Walk and the CRA and the City make no representations or warranties, express or implied, with respect to the accuracy or completeness of the CRA/City Deliveries, and any reliance upon same is at the sole risk of Poinciana and Sawyer's Walk. 3.10. Deposit. Simultaneously with the execution of this Agreement, Poinciana and Sawyer's Walk shall deposit with Holland & Knight LLP (the "Escrow Agent") an initial deposit in the amount of One Hundred Fifty Thousand and No/100 Dollars (S150,000.00) (the "First Deposit"). If Poinciana and Sawyer's Walk elect to terminate this Agreement prior to the end of the Inspection Period by giving written notice of termination to the CRA, the City and Escrow Agent, Escrow Agent shall return the First Deposit to Poinciana and Sawyer's Walk. In the event Poinciana and Sawyer's Walk do not elect to terminate this Agreement prior to the expiration of the Inspection Period, then on or before the last day of the Inspection Period, Sawyer's Walk and Poinciana shall deposit with Escrow Agent an additional deposit in the amount of One Hundred Fifty Thousand and no/100 Dollars ($150,000.00) (the 9 "Second Deposit") and Poinciana and Sawyer's Walk shall deliver to Escrow Agent, the City and the CRA evidence substantiating that Sawyer's Walk and Poinciana have expended (versus contracted to expend) Five Hundred Thousand and no/100 Dollars ($500,000.00) in connection with the Project (the "Initial Expenditure"). If Poinciana and Sawyer's Walk do not terminate this Agreement at the end of the Inspection Period, the failure of Poinciana and Sawyer's Walk to make the Second Deposit and provide detailed evidence substantiating the Initial Expenditure shall constitute a default under this Agreement, entitling the CRA and the City to proceed in accordance with Section 27 of this Agreement. Upon submission of the MUSP Application to the City, Poinciana and Sawyer's Walk shall deposit with Escrow Agent an additional deposit in the amount of One Hundred Fifty Thousand and no/100 Dollars ($150,000.00) (the "Third Deposit") and shall deliver to Escrow Agent, the City and the CRA evidence substantiating that Poinciana and Sawyer's Walk has expended (versus contracted to expend) One Million and no/100 Dollars ($1,000,000.00), in the aggregate, in connection with the Project (the "Expenditure"). The failure of Poinciana and Sawyer's Walk to make the Third Deposit and provide detailed evidence substantiating the Expenditure shall constitute a default under this Agreement, entitling the CRA and the City to Proceed in accordance with Section 27 of this Agreement. Within ten (10) days of the date Poinciana and Sawyer's Walk receive notice that the MUSP Application has been approved, Poinciana and Sawyer's Walk shall deposit with Escrow Agent an additional deposit in the amount of One Hundred Fifty Thousand and no/100 Dollars ($150,000.00) (the "Fourth Deposit"). (The First Deposit, Second Deposit, Third Deposit and Fourth Deposit are collectively referred to as the "Deposit"). The failure of Poinciana and Sawyer's Walk to make the Fourth Deposit shall constitute a default under this Agreement, entitling the CRA and the City to proceed in accordance with Section 27 of this Agreement. At the election of Poinciana and Sawyer's Walk, Poinciana and Sawyer's Walk may provide an irrevocable, unconditional letter of credit issued by a financial institution acceptable to the CRA and the City, with an expiration date no earlier than June 1, 2006, which shall be in form and substance reasonably acceptable to the CRA and the City (the "LC") in the required amounts in lieu of making the Deposit in cash. To the extent the Deposit is in the form of cash, Escrow Agent shall hold the Deposit in an interest bearing account. Escrow Agent shall deliver the Deposit, or the LC, as appropriate, together with the interest accrued thereon, if any, to the CRA and the City upon the occurrence of a default by Poinciana and/or Sawyer's Walk under the terms of this Agreement. Escrow Agent shall return the Deposit, or the LC, as appropriate, together with the interest accrued thereon, if any, to Poinciana and Sawyer's Walk if they terminate this Agreement in accordance with its terms or in the event the CRA and Sawyer's Walk execute the Restated Poinciana Lease. 10 3.11. Disclaimer of Representations by Poinciana and Sawyer's Walk. Poinciana and Sawyer's Walk hereby expressly acknowledge and agree that in connection with this Agreement or otherwise: 3.11.1. The CRA and the City make and have made no warranty or representation whatsoever as to the condition or suitability of any portion of the Real Property for the Development Plan, as hereinafter defined. 3.11.2. The CRA and the City make and have made no warranty, express or implied, with regard to the accuracy or completeness of any information furnished to Poinciana and Sawyer's Walk, and the CRA and the City shall not be bound by any statement of any broker, employee, agent or other representative of the CRA or the City. 3.11.3. The CRA and the City have made no representations, warranties or promises to Poinciana and Sawyer's Walk not explicitly set forth in this Agreement. 3.11.4. The CRA and the City have made no representations or warranties, express or implied, with regard to the neighborhood, that the CRA Redevelopment Area will be developed, or as to the precise type or quality of improvements that will be constructed within the CRA Redevelopment Area or the timing thereof. 3.11.5. The CRA and the City make and have made no representation or warranty, express or implied, concerning any portion of the Real Property, their condition or other things or matters directly or indirectly relating thereto or hereto, including, without limitation, no warranty as to merchantability or fitness for any particular purpose or relating to the absence of latent or other defects. 4. TITLE AND SURVEY. 4.1. Poinciana and Sawyer's Walk shall obtain a title insurance commitment (the "Commitment") and a survey (the "Survey") of the Real Property. The Commitment and the Survey shall show the CRA to be vested in fee simple title to the Real Property, subject to each of the following (the "Permitted Exceptions"): 4.1.1. Ad valorem real estate tax for the year 2005 and subsequent years. 4.1.2. All applicable laws, ordinances and governmental regulations, including, but not limited to, all applicable building, zoning, land use, environmental ordinances and regulations. 11 4.1.3. Restrictions, reservations, easements, covenants, agreements, limitations and other matters appearing of record, none of which shall interfere with the Development Plan, as hereinafter defined. 4.1.4. Any matters arising by, through, or under Poinciana and/or Sawyer's Walk. 4.1.5. The restrictions, coupled with a reverter, contained in that deed from the County to the City recorded May 24, 1988, in Official Records Book 13689, at Page 3728, of the Public Records of Miami -Dade County, Florida. 4.1.6. The restrictions, coupled with a reverter, contained in that deed from the County to the City recorded in Official Records Book 13689, at Page 3731, of the Public Records of Miami -Dade County, Florida. 4.1.7. The terms and conditions of the County Litigation and the County Settlement, as hereinafter defined. 4.2. Poinciana and Sawyer's Walk shall have thirty (30) days after Poinciana and Sawyer's Walk obtain the Commitment and the Survey to examine same, but in no event later than the end of the Inspection Period. Poinciana and Sawyer's Walk shall promptly provide the CRA and the City a copy of the Commitment and the Survey upon Poinciana and Sawyer's Walk's receipt of same. If the Commitment and Survey reflect defects in the title to the Real Property (i.e., matters which render title unmarketable in accordance with the standards of the Florida Bar which are not Permitted Exceptions, Poinciana and Sawyer's Walk shall, no later than the expiration of the Inspection Period, notify the CRA and the City in writing of the defect(s). If Poinciana and Sawyer's Walk fail to give the CRA and the City written notice of the defect(s) prior to the end of the Inspection Period, the defect(s) shown in the Commitment and the Survey shall be deemed to be waived as title objections and same shall be deemed to constitute Permitted Exceptions for all purposes under this Agreement. If Poinciana and Sawyer's Walk have given CRA and the City written notice of defect(s) rendering title other than as required by this Agreement prior to the end of the Inspection Period, the CRA shall elect within ten (10) days after receipt of written notice of the title defect(s) whether the CRA will elect to attempt to cure the title defect(s). If the CRA elects to attempt to cure the title defect(s), the CRA shall have sixty (60) days from receipt of the written notice of defect(s) to use reasonable efforts to cure same (the "Cure Period"). The CRA shall discharge any lien(s) or judgment(s) against the Real Property in a liquidated amount provided that the CRA shall not be required to expend more than Fifty Thousand and No/100 Dollars ($50,000.00) in connection therewith to cure any title defect(s). In the event the CRA elects not to cure any of the title defects, or, if the CRA elects to attempt to cure the 12 title defects and the CRA is not able to cure the defect(s) prior to the end of the Cure Period, Poinciana and Sawyer's Walk shall have the option, to be exercised within ten days after the end of the Cure Period, of either (i) waiving the defect(s), in which event the defect(s) shall be deemed to constitute a Permitted Exception under this Agreement, or (ii) canceling this Agreement, whereupon the parties shall be released from any further obligations under this Agreement, except for those obligations that expressly survive the termination of this Agreement, unless the City and the CRA elect to proceed in accordance with Section 2.5 of this Agreement. If the CRA and the City do not proceed in accordance with Section 2.5, Poinciana, Sawyer's Walk, the CRA and the City shall not be deemed to have waived any of their rights, claims, or defenses associated with the Poinciana Litigation and/or the Sawyer's Walk Litigation. 4.3. In the event of any new title defect(s) arising from and after the effective date of the Commitment and prior to the delivery of the Restated Lease, the CRA shall use reasonable efforts to cure such title defect(s) prior to the Lease Delivery Date. The CRA shall discharge any lien(s) or judgment(s) against the Real Property in a liquidated amount, provided that the CRA shall not be required to expend more than Fifty Thousand and No/100 Dollars (S50,000.00) in connection therewith. The CRA shall not be required to bring any lawsuit(s) to cure any title defect(s) or expend any funds to cure any title defect(s) not in a liquidated amount. In the event that the CRA is unable to cure the title defect(s) prior to the Lease Delivery Date, Sawyer's Walk and Poinciana shall have the option on the Lease Delivery Date of either (i) waiving the title defect(s) and accepting title "as is" whereupon the title defect(s) will be deemed to constitute a Permitted Exception under this Agreement or (ii) canceling this Agreement, whereupon the parties shall be released from all further obligations under this Agreement, except for those obligations that expressly survive the termination of this Agreement, unless the City and the CRA elect to proceed in accordance with Section 2.5 of this Agreement. If the CRA and the City do not proceed in accordance with Section 2.5, Poinciana, Sawyer's Walk, the CRA and the City shall not be deemed to have waived any of their rights, claims, or defenses associated with the Poinciana Litigation and/or the Sawyer's Walk Litigation. 5. MUSP APPROVAL. 5.1. MUSP Approval. From and after the Effective Date, Poinciana and Sawyer's Walk shall use good faith reasonable efforts to obtain the approval of the Major Use Special Permit by the applicable governmental authorities for the Development Plan which shall be final and not subject to appeal (such approval shall be referred to herein as the "MUSP Approval"). Poinciana and Sawyer's Walk shall promptly and diligently undertake, at their sole cost and expense, the necessary effort to prepare all required plans, 13 documents, covenants and supporting materials to apply for the MUSP for the Development Plan which has been approved by the CRA pursuant to Section 12.3. 5.2. Approval by CRA. Poinciana and Sawyer's Walk shall obtain the prior written approval of the Executive Director for the application for the MUSP, which shall include all applications for zoning changes or variances and/or amendments to the Comprehensive Plan currently in effect for the City of Miami (collectively the "the MUSP Application") prior to submitting the MUSP Application to any governmental and/or quasi governmental agency. The MUSP Application must be consistent with the Development Plan which has been approved by the CRA pursuant to Section 12.3. Poinciana and Sawyer's Walk shall provide the Executive Director with at least three (3) copies of the proposed MUSP Application for review. The Executive Director shall have ten (10) business days from the receipt of the MUSP Application to approve or reject same. The failure of the Executive Director to respond to Poinciana and Sawyer's Walk within the ten (10) business day period shall be deemed approval of the MUSP Application. If the CRA does not approve the MUSP Application, the Executive Director shall provide Poinciana and Sawyer's Walk with notice stating the reasons for such rejection. Poinciana and Sawyer's Walk shall revise the MUSP Application to address the comments raised by the CRA. Poinciana, Sawyer's Walk and the CRA shall continue this process until the Executive Director has approved the MUSP Application. The CRA, Poinciana and Sawyer's Walk agree to use good faith, reasonable efforts to agree upon the necessary modifications, if any, to the MUSP Application, provided the application is consistent with the Development Plan which has been approved by the CRA pursuant to Section 12.3. If the Executive Director has rejected the MUSP Application three (3) times, Poinciana and Sawyer's Walk may elect to submit any dispute regarding the approval of the MUSP Application to the CRA Board for resolution. 5.3. Filing MUSP Application. Poinciana and Sawyer's Walk covenant and agree to utilize their best efforts to obtain the CRA's approval of the MUSP Application pursuant to Section 5.2 and then file the MUSP Application with the City of Miami within ninety (90) days from the end of the Inspection Period. The Executive Director, in his sole discretion, may extend the time for filing the MUSP Application with the City for a period of up to sixty (60) days. 5.4. Joinder in Application. The CRA as the owner of the Real Property shall join in any MUSP Application provided the MUSP Application is consistent with the Development Plan as provided in Section 5.2. 5.5. City Impact Fees. Sawyer's Walk may apply for an exemption from impact fees in accordance with Section 13-2 of the City of 14 Miami Municipal Code. In the event it is determined by the City, in its governmental capacity, that Poinciana and Sawyer's Walk qualify for the exemption set forth therein, the City hereby agrees to exempt any impact fees associated with the Project, as provided in the City of Miami Municipal Code. 5.6. Preparation of MUSP Application. Poinciana and Sawyer's Walk shall be responsible to pay all costs and expenses associated with the preparation of the MUSP Application, including, without limitation, all architecture fees, engineering fees and traffic consulting fees and pay all costs and expenses incurred in connection with processing the MUSP Application. Poinciana and Sawyer's Walk shall have no right to recover any of these costs and expenses from the City and/or the CRA for any reason whatsoever. 5.7. Amendment to MUSP Application. In the event Poinciana and Sawyer's Walk desire to modify the MUSP Application once it has been filed with the City of Miami as a result of proposed changes to the Development Plan requested by Poinciana and Sawyer's Walk or as a result of changes Poinciana and Sawyer's Walk desire to make to address any comments from any governmental entities, Poinciana and Sawyer's Walk shall submit three (3) copies of the proposed revisions to the MUSP Application to the Executive Director for his review and approval. The Executive Director shall have ten (10) business days from the receipt of the requested modifications, and all backup information required to analyze the proposed modifications, to approve or reject same. The failure of the Executive Director to respond within the ten (10) business day period shall be deemed an approval of the proposed MUSP Application amendment. If the CRA does not approve the proposed amendment to the MUSP Application such notice shall state the reason for such rejection. Poinciana and Sawyer's Walk shall revise the amendment to the MUSP Application to address the comments raised by the CRA and the process shall continue until the Executive Director has approved the amendment to the MUSP Application. The parties agree to use reasonable, good faith effort to agree upon necessary modifications to the MUSP Application which result from any governmental or quasi -governmental process, provided in no event shall the Executive Director be required to consent to any changes which deviate materially from the Development Plan. If the Executive Director has rejected the amendment to the MUSP Application three (3) times, Poinciana and Sawyer's Walk may elect to submit the dispute regarding the amendment to the MUSP Application to the CRA Board for resolution. 5.8. Governmental Function of the City. Notwithstanding the agreement of the City to assist Poinciana and Sawyer's Walk with respect to the MUSP Application, as hereinafter provided, Poinciana and Sawyer's Walk acknowledge and agree that the City's agreement to provide assistance with respect to processing the application for the MUSP Approval shall in no way imply that the City will approve the applications, nor shall same obligate the 15 City to expend any monies or to take any actions with regard thereto. Sawyer's Walk and Poinciana acknowledge that the City shall undertake actions in connection with the MUSP Application in accordance with the established requirements of state and municipal law in the exercise of the City's jurisdiction under its police power. Nothing in this Agreement is intended to limit or restrict the power and responsibilities of the City against such application by virtue of being a party to this Agreement. The parties further acknowledge and agree that these proceedings with respect to the MUSP Application shall be conducted openly, fully and fairly in full accordance with all applicable laws, with both procedural and substantive due process to be accorded the applicant and any member of the public. Nothing contained in this Agreement shall entitle Poinciana and/or Sawyer's Walk to compel the City to take any action in connection with the MUSP Application. 5.9. Covenant Not to Sue. Poinciana and Sawyer's Walk covenant and agree not to sue the City for any action taken, or inaction by the City, in its governmental capacity in the exercise of the City's jurisdiction under its police power, and should either Poinciana or Sawyer's Walk institute any legal proceedings against the City in connection with the application for MUSP Approval, same shall constitute a default under this Agreement in which event the City and CRA may pursue their remedies pursuant to Section 27 of this Agreement. 6. COUNTY LITIGATION. 6.1. Reverter. Poinciana and Sawyer's Walk acknowledge that the portion of the Real Property which is more particularly described on Exhibit "L" attached hereto and made a part hereof (the "Reverter Property") is subject to a right of reverter in favor of the Miami -Dade County (the "County"). Pursuant to the terms of the Settlement Agreement reached between the County and the City, Case No. 01-13810 CA 08, in the Eleventh Judicial Circuit in and for Miami -Dade County, Florida (the "County Litigation"), the Reverter Property is to be developed on or before August 1, 2007, or title to the Reverter Property will automatically revert to the County in accordance with the terms of the Settlement Agreement attached hereto as Exhibit "M" (the "County Settlement"). 6.2. Deed in Escrow. Poinciana and Sawyer's Walk acknowledge that pursuant to the terms of the County Settlement, the CRA has delivered or will deliver to the County a quitclaim deed conveying the Reverter Property to the County and should the terms and provisions of the County Settlement not be complied with title to the Reverter Property shall be conveyed to the County. 6.3. Acknowledgement of Risk. Poinciana and Sawyer's Walk acknowledge and agree that Sawyer's Walk shall bear all risk of compliance 16 with the terms of the County Settlement and Sawyer's Walk will bear all risk should the terms of the County Settlement not be complied with, and Poinciana and Sawyer's Walk waive any claims against the CRA and the City in connection therewith. 6.4. County Approval. Poinciana and Sawyer's Walk acknowledge that the terms and provisions of the County Settlement require that any proposed developer of the Reverter Property be approved by the Board of County Commissioners of the County. The City and the CRA covenant and agree to promptly request that the County approve Sawyer's Walk as the developer of the Project pursuant to the terms of the County Settlement within ten (10) days after the end of the Inspection Period. Poinciana and Sawyer's Walk covenant and agree to assist the City and the CRA in connection with such request and Poinciana and Sawyer's Walk covenant and agree to provide to the County any information that the County may reasonably request in connection therewith. 6.5. Failure to Obtain County Approval. In the event that all necessary approvals required from the County as required by the terms of the County Settlement have not been obtained from the County within sixty (60) days after the end of the Inspection Period, any party to this Agreement may elect to terminate this Agreement at any time thereafter and prior to the time approval from the County has been obtained pursuant to the terms of the County Settlement by written notice to the other parties in which event this Agreement shall terminate and the parties shall be released from all further obligations under this Agreement except for the obligations which expressly survive termination, unless the City and the CRA elect to proceed in accordance with Section 2.5 of this Agreement. If the CRA and the City do not proceed in accordance with Section 2.5, Poinciana, Sawyer's Walk, the CRA and the City shall not be deemed to have waived any of their rights, claims, or defenses associated with the Poinciana Litigation and/or the Sawyer's Walk Litigation. 6.6. Amendment to County Settlement. The City and the CRA acknowledge that Poinciana and Sawyer's Walk intend to request that the County amend the terms and provisions of the County Settlement to require the County to give the construction lender for the Reverter Property notice of default and cure rights in the event Sawyer's Walk does not comply with the requirements of the County Settlement. At the request of Poinciana and Sawyer's Walk, the City and the CRA shall request the County agree to a modification of the terms of the County Settlement to provide notice of default and reasonable cure rights to the construction lender for the Reverter Property. Poinciana and Sawyer's Walk covenant and agree to assist the City and the CRA in connection with such request and Poinciana and Sawyer's Walk covenant and agree to provide to the County any information that the County may request in connection therewith. Poinciana and Sawyer's Walk 17 acknowledge that they bear the entire risk as to whether the County will agree to amend the terms and provisions of the County Settlement and further acknowledge and agree that they will comply with the time frame for the development of the Reverter Property. 7. APPROVAL UNDER INTERLOCAL AGREEMENT. 7.1. Approval of Poinciana and Sawyer's Walk . Poinciana and Sawyer's Walk acknowledge that the terms of the Interlocal Agreement between the County and the City (the "Interlocal Agreement") require that the Board of County Commissioners of the County approve the selection of the developer for the Sawyer's Walk Project. The City and the CRA covenant and agree to promptly seek to obtain the approval required of the Board of County Commissioners under the terms of the Interlocal Agreement within ten (10) days after the end of the Inspection Period. Poinciana and Sawyer's Walk covenant and agree to cooperate with the City and the CRA in obtaining the required approval. Poinciana and Sawyer's Walk covenant and agree to provide the County any information that the County may request in connection therewith. 7.2. Failure to Obtain County Approval. In the event that the City and the CRA have not obtained all necessary approvals required from the County pursuant to the terms of the Interlocal Agreement within sixty (60) days after the end of the Inspection Period, any party to this Agreement may elect to terminate this Agreement at any time thereafter and prior to the time Poinciana and Sawyer's Walk are approved by the County pursuant to the terms of the Interlocal Agreement by written notice to the other party, in which event this Agreement shall terminate and the parties shall be released from all further obligations under this Agreement except for the obligations which expressly survive termination, unless the City and the CRA elect to proceed in accordance with Section 2.5 of this Agreement. If the CRA and the City do not proceed in accordance with Section 2.5, Poinciana, Sawyer's Walk, the CRA and the City shall not be deemed to have waived any of their rights, claims, or defenses associated with the Poinciana Litigation and/or the Sawyer's Walk Litigation. 8. TAX INCREMENT FUNDS. 8.1. Incremental Increase in Tax Increment Funds. Subject to Sections 8.2, 8.3, and 8.5 below, the CRA covenants and agrees to make available to Sawyer's Walk one hundred percent (100%) of the incremental increases in tax increment funds actually received by the CRA from the County and the City, generated by the increase above the assessed value for the Real Property and any improvements constructed thereon over and above the assessed value for the Real Property set forth in the Miami -Dade County ad 18 valorem property tax rolls for the year 2005 ("Incremental TIF") for qualifying uses under applicable laws for use of tax increment funds until September 30, 2013. The CRA covenants and agrees to make the Incremental TIF available to Sawyer's Walk within sixty (60) days of the CRA's actual receipt of the Incremental TIF from the County and the City to be utilized by Sawyer's Walk for qualifying uses permitted under applicable law for use of tax increment funds with respect to the Project, and at the election of Sawyer's Walk, within the Overtown project area, identified on Exhibit "N" attached hereto (the "Overtown Project Area"). Sawyer's Walk acknowledges that the County and the City withhold from the tax increment funds an administrative fee and funds for the Children's Trust. 8.2. Use of Incremental TIF. Sawyer's Walk acknowledges and agrees that the Incremental TIF may only be utilized in accordance with qualifying uses under applicable law for use of tax increment funds and that Sawyer's Walk shall not be entitled to, and the CRA will not disburse any of the Incremental TIF to Sawyer's Walk unless and until Sawyer's Walk has been able to establish to the CRA and, to the extent required by law or the Interlocal Agreement, the County, that the use of said funds for the use proposed by Sawyer's Walk is permissible under applicable law. Sawyer's Walk shall submit to the CRA and, to the extent required by law or the Interlocal Agreement, the County, any and all documentation that the CRA and/or the County may request to establish that the proposed use of the Incremental TIF qualifies for such use under applicable law. Sawyer's Walk further acknowledges that all Incremental TIF shall be used solely in connection with the development of the Project or within the Overtown Project Area. 8.3. Failure to Qualify. To the extent that Sawyer's Walk is not able to establish to the CRA, and to the extent required under applicable laws or the Interlocal Agreement, the County, that its proposed expenditures of the Incremental TIF qualifies for use of the Incremental TIF under applicable laws with respect to some or all of the Incremental TIF, the CRA agrees to make such portions of the Incremental TIF funds which Sawyer's Walk is unable to utilize under applicable law governing the use of tax increment funds available for use by any governmental agency which can legally use the Incremental TIF funds in connection with the Project, which entity is identified to the CRA by Sawyer's Walk and which entity requests the funds from the CRA. If Sawyer's Walk is unable to identify such an entity which wants to utilize the Incremental TIF in connection with the Project, the CRA shall be entitled to utilize that portion of the Incremental TIF for which Sawyer's Walk is unable to qualify for use in connection with the Project for improvements within the Overtown Project Area and the CRA shall not be required to make such funds available to Sawyer's Walk. 19 8.4. Extension of the CRA. Sawyer's Walk acknowledges that it will have no right to receive any Incremental TIF after the expiration of the CRA which is to incur by September 30, 2013. In the event that the duration of the CRA is extended, Sawyer's Walk acknowledges that notwithstanding the extension of the term of the CRA, the CRA is not obligated to pay to Sawyer's Walk any Incremental TIF generated from and after September 30, 2013. In the event the term of the CRA is extended beyond September 30, 2013, Sawyer's Walk shall have the right to request that the CRA pay to Sawyer's Walk all or a portion of the Incremental TIF generated by the Project after September 30, 2013, which request shall be treated like that of any other property owner within the CRA Redevelopment Area. The Executive Director shall present such request to the CRA Board for consideration with the recommendation that the Executive Director deems appropriate under the circumstances. The CRA Board shall not be obligated to approve the request or be under any obligation to Sawyer's Walk as a result of the payment of the Incremental TIF to Poinciana and Sawyer's Walk prior to September 30, 2013. 8.5. Subordination of Incremental TIF. Sawyer's Walk acknowledges and agrees that the obligation of the CRA to make the payments to Sawyer's Walk contemplated by Section 8.1 of the Agreement are junior and subordinate to the obligations of the CRA to pay debt service with respect to the $11,500,000.00 City of Miami, Florida, Community Redevelopment Revenue Bonds, Series 1990, the obligations of the CRA with respect to the Grand Central Project, and the obligations of the CRA to pay debt service on any bonds issued in the future by the CRA or the City on the CRA's behalf. The CRA covenants and agrees that the debt service coverage ratio on any new bonds issued in the future by the CRA or the City on the CRA's behalf, which are secured by tax increment funds based upon the estimated tax increment funds shall not exceed One Hundred Twenty -Five Percent (125%). Under no circumstances shall the CRA be obligated to make payments to Sawyer's Walk from its general revenues or any other sources if tax increment revenues are unavailable after the CRA makes all required payments under any obligations which are senior to the Incremental TIF. 8.6. Proposed Use of Incremental TIF. Within thirty (30) days of the Effective Date, Poinciana and Sawyer's Walk shall deliver to the CRA and the City a detailed explanation of their proposed use of the Incremental TIF (the "Proposed TIF Use") together with an opinion letter (the "Attorney Opinion Letter") from an attorney licensed to practice in the State of Florida stating that the Proposed TIF Use is a permissible expenditure under all applicable laws governing the use of the tax increment funds. The CRA and the City shall have One Hundred (100) days from the Effective Date of this Agreement (the "TIF Period") to analyze the Proposed TIF Use, to consult with the County regarding the Proposed TIF Use, and to obtain a letter from the Office of the County Attorney (the "County Letter") indicating whether the Proposed TIF 20 Use is a permissible expenditure under all applicable laws governing the use of the Incremental TIF. If the City Attorney is not satisfied that the Proposed TIF Use is a permissible expenditure under all applicable laws, irrespective of the content of the County Letter, if the CRA and the City are able to obtain the County Letter, the CRA and the City shall give Poinciana and Sawyer's Walk written notice that the City Attorney does not agree that the Proposed TIF Use is a permissible expenditure under applicable laws prior to the expiration of the TIF Period, in which event Sawyer's Walk shall have no right to use all or any portion of the Incremental TIF. In such event, the sole remedy to Poinciana and Sawyer's Walk shall be to terminate this Agreement on or before the expiration of the Inspection Period. If Poinciana and Sawyer's Walk do not terminate this Agreement during the Inspection Period, the CRA shall be under no obligation to make the Incremental TIF available to Sawyer's Walk as contemplated by this Section 8, unless there is a change in the law or Poinciana and Sawyer's Walk propose an alternative Proposed TIF Use and such change or alternative Proposed TIF Use is acceptable to the City Attorney and the City Attorney renders an opinion to the CRA that the Proposed TIF Use is a permissible expenditure under applicable laws. 8.7. In the event the City Attorney concludes that the Proposed TIF Use is not a permissible expenditure under the applicable laws, so that the Incremental TIF shall not be made available to Sawyer's Walk, Poinciana, Sawyer's Walk, the City and the CRA agree to utilize their good faith efforts to identify other sources of funds that may be available to fund or finance the garage structures to be developed as part of the Project, with no guaranty that any other funding sources will be identified or committed to the Project by the City and the CRA. 8.8. Change in Use of Incremental TIF. Sawyer's Walk shall not be permitted to change the Proposed TIF Use without the consent of the Executive Director and the City Attorney, which consent shall not be granted unless the City Attorney is satisfied that the new use proposed for the Incremental TIF is a permissible expenditure under applicable laws governing the use of tax increment funds. 8.9. Indemnification. Sawyer's Walk covenants and agrees to indemnify, defend and hold the CRA harmless from any loss or damage that the CRA may sustain, including attorney fees and costs, as a result of the actual use of the Incremental TIF differing from the Proposed TIF Use, as such use may be modified in accordance with Section 8.7 of the Agreement. 9. OMBUDSMAN. The parties recognize complexities associated with the establishment of the Development Plan. It is also acknowledged that the MUSP Approval and the other governmental approvals required in connection with the Development Plan, as well as submission and approval of 21 building plans for the purpose of obtaining building permits for the Development Plan, involves many departments and governmental agencies. In order to assist in expediting the process, the City shall designate an employee who is knowledgeable about the approvals process within the City to serve as an ombudsman (the "Ombudsman") for the purpose of assisting in the expediting of the processing of all applications filed with the City by Sawyer's Walk with respect to the Development Plan. The City will establish a reasonable level of authority in the Ombudsman so that this person has the ability to serve in the role of expediter, with the ability to communicate with the necessary departments and officials, and with Sawyer's Walk's representatives in an attempt to expedite the approval process. 10. SALE OF FEE SIMPLE INTEREST. 10.1. Receipt of Proposal. Sawyer's Walk has made a proposal to the CRA to purchase the fee simple interest of the CRA in the Real Property, subject to the terms of the Restated Poinciana Lease. The CRA covenants and agrees, after the Effective Date of this Agreement, to solicit proposals to acquire the fee simple interest of the CRA in the Real Property, subject to the terms of the Restated Poinciana Lease (the "Fee Simple Interest"). Subject to the requirements of applicable laws, the CRA covenants and agrees to solicit proposals to acquire the Fee Simple Interest within thirty (30) days after the Effective Date of this Agreement. The CRA will utilize its good faith efforts to complete the process of analyzing the proposals received with respect to the Fee Simple Interest, or reject all proposals, within ninety (90) days after the Effective Date of this Agreement. 10.2. No Commitment to Sawyer's Walk. Sawyer's Walk and Poinciana acknowledge that the CRA has made no commitment whatsoever to Sawyer's Walk and Poinciana with respect to the sale of the Fee Simple Interest beyond agreeing to solicit proposals and no commitment to Sawyer's Walk or Poinciana should be inferred by the inclusion of this Section 10 in this Agreement. 10.3. Rejection of Proposals. Poinciana and Sawyer's Walk acknowledge and agree that CRA has the right to reject all proposals with respect to the sale of the Fee Simple Interest and the selection of a proposal, if any, is subject to the approval of the CRA Board. 10.4. Award Contingent on Execution of Restated Poinciana Lease. Notwithstanding any decision by the CRA Board to accept a proposal to acquire the Fee Simple Interest, such transaction shall not occur until the execution of the Restated Poinciana Lease and if the Restated Poinciana Lease is not executed for any reason whatsoever, the CRA shall not be obligated to complete the transaction contemplated by the proposal. All proposals shall be 22 required to be expressly subject to the execution of the Restated Poinciana Lease. 10.5. Payments under the Restated Poinciana Lease. It is specifically acknowledged that any conveyance of the Fee Simple Interest shall occur after the payment of rent due upon execution of the Restated Poinciana Lease and the CRA shall retain all right with respect to such payment, and the CRA shall retain all rights with respect to the Subsidized Units, as hereinafter defined, which Subsidized Units are to be conveyed to the CRA pursuant to the Restated Poinciana Lease. 10.6. Covenant. Any conveyance of the Fee Simple Interest by the CRA shall be expressly subject to that certain covenant in the form of Exhibit "0" attached hereto and made a part hereof (the "Covenant"). 10.7. Governmental Function of CRA. Poinciana and Sawyer's Walk acknowledge that the CRA shall undertake actions in connection with the Fee Simple Interest in accordance with the established requirements of state law. Nothing in this Agreement is intended to limit or restrict the power and the responsibility of the CRA against such application by virtue of being a party to this Agreement. The parties further acknowledge that the proceedings with respect to the Fee Simple Interest shall be conducted openly, fairly and in full accordance with all applicable laws. Nothing contained in this Agreement shall entitle Poinciana and/or Sawyer's Walk to compel the CRA to take any action with respect to Fee Simple Interest. 11. CHALLENGES. 11.1. Challenge. In the event that any person or entity files a challenge (the "Challenge") with respect to (i) this Settlement Agreement; (ii) the Restated Poinciana Lease; (iii) the proposed execution of the Restated Poinciana Lease between the CRA and Sawyer's Walk; (iv) the solicitation of proposals regarding the Fee Simple Interest; (v) the selection of a proposal regarding the Fee Simple Interest; (vi) the Proposed TIF Use; or any of the foregoing, either judicially or administratively prior to the Lease Delivery Date, and such Challenge is not dismissed within sixty (60) days of filing, or if more than one Challenge is filed, all Challenges are not dismissed within One Hundred Twenty (120) days from the filing of the first Challenge, any of the parties to this Agreement shall have the right to terminate this Agreement by written notice to the other parties to this Agreement, in which event this Agreement shall be of no further force and effect and the parties shall be released from any further obligations under this Agreement, except for the obligations that expressly survive the termination of this Agreement, unless the City and the CRA elect to proceed in accordance with Section 2.5 of this Agreement. In the event of a termination of this Agreement, if the City and the 23 CRA elect not to proceed in accordance with Section 2.5, Poinciana, Sawyer's Walk, the CRA and the City shall not be deemed to have waived any of their rights, claims or defenses associated with the Poinciana Litigation or the Sawyer's Walk Litigation. 11.2. No Liability. Poinciana and Sawyer's Walk acknowledge and agree that the CRA and the City shall have no liability whatsoever to Poinciana and Sawyer's Walk in connection with any Challenge and Poinciana and Sawyer's Walk hereby forever waive and release the CRA and the City from any liability whatsoever, now or hereafter arising in connection with any Challenge and covenant and agree not to initiate any legal proceedings against the City and/or the CRA in connection with any Challenges. 11.3. Waiver of Claim. Poinciana and Sawyer's Walk waive any and all claims which they now have or may hereafter have against the CRA and/or the City as a result of any Challenge, and Poinciana and Sawyer's Walk acknowledge and agree to assume the risk of any Challenge to the extent that they do not elect to terminate this Agreement as provided in Section 11.1 above. Under no circumstances shall Poinciana or Sawyer's Walk be entitled to any recovery with respect to any claims or any cause of action against the City or the CRA resulting from any Challenge, all such claims being expressly waived by Poinciana and Sawyer's Walk. 12. DEVELOPMENT PLAN. 12.1. Preliminary Development Plans. Sawyer's Walk intends to construct approximately one thousand fifty (1,050) residential units on the Real Property (collectively, the "Residential Units") consisting of apartments, townhouses, lofts, live/work units (i.e., commercial units which are bundled with a residential unit) {the "Live/Work Units"), which Residential Units will be constructed in mid -rise structures and high-rise structures and approximately seventy-five thousand (75,000) square feet of retail and office space substantially in accordance with the preliminary plans attached hereto as Exhibit "P" {the "Preliminary Development Plans"). Sawyer's Walk intends that the Residential Units will be primarily for sale with the possibility of some rental units with the sales prices initially intended to be within the One Hundred Thirty Thousand and No/100 Dollars ($130,000.00) to Three Hundred Thousand and No/100 Dollars ($300,000.00) price range, excluding Live/Work Units. Sawyer's Walk contemplates completing the Project within five (5) years from the Effective Date. 12.2. Detailed Development Plan. Within one hundred and twenty (120) days from the Effective Date, Sawyer's Walk shall submit to the Executive Director for review and approval a detailed plan for the entire Project which shall be substantially consistent with the Preliminary Development 24 Plans (the "Detailed Development Plans") which shall include, without limitation, the following: (i) site plan for the entire Project; (ii) a block by block breakdown of the Project, including, without limitation, the number, type, style and size of the units to be constructed in each block; (iii) a phasing plan for the Project; (iv) a project schedule for the overall Project; (v) a project schedule with respect to each phase of the Project; (vi) a break down of the Affordable Units, as hereinafter defined, and Subsidized Units, as hereinafter defined, to be included in each phase of the Project, which shall include a breakdown of the square footage and unit mix of the Affordable Units and Subsidized Units. The Detailed Development Plans shall reflect that Phase I, as defined in Section 13.1, includes all of the Reverter Property. 12.3. Approval by CRA. All aspects of the Detailed Development Plans, including, without limitation, the unit mix, the Project design, the phasing plan and the proposed project schedule, shall be subject to the approval of the Executive Director, which approval shall not be unreasonably withheld provided that the Detailed Development Plans are consistent with the Preliminary Development Plans, consistent with the proposed amended redevelopment plan for the CRA Redevelopment Area currently being finalized for the CRA (the "CRA Development Requirements") and comply with the requirements regarding the Affordable Units and Subsidized Units. The parties agree to use reasonable, good faith efforts to agree on the necessary modifications to the Detailed Development Plans to satisfy the requirements of the Executive Director. Sawyer's Walk shall provide to the Executive Director such additional backup information as the Executive Director may reasonably request to enable the Executive Director to analyze all aspects of the Project, including but not limited to, the phasing plan, the project schedule for the entire Project, the project schedule for each phase of the Project, and the affordable housing component of the Project. The Executive Director shall have fifteen (15) days after receipt of the Detailed Development Plans to approve same. In the event of disapproval, the Executive Director shall specify the specific reasons for such disapproval. In the event of disapproval, Sawyer's Walk shall modify the Detailed Development Plans, as appropriate, to address the comments and concerns of the Executive Director and to insure that the Detailed Development Plans comply with the CRA Development Requirements. Any resubmission shall be subject to approval by the Executive Director in accordance with the procedure outlined above for the original submission until same is approved by the Executive Director. The Executive Director and Sawyer's Walk shall in good faith attempt to resolve any disputes regarding the Detailed Development Plans. If the Executive Director has rejected the Detailed Development Plans three (3) times, Poinciana and Sawyer's Walk may elect to submit any dispute regarding the approval of the Detailed Development Plans to the CRA Board for resolution. The Detailed Development Plans, as approved by the Executive Director, shall mean the "Development Plan". 25 12.4. Failure to Respond. In the event the Executive Director fails to approve or disapprove the Detailed Development Plans within fifteen (15) days of receipt, such failure to respond shall automatically extend the time frame for submission of the MUSP Application to the City and the outside date in Section 19.2 and 20.2 one day for each day of delay until the Executive Director approves or disapproves the Detailed Development Plans. 12.5. Development Requirements. Sawyer's Walk will be required to develop the Project substantially in accordance with the Development Plan. Any variations to the Development Plan shall require the approval of the Executive Director, which approval shall not be unreasonably withheld or delayed, provided the same are in accordance with the spirit and intent of the Development Plan and in accordance with the CRA Development Requirements. The Development Plan shall be incorporated into the Restated Poinciana Lease. 12.6. Development Time Frame. 12.6.1. Project Schedule. Sawyer's Walk shall be required to develop the Project in accordance with the project schedule which is incorporated into the Development Plan (the "Project Schedule") subject to extension as a result of Unavoidable Delays, as defined in the Restated Poinciana Lease. 12.6.2. County Settlement. Sawyer's Walk shall be required to develop the Reverter Property as part of Phase I of the Project prior to commencing development on any other portions of the Project. 13. DEVELOPMENT AND FINANCIAL APPROVALS. 13.1. Phase I. Sawyer's Walk and the CRA contemplate that the first phase of the Project, to be identified by Sawyer's Walk in the Detailed Development Plans, shall contain approximately four hundred (400) units ("Phase I"). Prior to the Lease Delivery Date, Sawyer's Walk shall submit to the Executive Director for review and approval, which shall not be unreasonably withheld, the following: 13.1.1. Budget. A detailed budget reflecting all hard and soft costs anticipated to be incurred by Sawyer's Walk in connection with the development of Phase I (the "Phase I Budget"). 13.1.2. Plans and Specifications. The proposed plans and specifications for all units comprising Phase I which shall be completed in accordance with the Development Plan and MUSP Approval and which shall be of sufficient detail to apply for a building permit with respect to all units comprising Phase I (the "Phase I Plans and Specifications"). 26 13.1.3. Project Team. The names, together with background information, with respect to all proposed members of the development team for Phase I (the "Development Team"), including without limitation, the architect, the structural engineer, the civil engineer, and the general contractor for Phase I. The Executive Director may withhold approval with respect to (i) an individual who has committed a material breach or any material contract with the City and/or the CRA; (ii) has been convicted of any criminal felony within the immediate preceding ten (10) years; (iii) has a widespread reputation, as evidenced by newspaper articles or other media reports of mainstream press which are not subsequently retracted, for corruption or unlawful business dealings; or (iv) is on any terrorist list. 13.1.4. Construction Contract. The Construction Contract for Phase I (the "Construction Contract"), together with the "schedule of values" for Phase I, which shall include the obligation of the general contractor to comply with the minority participation requirements set forth in Section 15.2.1 of this Agreement. 13.1.5. Construction Schedule. A detailed schedule for development and construction of Phase I (the "Phase I Construction Schedule"). 13.1.6. Payment and Performance Bonds. The Payment and Performance Bonds in the amount equal to one hundred percent (100%) of the hard construction costs for Phase I which shall name the CRA as a dual obligee. The forms of Payment and Performance Bonds shall be issued by a surety having a credit rating of "A" or higher with a financial strength of X or higher (the "Payment and Performance Bonds") and shall be approved by the Executive Director and the City Attorney. 13.1.7. Minority Participation. Evidence of compliance with the minority participation goals under Section 15.2.1, 15.2.2 and 15.2.4 with respect to architectural services, construction services and marketing staff. 13.1.8. Loan Commitment. Sawyer's Walk shall have provided the Executive Director with a loan commitment from a financial institution evidencing that Sawyer's Walk has obtained a construction loan commitment for the development of Phase I (the "Loan Commitment") which shall be in form and substance acceptable to the Executive Director. 13.1.9. Equity. Sawyer's Walk shall have provided the Executive Director with evidence reasonably satisfactory to the Executive Director that Sawyer's Walk has sufficient equity available to meet the equity requirement of the Loan Commitment. 27 14. AFFORDABLE HOUSING. 14.1. Affordable Housing Requirement. Sawyer's Walk shall sell not less than twenty percent (20%) of the Residential Units comprising the Project (the "Affordable Units") to: (a) qualified buyers whose gross income is between 80.01% and 120% of the Miami -Dade County mean income at a purchase price which will enable the purchaser to have a housing debt ratio of not greater than thirty-five percent (35%) and a gross income to total debt ratio of less than forty-five percent (45%) and to a purchaser who has a total net worth not to exceed Fifty Thousand and no/100 Dollars ($50,000.00) as set forth in Section 14.9; or (b) to purchasers whose gross income is between 80.01% and 120% of the Miami -Dade County mean income and who qualify for SHIP Funds, as hereinafter defined, HOME Funds, as hereinafter defined, Surtax Funds, as hereinafter defined, and/or any similar federal, state or county programs available for affordable housing, pursuant to the applicable criteria for whatever loan program is used to finance the acquisition of the unit (collectively the "Affordable Housing Requirement"). None of the Live/Work Units shall be Affordable Units; however, the Live/Work Units shall be included in the total number of Residential Units which is utilized to calculate the number of Affordable Units that Sawyer's Walk is required to provide. By way of example, if the Project includes 1050 Residential Units, including 150 Live/Work Units, Sawyer's Walk shall be required to provide 210 Affordable Units notwithstanding the fact that none of the Live/Work Units shall be designed as Affordable Units. The Affordable Units which are sold to satisfy the Affordable Housing Requirement shall be reasonably distributed in each block comprising a portion of the Project and shall be identified in the Detailed Development Plans submitted to the CRA for approval and shall be comprised of a mix virtually identical to the unit mix (based upon the number of bedrooms, type of units and square footage of the smallest of the market rate units of that unit type provided that the market rate units comprise not less than 50% of the unit type of that size) of the respective Residential Units, excluding the Live/Work Units, which are to be sold at market rates in each block of the Project and which shall in all other respects be completed with the same fit and finish as the other units in such block of the Project which are to be sold at market rates. Sawyer's Walk shall be required to satisfy the Affordable Housing Requirement notwithstanding the unavailability of governmental subsidies. Sawyer's Walk acknowledges and agrees that Sawyer's Walk is required to satisfy the Affordable Housing Requirement irrespective of Sawyer's Walk's ability to obtain Miami -Dade County surtax funds ("Surtax Funds"), Community Development Department funds ("HOME Funds") and/or State Housing Incentive Program ("SHIP Funds"). Sawyer's Walk further acknowledges that the City and the CRA have made no representations to Sawyer's Walk regarding the availability of housing subsidy funds including Surtax Funds, HOME Funds, SHIP Funds or other sources of funds and Sawyer's Walk assumes the risk as to whether housing subsidies will 28 be available for the Project. Units sold to Overtown Residents, as hereinafter defined, shall be deemed to comply with the Affordable Housing Requirement. 14.2. Subsidized Units. Sawyer's Walk shall construct fifty (50) units as part of the Project, comprising a portion of the Affordable Units included in the Affordable Housing Requirement, comprised of a mix of units virtually identical to the unit mix (based upon the number of bedrooms, type of unit, and square footage of the smallest of the market rate units of that unit type provided that the market rate units comprise not less than 50% of the unit type of that size) of the respective Residential Units, excluding the Live/Work Units, which are to be sold at market rates in each block of the Project, which Subsidized Units are to be conveyed to the CRA, or its designee, upon completion of construction of the prospective phase of the Project and which units are to be resold by the CRA, or its designee, to qualified purchasers whose gross income is not greater than eighty percent (80%) of the Miami -Dade County median income (the "Subsidized Units") or (b) a purchase price which qualifies for use of SHIP Funds, HOME Funds, Surtax Funds, and/or any similar federal, state or County programs available for affordable housing, pursuant to the applicable criteria for whichever loan program is utilized to finance the acquisition of the unit. The Subsidized Units conveyed by Sawyer's \\Talk to the CRA, or its designee, shall be deemed to comprise a portion of the Affordable Units and shall in all respects be identical to the Affordable Units and shall in all respects be completed with the same fit and finish as the other Residential Units in such block of the Project which are to be sold at market rates. 14.3. Implementation. Sawyer's Walk agrees to (i) engage an affordable housing consultant, which consultant shall be subject to the approval of the Executive Director, which approval shall not be unreasonably withheld or delayed, to assist Sawyer's Walk in implementing a program to comply with the Affordable Housing Requirement; and (ii) retain a full-time recruiter and loan processor to identify and qualify potential purchasers of the Affordable Units to be sold by Sawyer's Walk and Subsidized Units to be sold by the CRA, or its designee, and implement the program developed by Sawyer's Walk to satisfy the Affordable Housing Requirement until Sawyer's Walk's obligations regarding the Affordable Housing Requirements have been satisfied. 14.4. Housing Subsidies. The CRA covenants and agrees to utilize its good faith efforts to obtain Surtax Funds, HOME Funds, SHIP Funds and other housing assistance with respect to the Subsidized Units. 14.5. Assistance Program. The CRA agrees to work with the Collins Center, the Knight Foundation and other not -for -profit organizations to develop a program to make the Subsidized Units viable. 29 14.6. Affordable Units. Sawyer's Walk shall first offer the Affordable Units to residents of the area of the City of Miami which is more particularly described in Exhibit "Q", attached hereto and incorporated herein (the "Overtown Area"), and then to other residents of the City prior to making the Affordable Units available to other residents of Miami -Dade County. 14.7. Overtown Residents. The CRA, or its designee, shall first offer the Subsidized Units to existing residents of the Overtown Area and then to former Overtown Residents, before offering the Subsidized Units to other residents of the City of Miami. 14.8. Intentionally Deleted. 14.9. Reporting Requirements and Compliance. 14.9.1. Affordable Housing Reports. From and after the issuance of the first certificate of occupancy for any Residential Unit comprising a portion of the Project until the satisfaction of the Affordable Housing Requirement, Sawyer's Walk shall be required to submit to the Executive Director on an annual basis, phase by phase reports evidencing compliance with the Affordable Housing Requirement (the "Affordable Housing Reports"). The Affordable Housing Reports shall consist of a certification to the CRA from the financial institution that performed the underwriting with respect to the Affordable Unit which shall include the following: (A) Purchaser of an Affordable Unit not utilizing SHIP Funds, HOME Funds or Surtax Funds: i. certification that the income for the purchaser for the previous six (6) months is less than the maximum income threshold. ii. the total net worth of the purchaser does not exceed Fifty Thousand and no/100 Dollars ($50,000.00) inclusive of all gifts. iii. there are no financial guarantees or other independent support for the loan. iv. the purchaser is not the beneficiary of any trust. v. that the purchase price will enable the purchaser to have a housing debt ratio of not greater than thirty-five percent (35%) and a gross income to total debt ratio of less than forty-five percent (45%). 30 (B) Purchaser's utilizing SHIP Funds, HOME Funds and/or Surtax Funds i. certification that the income for the purchaser for the previous six (6) months is less than the maximum income threshold. ii. that the purchaser has satisfied the criteria for SHIP Funds, HOME Funds, Surtax Funds and/or similar federal, state or county programs available for affordable housing, as applicable, with respect to the financing of the acquisition of the unit. 14.9.2. Disputes. To the extent of any disputes between Sawyer's Walk and the Executive Director with respect to whether the purchasers of the units meet the applicable requirements of Sections 14.1, 14.2 and this Section 14.9, the dispute will be submitted to arbitration for resolution, which resolution shall be binding on the parties. 14.10. Penalties for Non -Compliance. To the extent that Sawyer's Walk fails to comply with the Affordable Housing Requirement on a phase by phase basis as determined in accordance with Section 14.9 above, then in such event, Sawyer's Walk shall pay to the CRA, as a penalty for non-compliance with the Affordable Housing Requirement with respect to each comparable unit required to bring Sawyer's Walk into compliance, one hundred twenty-five percent (125%) of the difference between the average sales price that Sawyer's Walk is currently offering the applicable unit for sale to the general public of the type unit(s) in question, less the maximum purchase price that a purchaser earning one hundred percent (100%) of the Miami -Dade County mean income would be able to pay for such a unit at a purchase price which will enable the purchaser to have a housing debt ratio of not greater than thirty-five percent (35%) and a gross income to total debt ratio of less than forty-five percent (45%) and to a purchaser with a total net worth not to exceed Fifty Thousand and no/100 Dollars ($50,000.00) as set forth in Section 14.9 (e.g., the average sale price for a two bedroom unit less the maximum price that a purchaser whose gross income is one hundred percent (100%) of the Miami -Dade County mean income would be able to pay for a two bedroom unit at a purchase price which will enable the purchaser to have a housing debt ratio of not greater than thirty-five percent (35%) and a gross income to total debt ratio of less than forty-five percent (45%) and to a purchaser with a total net worth not to exceed Fifty Thousand and no/100 Dollars ($50,000.00) as set forth in Section 14.9 multiplied by one hundred twenty-five percent (125%)), but in no event less than Twenty Thousand and No/00 Dollars ($20,000.00) per unit. The penalty with respect to any phase of the Project shall be due and payable one hundred 31 eighty (180) days after the issuance of a temporary certificate of occupancy for the last Residential Unit included in the applicable phase. 14.11. Deed Restrictions. All of the Affordable Units, other than the Subsidized Units, shall be conveyed subject to a deed restriction which will restrict the ability to sell the units except to a purchaser who meets the Affordable Housing Requirements of Section 14.1 and 14.9, as applicable, for a period of ten (10) years from the date of closing of each respective unit (the "Deed Restriction"). Any violation of the Deed Restriction shall require the purchaser to pay to the CRA, or its designee, Twenty Thousand and No/100 Dollars ($20,000.00) as a result of the violation of the Deed Restriction. The CRA agrees to impose the same Deed Restriction, which will restrict the ability to sell the Subsidized Units except to a purchaser who meets the Affordable Housing Requirements of Sections 14.2 and 14.9, as applicable, for a period of ten (10) years from the date of closing of each respective unit. The Deed Restriction shall provide that any violation of the restriction shall require the purchaser to pay to the CRA, or its designee, Twenty Thousand and No/100 Dollars ($20,000.00) as a result of the violation of the Deed Restriction. 14.12. Overtown Residents. Sawyer's Walk shall utilize its best efforts to sell twenty percent (20%) of the units comprising the Project to residents of the Overtown Area or former residents of the Overtown Area or their family members (collectively "Overtown Residents") at market rates. Sawyer's Walk shall utilize real estate professionals as well as community based organizations such as churches and community development corporations (collectively "CBO") located within or concentrated on serving the Overtown Area to identify Overtown Residents. Any Overtown Residents, as certified by a CBO, or who are otherwise established to the reasonable satisfaction of the Executive Director to be Overtown Residents based upon school records, birth records, tax records or other documentation, who purchase a unit shall be counted as complying with the Affordable Housing Requirement notwithstanding that the criteria for Affordable Housing has not been complied with. The provisions of Section 14.11 shall not apply to the sale of any units to Overtown Residents. 14.13. Prosperity Based Initiative. In connection with the sales and marketing of the Units, Sawyer's Walk covenants and agrees to utilize its best efforts to work with African American realtors to reach out and market the Project to African Americans to relocate to the Overtown community. This effort shall include the sale of Affordable Units as well as market rate units to African Americans. 15. MINORITY AND WOMEN'S PARTICIPATION AND EQUAL EMPLOYMENT OPPORTUNITY. 32 15.1. Minority and Women Participation and Equal Opportunity. Sawyer's Walk agrees that it will: (i) Take definitive action in the recruitment, advertising and to attract and retain minority and female contractors and subcontractors; (ii) Provide a reasonable opportunity in the recruitment, advertising and hiring of professionals, contractors and subcontractors residing within the CRA Redevelopment Area and within the City of Miami; (iii) Take reasonable definitive action in retaining employees regardless of race, color, place of birth, religion, national origin, sex, age, marital status, veterans and disability status; (iv) Maintain equitable principles in the recruitment, advertising, hiring, upgrading, transfer, layoff, termination, compensation and all other terms, conditions and privileges of employment; (v) Monitor and review all personnel practices to guarantee that equal opportunities are being provided to all employees regardless of race, color, place of birth, religion, national origin, sex, age, marital status, veterans and disability status; (vi) Post in conspicuous places, availability to employees and applicants for employment, notices in a form to be provided to the Executive Director, setting forth the non- discrimination clauses of this Section 15.1; and (vii) In all solicitations and advertisements for employment placed by or on behalf of Sawyer's Walk, state that all applicants will receive consideration for employment without regard to race, creed, color or national origin. 15.2. Participation Requirements. 15.2.1. Construction. Sawyer's Walk agrees to comply with the following minority and female participation requirements (the "Minority Participation Requirements") with respect to construction: 28% Black participation 8% Female participation 15% Hispanic participation 15.2.2. Design. Sawyer's Walk agrees to comply with the following minority and female participation requirements with respect to design: 33 10% Black participation 5% Female participation 10% Hispanic participation 15.2.3. Property Management. Sawyer's Walk agrees to comply with the following minority and female participation requirements with respect to property management: 28% Black participation 8% Female participation 15% Hispanic participation 15.2.4. Sales and Marketing. Sawyer's Walk agrees to comply with the following minority participation requirement with respect to its sales and marketing staff: 20% Black participation 15.3. Report Requirements. The Restated Poinciana Lease shall require that Sawyer's Walk provide on an annual basis such documentation as the Executive Director may reasonable request to evidence compliance with the Minority Participation Requirements with respect to each of the categories described in Section 15.2 during the preceding year (the "Minority Participation Reports") on a phase by phase basis. To the extent of any disputes between Sawyer's Walk and the Executive Director with respect to the compliance with the Minority Participation Requirements, the dispute shall be submitted to arbitration for resolution, which resolution shall be binding upon the parties. 15.4. Penalties for Non -Compliance. To the extent that Sawyer's Walk fails to comply with the Minority Participation Requirements on a phase by phase basis in each of the categories described in Section 15.2, Sawyer's Walk shall pay to the CRA as a penalty Five Thousand and No/100 Dollars ($5,000.00) for each percentage point below the requirements set forth in Section 15.2.1, 15.2.2, 15.2.3, and 15.2.4 in each respective category Sawyer's Walk fails to meet the applicable Minority Participation Requirement (the "Non -Compliance Funds"). The Non -Compliance Funds shall be calculated by the Executive Director and shall be due within thirty (30) days from the date of Sawyer's Walk's receipt of written statement from the Executive Director stating the amount of Non -Compliance Funds due. To the extent of any dispute between the Executive Director and Sawyer's Walk with respect to compliance with the Minority Participation Requirements, the dispute shall be submitted to arbitration for resolution, which resolution shall be binding upon the parties. The CRA covenants and agrees to utilize any Non -Compliance Funds paid to CRA pursuant to this Section for a job training program for residents of the CRA Redevelopment Area. 34 15.5. Impossibility to Perform. Sawyer's Walk acknowledges that the Minority Participation Requirements are mandatory requirements and not an obligation to utilize best efforts. In the event that Sawyer's Walk, in good faith, believes that it is impossible to satisfy some or all of the Minority Participation Requirements for any phase as a result of there not being a sufficient number of minority and female job candidates available to comply with the Minority Participation Requirements, Sawyer's Walk may request that the City Manager reduce the applicable Minority Participation Requirements, in the applicable category, for that respective phase provided that Sawyer's Walk is able to provide to the City Manager irrefutable evidence that there was not a sufficient number of minority and/or female job candidates available to comply with the applicable Minority Participation Requirements. The decision of the City Manager shall be binding on Sawyer's Walk and the CRA with respect to the phase in question. 16. FIRST SOURCE HIRING AGREEMENT. Simultaneously with the execution of the Restated Poinciana Lease, Sawyer's Walk and the CRA shall execute a First Source Hiring Agreement in the form of Exhibit "R" attached hereto (the "First Source Hiring Agreement"). 17. EMPLOYMENT TRAINING PROGRAM. 17.1. Construction. Sawyer's Walk, in coordination with the South Florida Work Force or such similar entity involved in job creation and training, shall participate in an existing program or establish a "Skills Training and Employment Program" at or near the Project which shall provide for training of construction personnel for residents in the CRA Redevelopment Area and in the City. Sawyer's Walk shall submit the detailed plan for the Skills Training and Employment Program to the Executive Director for his review and approval within sixty (60) days from the Effective Date. The Executive Director shall not unreasonably withhold his consent to the plan for the Skills Training and Employment Program proposed by Sawyer's Walk provided that the plan contemplates a training program for advancement of skills for construction personnel at the Project which shall include, without limitation, a curriculum for safety, fundamental skills for untrained workers, advanced skills for trained workers, additional skills for certificates in alternate trades and management of construction operations. Sawyer's Walk shall be required to comply with the terms and provisions of the Skills Training and Employment Program as approved by the Executive Director. 17.2. Property Management. Sawyer's Walk, in coordination with the South Florida Work Force or such similar entity involved in job creation and training, shall participate in an existing program or establish a "Property Management Training and Employment Program" at or near the Project which shall provide for training of property management personnel for residents in 35 the CRA Redevelopment Area and in the City. Sawyer's Walk shall submit the detailed plan for the Property Management Training and Employment Program to the Executive Director for his review and approval within sixty (60) days from the Effective Date. The Executive Director shall not unreasonably withhold his consent to the plan for the Property Management Training and Employment Program proposed by Sawyer's Walk provided that the plan contemplates a program for participants within the program to advance to more sophisticated positions within the property management field during the course of completion and operation of the Project. Sawyer's Walk shall be required to comply with the terms and provisions of the Property Management Training and Employment Program as approved by the Executive Director. 17.3. Professionals. Sawyer's Walk shall utilize its best efforts to employ African American and other minorities to provide professional services to Sawyer's Walk in connection with the Project, including, without limitation, lawyers and accountants. Sawyer's Walk shall utilize its best efforts to cause existing professionals employed by Sawyer's Walk to joint venture with African Americans and other minorities to expand minority participation in the Project in connection with the provision of professional services. 18. SALES TRAILER AND MARKETING ACTIVITIES. 18.1. Sales Trailer. The CRA and Sawyer's Walk will enter into a revocable license agreement (the "Trailer License") which will permit Sawyer's Walk to maintain a sales trailer and signs on a portion of the Real Property to be agreed upon between Sawyer's Walk and the Executive Director. The Trailer License shall be in the form of Exhibit "S" attached hereto and made a part hereof and shall be cancelable by the CRA at any time upon thirty (30) day prior written notice to Sawyer's Walk. The Trailer License shall be executed by Sawyer's Walk and the Executive Director on behalf of the CRA at such time as Sawyer's Walk has submitted the MUSP Application to the City for approval. 18.2. Marketing. From and after the date that Sawyer's Walk has submitted the MUSP Application to the City for approval, Sawyer's Walk may, at its sole cost and expense, (i) place signage on the Real Property at such locations as the Executive Director may approve; and (ii) engage in marketing activities for the Project, provided that all such signage and marketing activities shall comply with all applicable building and zoning codes and provided the Executive Director has approved all marketing material, which approval shall not be unreasonably withheld. In the event that this Agreement is terminated prior to the Lease Delivery Date, Sawyer's Walk shall promptly remove all signage from the Real Property. 36 19. POINCIANA/SAWYER'S WALK CONDITIONS PRECEDENT. 19.1. The obligations of Poinciana and Sawyer's Walk, under the terms and provisions of this Agreement, are subject to the satisfaction or waiver by Poinciana and Sawyer's Walk of the following conditions precedent (the "Poinciana/Sawyer's Walk Conditions Precedent"): 19.1.1. Sawyer's Walk shall have obtained all approvals required from the County pursuant to the terms of the County Settlement. 19.1.2. Sawyer's Walk shall have obtained all approvals required by the County under the terms of the Interlocal Agreement. 19.1.3. Sawyer's Walk shall have obtained the MUSP Approval which shall be final and not subject to appeal. 19.2. In the event all of the Poinciana/Sawyer's Walk Conditions Precedent have not been satisfied or waived by Poinciana and Sawyer's Walk on or before the date specified in Section 19.1 above or, if no date is specified, on or before March 15, 2006, then Poinciana and Sawyer's Walk may terminate this Agreement by providing written notice to the CRA and the City on or before March 15, 2006, in which event Escrow Agent shall return the Deposit to Poinciana and Sawyer's Walk and this Agreement shall terminate and the parties shall have no further obligations under the Agreement except for the obligations which expressly survive the termination of this Agreement unless the City and the CRA elect to proceed in accordance with Section 2.5 of this Agreement. In the event of a termination of this Agreement, if the City and the CRA do not elect to proceed in accordance with Section 2.5, Poinciana, Sawyer's Walk, the CRA and the City shall not be deemed to have waived any of their rights, claims or defenses associated with the Poinciana Litigation or the Sawyer's Walk Litigation. 20. CRA/CITY CONDITIONS PRECEDENT. 20.1. The obligations of the CRA and the City to enter into the Restated Poinciana Lease and contemplate the transaction contemplated by this Agreement are subject to the satisfaction or waiver of the following conditions precedent (the "CRA/City Conditions Precedent"): 20.1.1. The County shall Walk under the terms of the County Settlement. 20.1.2. The County shall Walk under the terms of the Interlocal Agreement. have approved Sawyer's have approved Sawyer's 37 20.1.3. The Executive Director shall have approved the Phase I Budget. 20.1.4. The Executive the Skill Training and Employment Program. 20.1.5. The Executive Director Director shall have approved shall have approved the Property Management Training and Employment Program. 20.1.6. The Executive the Phase I Plans and Specifications. 20.1.7. The Executive the Project Team. Director shall have approved Director shall have approved 20.1.8. The Executive Director shall have approved the Construction Contract. 20.1.9. The Executive the Phase I Construction Schedule. 20.1.10. The Executive the Payment and Performance Bonds. Director shall have approved Director shall have approved 20.1.11. The Executive Director shall have confirmed compliance with the minority participation goals with respect to construction for Phase I pursuant to Section 15.2.1. 20.1.12. The Executive Director shall have confirmed compliance with minority participation goals with respect to architectural services for Phase I pursuant to Section 15.2.2. 20.1.13. The Executive Director shall have approved the Loan Commitment. 20.1.14. The Executive Director shall have confirmed that Sawyer's Walk has sufficient equity to meet the requirements under the Loan Commitment for the construction of Phase I. 20.1.15. MUSP Approval has been obtained and be final and not subject to appeal. 20.1.16. The Executive Director shall have approved the Detailed Development Plans. 38 20.1.17. The Lender under the Loan Commitment is prepared to close the construction loan with respect to Phase I in accordance with terms of the Commitment Letter. 20.1.18. The Executive Director shall have confirmed that partners comprising Sawyer's Walk are the New Sawyer's Walk Partners, as hereinafter defined. 20.2. In the event the CRA/City Conditions Precedent are not satisfied or waived by the CRA and the City on or before April 15, 2006, then the CRA and the City may either (i) terminate this Agreement in which event Escrow Agent shall return the Deposit to Poinciana and Sawyer's Walk and the parties shall be released from all further obligations under this Agreement except for the obligations under this Agreement which expressly survive the termination of this Agreement or (ii) proceed in accordance with Section 2.5 of this Agreement. In the event of a termination of this Agreement if the City and the CRA do not elect to proceed in accordance with Section 2.5, Poinciana, Sawyer's Walk, the CRA and the City shall not be deemed to have waived any of their rights, claims or defenses associated with the Poinciana Litigation or the Sawyer's Walk Litigation. 21. LEASE DELIVERY DATE. 21.1. Closing. The closing of the transaction contemplated by this Agreement (the "Lease Delivery Date") will occur on or before April 30, 2006, time being of the essence, provided all the CRA/City Conditions Precedent to closing have been either satisfied or waived by the CRA and the City. On the Lease Delivery Date, the following shall occur: 21.1.1. The CRA, the City, Poinciana and Sawyer's Walk shall execute and deliver the Poinciana Stipulation, the Sawyer's Walk Stipulation, the Poinciana Order, the Sawyer's Walk Order, the Poinciana Mutual Release and the Sawyer's Walk Mutual Release. 21.1.2. Poinciana will assign to Sawyer's Walk all of its right, title and interest in the Poinciana Lease. 21.1.3. The CRA and Sawyer's Walk will execute the Restated Poinciana Lease. 21.1.4. The CRA and Sawyer's Walk will execute the First Source Hiring Agreement. 21.2. If the Lease Delivery Date does not occur on or before April 30, 2006, then in such event, the CRA and the City may elect either to (i) terminate this Agreement in which event the parties shall have no further 39 obligations under this Agreement except the obligations which expressly survive the termination of this Agreement or (ii) proceed in accordance with Section 2.5 of this Agreement. In the event of a termination of this Agreement if the City and the CRA do not elect to proceed in accordance with Section 2.5, Poinciana, Sawyer's Walk, the CRA and the City shall not be deemed to have waived any of their rights, claims or defenses associated with the Poinciana Litigation or the Sawyer's Walk Litigation. 22. ASSIGNMENT OF POINCIANA LEASE. On or before the Lease Delivery Date, Poinciana shall assign to Sawyer's Walk all of its right, title and interest under the Poinciana Lease with respect to Phase II and the Sawyer's Walk Project, which assignment shall be in the form of Exhibit "T" attached hereto and made a part hereof. 23. ORGANIZATIONAL DOCUMENTS. 23.1. Poinciana. As of the Effective Date, the documents attached as Exhibit "U" hereto constitute all the existing organizational documents with respect to Poinciana and all amendments thereto, including, without limitation, all organizational documents with respect to its general partner, Indian River. Attached hereto as Exhibit "V" is a list identifying all individuals and entities having a partnership interest in Poinciana. 23.2. Sawyer's Walk. As of the Effective Date, the documents attached as Exhibit "W" attached hereto constitute all the existing organizational documents with respect to Sawyer's Walk and all amendments thereto, including, without limitation, all organizational documents with respect to its general partner, Indian River. Attached hereto as Exhibit "X" is a list identifying all individuals and entities having a partnership interest in Sawyer's Walk (the '`Existing Sawyer's Walk Partners"). The CRA hereby approves the transfer of the partnership interest in Sawyer's Walk to the New Sawyer's Walk Partners, as defined in Section 24. In addition, the New Sawyer's Walk Partners will be entering into an amended and restated partnership agreement for Sawyer's Walk in the form of Exhibit "Y' attached hereto and made a part hereof. 24. ASSIGNMENT OF PARTNERSHIP INTEREST. The CRA acknowledges that prior to the Lease Delivery Date the Existing Sawyer's Walk Partners will be assigning ninety five percent (95%) of their partnership interest in Sawyer's Walk to the persons and entities identified on Exhibit "Z" attached hereto and made a part hereof (the "New Sawyer's Walk Partners") with Indian River Investment Communities, Inc. retaining a five percent (5%) interest. The CRA hereby approves the transfer of the partnership interest in Sawyer's Walk to the New Sawyer's Walk Partners. No other transfer of the 40 partnership interest in Sawyer's Walk shall be permitted without the approval of the CRA and the City. 25. REPRESENTATIONS OF CRA AND CITY OF MIAMI. 25.1. The CRA makes the following representations: 25.1.1. The CRA is duly organized and validly existing under the laws of the State of Florida and has full power and capacity to own its properties and to carry on its business as presently conducted by the CRA. 25.1.2. The CRA's execution, delivery and performance of this Agreement have been duly authorized by all necessary legal actions and does not and shall not conflict with or constitute a default under any indenture, agreement or instrument to which the CRA is a party or by which the CRA or CRA's property may be bound or affected, except for such approvals required by this Agreement. 25.1.3. This Agreement constitutes the valid and binding obligation of the CRA, enforceable against the CRA, and its successors and assigns, in accordance with their respective terms, subject to bankruptcy, insolvency and other similar laws affecting the rights of creditors generally. 25.2. The City makes the following representations: 25.2.1. The City is duly organized Municipal corporation, validly existing under the laws of the State of Florida and has full power and capacity to own its properties and to carry on its business as presently conducted by the City. 25.2.2. The City's execution, delivery and performance of this Agreement have been duly authorized by all necessary legal actions and does not and shall not conflict with or constitute a default under any indenture, agreement or instrument to which the City is a party or by which the City or City's property may be bound or affected, except for such approvals required by this Agreement. 25.2.3. This Agreement constitutes the valid and binding obligation of the City, enforceable against the City, and its successors and assigns, in accordance with their respective terms, subject to bankruptcy, insolvency and other similar laws affecting the rights of creditors generally. 26. SAWYER'S WALK AND POINCIANA'S REPRESENTATIONS. Sawyer's Walk and Poinciana make the following representations to the CRA and the City as follows: 41 26.1. Sawyer's Walk and Poinciana are limited partnerships duly organized and validly existing under the laws of the State of Florida, and have full power and capacity to own their properties, to carry on their business as presently conducted, and to enter into the transactions contemplated by this Agreement. 26.2. Sawyer's Walk's and Poinciana's execution, delivery and performance of this Agreement have been duly authorized by all necessary partnership actions and does not and shall not conflict with or constitute a default under any indenture, agreement or instrument to which such entities are a party or by which they may be bound or affected. 26.3. This Agreement constitutes the valid and binding obligation of Sawyer's Walk and Poinciana, enforceable against Sawyer's Walk and Poinciana and their successors and assigns, in accordance with their respective terms, subject to bankruptcy, insolvency and other similar laws affecting the rights of creditors generally. 27. DEFAULT. 27.1. In the event of a default by Sawyer's Walk and Poinciana under this Agreement which is not cured within ten (10) days of written notice from the City and the CRA, or if there is any material misrepresentation by Sawyer's Walk and Poinciana contained in this Agreement, without any default of the CRA and/or the City, the CRA and the City shall, as their sole and exclusive remedy, be entitled to retain the Deposit, as liquidated damages and terminate this Agreement in which event the parties shall be released from all further obligations under this Agreement except for the obligations that expressly survive the termination unless the CRA and the City elect to proceed in accordance with Section 2.5 of this Agreement. In the event of a termination of this Agreement if the City and the CRA do not proceed in accordance with Section 2.5, Poinciana, Sawyer's Walk, the CRA and the City shall not be deemed to have waived any of their rights, claims or defenses associated with the Poinciana Litigation or the Sawyer's Walk Litigation. 27.2. In the event of a default by the CRA and/or the City under this Agreement which is not cured within thirty (30) days of written notice from Poinciana and Sawyer's Walk, without any default on the part of Sawyer's Walk and/or Poinciana, Poinciana and Sawyer's Walk, as their sole and exclusive remedy, shall be entitled to (i) terminate this Agreement in which event Escrow Agent shall return the Deposit to Poinciana and Sawyer's Walk and the parties shall be released from all further obligations under this Agreement except for the obligations that expressly survive the termination unless the CRA and the City elect to proceed in accordance with Section 2.5 of this Agreement; or (ii) pursue the remedy of specific performance. Poinciana 42 and Sawyer's Walk waive any other remedies they may have against the City and the CRA at law or in equity as a result of a breach of this Agreement. In the event of a termination of this Agreement, in which event the parties shall be released from all further obligations under this Agreement except for the obligations that expressly survive the termination unless the CRA and the City elect to proceed in accordance with Section 2.5 of this Agreement. In the event of termination, if the CRA and the City do not proceed in accordance with Section 2.5 of this Agreement, Poinciana, Sawyer's Walk, the CRA and the City shall not be deemed to have waived any of their rights, claims or defenses associated with the Poinciana Litigation or the Sawyer's Walk Litigation. 28. BROKERS. The parties each represent and warrant to the other that there are no real estate broker(s), salesman (salesmen) or finder(s) involved in this transaction. If a claim for commissions in connection with this transaction is made by any broker, salesman or finder claiming to have dealt through or on behalf of one of the parties hereto ("Indemnitor"), Indemnitor shall indemnify, defend and hold harmless the other party hereunder ("Indemnitee"), and Indemnitee's officers, directors, agents and representatives, from and against all liabilities, damages, claims, costs, fees and expenses whatsoever (including reasonable attorney's fees and court costs at trial and all appellate levels) with respect to said claim for commissions. Notwithstanding anything to the contrary contained in this Agreement, the provisions of this Paragraph shall survive the delivery of the Restated Lease and any termination of this Agreement. 29. ASSIGNABILITY. Neither Sawyer's Walk or Poinciana shall be entitled to assign its rights hereunder nor to admit any new partners, investors or other beneficial owners, except as herein provided, without the prior written consent of the CRA and the City, and such consent shall not be unreasonably withheld or delayed. 30. NOTICES. Any notices required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been given if delivered by hand, sent by recognized overnight courier (such as Federal Express) or mailed by certified or registered mail, return receipt requested, in a postage prepaid envelope, and addressed as follows: POINCIANA VILLAGE OF MIAMI, LTD. Ted Weitzel, Poinciana Village 269 NW 7th Street Miami, Florida 33136 With a copy to: William Walker, Jr., Esq. White & Case, LLP 43 200 S. Biscayne Boulevard 4900 First Union Fin. Center Miami, FL 33131-2352 With a copy to: CROSSWINDS AT POINCIANA, LLC Attention: Tirso San Jose 600 Corporate Drive, Suite 102 Ft. Lauderdale, Florida 33334 With a copy to: I. Barry Blaxberg, Esq. Blaxberg, Grayson, Kukoff & Segal, P.A. 25 SE Second Avenue, Suite 730 Miami, Florida 33131 SAWYER'S WALK, LTD Ted Weitzel, Poinciana Village 269 NW 7th Street Miami, Florida 33136 With a copy to: William Walker, Jr., Esq. White & Case, LLP 200 S. Biscayne Boulevard 4900 First Union Fin. Center Miami, FL 33131-2352 With a copy to: CROSSWINDS AT POINCIANA, LLC Attention: Tirso San Jose 600 Corporate Drive, Suite 102 Ft. Lauderdale, Florida 33334 With a copy to: I. Barry Blaxberg, Esq. Blaxberg, Grayson, Kukoff & Segal, P.A. 25 SE Second Avenue, Suite 730 Miami, Florida 33131 SOUTHEAST OVERTOWN / PARK WEST COMMUNITY REDEVELOPMENT AGENCY Attention: Frank Rollason, Executive Director 49 N.W. 5th Street 44 Suite 100 Miami, FL 33128 With a copy to: Jorge L. Fernandez, City Attorney City of Miami 444 SW 2nd Avenue, Suite 945 Miami, Florida 33130 William R. Bloom, Esq. Holland & Knight, LLP Suite 3000 701 Brickell Avenue Miami, FL 33131 James H. Villacorta, Esq. 49 N. W. 5th Street Suite 100 Miami, FL 33128 CITY OF MIAMI Attention: Joe Arriola, Chief Administrator/City Manager — City of Miami 3500 Pan American Drive Miami, Florida 33133-5595 With a copy to: Jorge L. Fernandez, City Attorney City of Miami 444 SW 2nd Avenue, Suite 945 Miami, Florida 33130 With a copy to: Rafael O. Diaz, Assistant City Attorney City of Miami 444 SW 2nd Avenue, Suite 945 Miami, Florida 33130 Notices personally delivered or sent by overnight courier shall be deemed given on the date of delivery and notices mailed in accordance with the foregoing shall be deemed given upon receipt or the date delivery is refused. 31. ADMINISTRATIVE EXPENSES. Sawyer's Walk covenants and agrees to reimburse the CRA, on a quarterly basis, for all out of pocket costs 45 and expenses incurred by the CRA from and after the execution of this Agreement through the completion of construction of the Project and the sale of the Affordable Units, in connection with overseeing and monitoring the activities of Sawyer's Walk, pursuant to the terms of this Agreement, and the documents executed in connection herewith, which costs and expenses shall not exceed Seventy Five Thousand and No/100 Dollars ($75,000.00) per year. The CRA shall submit to Sawyer's Walk, evidence of such out of pocket expenses not more often than quarterly. Sawyer's Walk shall reimburse the CRA for such expenses within thirty (30) days of receipt of such documentation, subject to the annual reimbursement limitation of Seventy Five Thousand and No/100 Dollars ($75,000.00) per year. If there is a dispute between Sawyer's Walk and the Executive Director regarding any such expenses, the dispute shall be submitted to the City Manager for resolution. The decision of the City Manager shall be binding on the parties. Any payment not made by Sawyer's Walk within thirty (30) days of when due shall bear interest at eighteen percent (18%) per annum until paid. 32. MISCELLANEOUS. 32.1. This Agreement shall be construed and governed in accordance with the laws of the State of Florida. All of the parties to this Agreement have participated fully in the negotiation and preparation hereof, and, accordingly, this Agreement shall not be more strictly construed against any one of the parties hereto. 32.2. In the event any term or provision of this Agreement is determined by appropriate judicial authority to be illegal or otherwise invalid, such provision shall be given its nearest legal meaning or be construed as deleted as such authority determines, and the remainder of this Agreement shall be construed to be in full force and effect. 32.3. In the event of any litigation between the parties under this Agreement, the prevailing party shall be entitled to reasonable attorney's fees and court costs at all trial and appellate levels. 32.4. In construing this Agreement, the singular shall be held to include the plural, the plural shall be held to include the singular, the use of any gender shall be held to include every other and all genders, and captions and Paragraph headings shall be disregarded. 32.5. All of the exhibits attached to this Agreement are incorporated in, and made a part of, this Agreement. 32.6. Time shall be of the essence for each and every provision of this Agreement. 46 32.7. This Agreement may not be recorded in the Public Records of Miami -Dade County. 33. ESCROW AGENT. 33.1. Escrow Account. All deposits received by Escrow Agent shall be deposited in such accounts Escrow Agent may select, with any interest on same to accrue on behalf of Sawyer's Walk, provided however, that if Sawyer's Walk defaults and such deposits are paid to the CRA and the City, interest on same, if any, shall be paid to the CRA and the City. 33.2. Duties of Escrow Agent. Escrow Agent undertakes to perform only such duties as are expressly set forth in this Agreement and no implied duties or obligations shall be read into this Agreement against Escrow Agent. Escrow Agent is also the law firm representing the CRA and the City. In the event of a dispute between the parties, the parties consent to Escrow Agent continuing to represent the CRA and the City, notwithstanding the fact that it also shall have the duties provided for in this Agreement. 33.3. Reliance of Escrow Agent on Documents. Escrow Agent may act in reliance upon any writing or instrument or signature which it, in good faith, believes to be genuine; may assume the validity and accuracy of any statement or assertion contained in such a writing or instrument; and may assume that any person purporting to give any writing, notice, advice, or instructions in connection with the provisions of this Agreement has been duly authorized to do so. Escrow Agent shall not be liable in any manner for the sufficiency or correctness as to form, manner and execution, or validity of any instrument deposited in escrow, nor as to the identity, authority, or right of any person executing the same; and its duties under this Agreement shall be limited to those provided in this Agreement. 33.4. Indemnification of Escrow Agent. Unless Escrow Agent discharges any of its duties under this Agreement in a grossly negligent manner or is guilty of willful misconduct with regard to its duties under this Agreement, the parties shall indemnify Escrow Agent and hold it harmless from any and all claims, liabilities, losses, actions, suits or proceedings at law or in equity, or other expenses, fees or charges of any character or nature, which they may incur or with which they may be threatened by reason of its acting as Escrow Agent under this Agreement; and in such connection the parties shall indemnify Escrow Agent against any and all expenses including reasonable attorneys' fees and the cost of defending any action, suit or proceedings or resisting any claim in such capacity. The Escrow Agent shall be vested with a lien on all property deposited under this Agreement for indemnification, for reasonable attorneys' fees and court costs, for any suit, interpleader or otherwise, or any other expense, fees or charges of any 47 character or nature, which may be incurred by Escrow Agent in its capacity as Escrow Agent by reason of disputes arising between the parties to this Agreement as to the correct interpretation of this Agreement and instructions given to Escrow Agent under this Agreement, or otherwise, with the right of Escrow Agent, in its sole discretion, regardless of any instructions, to hold the property deposited in escrow until and unless said additional expenses, fees and charges shall be fully paid. 33.5. Interpleader Action in the Event of Dispute. If the parties shall be in disagreement about the interpretation of this Agreement, or about their respective rights and obligations, or the propriety of any action contemplated by Escrow Agent, Escrow Agent may, but shall not be required to, file an action in interpleader to resolve the disagreement. Escrow Agent shall be indemnified for all costs and reasonable attorneys' fees in its capacity as escrow agent in connection with any such interpleader action and shall be fully protected in suspending all or part of its activities under this Agreement until a final judgment in the interpleader action is received. 33.6. Consultation with Counsel. Escrow Agent may consult with counsel of its own choice and shall have full and complete authorization and protection in accordance with the opinion of such counsel. Escrow Agent shall otherwise not be liable for any mistakes of fact or errors of judgment, or for any act or omissions of any kind unless caused by its gross negligence or willful misconduct. 33.7. Resignation of Escrow Agent. Escrow Agent may resign upon thirty (30) days' written notice to the CRA and Sawyer's Walk. If a successor escrow agent is not appointed jointly by Poinciana, Sawyer's Walk, the City and the CRA within the thirty (30) day period, Escrow Agent may petition a court of competent jurisdiction to name a successor and upon such appointment the Escrow Agent shall deliver the Deposit to the successor escrow agent and be relieved of all further liabilities and obligations as Escrow Agent hereunder. 34. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and there are no other agreements, representations or warranties other than as set forth herein. This Agreement may not be changed, altered or modified except by an instrument in writing signed by the party against whom enforcement of such change would be sought. This Agreement shall be binding upon the parties hereto and their respective successors and permitted assigns. 48 [SIGNATURE PAGES TO FOLLOW] 49 IN WITNESS hereof the parties have executed this Agreement as of the date first above written. CITY OF MIAMI, a Municipal Corporation of the State of Florida By: Joe Arriola, Chief Administrator/City Manager Date Executed: ATTEST: Priscilla A. Thompson, City Clerk Approved for legal sufficiency By: SOUTHEAST OVERTOWN / PARK WEST COMMUNITY REDEVELOPMENT AGENCY By: Frank K. Rollason Title: Executive Director ATTEST: Priscilla A. Thompson, Clerk of the Board Approved for legal sufficiency 50 By: William R. Bloom, Esq. Holland & Knight LLP, Special Counsel to CRA SAWYER'S WALK, LTD., a Florida limited partnership BY: INDI_AN RIVER INVESTMENT COMMUNITIES, INC., a Flora corporation, its general partner By Nmd H. Weitzel Title: resident )D Date Executed: f i WITNESSES:A Ij 1D ALL p p ri i Print Name srink_ aj- t Name(JA6S \J u-sco-e7rr POINCIANA VILLAGE OF MIAMI, LTD., a Florida limited partnership BY: INDI RIVER INVESTMENTS OF MIAMI, INC., a Florii . corporation, its general p. tner B Name: d eitzel Title: President Date Executed: / ��i7 APPROVED AS TO INSURANCE REQUIREMENTS: , Risk Management Administrator Schedule of Exhibits A. Poinciana Village Legal Description B. Sawyer's Walk Legal Description C. Phase II of Poinciana Village Legal Description D. Restated Poinciana Lease E. Poinciana Stipulation F. Sawyer's Walk Stipulation G. Poinciana Order H. Sawyer's Walk Order I. Poinciana Mutual Release J. Sawyer's Walk Mutual Release K. Insurance Requirements L. Reverter Land Legal Description M. County Settlement Agreement N. Overtown Project Area O. Covenant P. Preliminary Development Plans Q. Overtown Area R. First Source Hiring Agreement S. Trailer License T. Poinciana Lease Assignment U. Poinciana Partnership Documents V. Poinciana Partners W. Sawyer's Walk Partnership Documents X. Sawyer's Walk Partners Y. New Sawyer's Walk Partners Z. Amended and Restated Partnership Agreement for Sawyer's Walk 52 t .".vttilt' . -f'tti �3E 'I,YI h'.«Ser-cau. F:i i *c.—�.,.W�. hE_tb �_ea=k�r6.•�a:= '�: ''gad n>4� -{s., _.. _.-�-�+qt LEGAL DESCRIPTION POINCIANA VILLAGE PHASE 1 Being a tract or parcel of land containing 1.91852 acres (63,571 Sq. Ft. r out of lots 1 thru 4, lots 11 & 12 and lots 16 thru 70, block 46 N of "A.L. ltzowlt•,n Subdivision" according to the plat thereof recorded in plat book B, page 41 of the public records of D=de County, Florida. Also being a part of lots 1 thru 8 to include a portion of a 20 foot right of way according to the plat of George C. Bolles S.Ibdivision thereof recorded in plat book 1, page 16 of the public records of Dade Co.inty, Florida & being more particularly described by metes and bounds as follows: BEGINNING at a point of intersection of the North Right of Way line of NW 7th Street and the East Right of way line of t;W 3rd Avenue, said point being 10.00 feet Easterly from tha Southwest corner of lot 11 of said A.L."Knowlton Subdivision"; thence Northerly along said East Right of Way of NW 3rd Avenue, a distance of 117.17 feet to a corner; thence Easterly leaving said East Right of Way of NR 3rd Avenue and parallel with said North Right of Way of :VW 7th Street, a distance of 130.33 feet to a corner; thence Northerly perpendicular to said Right of Way of NW 7th Street, a distance of 13.03 feet to a corner; thence Easterly parallel with said Right of Way of NW 7th Street, a distance of 190.83 feet to a corner; thence Northerly parallel wit- the Right of way of Ni 2nd Avenue, a distance of 77.00 feet to a corner; thence Easterly perpendicular to .said NW 2n, A eau., a distance of 19.0:) feet to a co_ner; then_. Northerly parallel with said Right of Way of NW 2nd Avenue a distance of 80.27 feet to a corner, the same being in tha.So):h Right of Way line of NW 8th Street; thence Easterly ':.long, said South Right of Way line of NW.8th Street, a distance Of 1 37.49 feet to d corner, the same being at a point of intersection of said South Right of Way line of NW 8th Street & the West Right of Say line of said NW 2-3 Avenue, thence Southerly along said wt.st Right of Way lips of NW 2nd Avenue, a distance of 287.43 feet to a corner, the same being at a point of ic.tersection cf said West Right of•Way line of N.4 2n-9 Avenue and said No_th Right of Way line of WW 7th Street; thence Westerly along said North Right of Way line of N4 7th Street, a distance of 477.65 feet to the POINT OF BEGINNING of the tract herein described coctaini,n3 within these Metes and Bounds 1 .91 852 acces (83,571 S. Ft,) of lard. EMI B IT •"/\' EXHIBIT "B" SAWYER'S WALK PROJECT 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. Lots 1 through 20, inclusive, Block 55, 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. 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. EXHIBIT "C" L!CM. DESCR!Pr10r! POINCIANA VILLhCt Pt( SE It Bain; a tract or parcel of land c-oncaining 1.21353 acres 5),713 Sq. rt.) out of lots 4 thru 12 and lore 16 and 17,block 46 N of "A.L. Xnovlton Subdivision " according to the plat thereof recorded In plat book 3, page 41 of tho publlo recorde of Dada co3nty, Florida. Also being a part of lots 6 and 7 to include, a portion ct i 20 foot :tight of Way according to the plat of dsorge c. Bolles Sub.lvtoicn thereof recorded in plat Look 1, page, 16 of the, public records of Dale Coanty, Ploride & b-tng core particularly described by metes and bounds as folicVe: tat;dlNNINC et a point of intersection of the net F11ght of Way Lilts on NW 3r! Avenue and the So,ith Right of Rey line of NN 4th •Street, said point being 10.03 fest testerly and 12.50 f4at Southerly fr.on the 1r'orthwert corner of tot 10 of (la1d "A.L. Xnovl ton Sutdivtelot'; thenco Easterly along said south Right of Way line of. Kg dth Street , A distance oC 340.17 feat to a corners thence Southerly leaving said South Right of key line of :ir drh Street and parallel with the West Right of Way lint of 4w 20 Avenue, a distance of e0.27 fest to s corner; thence Westerly perpendicular to said Right of Way of NW 2nd ?,venue, a diatenoe of 19.00 fast to a corn 1 thence Southerly parallel with said Right of Way of NW 2nd Xvenue, a aietance of 77.00 feet to a corner; tat...ce Westerly pera,11s1 with the Right of Ray o: t;N 7th Streets a dietanct of 130.e3 feet to a corner; trance Southerly perpendicular to aaid Right of ray of Nx l .h Street, a dicta:ece of 13.00 feet to acorner; thence Westerly parallel with slid Right of fray of N): 7th Street, a distance of 130.33 faet to a corner, the eats being in the Vast Right of Nay lino of Ku 3rd Av•r .* thence Northerly along avid taut Right of Key of $W 3:1 Avenue, a distance, of 170.28 feet tv the, PD/NIT er Df,GSK:t2NG of the tract her.in dascrlted containing within that* rates & bouhds 1.21353 &Crag (53,733 Sq. Ft.) of lard. EXHIBIT D AMENDED AND RESTATED SOUTHEAST OVERTOWN/PARK WEST LEASE AND DEVELOPMENT AGREEMENT THIS LEASE (hereinafter referred to as the "Lease"), made this day of , 200_, by and between SAWYER'S WALK, LTD., a Florida limited partnership (hereinafter referred to as "Developer"), and the SOUTHEAST OVERTOWN/PARK WEST COMMUNITY REDEVELOPMENT AGENCY, a public agency and body corporate created pursuant to Section 163.356, Florida Statutes (hereinafter referred to as "the CRA"). RECITALS A. The Southeast Overtown/Park West Project area was designated as community redevelopment area (the "CRA Redevelopment Area") by Miami -Dade County, a political subdivision of the State of Florida (the "County"). A redevelopment plan was approved by the Commissioners of the City of Miami, a municipal corporation (the "City") and the Commissioners of the County with certain redevelopment authority granted by the County to the City for project implementation. The City invited interested parties to submit proposals for the development of residential and commercial structures on properties in the vicinity of the Overtown Transit Station in a portion of the CRA Redevelopment Area. B. In response to requests for proposals issued by the City, Indian River Investments of Miami, Inc., a Florida corporation ("Indian River"), acting in the capacity of general partner on behalf of Poinciana Village of Miami, Ltd. ("Poinciana"), was selected as the "developer" with respect to the development of that certain real property described on Exhibit "A" attached hereto and made a part hereof (the "Poinciana Village Project"). Indian Subject to conforming to the terms of the Settlement Agreement within 30 days of the Effective Date of the Settlement Agreement. River, as general partner on behalf of Poinciana, and the City entered into that certain Southeast Overtown/Park West Lease and Development Agreement dated June 15, 1988 (the "Original Lease"), as amended by Amendment No. 1 dated February 17, 1989 ("Amendment No. 1"), as amended by Amendment No. 2 dated July 13, 1989 ("Amendment No. 2"), and as amended by Amendment No. 3 dated January 11, 1990 ("Amendment No. C. In 1990, the City issued a request for proposals for the development of Blocks 45, 55, and 56 in the CRA Redevelopment Area which real property is more particularly described on Exhibit "B" attached hereto and made a part hereof (the "Sawyer's Walk Project"). Developer submitted a proposal dated January 18, 1991, and, by City of Miami Resolution No. 91- 509 (the "Sawyer's Walk Resolution"), the City selected Developer as the developer of the Sawyer's Walk Project, subject to complying with the terms and conditions of the Sawyer's Walk Resolution. D. On or about January of 1996, the City transferred authority to implement projects within the CRA Redevelopment Area to the CRA. The City conveyed all of its right, title and interest in the Poinciana Village Project and the Sawyer's Walk Project, together with other lands, to the CRA by Warranty Deed dated January 9, 1996, and recorded January 17, 1996, in Official Records Book 17064, at Page 152 of the Public Records of Miami - Dade County, Florida (the "CRA Warranty Deed"). The City assigned to the CRA all of the City's right, title and interest with respect to all leases pertaining to the real property conveyed by the CRA Warranty Deed, including the Original Lease, by virtue of the Assignment of Leases dated January 9, 1996, and recorded January 17, 1996 in Official Records Book 17064, at Page 208 of the Public Records of Miami -Dade County, Florida. 2 E. The CRA and Poinciana executed an Amendment dated as of September 23, 1998, and recorded October 14, 1998, in Official Records Book 18312, at Page 444 of the Public Records of Miami -Dade County, Florida (the "Poinciana Amendment"), amending certain terms and provisions of the Original Lease with respect to the Poinciana Village Project (the Original Lease, as amended by Amendment No. 1, Amendment No. 2, Amendment No. 3, and the Poinciana Amendment, are collectively referred to as the "Poinciana Lease"). F. Poinciana has developed Phase I of the Poinciana Village Project, as defined in the Poinciana Lease, consisting of sixty-four (64) residential condominium units in two (2) buildings of four (4) stories each. The Poinciana Lease provides that Poinciana is to develop ninety-one (91) condominium units or rental apartments in a single low-rise building and/or a single building of ten (10) to twelve (12) floors as a hotel, extended stay facility, or any combination thereof, containing approximately one hundred twenty-five (125) guest rooms as Phase II, as defined in the Poinciana Lease, which is to be developed on that certain real property more particularly described on Exhibit "C" attached hereto ("Phase II"). G. Disputes have arisen between the CRA and Poinciana with respect to the development of Phase II and the obligation of the CRA to add Phase II to the Poinciana Lease as contemplated under the Poinciana Lease. As a result of these disputes, the CRA filed a complaint for ejectment and quiet title with respect to Phase II styled Southeast Overtown/Park West Community Development Agency vs. Poinciana Village of Miami, Ltd., Case No. 02-06846 CA 9 pending in the Circuit Court in and for Miami -Dade County, Florida and Poinciana has filed counterclaims against the CRA and the City in connection with the Poinciana Village Project (collectively the "Poinciana Litigation"). 3 H. Disputes have arisen between the CRA and Developer with respect to the obligation of the CRA to enter into a lease with Developer with respect to the Sawyer's Walk Project. The CRA claims that the requirements of the Sawyer's Walk Resolution have not been satisfied. Developer claims that the requirements of the Sawyer's Walk Resolution have been satisfied and that the CRA had agreed to add the Sawyer's Walk Project to the Poinciana Lease. As a result of these disputes, the City and the CRA filed a declaratory judgment action styled The City of Miami vs. Sawyer's Walk, Ltd., Case No. 00-28860 CA 9 in the Circuit Court in and for Miami -Dade County, Florida and Developer has filed counterclaims against the CRA and the City in connection with the Sawyer's Walk Project (collectively the "Sawyer's Walk Litigation"). I. The City, the CRA, Poinciana and Developer have agreed to settle the Poinciana Litigation and the Sawyer's Walk Litigation, including without limitation the counterclaims filed in connection therewith, and enter into this Lease. J. Poinciana has assigned all of its right, title and interest under the Poinciana Lease with respect to Phase II and all of its right, title and interest in the Sawyer's Walk Project to the Developer. K. Developer and the CRA desire to modify and amend the terms and provisions of the Poinciana Lease and incorporate the Sawyer's Walk Project into the Poinciana Lease, as hereinafter provided, in accordance with the terms of the settlement of the Poinciana Litigation and the Sawyer's Walk Litigation which settlement was approved by Court Order dated entered in the Poinciana Litigation and by Court Order dated entered in the Sawyer's Walk Litigation (the "Settlement Agreement"). 4 NOW THEREFORE, for and in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the terms and provisions of the Poinciana Lease are hereby amended and restated in their entirety with respect to Phase II and amended to include the Sawyer's Walk Project and to read as follows: ARTICLE I EXHIBITS AND DEFINITIONS Section 1.1 Exhibits. Attached hereto and forming a part of this Lease are the following Exhibits: Exhibit "A" — Legal Description of Poinciana Project Exhibit "B" — Legal Description of Sawyer's Walk Project Exhibit "C" — Legal Description of Phase II of Poinciana Project Exhibit "D" — Legal Description of Land Exhibit "E" — Permitted Exceptions Exhibit "F" — Schedule of Annual Basic Rental Exhibit "G" — Development Plan Exhibit "H"" — Revert Parcel Legal Description Exhibit "I" — County Settlement Exhibit "J" — Affordable Units Exhibit "K" — Overtown Area Exhibit "L" — First Source Hiring Agreement Exhibit "M" — STE Program Exhibit "N" — PMTE Program Exhibit "0" — Overtown Project Area Section 1.2 Defined Terms. As used herein, the term: "Acceptable Developer Agreement" has the meaning ascribed to it in Section 9.1(c)(iv). 5 "Acceptable Developer" means an entity possessing the experience, qualifications, good reputation, financial resources and adequate personnel necessary for the proper performance of all of Developer's obligations under this Lease in a manner consistent with the quality, reputation and economic viability of the Project, including (without limitation) the obligation of Annual Base Rental theretofore payable by Developer under this Lease. "Acceptable Purchaser" has the meaning ascribed to it in Section 8.3(d). "Additional Rental" means any and all payments required of Developer to the CRA by the terms of this Lease other than Rental. "Affordable Housing Reports" has the meaning ascribed to it in Section 4.8 "Affordable Housing Requirement" has the meaning ascribed to it in Section 4.1. "Affordable Units" has the meaning ascribed to it in Section 4.1. "Annual Basic Rental" has the meaning ascribed to it in Section 2.8(a). "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 4.11 "Certificate of Completion" has the meaning ascribed to it in Section 3.10. "Challenge" has the meaning ascribed to it in Section 22.13 "City" means the City of Miami. "City Attorney" means the City Attorney for the City of Miami, acting as general counsel to the CRA. "Clean Up" has the meaning ascribed to it in Section 20.1.(g). "Condominium Documents" has the meaning ascribed to it in Section 7.2. 6 "Condominium Owner" means any person, firm, corporation or other legal entity using or occupying or entitled to use or occupy the Developer Improvements upon purchasing a residential unit. "Construction Budget" shall have the meaning ascribed to it in Section 3.6.2. "Construction Contract" has the meaning ascribed to it in Section 3.6.3. "Construction Plans" has the meaning ascribed to it in Section 3.6.1. "Construction Schedule" has the meaning ascribed to it in Section 3.6.4. "Costs" has the meaning ascribed to it in Section 20.1(d). "County Litigation" has the meaning ascribed to it in Section 3.16.1. "County Settlement" has the meaning ascribed to it in Section 3.16.1 "County" has the meaning ascribed to it in Recital A. "County" means Miami -Dade County, a political subdivision of the State of Florida. "CRA Board" shall mean the Board of Directors of the CRA. "CRA Redevelopment Area" has the meaning Recital A. "CRA" means the Southeast Redevelopment Agency. "Default Rate" has the Section 2.5. "Developer Improvements" means all improvements constructed on the Land by Developer pursuant to the Development Plan. "Developer Utility Easement" has the meaning ascribed to it in the Section 2.6(b). "Developer" has the meaning Sawyer's Walk, Ltd., a Florida limited partnership, and, except as otherwise expressly limited elsewhere in this meaning OvertownlPark ascribed to it in West Community ascribed to it in subparagraph (b) of 7 Lease, all references to the Developer shall include the successors and assigns of the Developer. "Development Plan" has the meaning ascribed to it in Section 3.1. "Effective Date" means the date this Lease is last executed by Developer and the CRA. "Environment" has the meaning ascribed to it in Section 20.1(c). "Environmental Complaint" has the meaning ascribed to it in Section 20.5. "Environmental Laws" has the meaning ascribed to it in Section 20.1(b). "Equity Requirement" shall have the meaning ascribed to it in Section 3.6.7. "Event of Default" has the meaning ascribed to it in Section 11.1. "Event of the CRA's Default" has the meaning ascribed to it in Section 11.3(a). "Executive Director" means the Executive Director of the CRA. "Financing Sublease" has the meaning ascribed to it in the definition of "Sale-Subleaseback Transaction." "First Source Hiring Agreement" has the meaning ascribed to it in Section 6.1. "Hazardous Materials" has the meaning ascribed to it in Section 20.1. "HOME Funds" has the meaning ascribed to it in Section 4.1. "Incremental TIF" has the meaning ascribed to it in Section 10.1. "Indemnified Matters" has the meaning ascribed to it in Section 21.1. "Inspections" has the meaning ascribed to it in Section 2.11.1. "Insurance Trustee" has the meaning ascribed to it in Section 13.8(a)(ii). "Land" means those parcels of real property described on Exhibit "D" attached hereto and made a part hereof. 8 "Lease" means this Lease which amends and restates, in its entirety, the Poinciana Lease, and as may be modified from time to time. "Leased Property" all of the Land leased to Developer pursuant to this Lease, and all rights and interests appurtenant thereto. "Leasehold Mortgage" has the meaning ascribed to it in Section 9.1(b). "Lender Landlord" means a lender, and any successor, assignee, transferred or designee of such lender, to which, in connection with the providing of financing to the Developer under this Lease, Developer's leasehold interest in this Lease has been conveyed and which has thereafter entered into a Financing Sublease with Developer. "Lender/Investor" has the meaning ascribed to it Section 9.1(b). "Lender" shall have the meaning ascribed to it in Section 9.1(b). "Live/Work Units" means a commercial unit which is sold bundled with a residential unit. "Loan Commitment" shall have the meaning ascribed to it in Section 3.6.7. "Minority Participation Reports" has the meaning ascribed to it in Section 5.3. "Minority Participation Reports" has the meaning ascribed to it in Section 5.3. "Minority Participation Requirements" has the meaning ascribed to it in Section 5.2. "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. "Non -Compliance Funds" has the meaning ascribed to it in Section 5.4. "Non -Compliance Fee" has the meaning ascribed to it in Section 3.11. "Overtown Area" has the meaning ascribed to it in Section 4.5. "Overtown Project Area" has the meaning ascribed to it in Section 10.1. "Overtown Residents" has the meaning ascribed to it in Section 4.11. 9 "Owner" has the meaning ascribed to it in Section 8.1(b). "Payment and Performance Bonds" shall have the meaning ascribed to it in Section 3.6.5. "Permitted Exceptions" means those existing title matters which Developer has accepted as exceptions to the title to all or any portion of the Leased Property which are described on Exhibit "E" attached hereto. "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. "Phase Project Schedule" has the meaning ascribed to it in Section 3.1. "Project Schedule" has the meaning ascribed to it in Section 3.1. "Project" means the improvements to be constructed by Developer consisting of approximately one thousand fifty (1,050) residential units on the Real Property (collectively, the "Residential Units"), consisting of apartments, townhouses, lofts, live/work units (i.e., commercial units which are bundled with a residential unit) (the "Live/Work Units"), which residential units will be constructed in mid -rise structures and high-rise structures (individually, "Residential Unit" and collectively the "Residential Units") and approximately seventy-five thousand (75,000) square feet of retail and office space which will be developed in accordance with the Development Plan. "PTME Program" has the meaning ascribed to it in Section 6.3. "Public Charges" has the meaning ascribed to it in Section 2.9. "Reconstruction Work" has the meaning ascribed to it in Section 13.8(b). "Related Parties" has the meaning ascribed to it in Section 20.2. "Release" has the meaning ascribed to it in Section 20.1(e). "Rent Commencement Date" has the meaning ascribed to it in Section 2.8. 10 "Rental Year" means a calendar year consisting of twelve (12) consecutive calendar months beginning on January 1st and ending on December 31st of each year of this Lease. The first Rental Year during the term of this Lease shall commence on the Lease Commencement Date and end on December 31st of the same calendar year. Any portion of the term remaining after the end of the last full Rental Year constitutes the final Rental Year, and Rental shall be apportioned therefor. "Rental" has the meaning ascribed to it in Section 2.8(a). "Restrictive Covenants" has the meaning ascribed to it in Section 2.5. "Reverter Property" has the meaning ascribed to it in Section 3.16.1. "Sale-Subleaseback Transaction" means Developer's sale to a Lender/Landlord of all or a substantial portion of Developer's interest in this Lease, and the subsequent execution of a sublease ("Financing Sublease") between Lender/Landlord and Developer. "Section," "subsection," "paragraph," "subparagraph," "clause," or "subclause" followed by a number or letter means the section, subsection, paragraph, subparagraph, clause or subclause of this Lease so designated. "Settlement Payment" means the amounts paid by Developer to Poinciana and the former past partners of Developer to resolve the Poinciana Village Litigation and the Sawyer's Walk Litigation pursuant to that Agreement to Form Limited Partnership dated April 21, 2003, as amended, which amount shall not exceed Six Million Five Hundred Thousand and No/100 Dollars ($6,500,000.00), which was to be paid as follows: (i) an initial payment of Four Million, Four Hundred Thousand and 00/100 Dollars ($4,400,000.00) upon the execution of this Lease (the "Initial Settlement Payment") and (ii) four (4) annual payments of Five Hundred Twenty-five Thousand and 00/100 Dollars ($525,000.00), which payments shall commence one (1) year from the Initial Settlement Payment. "SHIP Funds" has the meaning ascribed to it in Section 4.1. "STE Program" has the meaning ascribed to it in Section 6.2. 11 "Sublease" means any lease, sublease, license or other agreement by which Developer or any person or other entity claiming under Developer (including, without limitation, a subtenant or sublicensee) demises, leases, subleases, licenses or sublicenses to or permits the use or occupancy by another person or entity of any part of the Leased Property and Developer Improvements. "Subsidized Units" has the meaning ascribed to it in Section 4.2. "Subsidized Units Restriction" has the meaning ascribed to it in Section 4.2. "Subtenant" means any person, firm, corporation or other legal entity using or occupying or entitled to use or occupy any part of the Leased Property or the Developer Improvements under a Sublease. "Surtax Funds" has the meaning ascribed to it in Section 4.1. "Term" has the meaning ascribed to it in Section 2.3. "Termination Date" has the meaning ascribed to it in Section 2.3. "Threat of Release" has the meaning ascribed to it in Section 20.1(f). "Transfer" has the meaning ascribed to it in Section 8.1(a). "Unavoidable Delay" has the meaning ascribed to it in Section 11.4. "WASA" has the meaning ascribed to it in Section 3.13. ARTICLE II GENERAL TERMS OF LEASE OF LEASED PROPERTY Section 2.1 Lease of Leased Property to Developer. Subject to the conditions set forth in this Lease, to the payment of Rental provided herein, and the performance of the parties hereto of the duties and obligations on the part of each to be performed hereunder: Section 2.2 Premises. The CRA demises and leases to Developer, and Developer takes and hires from the CRA, all of the Leased Property, subject to the Permitted Exceptions and the restrictions, conditions, covenants and 12 easements hereinafter mentioned, reserved or granted, for the construction of Developer Improvements. Section 2.3 Term. To have and to hold the Leased Property for a term of years (the "Term") commencing on the Effective Date of this Lease and termination on July 14, 2087 (the "Termination Date"), unless sooner terminated as herein provided. Section 2.4 Possession of Leased Property. The CRA shall deliver possession of the Leased Property to Developer, and Developer shall take immediate possession thereof upon the Effective Date of this Lease. Section 2.5 Restrictive Covenants. The restrictive covenants contained in this Section 2.5 (the "Restrictive Covenants") are intended and designed to bind the Developer and the CRA, and their respective successors and assigns, and bind upon and run with the Leased Property throughout the entire term of this Lease, including any new lease executed pursuant to the provisions of Section 9.1(c)(ix). The Developer and the CRA recognize, however, that the development and operation of the Leased Property and the Developer Improvements in a manner which is in the best interests of both parties may from time to time require the confirmation, clarification, amplification, or elaboration of this Lease in order to deal adequately with circumstances which may not now be foreseen or anticipated by the parties. The parties reserve unto themselves the right to enter into such interpretive, implementing or confirmatory agreements from time to time as they may deem necessary or desirable for any such purpose without obtaining the consent or approval of any person or entity not a party to this Lease except as may be expressly otherwise provided in this Lease or by law: (a) Use Prohibitions of the Leased Property. The Leased Property shall not be used for the following: (i) 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- 13 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 Lease. (b) 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 Leased 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 Leased Property. (c) Permitted Uses for Leased Property. The only uses permitted on the Leased Property are residential, supporting commercial and general commercial to be developed on the Leased Property pursuant to the terms of the Development Plan, as same may be amended from time to time, and which are consistent with the governmental approvals and the MUSP. (d) Enforceability. It is intended and agreed hereby that the restrictive covenants contained in this Section 2.5 shall be binding upon the CRA and the Developer, their successors and assigns, and shall constitute covenants running with the land for the Term of this Lease, and shall be for the benefit and in favor of, and enforceable by the CRA. Section 2.6 Easements. The following easements presently exist or are hereby granted: (a) Existing Easements. There are no existing easements on the Leased Property except for those which have previously been accepted by the Developer as Permitted Exceptions. 14 (b) Easements Granted to Developer. The CRA grants unto Developer, its successors and assigns the non-exclusive right and easement (the "Developer Utility Easement") to install, maintain, repair and replace utility facilities such as water, gas, electric, and telephone lines and storm and sanitary sewers underground within portions of the Leased Property, in such locations which are consistent with the Development Plan and which locations are approved by the Executive Director from time to time, which approval shall not be unreasonably withheld; and (c) Limitations on Easement Rights. The rights and easements granted or reserved in Section 2.6(b) shall be limited as follows, however, no provision stated herein shall add to or detract from any existing easement presently encumbering the Leased Property, as identified on the Permitted Exceptions, by any other governmental entity or service district: (i) The Developer or other party having the benefit of any such easements (1) shall carry on any construction, maintenance or repair activity with diligence and dispatch and shall use its diligent efforts to complete the same in the shortest time possible under the circumstances, and (2) shall not carry on any construction, maintenance or repair activity in the easement area in such manner as to unreasonably interfere with the use and enjoyment of the servient tenement, and will carry on such activities in such a manner as not to unreasonably interfere with business or businesses then being conducted in the Developer Improvements or on the Leased Property by Developer or its Subtenants or Condominium Owners. (ii) Except in the event of emergency, the party having the benefit of such easement shall not carry on any construction, replacement, maintenance or repair activity at any time in such easement area until notifying the Executive Director of its intention to do so. (iii) Promptly upon the completion of any such construction, repair or maintenance activity, the Developer or other party having the benefit of such easement shall, at its expense, restore the surface 15 of the easement area as nearly as possible to its former condition and appearance. (d) Duration of Easements. Unless a shorter term is provided, each of the rights and easements granted or reserved in Section 2.6(b) shall be for the Term of this Lease. (e) Confirmatory Instruments. Each party covenants and agrees that from time to time at the request of the other party, it shall execute and deliver such additional documents or instruments confirming the rights and easements granted and reserved in this Section 2.6 or more precisely fixing their location as such requesting party shall deem to be necessary or desirable. Section 2.7 Title to Leased Property. The CRA represents, covenants and warrants that it has good and marketable fee simple title to the Leased Property and all of the improvements thereon, which title is free and clear from all covenants, easements, liens, clouds of title or other exceptions except for the Permitted Exceptions. Developer acknowledges that as of the Effective Date of this Lease the condition of title to the Leased Property is acceptable to Developer and Developer waives any right to object to same. Section 2.8 Rental. The Rental Commencement Date shall be the Effective Date of this Lease (the "Rent Commencement Date"). Simultaneously with the execution of this Lease, Developer shall pay to the CRA as Rental, the amount defined in Section 2.8(a) below. (a) Rentals Payable. Developer covenants and agrees to pay the CRA during the Term, as rental ("Rental") for the Leased Property an "Annual Basic Rental" as set forth in Exhibit "F" attached hereto, and to construct and convey to the CRA to Subsidized Units. Developer shall receive a credit against the Rental equal to the Settlement Payment actually made by Developer. (b) Payment of Rental. Annual Basic Rental shall commence on the Rent Commencement Date. Simultaneously with the execution of this 16 Lease, Developer shall pay to the CRA Four Million Four Hundred Thousand and No/100 Dollars ($4,400,000.00) representing the Annual Basic Rental for the first Lease Year Developer shall receive a credit against such payment in the amount of the Initial Settlement Payment. Thereafter, Annual Basic Rental shall be paid annually in advance commencing on the second day of January in the year succeeding the end of the first Rental Year and shall be paid to the CRA at 49 N.W. Fifth Street, Suite 100, Miami, Florida 33128, or at such other place as the Executive Director shall designate from time to time in a notice given pursuant to the provisions of Section 22.5 in the amount specified on Exhibit F. Any Rental payment not made within ten (10) days of when due shall be subject to a late fee in the amount of five percent (5%) of the applicable payment (the "Late Fee"). In addition, any payment not made within ten (10) days of when due shall automatically accrue interest at a rate equal to five percent (5%) above that rate charged by the Citibank, N.A. of New York, generally referred to as its prime rate ("Default Rate") from the date that payment was due until paid. Annual Basic Rental applicable for the balance of the calendar year from the Rent Commencement Date until the end of the first year shall be due within ten (10) days of the Effective Date. (c) Sales and Use Tax. In addition to the Annual Basic Rental, Developer shall pay all sales and/or use taxes due with respect to any Rental paid pursuant to this Lease. (d) Rental shall include the obligation of the Developer to develop the Subsidized Units and convey same to the CRA, or its designee, free and clear of all liens and encumbrances other than the Permitted Exceptions, the Condominium Documents, and any easements created by Developer in connection with the construction of the Project and the Subsidized Unit Restriction, upon completion of construction of each Phase of the Project, within thirty (30) days of the issuance of a temporary certificate 17 of occupancy for each such Subsidized Unit until Developer has conveyed to the CRA, or its designee all of the Subsidized Units. Section 2.9 Covenants for Payment of Public Charges by Developer. Developer, in addition to the Rental, covenants and agrees to pay and discharge, before any fine, penalty, interest or cost may be added to amounts which have become delinquent, all applicable real and personal property taxes, all applicable ad valorem real property taxes, all special assessments, all taxes on rentals payable hereunder and under subleases, public assessments and other public charges, including, but not limited to, electric, water and sewer rents, rates and charges (all such taxes, public assessments and other public charges being hereinafter referred to as "Public Charges") levied, assessed or imposed by any public authority against the Leased Property, including fee simple title to the Land, all Developer Improvements and any other improvements on the Leased Property in the same manner and to the same extent as if the same, together with all improvements thereon, were owned in fee simple by Developer; provided, that Developer's obligation to pay and discharge Public Charges levied, assessed or imposed against or with respect to the Leased Property shall not commence until the Rent Commencement Date. Notwithstanding the provisions of this Section 2.9, Developer shall have the right to contest the amount or validity, in whole or in part, of any Public Charges by appropriate proceedings. The CRA agrees to consent to and/or formally join in any such proceedings to the extent it may be allowed by law, if such consent and/or joiner be required by law for the prosecution thereof. Developer shall pay all charges for metered water, sewer service charges and other fees or charges lawfully imposed by any public authority upon or in connection with the Leased Property prior to becoming delinquent. Developer, upon written request, shall, within thirty (30) days of such request, furnish or cause to be furnished to the Executive Director, 18 official receipts of the appropriate taxing authority, or other proof satisfactory to the Executive Director evidencing the payment of all Public Charges. Section 2.10 Approvals and Consents. Wherever in this Lease the approval or consent of any party is required, it is understood and agreed that such approval or consent will not be unreasonably withheld or delayed, except if expressly provided to the contrary. Section 2.11 Condition of Leased Property. 2.11.1 Inspection. The Developer has inspected the physical condition, matters of zoning, title, survey and all other matters with respect to the Leased Property, including, without limitation, environmental matters (collectively the "Inspections") and has determined that the Leased Property is acceptable to Developer. 2.11.2 Acceptance of Leased Property. The Developer hereby acknowledges that it has had adequate opportunity to review and inspect all portions of the Leased Property, including, without limitation, the environmental condition of the Leased Property and, based upon its Inspections, the Developer has determined that the condition of all portions of the Leased Property are satisfactory to Developer and Developer accepts every portion of the Leased Property in its "AS IS, WHERE IS, WITH ALL FAULTS" condition. 2.11.3 Disclaimer of Representations by CRA. The Developer hereby expressly acknowledges and agrees that in connection with the execution of this Lease: (a) The CRA has made no warranty or representation whatsoever as to the condition or suitability of any portion of the Leased Property for development in accordance with the provisions of the Development Plan. (b) The CRA has made no warranty, express or implied, with regard to the accuracy of any information furnished to the Developer, and the 19 CRA shall not be bound by any statement of any broker, employee, agent or other representative of the CRA. (c) The CRA has made no representations, warranties or promises to the Developer not explicitly set forth in this Lease. (d) The CRA has made no representations or warranties, express or implied, with regard to the neighborhood, that the CRA Redevelopment Area will be developed, or as to the precise type or quality of improvements that will be constructed within the CRA Redevelopment Area or the timing thereof. (e) The CRA has made no representation or warranty, express or implied, concerning any portion of the Leased Property, their condition or other things or matters directly or indirectly relating thereto or hereto, including, without limitation, no warranty as to merchantability or fitness for any particular purpose or relating to the absence of latent or other defects. ARTICLE III CONSTRUCTION OF IMPROVEMENTS Section 3.1 Development Plan. Developer intends to construct approximately one thousand fifty (1,050) residential units on the Leased Property, consisting of apartments, townhouses, lofts, and Live/Work Units, which units will be constructed in mid -rise and high-rise structures (individually "Residential Unit" and collectively the "Residential Units") 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 has been prepared by Developer and approved by the CRA, a copy of which is attached hereto as Exhibit "G" (the "Development Plan"). The Development Plan includes (1) the site plan for the entire Project; (2) 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; (3) the Phasing Plan for the Project, including the number, type, style and size of units to be 20 included in each Phase; (4) the Project schedule for the overall Project (the "Project Schedule"); (5) the Project schedule with respect to each Phase (the "Phase Project Schedule"); (6) a break down of the Affordable Units, as hereinafter defined, and Subsidized Units, as hereinafter defined, to be included in each phase of the Project, which shall include a breakdown of the square footage and unit mix of the Affordable Units and Subsidized Units. Section 3.2 Conformity of Plans. Any and all construction plans and all work by Developer with respect to the Leased Property and the construction of the Developer Improvements shall be in strict conformity with the Development Plan, the terms and provisions of this Lease, 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 3.3 Amendment to Development Plan. Any and all amendments to the Development Plan shall be submitted to the Executive 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 or disapprove 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 21 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. Section 3.4 Project Schedule. Developer shall construct the Development Improvements in accordance with the terms of the Project Schedule, as extended as a result of Unavoidable Delays. Section 3.5 Extensions of Project Schedule. Any and all amendments to the Project Schedule, including 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 Schedule. Any proposed extension to the Project Schedule, other than as a result of Unavoidable Delays, shall be submitted to the CRA Board for approval, which approval may be granted or denied in the sole discretion of the CRA Board. Section 3.6 Requirements to be Satisfied Prior to the Development of each Phase. Prior to Developer 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: 3.6.1 Construction Plans. For purposes of this Lease, 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 22 d. Final landscape plan 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 Lease or of governmental ordinances, codes, plans or regulations. If 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 Lease 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 23 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. Developer agrees to use its diligent efforts to obtain the consent of the Leasehold Mortgagee for the vesting in the CRA of all rights, title and interest in the Construction Plans if this Lease is terminated by reason of an Event of Default. 3.6.2 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 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 24 Director and Developer shall in good faith attempt to resolve any disputes regarding the Construction Budget. 3.6.3 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 and the obligation of the general contractor to comply with the minority participation requirements set forth in Section 5.2.1 of this Lease. 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 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. 3.6.4 Construction Schedule. Developer shall submit to the Executive Director for its review and approval the specific schedule for development of each Phase (the "Construction Schedule"). The Developer 25 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 Executive Director and Developer shall in good faith attempt to resolve any disputes regarding the Construction Schedule. 3.6.5 Payment and Performance Bond. Developer shall submit to the Executive Director and the City Attorney payment and performance bonds in an amount equal to one hundred percent (100%) of the hard construction costs for the respective Phase which shall name the CRA as a dual obligee (the "Payment and Performance Bonds"). The form of the Payment and Performance Bonds shall be subject to the review and approval of the Executive Director and the City Attorney. The Developer shall provide to the Executive Director and the City Attorney such additional backup information as the Executive Director and the City Attorney may reasonably request to enable the Executive Director and the City Attorney to analyze the Payment and Performance Bonds. The Executive Director and the City 26 Attorney shall have fifteen (15) days after receipt of the Payment and Performance Bonds to approve same, which approval shall not be unreasonably withheld. The Executive Director and the City Attorney shall approve the Payment and Performance Bonds, provided that same are issued by a surety having a credit rating of "A" or higher with a financial strength of "X" or higher utilizing the same bond form approved for Phase I. If no response from the Executive Director and the City Attorney is delivered to the Developer within fifteen (15) days after submission of the Payment and Performance Bonds, same shall be deemed approved. In the event of disapproval, the Developer shall resubmit the Payment and Performance Bond to the Executive Director and the City Attorney, altered to address and/or satisfy the grounds for disapproval specified by the Executive Director and the City Attorney. Any resubmission shall be subject to approval by the Executive Director and the City Attorney in accordance with the procedure outlined above for the original submission until approved by the Executive Director and the City Attorney. The Executive Director, the City Attorney and Developer shall in good faith attempt to resolve any disputes regarding the Payment and Performance Bond. 3.6.6 Minority Participation. Developer shall submit evidence to the Executive Director evidence of compliance with the Minority Participation Requirements of Section 5.2.1, 5.2.2, 5.2.3 and 5.2.4 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 27 Director shall approve the minority participation documentation if it evidences compliance with requirements of Section 5.2.1, 5.2., 5.2.3 and 5.2.4. 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 Section 5.2.1 and 5.2.2. 3.6.7 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 28 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. Section 3.7 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, the Construction Schedule, and the Payment and Performance Bonds with respect to Phase I. Section 3.8 Progress of Construction. Developer shall not commence construction of the Developer Improvements for any Phase until all of the requirements of Section 3.6 are satisfied for such Phase. Upon the satisfaction of all the requirements set forth in Section 3.6, 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 29 Director. Developer shall provide suitable work space and utilities for the representative of the CRA, at Developer's sole cost and expense. Section 3.9 Soil Conditions. Developer, by executing this Lease, represents that it has visited the Land, is familiar with local conditions under which the construction operation is to be performed, will perform all tests, borings and subsoil engineering generally required at the site under sound and prudent engineering practices and will correlate the results of its tests, borings and subsoil engineering and other available studies and its observations with the requirements of the construction operation of the Project. The CRA has made no warranty or representation regarding subsoil conditions. Developer shall not be entitled to any adjustment of Rental or any applicable requirements contained in the Project Schedule in the event of any abnormal subsoil conditions unless the subsoil conditions are so unusual they could not have been reasonably anticipated. Section 3.10 Certificate of Final Completion. Promptly after the completion of each Phase of the Developer Improvements in accordance with the terms of this Lease 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 accordance with the provisions of this Lease, and what measures and actions, 30 in the opinion of the Executive Director, are necessary for the Developer to take or perform in order to obtain such certification. Section 3.11 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 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 Date 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 3.12 Maintenance of Leased Property. The Developer, without cost or expense to the CRA, at all times during the term of this Lease, (including any new lease executed pursuant to the provisions of Sections 9.1.) shall maintain and keep or cause to be maintained and kept in good order, repair and appearance all of the property and improvements located in the Leased Property. Section 3.13 Connection of Building to Utilities. Developer, at its sole cost and expense, will install or cause to be installed all necessary connections between the Developer Improvements on the Leased Property and the water, sanitary and storm drain mains and mechanical and electrical conduits, whether or not owned by the City and/or the Miami Dade Water and Sewer Authority ("WASA"). Developer shall pay for the additional cost, 31 if any, of locating and installing new facilities for sewer, water, electrical, and other utilities as needed to service the Leased Property and the Developer Improvements. Developer acknowledges that the CRA will not be responsible to install or cause to be installed up to the property line of the Leased Property any utility lines for the Project. Section 3.14 Permits and Approvals. Developer shall secure and pay for any and all permits and approvals necessary for proper construction and completion of the Developer Improvements and Developer shall secure any and all permits and approvals required to be secured in connection with the performance of any and all of the work or operations contemplated to be done or performed under any of the provisions of this Lease, and shall pay any and all fees and charges due in connection with the issuance of any such permits and approvals, unless waived by the City. Developer shall secure and pay for any and all permits and approvals necessary for proper construction and completion of the Developer Improvements, including without limitation, the permits and approvals required pursuant to Section 380.06, Florida Statutes and/or Chapter 33A of the Dade County Code, if any. Specifically, Developer shall secure any and all permits and approvals, required to perform any and all of the work or operations contemplated to be done or performed under any of the provisions of this Lease, and shall pay any and all fees and charges in connection with the issuance of any such permits and approvals, unless waived by the City. Section 3.15 Compliance with Laws. Developer will comply in every respect with any and all federal, state, county and municipal laws, ordinances, rules, regulations, orders and notices now or hereafter in force or issued which may be applicable to any and all of the work or operations to be done, performed or carried on by Developer under the provisions of this Lease. Nothing herein shall limit the right of Developer to contest the validity or enforceability or any statute, law, ordinance, rule, regulations, order to notice with which Developer may be required to comply hereunder. 32 Section 3.16 County Reverter Litigation. 3.16.1 Reverter. Developer acknowledges that the portion of the Land which is more particularly described on Exhibit "H" attached hereto and made a part hereof (the "Reverter Property") is subject to a right of reverter in favor of the County. Pursuant to the terms of the Settlement Agreement reached between the County and the City, Case No. 01-13810 CA 08, in the Eleventh Judicial Circuit in and for Miami -Dade County, Florida (the "County Litigation"), the Reverter Property is to be developed on or before August 1, 2007, or title to the Reverter Property will automatically revert to the County in accordance with the terms of the Settlement Agreement attached hereto as Exhibit "I" (the "County Settlement"). 3.16.2 Deed in Escrow. Developer acknowledges that pursuant to the terms of the County Settlement, the CRA has delivered or will deliver to the County a quitclaim deed conveying the Reverter Property to the County and should the terms and provisions of the County Settlement not be complied with title to the Reverter Property shall be conveyed to the County. 3.16.3 Acknowledgement of Risk. Developer acknowledges and agrees that Developer shall bear all risk of compliance with the terms of the County Settlement and Developer will bear all risk should the terms of the County Settlement not be complied with, and Developer waive any claims against the CRA and the City in connection therewith. 3.16.4 Priority to Reverter Property. Developer covenants and agrees to develop the Revert Property, as part of Phase I. ARTICLE IV AFFORDABLE HOUSING Section 4.1 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 33 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 4.8; or (b) to purchasers whose gross income is between 80.01% and 120% of the Miami -Dade County mean income and who qualify for SHIP Funds, as hereinafter defined, HOME Funds, as hereinafter defined and/or Surtax Funds, as hereinafter defined, 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 1050 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, as identified on the Development Plans, 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 34 ("SHIP Funds"). Developer further acknowledges that the City and the CRA have made no representations to Developer regarding the availability of housing subsidy 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. Units sold to Overtown Residents, as hereinafter defined, shall be deemed to comply with the Affordable Housing Requirement. Section 4.2 Subsidized Units. Developer shall construct as part of the Project fifty (50) units, 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 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 (collectively the "Subsidized Unit Restriction"). 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 4.3 Implementation. Developer shall (i) engage in 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 35 comply with the Affordable Housing Requirement; and (ii) retain a 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 4.4 Housing Subsidies. CRA covenants and agrees to utilize its good faith efforts to obtain Surtax Funds, HOME Funds, SHIP Funds and other housing assistance with respect to the Subsidized Units. Section 4.5 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 4.6 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 "K", 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 4.7 Existing 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 4.8 Reporting Requirements and Compliance. 4.8.1 Affordable Housing Reports. From and after the issuance of the first temporary 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 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 36 the CRA from the financial institution that performed the underwriting with respect to the Affordable Unit or the Subsidized 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 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 and/or Surtax Funds, as applicable, with respect to the financing of the acquisition of the unit. 37 4.8.2 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 4.1, 4.2 and this Section 4.9, the dispute will be submitted to arbitration for resolution, which resolution shall be binding on the parties. Section 4.9 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 this Section 4 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 the 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%) as set forth in Section 4.9 (e.g. the average sale price for a two bedroom unit less the maximum price that a purchaser whose gross income is one hundred percent (100%) of the Miami -Dade County mean income would be able to pay for a two bedroom unit at a purchase price which will enable the purchaser to have a housing debt ratio of not greater than thirty-five percent (35%) and a gross income to total debt ratio of less than forty-five percent (45%) as set forth in Section 4.9 multiplied by one hundred twenty-five percent (125%)), but in no event less than Twenty Thousand and No/00 Dollars ($20,000.00) per unit. The penalty with respect to any Phase of the Project shall be due and payable one hundred eighty (180) days after the issuance of a temporary certificate of occupancy for the last Residential Unit included in the applicable Phase. 38 Section 4.10 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 or lease the units except to a purchaser who meets the Affordable Housing Requirements of Section 4.1, 4.2 and 4.9, as applicable, for a period of ten (10) years from the date of the 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 4.2 and 4.9, as applicable. The form of the Deed Restriction shall be subject to the approval of the Executive Director. Section 4.11 Overtown Residents. Developer shall utilize its best efforts to sell twenty percent (20%) of the units comprising the Project to residents of the Overtown Area or former residents of the Overtown Area or their family members (collectively "Overtown Residents") at market rates. Developer shall utilize real estate professional as well as community based organizations such as churches and community development corporations (collectively "CBO") located within or concentrated on serving the Overtown Area to identify Overtown Residents. Any Overtown Residents, as certified by a CBO, or who are otherwise established to the reasonable satisfaction of the Executive Director to be Overtown Residents based upon school records, birth records, tax records or other documentation, who purchase a unit shall be counted as complying with the Affordable Housing Requirement notwithstanding that the criteria for Affordable Housing has not been complied with. The provisions of Section 4.11 shall not apply to the sale of a unit to Overtown Residents. Section 4.12 Prosperity Based Initiative. In connection with the sales and marketing of the Units, Developer covenants and agrees to utilize its 39 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 V MINORITY AND WOMEN'S PARTICIPATION AND EQUAL EMPLOYMENT OPPORTUNITY Section 5.1 Minority and Women Participation and Equal Opportunity. Developer agrees that it will: (i) Take definitive action in the recruitment, advertising and to attract and retain minority and female contractors and subcontractors; (ii) Provide a reasonable opportunity in the recruitment, advertising and hiring of professionals, contractors and subcontractors residing within the CRA Redevelopment Area and within the City of Miami; (iii) Take reasonable definitive action in retaining employees regardless of race, color, place of birth, religion, national origin, sex, age, marital status, veterans and disability status; (iv) Maintain equitable principles in the recruitment, advertising, hiring, upgrading, transfer, layoff, termination, compensation and all other terms, conditions and privileges of employment; (v) Monitor and review all personnel practices to guarantee that equal opportunities are being provided to all employees regardless of race, color, place of birth, religion, national origin, sex, age, marital status, veterans and disability status; 40 (vi) Post in conspicuous places, availability to employees and applicants for employment, notices in a form to be provided to the Executive Director, setting forth the non- discrimination clauses of this Section 5.1; and (vii) 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 5.2 Participation Requirements. Developer agrees to comply with the following minority and female participation requirements (the "Minority Participation Requirements"): 5.2.1 Construction. Developer agrees to utilize its best efforts to comply with the following minority and female participation requirements with respect to construction: 28% Black participation 8% Female participation 15% Hispanic participation 5.2.2 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 5.2.3 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 41 5.2.4 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 5.3 Report Requirements. 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 each of the categories described in Section 5.2 during the preceding year (the "Minority Participation Reports") on a phase by phase basis. 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 5.4 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 of the categories described in Sections 5.2, Developer shall pay to the CRA as a penalty Five Thousand and No/100 Dollars ($5,000.00) for each percentage point below the requirements set forth in Section 5.2.1, 5.2.2, 5.2.3 and 5.2.4, in each respective category Developer 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 the 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. 42 Determination of compliance with the Minority Participation Requirements shall be determined on a Project -wide basis and not on a per Phase basis. Section 5.5 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 faith, believes that it is impossible to satisfy some or all of the Minority Participation Requirements for any phase as a result of there not being a sufficient number of minority and female job candidates available to comply with the Minority Participation Requirements, Developer may request that the City Manager reduce the applicable Minority Participation Requirements, in the applicable category, for that respective phase 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 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 phase in question. Section 5.6 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 VI FIRST SOURCE HIRING AGREEMENT AND EMPLOYMENT TRAINING PROGRAM Section 6.1 FIRST SOURCE HIRING AGREEMENT. Simultaneously with the execution of this Lease, Developer and the CRA shall enter into a first source hiring agreement for the Project in the form of Exhibit "L" 43 attached hereto and made a part hereof (the "First Source Hiring Agreement"). The terms and provisions of the First Source Hiring Agreement are incorporated herein by reference and made a part hereof. The failure of Developer to comply with the terms and provisions of the First Source Hiring Agreement within the applicable grace period provided herein shall constitute an Event of Default under this Lease. Section 6.2 Construction. The Developer, in conjunction with the South Florida Work Force or such similar entity involved in job creation and training, shall participate in an existing program or shall establish a "Skills Training and Employment Program" at or near the Project which shall provide for training of construction personnel for residents in the CRA Redevelopment Area and in the City, which is more particularly described on Exhibit "M" attached hereto and incorporated herein by reference (the "STE Program"). The Developer shall comply with the terms and provisions of the STE Program and the failure to so comply shall constitute an Event of Default under this Lease, if not cured within the applicable grace period. Section 6.3 Property Management. The Developer, in conjunction with the South Florida Work Force or such similar entity involved in job creation and training, shall participate in an existing program or shall establish a "Property Management Training and Employment Program" at or near the Project which shall provide for training of property management personnel for residents in the CRA Redevelopment Area and in the City which is more particularly described on Exhibit "N" attached hereto and incorporated herein by reference (the "PMTE" Program"). The Developer shall comply with the terms and provisions of the PMTE Program and the failure to so comply shall constitute an Event of Default under this Lease if not cured within the applicable grace period. Section 6.4 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 44 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 VII LAND USES Section 7.1 Land Uses. Developer and the CRA agree, for themselves and their successors and assigns, to devote the Leased Property, to the uses specified in this Lease and to be bound by and comply with all of the provisions and conditions of this Lease, including, without limitation, the requirement that the Developer Improvement be developed substantially in accordance with the Development Plan during the Term of this Lease. Section 7.2 Character and Operation of Improvements. The parties recognize and acknowledge that the manner in which the Developer Improvements on the Leased Property are developed, used and operated are matters of critical concern to the CRA by reason of the economic development of the CRA Redevelopment Area. Developer shall prepare condominium documents (the "Condominium Documents") establishing such reasonable rules and regulations governing the occupancy of Subtenants and Condominiums Owners of their premises as the Developer shall deem necessary or desirable in order to assure the level of quality and character of operation of the Developer Improvements required herein, and the Developer will use all reasonable efforts to enforce such rules and regulations. The Condominium Documents shall be subject to the approval of the Executive Director and the rules and regulations included in the Condominium Documents shall be in accordance with the provisions set forth in Chapter 718, Florida Statutes governing condominiums and shall not conflict with this Lease or CRA's interest. The Executive Director shall also review and 45 approve the standard form contract to be utilized to sell any units to Condominium Owners. ARTICLE VIII ANTI -SPECULATION: ASSIGNMENT Section 8.1 Definitions. As used herein, the term, (a) "Transfer" means: (i) any total or partial sale, assignment or conveyance (other than by a Leasehold Mortgage or Financing Sublease) or any trust or power, or any transfer in any other mode or form of or with respect to this Lease or of the leasehold estate in the Leased Property or any part thereof or any interest therein, or any contract or Lease to do any of the same. (ii) any transfer of the stock of the General Partner of Developer or of any Owners other than an Owner whose shares are publicly traded; or (iii) any merger, consolidation or sale or lease of all or substantially all of the assets of Developer or of any Owner, other than an owner whose shares are publicly traded; or (iv) any Sublease of over fifty (50) percent of the Leaseable Area of a Phase to a single Subtenant or Subtenants who are related in their ownership, except for a Financing Sublease. (b) "Owner" means: (i) any person, firm, corporation or other entity which owns, directly or indirectly, legally or beneficially, ten percent (10%) or more of the stock of the General Partner of Developer (excluding any shareholder of an Owner whose shares are publicly traded) or other form of ownership interest of the Developer; and (ii) any person, firm, corporation or other entity which owns, directly or indirectly, legally or beneficially, more than ten percent (10%) of the stock of the General Partner of Developer or other form of 46 ownership interest of any entity described in clause (i) of this clause (ii), but shall not include any shareholder of an Owner whose shares are publicly traded. (c) "Owner whose shares are publicly traded" means an Owner: (i) who has filed an effective registration statement with the Securities & Exchange Commission (or its successor) with respect to the shares of any class of its voting stock or of all classes of any other form of ownership interest which includes voting rights; and (ii) whose voting stock and other form of ownership interest described in clause (i) is listed for trading purposes on a securities exchange subject to the regulatory jurisdiction of the Securities & Exchange Commission (or its successor) or is publicly traded over the counter. Section 8.2 Purposes of Restrictions on Transfer. This Lease is granted to Developer solely for the purpose of development of the Leased Property and its subsequent use in accordance with the terms hereof, and not for speculation in landholding. Developer recognizes that, in view of: (a) The importance of the development of the Leased Property to the general welfare of the community; (b) The terms and conditions and public aids that have been made available by the CRA for the purpose of making such development possible; and (c) The fact that a transfer of controlling membership interests of the Developer, or any other act or transaction involving or resulting in a significant change in the ownership or distribution of such interests or with respect to the identity of the parties in control of Developer or the degree thereof, is for practical purposes, a transfer or disposition of the interest in the Leased Property then owned by Developer; the qualifications and identity of Developer and any Owner are of particular concern to the community and the CRA. Developer further recognizes that it is because of 47 such qualifications and identity that the CRA is entering into this Lease with Developer, and, in so doing, is further willing to accept and rely on the obligations of Developer for the faithful performance of all undertaking and covenants by it to be performed. Section 8.3 Transfers. Developer, on behalf of itself and any and all Owners, represents and warrants that neither Developer nor any Owner has made, created or suffered any Transfers. Except as permitted pursuant to subparagraphs (a) through (i) hereof, no Transfer may be made, suffered or created by Developer or any Owner. The following Transfers shall be permitted hereunder: (a) Any Transfer by Leasehold Mortgage to a Lender/Investor or to an agent, designee or nominee of a Lender/Investor or pursuant to a Financing Sublease, pursuant to Article IX. (b) Any transfer directly resulting from the foreclosure of a Leasehold Mortgage or the granting of a deed in lieu of foreclosure of a Leasehold Mortgage or any Transfer made by the purchaser at foreclosure of a Leasehold Mortgage or by the grantee of a deed in lieu of foreclosure of a Leasehold Mortgage, provided that such purchaser or grantee is a Lender/Investor or and agent, designee or nominee of a Lender/Investor, and that such purchaser or grantee within ninety (90) days after taking possession of the Project, shall have entered into and Acceptable Developer's Agreement as described in Section 9(c)(iv) of this Lease. (c) Any Transfer directly resulting from a conveyance to a Lender/Landlord of the Developer's interest provided that such Transferee, within thirty (30) days after taking possession of the Project, shall have entered into an Acceptable Developer's Agreement as described in Section 9(c)(iv) of this Lease. (d) From and after the date that the entire Project has been completed as evidenced by the issuance of certificates of occupancy for all units comprising the Project, any Transfer to (i) an Acceptable Developer 48 consented to by the Executive Director and the CRA Board or (ii) a purchaser having a good reputation and financial resources in the sole opinion of the Executive Director and the CRA Board to own the Project (an "Acceptable Purchaser") that shall have entered into an Acceptable Developer Agreement with an Acceptable Developer. (e) Any Transfer to a limited liability company, joint venture, general or limited partnership, joint stock association or Massachusetts business trust, of a substantial interest in which is held by Developer and other interests in which are held by a Lender/Investor or by such other persons, firms, corporations, or other entities as to which the Executive Director shall have given his approval in his sole discretion, provided that, within thirty (30) days after gaining possession of the Project, the Transferee shall have entered into an Acceptable Developer's Lease as described in Section 9.1(c)(iv) of this Lease. (f) Any Transfer by a limited partner, which is consented to by the Executive Director, which consent shall not be unreasonably withheld. (g) Any Transfer resulting from the death or dissolution of an Owner provided that same does not result in the dissolution or termination of Developer or any General Partner of Developer. (h) Any Transfer by an Owner who is a limited partner of Developer into a charitable trust, a blind trust or for estate planning purposes for the immediate family. (i) Any Transfer pursuant to Section 718.301, Florida Statutes, from Developer to a condominium association which has as its membership, or a portion thereof, owners of the Developer Improvements. Any consent to a Transfer shall not waive any of the CRA's rights to consent to a subsequent Transfer. Any Transfer made in violation of the terms hereof shall be null and void and of no force and effect. Notwithstanding anything contained herein to the contrary, any transfer of the Leased Property or any portion thereof, shall be deemed null 49 and void, unless said transfer of the Leased Property or any portion thereof occurs subsequent to the completion of the entire Project as evidenced by the issuance of certificates of occupancy for all of the units comprising the Project. Section 8.4 Notice of Transfer: Information as to Partners and Shareholders. (a) With respect to any Transfer which must be approved by the CRA, Developer shall give or cause to be given to the CRA written notice (including all information necessary for the CRA to make an evaluation of the proposed Acceptable Developer according to the requirements of this Lease) or any Transfer of which Developer or its officers shall have knowledge, not less than thirty (30) days prior to any such proposed Transfer and the CRA shall within fifteen (15) days of its receipt of such information, advise Developer if it shall consent to same. If the CRA shall not consent to a Transfer, the Executive Director shall state the reasons for such disapproval in his notice to Developer withholding his consent. If the CRA is not required to consent to a Transfer pursuant to the terms hereof, Developer shall notify the CRA in writing of such a Transfer within fifteen (15) days after the date of such Transfer and provide the CRA with specific details related thereto. (b) Developer shall, from time to time throughout the term of this Lease, as the CRA shall reasonably request, furnish the CRA with a complete statement, subscribed and sworn to by the President or Vice - President and the Secretary or Assistant Secretary of the General Partner of Developer, setting forth the full names and address of holders of ownership interests in Developer, or any general partners or partners of Developer or the amount of stock of any partner of Developer and the extent of its holdings, and in the event any other parties have a beneficial interest in such interests, their full names and addresses and the extent of such interest as determined or indicated by the records of Developer. Notwithstanding the foregoing, the information required by this subparagraph (b) shall not be 50 required to be furnished with respect to the shareholders of any owner or partner whose shares are publicly traded. Section 8.5 Effectuation of Certain Permitted Transfers. No Transfer of the nature described in Section 8.3(d) through (h) shall be effective unless and until the entity to which such Transfer is made, by instrument in writing satisfactory to the Executive Director and in a form recordable among the public records, shall, for itself and its successors and assigns, and particularly for the benefit of the CRA, expressly assume all of the obligations of Developer under this Lease and agree to be subject to all conditions and restrictions to which Developer is subject; provided, however, that any Lender, Leasehold Mortgagee, Lender/Landlord transferee shall not be required to assume any personal liability under this Lease with respect to any matter arising prior to or subsequent to the period of such transferee's actual ownership of the leasehold estate created by this Lease (it being understood, nevertheless, that the absence of any such liability for such matters shall not impair, impede or prejudice any other right or remedy available to the CRA for default by Developer); and provided further, that the fact that any such transferee of, or any other successor in interest whatsoever to, the leasehold estate in the Leased Property or the Developer Improvements, or any part thereof, shall whatever the reason, not assume such obligations or so agree, shall not (unless and only to the extent otherwise expressly provided in this Lease or agreed to in writing by the CRA) relieve or except such transferee or successor of or from such obligations, conditions or restrictions, or deprive or limit the CRA of or with respect to any rights, remedies or controls with respect to the leasehold estate in the Leased Property or the construction of the Developer Improvements. Section 8.6 Transfer of CRA Interest. 8.6.1 Conveyance of Title. Developer acknowledges that the CRA at its sole and absolute discretion may transfer and convey its interest in the Land, subject to the terms and provisions of this Lease, in whole or in 51 part at any time to any person or entity which has the ability, as determined by the CRA Board, to fulfill the duties and obligations of the CRA under the terms of this Lease and which Purchaser shall expressly agree to assume the obligations of the CRA under this Lease. 8.6.2 Termination of CRA. Developer acknowledges that the CRA will terminate and cease to exist on September 30, 2013, unless the term of the CRA is extended by the County. Upon the termination of the CRA, it is understood that the CRA will transfer all of its right, title and interest in the Land and this Lease to the City. Upon such transfer, all references in this Lease to approval by the Executive Director shall signify the approval by the City Manager and all references in this Lease to approval of the CRA Board shall be deemed to be references to approval by the City Commission. Section 8.7 Subletting. Developer shall promptly provide to the CRA a copy of all Subleases for the Project. Developer shall incorporate in all Subleases provisions concerning rental and expenses that are compatible with this Lease. After the Developer Improvements have been completed on the portion of the Leased Property which the Developer desires to Sublease, Developer shall have the right, to enter into Subleases of any part of the Leased Property or Developer Improvements with such Subtenants approved by the CRA and upon such commercially reasonable terms and conditions as Developer shall approve, in its sole discretion. Notwithstanding anything contained herein to the contrary, the Developer shall not enter into any Sublease with any Subtenant which does not deal with Developer at arm's length without first obtaining Executive Director's approval, which approval of the Executive Director may be withheld, in its sole discretion. If Developer shall contemplate making any Sublease with respect to which the Executive Director's approval is required pursuant to the foregoing sentence, Developer shall submit to the Executive Director a copy of such proposed Sublease together with any information concerning the identity of the Subtenant as 52 the Executive Director may reasonably request. Within thirty (30) days after submission of such proposed Sublease and requested information, the Executive Director shall notify Developer whether the proposed sublease is approved. In the event the Executive Director shall fail to so respond within thirty (30) days after submission of such Sublease and information, the same shall be conclusively deemed to have been approved by the Executive Director. No sublease shall be permitted with respect to a Phase which has not been completely developed as evidenced by certificates of occupancy for all units comprising the Phase. ARTICLE IX MORTGAGE FINANCING: RIGHTS OF MORTGAGEE Section 9.1 Leasehold Mortgage. (a) Notwithstanding the provisions set forth in Article VIII hereof regarding any transfer or assignment of this Lease, but subject to the provisions of this Article IX, provided that an Event of Default has not occurred and is not continuing, Developer shall have the right at any time and from time to time to encumber the leasehold estate created by this Lease and any improvements by Mortgage, Sale-Subleaseback transaction, deed of trust or other security instrument, including, without limitation, an assignment of the rents, issues and profits from the Project to secure repayment of a loan or loans (and associated obligations) made to Developer by a Lender/Investor (as defined below) for the sole purpose of securing the financing of the construction of any Developer Improvements made pursuant to the terms of this Lease or for the long-term financing or refinancing of any such Developer Improvements. In no event may the amount of such financing or refinancing exceed the Developer Costs. Developer shall submit all documents pertaining to new mortgage loans or encumbrances on the leasehold estate to CRA for its approval. The CRA shall review and approve same within thirty (30) days of receipt if the terms are substantially 53 consistent with customary loan documents. The CRA however, may not approve the loan if the terms materially conflict or modify this Lease. Developer shall deliver to CRA promptly after execution by Developer a true and verified copy of any Leasehold Mortgage (as defined below), or any Financing Sublease and any amendment, modification or extension thereof, together with the name and address of the owner and holder thereof. Developer may not encumber the leasehold estate created by this Lease as security for any indebtedness of Developer with respect to any other property now or hereafter owned by Developer. (b) For purposes of this Article IX, "Lender/Investor" shall mean any national bank organized under the laws of the United States or any commercial bank, or any savings and loan association, savings bank, trust company or insurance company organized under the laws of the United States or any state of the United States, or any pension, retirement or welfare trust or fund supervised by a government authority of any state or the United States or any such trust or fund administered by an entity which is supervised by a governmental authority; "Leasehold Mortgage" shall mean a mortgage, deed of trust or assignment of the rents, issues and profits from the Project, which constitutes a lien on the leasehold estate created by this Lease and on the interest of Developer in any Developer Improvements during the term of this Lease; and "Lender" shall mean a Lender/Investor who is the owner and holder of a Leasehold Mortgage, provided, however, that the CRA shall have no duty or obligation to determine independently the relative priorities of any Leasehold Mortgages, but shall be entitled to rely absolutely upon a preliminary title report current as of the time of any determination of the priorities of such Leasehold Mortgage and prepared by a generally -recognized title insurance company doing business in Miami -Dade County, Florida. (c) During the continuance of any Leasehold Mortgage until such time as the lien of any Leasehold Mortgage has been extinguished, and 54 if a true and verified copy of such Leasehold Mortgage shall have been delivered to the Executive Director together with a written notice of the name and address of the owner and holder thereof as provided in Section 9.1(a) above which has previously been approved by the CRA: (i) The CRA shall not agree to any mutual termination nor accept any surrender of this Lease (except upon the expiration of the full term of this Lease) nor shall the CRA consent to any material amendment or modification of this Lease or waive any rights or consents it may be entitled to pursuant to the terms hereof, without the prior written consent of Lender. (ii) Notwithstanding any default by Developer in the performance or observance of any covenant, condition or Lease of this Lease on the part of Developer to be performed or observed, the CRA shall have no right to terminate this Lease even though an Event of Default under this Lease shall have occurred and be continuing, unless and until the Executive Director shall have given Lender written notice of such Event of Default or to acquire Developer's leasehold estate created hereby or to commence foreclosure or other appropriate proceedings in the nature thereof, all as set forth in, and within the time specified by this Article IX. (iii) Subject to the provisions of subparagraph (iv) immediately below, Lender shall have the right, but not the obligation, at any time prior to termination of this Lease to pay all of the Annual Rental or any Additional Rental due hereunder, to provide any insurance, to pay any taxes, to pay any Public Charges and make any other payments, to make any repairs and improvements, to continue to construct and complete the Developer Improvements, and do any other act or thing required of Developer hereunder, and to do any act or thing which may be necessary and proper to be done in the performance and observance of the covenants, conditions and agreements hereof to prevent the termination of this Lease. All payments so made and all things so done and performed by Lender shall be as effective to 55 prevent a termination of this Lease as the same would have been if made done and performed by Developer instead of by Lender. (iv) Should any Event of Default under this Lease occur, Lender shall have ninety (90) days after receipt of notice from the Executive Director setting forth the nature of such Event of Default, to remedy same and, if the Event of Default is such that possession of the Project may be reasonably necessary to remedy the Event of Default, Lender shall, within such ninety (90) day period, commence and diligently prosecute a foreclosure action or such other proceeding as may be necessary to enable Lender to obtain such possession, provided that (a) Lender shall have fully cured any Event of Default in the payment of any monetary obligations of Developer under this Lease within such ninety (90) days and shall continue to pay currently such monetary obligations as and when the same are due; (b) Lender shall within six (6) months of the date that it takes possession of the Leased Property enter into an Lease on terms and conditions reasonably acceptable to the CRA with an Acceptable Developer for the continued operation of the Project (hereinafter called "Acceptable Developer's Agreement"); and (c) Lender shall have acquired Developer's leasehold estate created hereby or commenced foreclosure or other appropriate proceedings in the nature thereof within such ninety (90) day or period or prior thereto, and shall be diligently and continuously prosecuting any such foreclosure proceedings to completion. All rights of the CRA to terminate this Lease as the result of the occurrence of any such Event of Default shall be subject to and conditioned upon the Executive Director having first given Lender written notice of such Event of Default and Lender having failed to remedy such default or acquire Developer's leasehold estate created hereby or commence foreclosure or other appropriate proceedings in the nature thereof as set forth in and within the time period specified by this subparagraph (iv). (v) An Event of Default under this Lease which in the nature thereof cannot be remedied by Lender shall be deemed to be remedied 56 if (a) within ninety (90) days after receiving written notice from the Executive Director setting forth the nature of such Event of Default, Lender shall have acquired Developer's leasehold estate created hereby or commenced foreclosure or other appropriate proceedings in the nature thereof; (b) Lender shall diligently and continuously prosecute any such proceedings to completion; (c) Lender shall have fully cured any Event of Default in the payment of any monetary obligations of Developer under this Lease which do not require possession of the Project within such ninety (90) day period and shall thereafter continue to faithfully perform all such monetary obligations which do not require possession of the Project; and (d) within six (6) months after Lender shall have gained possession of the Project. Lender shall have entered into an Acceptable Developer's Agreement. Upon the taking of possession of the Project by Lender, Lender shall perform all of the obligations of the Developer hereunder as and when the same are due. Any Lender or any assignee or successor in interest to a Lender that has taken possession of the Leased Property must assume all of Developer's obligations hereunder, including, but not limited to, the construction obligation. (vi) If the Lender is prohibited by any process or injunction issued by any court or by reason of any action by any court having jurisdiction of any bankruptcy, debtor rehabilitation or insolvency proceedings involving Developer from commencing or prosecuting foreclosure or other appropriate proceedings in the nature thereof, the times specified in subparagraphs (iv) and (v) above for commencing or prosecuting such foreclosure or other proceedings shall be extended for the period of such prohibition, provided that Lender shall have fully cured any default in the payment of any monetary obligations of Developer under this Lease and shall continue to pay currently such monetary obligations as and when the same fall due, and provided that Lender shall diligently attempt to remove any such prohibition. 57 (vii) The Executive Director shall mail to Lender a duplicate copy by certified mail of any an all notices which the CRA may from time to time give to or serve upon Developer pursuant to the provisions of this Lease, and no notice by the Executive Director to Developer hereunder shall be deemed to have been given unless and until a copy thereof has been mailed to any Lender which has delivered pursuant to Section 22.5 who has given notice to CRA pursuant to this Article IX. (viii) Foreclosure of a Leasehold Mortgage or any sale thereunder, whether by judicial proceedings or by virtue of any power of sale contained in the Leasehold Mortgage, or any conveyance of the leasehold estate created hereby from Developer to Lender by virtue or in lieu of the foreclosure or other appropriate proceedings in the nature thereof, shall not require the consent of the CRA or constitute a breach of any provision of or a default under this Lease. Upon such foreclosure, sale or conveyance, the CRA shall recognize Lender, or any other foreclosure sale purchaser, as tenant hereunder except that all obligations on Developer herein contained shall be binding on the Lender only from and after the date that it shall take title to the Developer's leasehold estate unless otherwise provided in this Article IX; provided, that Lender or any such foreclosure sale purchaser must enter into an Acceptable Developer's Lease, within sixty (60) days of the date of such foreclosure, sale or conveyance, and further, provided, that in the event there are two (2) or more Leasehold Mortgages or foreclosure sale purchasers (whether the same or different Leasehold Mortgages), the CRA shall have no duty or obligation whatsoever to determine the relative priorities of such Leasehold Mortgages or the rights of the different holders thereof and/or foreclosure sale purchasers, in the event Lender subsequently assigns or transfers its interest under this Lease after acquiring the same by foreclosure or by an acceptance of a deed in lieu of foreclosure or subsequently assigns or transfers its interest under any such new lease, and in connection with any such assignment or transfer Lender takes back a 58 mortgage or deed of trust encumbering such leasehold interest to secure a portion of the purchase price given Leasehold Mortgage as contemplated under this Section 9.1. Lender shall be entitled to receive the benefit of this Article IX and any other provisions of this Lease intended for the benefit of the holder of a Leasehold Mortgage. Any person or entity to whom this Lease or any such new lease is assigned must either enter into or assume Lender's obligations under an Acceptable Developer's Agreement. (ix) Should the CRA terminate this Lease by reason of any default by Developer hereunder, the Executive Director shall give notice thereof to all Leasehold Mortgagees and the Executive Director shall, upon written request by Lender to the Executive Director received within thirty (30) days after such termination, execute and deliver a new lease of the Project to Lender for the remainder of the term of this Lease with the same covenants, conditions and agreements (except for any requirements which have been satisfied by Developer prior to termination) as are contained herein, provided, however, that the CRA's execution and delivery of such new lease of the Project shall be made without representation or warranty of any kind or nature whatsoever, either express or implied, including without limitation, any representation or warranty regarding title to the Project or any Developer Improvements or the priority of such new lease (except as to actions taken by the CRA during the period commencing on the date of termination of this Lease and terminating on the date of such new Lease). The CRA's delivery of any Developer Improvements owned by Developer to Lender pursuant to such new lease shall be made without representation or warranties of any kind or nature whatsoever, either express or implied, and Lender shall take any Developer Improvements "as -is" in their then current condition. Upon execution and delivery of such new lease, Lender at its sole cost and expense shall be responsible for taking such action as shall be necessary to cancel and discharge this Lease and to remove Developer named herein and any other occupant from the Project. The CRA's obligation to 59 enter into such new lease of the Leased Property with the Lender shall be conditioned upon Lender having remedied and cured all monetary defaults hereunder and having remedied and cured or has commenced and is diligently completing the cure of all non -monetary defaults of Developer susceptible to cure by any party other than by Developer. If the CRA receives written requests in accordance with the provisions of this Section 9.1(c)(ix) from more than one Leasehold Mortgagee, the CRA shall only be required to deliver the new lease to the Leasehold Mortgagee who is, among those Leasehold Mortgagees requesting a new lease, the holder of the most junior Leasehold Mortgage, provided that such Leasehold Mortgagee shall, not later than the execution of such new lease, either (a) pay in full the sums secured by any or all Leasehold Mortgages which are prior in lien to the Leasehold Mortgage held by such Leasehold Mortgagee, or (b) agree to reinstate the liens of any or all Leasehold Mortgages which are prior in lien to the Leasehold Mortgage held by such Leasehold Mortgagee with the same relative priority as existed prior to the termination of this Lease. If any Leasehold Mortgage having the right to a new lease pursuant to this Section 9.1(c)(ix) shall elect to enter into a new lease but shall fail to do so or shall fail to take the action required above, the CRA shall so notify all other Leasehold Mortgagees (if any) and shall afford such other Leasehold Mortgagee a period of sixty (60) days from such notice within to elect to obtain a new lease in accordance with the provisions of this Section. Except for any liens reinstated pursuant to this Section, any new lease entered into pursuant to this Section shall be prior to any mortgage or other lien, charge or encumbrance on the fee of the Leased Property or the improvements and shall have the same relative priority in time as this Lease and shall have the benefit of all of the right, title, powers and privileges of Developer hereunder in and to the Leased Property and the Developer Improvements. At Developer's request, the CRA will enter into an agreement with any 60 Leasehold Mortgage granting to the Leasehold Mortgagee the rights set forth in this Article. (x) The CRA and Developer shall cooperate in including in this Lease, by suitable amendment, from time to time, any provision which may be requested by any proposed Lender, or may otherwise be reasonably necessary, to implement the provisions of this Article IX; provided, however, that any such amendment shall not in any way affect the term hereby demised nor affect adversely in any material respect any rights of the CRA under this Lease. (x) All rights and benefits afforded to a Leasehold Mortgagee hereunder shall also be afforded to a party providing financing to Developer pursuant to a Financing Sublease, which Financing Sublease has been approved by the CRA in the same manner that a Leasehold Mortgage is approved pursuant to this Article IX. Section 9.2 No Waiver of Developer's Obligations or CRA's Rights. Nothing contained herein or in any Leasehold Mortgage shall be deemed or construed to relieve Developer from the full and faithful observance and performance of its covenants, conditions and agreements contained herein, or from any liability for the non -observance or non-performance thereof, or to require or provide for the subordination to the lien of such Leasehold Mortgage of any estate, right, title or interest of the CRA in or to the Project or this Lease. ARTICLE X TAX INCREMENT FUNDS [THIS ARTICLE MAY BE REMOVED FROM THE LEASE IN THE EVENT THE CITY ATTORNEY DETERMINES THE PROPOSED USE OF INCREMENTAL TIF IS NOT IN ACCORDANCE WITH APPLICABLE LAW] 61 Section 10.1 Incremental Increase In Tax Increment Funds. Subject to Sections 10.2, 10.3 and 10.5 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 form the County and the City generated by the increase above the assessed value for the Leased Property and the Developer Improvements constructed thereon over and above the assessed value for the Land set forth in the Miami -Dade County ad valorem 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 use of tax increment funds with respect to the Project, and at the election of Developer, within the Overtown project area, identified on Exhibit "0" attached hereto (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 10.2 Use of Incremental TIF. The Developer acknowledges and agrees that the Incremental TIF may only be utilized in accordance with qualifying uses under applicable law governing the use of tax increment funds and that Developer shall not be entitled to, and the CRA shall not disburse any of the Incremental TIF to the Developer unless and until the Developer has established to the CRA and, to the extent required by law or the Interlocal Agreement, the County that the use of the Incremental TIF proposed by the Developer is permissible. The 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 laws governing the use of tax increment funds. 62 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 10.3 Failure to Qualify. To the extent that Developer is not able to establish to the CRA, and to the extent required under applicable law or the Interlocal Agreement, the County that its proposed expenditures of the Incremental TIF qualifies for use of tax increment funds 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 laws 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 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. Under no circumstances shall the CRA be obligated to use the Incremental TIF to build a parking garage on the Leased Property. Section 10.4 Extension of the CRA. The Developer acknowledges that it will have no right to receive any Incremental TIF after the expiration of the CRA which is to occur on September 30, 2013. In the event that the duration of the CRA is extended, the Developer acknowledges that notwithstanding the extension of the term of the CRA, the CRA is not obligated to pay to the 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, the Developer shall have the right to request that the CRA pay to the Developer all or a portion of the Incremental TIF generated by the Project 63 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 10.5 Subordination of Incremental TIF. Developer acknowledges and agrees that the obligation of the CRA to make payments to Developer contemplated by this Section 10 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 in connection with 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, 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 10.6 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 10.7 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 64 actual use of the Incremental TIF differing from the proposed use of the Incremental TIF, which was approved by the City Attorney. ARTICLE XI REMEDIES Section 11.1 Events of Default. The occurrence of any of the following events are hereby defined as an "Event of Default": (a) Failure - Payment of Money. Failure of Developer to pay any Rental, Additional Rental or Public Charges or any other payments of money as herein provided or required, when due and the continuance of such failure for a period of thirty (30) days after notice thereof in writing. In the event that any payment or installment of Rental is not paid to the CRA on the date the same becomes due and payable, Developer covenants and agrees to pay to the CRA interest on the amount thereof from the date such payment or installment became due and payable to the date of payment thereof, at the Default Rate. All other payments of money required to be paid to the CRA by the Developer under this Lease, including interest, late fees, penalties and contributions, shall be treated as Additional Rent. (b) Failure - Performance of Other Covenants, Etc. Failure of Developer to perform any of the other covenants, conditions and agreements which are to be performed by Developer in this Lease, including completing the Developer Improvements within the time frame prescribed in the Project Schedule, and the continuance of such failure for a period of sixty (60) days after notice thereof in writing from the Executive Director to 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 period of time as is reasonably required (not to exceed one hundred twenty (120) days) if the default, by its nature, cannot be cured within the sixty (60) day period provided Developer shall have commenced the curative action within the sixty (60) day period and thereafter shall have continued diligently to prosecute all actions necessary 65 to cure such default, until completion but in no event beyond one hundred twenty (120) days after notice thereof from the CRA. (c) Bankruptcy, etc. (i) Borrower files a voluntary petition in bankruptcy or is adjudicated as bankrupt or insolvent or files any petition or answer seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under the present or any future federal, state, or other statute or law; or (ii) If Developer admits its inability to pay its debts, or if a receiver, trustee or other court appointee is appointed for all or a substantial part of Developer's property and such appointment is not discharged within thirty (30) days; or (iii) If the leasehold interest of Developer is levied upon or attached by process of law and such levy or attachment is not discharged or released within thirty (30) days; or (iv) If Developer makes an assignment for the benefit of creditors or takes the benefit of any insolvency act, or if any proceedings are filed by or against Developer to declare Developer insolvent or unable to meet its debts and such proceedings filed against Developer are not discharged within thirty (30) days; or (v) If a receiver or similar type of appointment or court appointee or nominee of any name or character is made for Developer or its property and such appointment is not discharged within thirty (30) days; or (vi) If Developer shall abandon the Leased Property during the term of this Lease; or (vii) If Developer shall assign this Lease or sublet any portion of the Leased Property, except as permitted herein. Section 11.2 Remedies for an Event of Default. Upon the occurrence of an Event of Default, the CRA, at any time thereafter, may, upon written notice to Developer, and to any Leasehold Mortgagee who has provided notice 66 to the CRA pursuant to Section 9.1(c) stating that this Lease is terminated upon the date specified in such notice from the CRA to the Developer, as fully and completely as if the date specified in such notice were the date herein originally fixed for the expiration of the term of this Lease, and on the date so specified, Developer shall then quit and surrender the Leased Property to the CRA. Upon such termination of this Lease, as provided in this Section 11.2, all rights and interest of Developer in and to the Leased Property, and every part thereof, shall cease and terminate and the CRA may, in addition to any other rights and remedies it may have, retain all sums paid to it by Developer under this Lease. In addition, the CRA may pursue all remedies available at law or in equity as a result of Developer's breach of the terms and provisions of this Lease. Section 11.3 Events of Default - CRA. (a) Events of CRA Default. The following event is hereby defined as an "Event of CRA Default": The failure of the CRA to perform any of the covenants, conditions and agreements of this Lease which are to be performed by the CRA and the continuance of such failure for a period of thirty (30) days after written notice thereof from 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) and unless such Event of CRA Default, by its nature, cannot be cured within the thirty (30) day period, such additional time as may reasonably be required to cure same (not to exceed one hundred fifty (150) days), provided the CRA commences the curative action within such thirty (30) day period and shall continue diligently to prosecute all actions necessary to cure such Event of CRA Default until completion but in no event beyond one hundred fifty (150) days after receipt of notice of default from Developer. (b) Remedies for an Event of CRA Default. If an Event of CRA Default shall occur, Developer to the fullest extent permitted by law, shall have the right to pursue any or all of the following remedies: 67 (i) the right and option to terminate this Lease and all of its obligations hereunder by giving written notice of such election to the CRA whereupon this Lease shall terminate as of the date of such notice; or (ii) the right to a writ of mandamus, injunction or other similar equitable relief, available to it under Florida law against the CRA (including any or all of the members of its governing body, and its officers, agents or representatives); provided, however, that in no event shall any member of such governing body or any of its officers, agents or representatives be personally liable for any of the CRA's obligations to Developer hereunder; (c) Under no circumstances shall the CRA be liable for damages as a result of the occurrence of an Event of CRA Default. Section 11.4 Unavoidable Delay. For the purpose of any of the provisions of this Lease, the term "Unavoidable Delay" shall mean a delay in the performance of such obligation which has a reasonably demonstrable 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, 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 Lease, 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 68 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 XXIII of this Lease at the request of either party. Section 11.5 Obligations, Rights and Remedies Cumulative. The rights and remedies of the parties to this Lease, whether provided by law or by this Lease, shall be cumulative, and the exercise by either party of any one or more of such remedies shall not preclude the exercise by it, at the same or different times, of any other such remedies for the same default or breach or of any of its remedies for any other default or breach by the other party. No waiver made by either party with respect to performance, or manner or time thereof, of any obligations of the other party or any condition to its own obligation under this Lease shall be considered a waiver of any rights of the party making the waiver with respect to the particular obligations of the other party or condition to its own obligation beyond those expressly waived and to the extent thereof, or a waiver in any respect in regard to any other rights of the party making the waiver or in regard to any obligation of the other party. ARTICLE XII PROTECTION AGAINST MECHANICS' LIENS AND OTHER CLAIMS, INDEMNIFICATION Section 12.1 Mechanics Liens and Payments of Obligations. 12.1.1 Developer to Discharge Contractors Liens. If any such mechanics liens shall at any time be filed against the Leased Property, 69 Developer shall cause same to be satisfied of record or transferred to bond within thirty (30) days of recording. Upon Developer's failure to discharge such lien(s), the CRA, in addition to any other right or remedy that it may have, may take such action as may be reasonably necessary to protect its interest and Developer shall pay any amount paid by the CRA in connection with such action, and all reasonable legal and other costs and expenses incurred by the CRA in connection therewith (including reasonable counsel fees, court costs and other necessary disbursements). Any such amounts paid by the CRA and the amount of any such expenses or costs incurred by the CRA, if not paid by Developer to the CRA within thirty (30) days after the date Developer receives written notice from the CRA of the amount thereof and demand for payment of the same, shall, together with interest thereon at the Default Rate from the date of the receipt by Developer of the aforesaid written notice and demand to the date of payment thereof by Developer, be treated as Additional Rental, and shall be payable by Developer to the CRA within ten (10) days of the receipt of written demand for payment by the CRA. 12.1.2 Payment of Materialmen and Suppliers. Developer shall make, or cause to be made, prompt payment of all money due and legally owing to all persons doing any work or to subcontractors in connection with the development, construction, equipment, repair or reconstruction of any of the Developer Improvements required by this Lease to be constructed by Developer on the Leased Property. Nothing in this subparagraph (b) shall limit the right of Developer to contest, in good faith, by legal proceedings or otherwise, whether any amount claimed or alleged to be due and owing to any such person is legally due and owing and to withhold payment of such amounts pending resolution of such dispute. Section 12.2 Indemnity. Notwithstanding any insurance policy or policies the Developer is required to obtain or currently has in place, Developer shall indemnify and save harmless the CRA from and against any 70 and all actions, claims or demands, suits at law, in equity or before administrative tribunals, due to the negligence of Developer, its agents, servants, employees or contractors arising out of the use or occupancy of the Leased Property by such persons. Developer shall defend any and all such actions, claims, demands or suits on behalf of the CRA at Developer's sole cost and expense. Section 12.3 CRA Interest in Land. Nothing in this Lease shall be deemed or construed in any way as constituting the consent of the CRA, express or implied, by inference or otherwise to any person for the performance of any labor or the furnishing of any materials nor as giving Developer right, power, or authority to contract for or permit the rendering of any services or the furnishing of any materials that would give rise to a mechanic's or other liens against the Land. The CRA's interest in the Land shall not be subject to liens for improvements made by Developer, and Developer shall have no power or authority to create any lien against the present estate, reversion or other estate of the CRA in the Land as a result of Developer Improvements made by Developer. All materialmen, contractors, artisans, mechanics and laborers and other persons contracting with Developer with respect to the Leased Premises or any part thereof, are hereby charged with notice that such liens are expressly prohibited and that they must look solely to the Developer to secure payment for any work done or material furnished for improvements to the Leased Premises ordered by Developer. ARTICLE XIII INSURANCE Section 13.1 Insurance Coverage. Beginning on the date of this Lease and during the term of this Lease, for so long as portions of the Leased Property are subject to this Lease, Developer, at its sole cost and expense, shall maintain or cause to be maintained: 71 (a) Property Insurance. Insurance on the Developer Improvements against All Risks of physical loss or damage, including the expense of the removal of debris of such property as a result of damage by an insured peril. Coverage shall be written on as broad an "All Risk" form as is commercially available. The insurance shall be written on a full replacement cost basis. A deductible or self -insured loss amount of up to $50,000.00 shall be permitted. If the policy or policies of insurance contain a co-insurance requirement, the policy or policies shall contain an agreed amount endorsement. The term "Developer Improvements", as used in this paragraph, shall be deemed to include all personal property furnished or installed on the Leased Property and owned by the Developer, and the insurance herein provided shall cover the same. During the construction period, property insurance may be provided on a Completed Value Builder's Risk form. The CRA and Developer shall be listed as named insured on such Builder's Risk Policy. The Builder's Risk Policy shall include the following endorsements: (i) All Risk form; (ii) Non -Reporting form — completed value; (iii) Specific Coverage (project location and description); (iv) loss or damage to building material and property of every kind and description, including insured's property to be used in, or incidental to construction; (v) Business Interruption; (vi) Boiler and Machinery; (vii) Transit; (viii) Foundation coverage; (ix) Scaffolding and Forms coverage; (x) Plans, Blueprints and Specifications coverage; (xi) Collapse; (xii) Flood, including inundation, rain, seepage and water damage; (xiii) Earthquake; (xiv) Subsidence; (xv) Windstorm, including hurricane; (xvi) freezing and temperature extremes or changes coverages; (xvii) Ordinance or Building Laws; (xviii) Theft or Burglary; (xix) coverage for loss arising out of Faulty Work or Faulty Materials; (xx) coverage for loss arising out of Design Error or Omission; (xxi) Testing; (xxii) Debris Removal; (xxiii) Soft (additional financing) Cost Coverage; (xxiv) Replacement Cost 72 Valuation; (xxv) coinsurance requirements waived; and (xxvi) maintenance of insurance coverage through warranty period. The adequacy of the Insurance coverage may be reviewed and modified periodically by the Executive Director at his discretion. Any review by the Executive Director shall not constitute an approval or acceptance of the amount of insurance coverage. In the event the Executive Director deems the insurance coverage to be inadequate, the Executive director shall inform Developer of the necessary coverages and Developer shall obtain such coverage within thirty (30) days of such request. In the event of a loss and the insurance reimbursements are inadequate to rebuild and restore the damaged Developer Improvements to substantially their previous condition before an insurable loss occurred, and the cause of the deficiency in insurance proceeds is the failure of the Developer to adequately insure the Developer Improvements as required by this Lease, Developer must nevertheless rebuild and restore such Developer Improvements pursuant to the terms hereof and must pay the entire cost of same notwithstanding the fact that such insurance proceeds are inadequate. (b) Automobile Liability Insurance. Automobile liability insurance and equivalent policy forms covering all owned, non -owned, and hired vehicles used in connection with any work arising out of this Lease. Such insurance shall afford protection to at least a combined single limit for bodily injury and property damage liability of $1,000,000 per occurrence. Any review by the Executive Director shall not constitute an approval or acceptance of the amount of insurance coverage. The CRA shall be included as an additional named insured. The automobile liability insurance shall include an endorsement including employees as included insured and a waiver of subrogation endorsement. (c) Liability Insurance. Comprehensive General Liability, including contractual liability, products and completed operations, or an equivalent policy form providing liability insurance against claims for 73 personal injury or death or property damage, occurring on or about the Leased Property, the Developer Improvements, or any elevator, escalator, or hoist thereon. Such insurance shall afford protection to at least a combined single limit for bodily injury and property damage liability of $1,000,000.00 per occurrence, with General aggregate limit of $2,000,000.00; Products/Completed Operations aggregate limit of $2,000,000.00, and Personal and Advertising Injury Limits of $1,000,000.00. The General Liability policy shall include the following endorsements: (i) City of Miami included as an additional insured; (ii) Products/Completed Operations coverage shall be kept in force for a period of not less than three years from the date of which the work was performed; (iii) employees included as insured; (iv) Independent Contractors coverage; (v) Contractual Liability; (vi) Waiver of Subrogation; (vii) Premises/Operations; (viii) Care, Custody and Control Exclusion removed; (ix) Explosion, Collapse and Underground Hazard; (x) Incidental Medical Malpractice; (xi) Loading and Unloading; and (xii) Mobile Equipment (Contractors' equipment) whether owned, leased, borrowed or rented by the Contractor or employees of the Contractor). Any review by the Executive Director shall not constitute an approval or acceptance of the amount of insurance coverage. It is the CRA's intent that any liability insurance provided pursuant to this Section shall be deemed primary insurance coverage in the event of any loss arising from the premises and operations covered by this Lease. (d) Worker's Compensation. Worker's Compensation insurance with limits of liability in compliance with Florida law. For work that is subcontracted, the Developer shall require the subcontractor to provide Worker's Compensation insurance for all of the subcontractor's employees. The Worker's Compensation Insurance shall include waivers of subrogation endorsements. 74 (e) Employer's Liability. Employer's liability insurance in the amount of $1,000,000.00 for bodily injury caused by an accident, each accident; $1,000,000.00 for bodily injury caused by disease, each employee; and $1,000,000.00 for bodily injury caused by disease, policy limit. The Employer's Liability insurance policy shall include a waiver of subrogation endorsement. (f) Owner's Contractors' Protective Liability. Owner's Contractors' Protective Liability Insurance in the amount of $1,000,000.00 per occurrence and $1,000,000.00 in the aggregate with the CRA as a named insured. (g) Pollution Liability. Pollution liability insurance in the amount of $1,000,000.00, each pollution incident, with an aggregate loss limit of $1,000,000.00; an aggregate expense limit of $1,000,000.00; an On -Site First Party Clean -Up limit of $1,000,000.00; a While in Transit limit of $1,000,000.00; and an Unnamed Disposal Sites Limit of $1,000,000.00. The CRA shall be named as a named insured. (h) Umbrella Policy. Umbrella policy with bodily injury and property damage liability combined, single limit coverage of $1,000,000.00; each occurrence of $1,000,000.00; aggregate coverage $1,000,000.00; and Product/Completed Operations aggregate limit of $2,000,000.00. The Umbrella Policy shall provide excess coverage over the Commercial General Liability, the Business Automobile Liability and the Employer's Liability. (i) Copies. Developer shall furnish Certificates of Insurance with the CRA named as additional insured for the coverages specified hereunder which shall clearly indicate that Developer has obtained insurance in the type, amount and classification's herein required. Copies of all policies of insurance and renewals thereof shall be furnished to the CRA by the Developer prior to the effective date thereof. Copies of new or renewal policies replacing any policies expiring during the term of this Lease shall be delivered to the CRA at least thirty (30) days prior to the date of expiration of 75 any policy, together with proof satisfactory to the CRA that all premiums have been paid. Section 13.2 Responsible Companies - Blanket Insurance Permitted. All insurance provided for in this Article XIV shall be affected under valid and enforceable policies issued by insurers of recognized responsibility, which are licensed to do business in the State of Florida. All such companies must be rated at least "A" as to management, and at least "Class X" as to financial strength in the latest edition of Best's Insurance Guide, published by Alfred M. Best Co., Inc. The insurance required by this Article may be part of another policy or policies of the Developer in which other properties and locations are also covered so long as the amount of insurance available to pay losses at this location is at least the minimum required by this Section, and it cannot be reduced in any manner by losses occurring at other properties or locations. Section 13.3 Named Insureds - Notice to CRA of Cancellation. All policies of insurance described herein shall name Developer and the CRA as insureds as their respective interests may appear. The policies shall also name as insured, if required by either party or required pursuant to the terms of any Leasehold Mortgage or Financing Sublease, any Leasehold Mortgagee as the interest of any such Leasehold Mortgagee may appear. Notwithstanding any such inclusion, the parties hereto agree that any losses under such policy shall be payable, and all insurance proceeds recovered thereunder shall be applied and disbursed in accordance with the provisions of this Lease. All insurance policies shall provide that no material change, cancellation or termination shall be effective until at least thirty (30) days after receipt of written notice thereof has been received by the CRA. Section 13.4 CRA May Procure Insurance if Developer Fails to Do So. In the event Developer at any time refuses, neglects or fails to secure and maintain in full force and effect any or all of the insurance required pursuant to this Lease, the CRA, at its opinion, may procure or renew such insurance, 76 and all amounts of money paid therefore by the CRA shall be treated as Additional Rental payable by Developer to the CRA together with interest thereon at the Default Rate from the date the same were paid by the CRA to the date of payment thereof by Developer. The CRA shall notify Developer in writing of the date, purposes and amounts of any such payments made by it, which shall be payable by Developer to the CRA within ten (10) days of such notification. Section 13.5 Insurance Does Not Waive Developer's Obligations. No acceptance or approval of any insurance agreement or agreements by the CRA or the Executive Director shall relieve or release or be construed to relieve or release Developer from any liability, duty or obligation assumed by, or imposed upon it by the provisions of this Lease. Section 13.6 Loss or Damage Not to Terminate Rental or This Lease. Any loss or damage by fire or other casualty, of or to any of the Developer Improvements on the Leased Property at any time, shall not operate to terminate this Lease or to relieve or discharge Developer from the payment of Rental, or from the payment of any money to be treated as Additional Rent in respect thereto, pursuant to this Lease, as the same may become due and payable, as provided in this Lease. Section 13.7 Proof of Loss. Whenever any Developer Improvements, or any part thereof, constructed on the Leased Property (including any personal property furnished or installed in the Developer Improvements) shall have been damaged or destroyed, Developer shall promptly make proof of loss in accordance with the terms of the insurance policies and shall proceed promptly to collect or cause to be collected, all valid claims which may have arisen against insurers or others based upon any such damage or destruction. Developer shall promptly give the CRA written notice of such damage or destruction. Section 13.8 Property Insurance Proceeds. 77 (a) Authorized Payment. Except as otherwise provided in Subsection (c) of this Section 13.8, all sums payable for loss and damage arising out of the casualties covered by the property insurance policies shall be payable: (i) Directly to Developer, if the total recovery is equal to or less than the then fair market value of Developer's property interest except that if Developer is then in default under this Lease, such proceeds shall be paid over to the CRA who shall apply the proceeds first to the rebuilding, replacing and repairing of the Leased Property and then to the curing of such default. Any remaining proceeds shall be paid over to Developer; (ii) To the Insurance Trustee, if the total recovery is in excess of the amount described in (i) above to be held by such Insurance Trustee pending establishment of reconstruction, repair or replacement costs and shall be disbursed to Developer pursuant to the provisions of subparagraph (b) of this Section 13.8. If at the time such proceeds become payable, there is a Leasehold Mortgage on the Leased Property, the Leasehold Mortgagee shall serve as the Insurance Trustee, but if there's no Leasehold Mortgagee at that time, or if the Leasehold Mortgagee refuses to serve as Insurance Trustee, the Insurance Trustee shall be such commercial bank or trust company as shall be designated by Developer and approved by the Executive Director, which approval shall not be unreasonably withheld or delayed. (b) Disposition of Insurance Proceeds for Reconstruction. All amounts received upon such policies shall be used, to the extent required, the reconstruction, repair or replacement of the Developer Improvements and the personal property of Developer contained therein, so that the Developer Improvements or such personal property shall be restored to a condition comparable to the condition prior to the loss or damage (hereinafter referred to as "Reconstruction Work"). From the insurance proceeds received by the 78 Insurance Trustee, there shall be disbursed to Developer such amounts as are required for the Reconstruction Work. Developer shall submit invoices or proof of payment to the Trustee for payment or reimbursement in accordance with an agreed schedule of values approved in advance by the Executive Director. Any amount remaining in the hands of the Insurance Trustee after the completion of the Reconstruction Work shall be paid to Developer. (c) Lenders and Lender/Landlords May Have Benefit of Insurance Fund for Reconstruction. In the event Developer, pursuant to any Leasehold Mortgage or Financing Sublease, shall at any time authorize the Lenders or Lender Landlords on its behalf or in his stead to enter upon the Leased Property and undertake or prosecute the reconstruction or repair of any building on the Leased Property damaged or destroyed by fire, or other insured -against hazard or peril and to have and receive for Developer or Leasehold Mortgagee use for such purpose such insurance proceeds, then in that case said insurance proceeds shall be equally available to such Leasehold Mortgagee as to Developer as provided in Section 13.8(b), and it shall in like manner and to like extent at the request of any such Leasehold Mortgagee, be applied to the reconstruction or repair of any such building so damaged or destroyed. Section 13.9 Covenant for Commencement and Completion of Reconstruction. Subject to the provisions of Section 13.1(b) and Section 13.10, Developer covenants and agrees to commence the Reconstruction Work as soon as practicable but in any event within ninety (90) days after the insurance proceeds for the destroyed or damaged improvements or personalty have been received, and to fully complete such Reconstruction Work as expeditiously as possible consistent with the nature of the damage, but in any event within twenty-four (24) months from the start thereof; provided, that if it is not practicable to commence such Reconstruction Work within such ninety (90) day period, or to complete such Reconstruction Work within such 79 twenty four (24) month period, then such Reconstruction Work may be commenced and completed within a longer period, provided that such period shall be approved in writing by the Executive Director after written request from Developer. As used in the preceding sentence, the term "available net insurance proceeds" means the sum actually paid by the insurer or insurers in respect of the claim in question, less all costs and expenses incurred by Developer or the Insurance Trustee in the collection, holding and disbursement of same, including (without limitation) reasonable attorney's fees. Section 13.10 Developer's Rights In the Event of Uninsured Major Casualty. In the event any part of the Developer Improvements or the Leased Property is damaged or destroyed by reason of any casualty which is not required to be insured against pursuant to Section 13.1 and is not in fact insured against, then at Developer's option, in lieu of rebuilding, replacing or repairing the portion of the Developer Improvements or the Leased Property so damaged or destroyed, Developer may give notice to the CRA, within thirty (30) days after the occurrence of such damage or destruction, of Developer's election to terminate this Lease as to the portion of the Developer Improvements or the Leased Property so damaged or destroyed of Developer's intention to terminate this Lease, or portion thereof, on any business day specified in such notice which occurs not less than forty-five (45) or more than sixty (60) days after such damages or destruction provided that such notice shall be accompanied by a certificate from Developer, signed by the appropriate officer or general partner, stating that in the reasonable judgment of Developer, the Developer Improvements, or portion thereof, and the Leased Property, or portion thereof, are economically unsuitable for Developer's continued use and occupancy by reason of such uninsured damage or destruction. This Lease shall thereupon terminate as to such portion of the Leased Property on such termination date except that Developer shall, at its expense, promptly demolish any buildings or other 80 improvements situated on the portion of the Leased Property as to which this Lease shall have been terminated and shall clear and grade such portion of the Leased Property prior to the effectiveness of such termination. The CRA and Developer shall, at the request of either, execute such instruments or documents as may be reasonably necessary or desirable in order to amend this Lease to delete such portion of the Leased Property from the description of the property demised hereby. ARTICLE XIV CONDEMNATION Section 14.1 Entire Leased Property Taken by Condemnation. In the event that the whole of the Leased Property and Developer Improvements (or such portion thereof as shall, in the good faith opinion of the Developer, render it economically unfeasible to effect restoration thereof) shall be taken for any public use or purpose by the exercise of the power of eminent domain, or shall be conveyed by the CRA and Developer and individual owners of Developer Improvements or portions thereof acting jointly to avoid proceedings of such taking, the Rental and money to be treated as Additional Rental pursuant to this Lease and the Public Charges shall be prorated and paid by the Developer to the date of such taking or conveyance, and this Lease shall terminate and become null and void as of the date of such taking or conveyance. The award or awards of damages allowed to the CRA or Developer or individual owners of Developer Improvements or portions thereof shall be paid as follows: First: There shall be paid all expenses, if any, including reasonable attorney's fees incurred by the CRA and Developer and individual owners of Developer Improvements or portions thereof in such condemnation suit or conveyance; Second: CRA and Developer and individual owners of Developer Improvements or portions thereof shall be paid portions of the balance 81 of said award or awards which are allocable to and represented by the value of their respective interest in the Leased Property as found by the court or jury in its condemnation award or if no such separate awards are obtained such balance shall be paid to Developer and the CRA in the same proportion as the then Fair Market Value of each party's respective interest or estate in the Leased Property and the Developer Improvements bears to the total Fair Market Value of the interests and estates of both parties in the Leased Property and Developer Improvements within thirty (30) days of the time of the taking. Section 14.2 Partial Taking of Leased Property by Condemnation. (a) In the event that less than all of the Leased Property or Developer Improvements shall be taken for any public use or purpose by the exercise of the power of eminent domain, or shall be conveyed by the CRA and Developer and individual owners of Developer Improvements or portions thereof acting jointly to avoid proceedings of such taking, and Developer shall be of the good faith opinion that it is economically feasible to effect restoration thereof then this Lease and all the covenants conditions and provisions hereunder shall be and remain in full force and effect as to all of the Leased Property not so taken or conveyed (except as provided in subsection (b) of this Section 14.2 and in Section 14.3). Developer shall to the extent condemnation proceeds are made available to it pursuant to the terms hereof, remodel repair and restore the Developer Improvements so that they will be comparable to the Developer Improvements prior to the condemnation taking into consideration the fact of the condemnation; provided, however, that in so doing Developer shall not be required to expend more than the amount of any such award actually received by Developer less all costs and expenses (including reasonable attorney's fees) incurred in the collection of same. 82 (b) The award or awards of damages allowed to CRA and Developer and individual owners of Developer Improvements or portions thereof shall be paid to and received by the parties as follows: First: There shall be paid all expenses, if any, including any reasonable attorney's fees incurred by CRA and Developer and individual owners of Developer Improvements or portions thereof in such condemnation suit or conveyance; Second: There shall be paid to the CRA the value of the portion of the Land so taken which land shall be valued as if unimproved and unencumbered; Third: There shall be paid to the Developer the amount required to complete the remodeling and repairs to the Developer Improvements pursuant to (a) above; Fourth: CRA, Developer and individual owners of Developer Improvements or portions thereof shall be paid portions of the balance of said award or awards if any which are allocable to and represented by the value of their respective interest in the Leased Property as found by the court or jury in its condemnation award, or if no such separate awards are obtained, such balance shall be paid to Developer and the CRA and individual owners of Developer Improvements or portions thereof in the same proportion as the then Fair Market Value of each party's respective interest or estate in the Leased Property and the Developer Improvements bears to the total Fair Market Value of the interests and estates of both parties in the Leased Property and Developer Improvements. Section 14.3 Adjustment of Rent Upon Partial Taking. In the event a part of the Leased Property and the Developer Improvements thereon, if any, shall be taken for any public use or purpose by the exercise of the power of eminent domain, or shall be conveyed by CRA and Developer and individual 83 owners of Developer Improvements or portions thereof acting jointly to avoid proceedings of such taking then Rental and money to be treated as Additional Rental pursuant to this Lease and the Public Charges in respect of such part of the Leased Property shall be paid by Developer to the date of such taking or conveyance and after such date the Rent for the remainder of the Leased Property shall be reduced by such an amount as may be agreed upon in writing by the parties hereto based upon the square footage of the Land so taken. Section 14.4 Taking for Temporary Use or of Leasehold Estate. If, by the exercise of the power of eminent domain or under threat thereof the whole or any part of the Leased Property or the Developer Improvements shall be taken for temporary use or the whole or any part of the leasehold estate created by this Lease shall be taken all awards or other payments shall be paid to Developer and individual owners of Developer Improvements or portions thereof alone except that: (a) if any portion of any such award or payment on account of a taking for temporary use is made by reason of any damage to or destruction of any portion of the Developer Improvements, such portion shall be applied to pay the cost of restoration; and (b) if any portion of an award or payment on account of a taking for temporary use relates to a period beyond the date of expiration of the term of this Lease, such portion shall be paid to the CRA; and (c) all payments of Annual Basic Rental, Public Charges and Additional Rent by the Developer shall continue as if no condemnation had taken place. ARTICLE XV RIGHTS OF OCCUPANCY AND ACCESS, MAINTENANCE, OWNERSHIP OF DEVELOPER IMPROVEMENTS 84 Section 15.1 Quiet Enjoyment. The CRA represents and warrants that Developer, upon paying the Rental pursuant to this Lease and observing and keeping the covenants and agreements of this Lease on its part to be kept and performed, shall lawfully and quietly hold occupy and enjoy the Leased Property without hindrance or molestation by the CRA during the term of this Lease or by any person or persons claiming under the CRA. Section 15.2 Waste. Developer shall not permit, commit or suffer waste or impairment of the Leased Property or the Developer Improvements thereon, or any part thereof. Section 15.3 Maintenance and Operation of Developer Improvements. Developer shall at all times keep the Developer Improvements constructed on the Leased Property and all furnishings located therein in good and safe condition and repair as other first class projects in similar usage are kept (reasonable wear and tear expected), and in the occupancy, maintenance and operation of such Developer Improvements, and of the Leased Property, shall comply with all laws, ordinances, codes and regulations applicable thereto. Section 15.4 Ownership of Developer Improvements During Lease. Prior to the expiration or termination of this Lease, title to the Developer Improvements shall not vest in the CRA by reason of its ownership of fee simple title to the Leased Property, but title to such Developer Improvements shall remain in Developer and any individual owners of the Developer Improvements or portion thereof. Upon the expiration or termination of this Lease, title to the Developer Improvements shall automatically vest in the CRA, free and clear of all claims arising by, through or under Developer. Section 15.5 CRA and Developer to Join in Certain Actions. Within ten (10) business days after receipt of written request from Developer, the CRA shall: (a) Join Developer, when required by law, in any and all applications for permits, licenses, or other authorizations required by any governmental or public authority which has jurisdiction in connection with 85 any work as may be reasonably necessary or appropriate for the construction of the Developer Improvements to be constructed by Developer on the Leased Property; and (b) Join Developer in any grants of, or grant such easements or rights with respect to vehicular access, electric, telephone, gas, water, sewer, steam and such other public utilities and facilities as may be reasonably necessary or appropriate for the construction, operation or use of the Leased Property or any Developer Improvements to be erected by Developer thereon. Developer shall pay all fees and charges for all such applications and grants. ARTICLE XVI 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 Lease through the completion of construction of the Project and the sale of the Affordable Units, in connection with overseeing and monitoring the activities of Developer, pursuant to the terms of this Lease, 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 Executive Director regarding any such expenses, the dispute shall be submitted to the City Manager for resolution. The decision of the City Manager shall be binding on the parties. Any payment not made by Developer within thirty (30) days of when due shall bear interest at eighteen percent (18%) per annum until paid. 86 ARTICLE XVII DEVELOPER NOT TO ENCUMBER CRA'S INTEREST Developer shall have no right or power to, and shall not in any way encumber the title of the CRA in and to the Land, or the title of the CRA's remainder or residual interest in the Developer Improvements. The fee simple estate of the CRA in the Land and the remainder or residual interest of the CRA in the Developer Improvements shall not be in any way subject to any claim by way of lien or otherwise, whether claimed by operation of law or by virtue or any express or implied lease or contract or other instrument made by Developer and any claim to the lien or otherwise upon the Land or in the Developer Improvements arising from any act or omission of Developer shall accrue only against Developer's interest in the Developer Improvements. ARTICLE XVIII LIMITATION OF LIABILITY Section 18.1 Limitation of Liability of Developer. a. General Limitation on Liability. It is expressly understood and agreed by and between the parties, anything herein to the contrary notwithstanding, that each and all of the representations, covenants, undertakings and agreements herein made on the part of Developer are made and intended not as personal representations, covenants, undertakings and agreements by the members, officers, agents and investors of Developer or any officers, agents, shareholders, directors, members, partners, investors or any other person of any of Developer's constituent entities or for the purpose or with the intention of binding any of the foregoing personally; but are made and intended for the purpose of binding Developer and the leasehold estate created by this Lease. 87 b. Limited Carve -Out. Notwithstanding the foregoing, in the event of: (i) an actual and intentional fraud committed by any of Developer's partners or officers in any written documents prepared by Developer submitted to the CRA or (ii) any misappropriation of insurance proceeds or condemnation awards by Developer (should same be paid directly to Developer), any such partners or officers committing the fraud or causing such misappropriation shall have personal liability to the extent of any actual damages sustained to the CRA proximately caused by such fraud or misappropriation, and the property and assets of such partner or officer committing the fraud or causing the misappropriation shall be subject to levy of execution or enforcement procedure for the satisfaction of the CRA's remedies hereunder, but only to the extent that the CRA is unable to look to the Developer Improvements for recovery of such damages. Section 18.2 Limitation of Liability of CRA. It is expressly understood and agreed by and between the parties, anything herein to the contrary notwithstanding, that each and all of the representations, covenants, undertakings and agreements herein made on the part of the CRA while in form purporting to be the representations, covenants, undertakings and agreements of the CRA are nevertheless, each and every one of them, made and intended not as personal representations, covenants, undertakings and agreements by the CRA, or any board member, employee, official, representative, attorney or agent of the CRA or for the purpose of binding the CRA's fee simple interest in the Land only. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS LEASE, NEITHER THE CRA NOR ANY BOARD MEMBER, EMPLOYEE, OFFICIAL, REPRESENTATIVE, ATTORNEY OR AGENT OF THE CRA SHALL BE PERSONALLY LIABLE, DIRECTLY OR INDIRECTLY, UNDER OR IN CONNECTION WITH THIS LEASE, OR ANY DOCUMENT, INSTRUMENT OR CERTIFICATE SECURING OR OTHERWISE EXECUTED IN CONNECTION WITH THIS LEASE, OR ANY AMENDMENTS OR 88 MODIFICATIONS TO ANY OF THE FOREGOING MADE AT ANY TIME OR TIMES, HERETOFORE OR HEREAFTER, OR IN RESPECT OF ANY MATTER, CONDITION, INJURY OR LOSS RELATED TO THIS LEASE OR THE LAND AND ONLY THE CRA'S INTEREST IN THE LAND (OR PROCEEDS THEREOF) SHALL BE AVAILABLE TO SATISFY ANY CLAIMS AGAINST THE CRA; AND DEVELOPER AND EACH OF ITS SUCCESSORS AND ASSIGNEES WAIVES AND DOES HEREBY WAIVE ANY SUCH PERSONAL LIABILITY. As used in this Lease, the term "CRA" means only the current owner or owners of the fee title to the Land. Each successor is obligated to perform the obligations of the CRA under this Lease only during the time such successor owns such interest or title. Any successor who transfers its title or interest is relieved of all liability with respect to the obligations of the CRA under this Lease to be performed on or after the date of transfer. However, each successor shall deliver to its transferee all funds previously paid by Developer if such funds have not yet been applied under the terms of this Lease. ARTICLE XIX SURRENDER AND HOLDING OVER Section 19.1 Surrender at End of Term. Upon the expiration or sooner termination of this Lease, Developer shall peaceably and quietly leave, surrender and deliver to the CRA, in their "as is" condition, the entire Leased Property, together with the following items: (i) the Developer Improvements; and (ii) all alterations, changes, additions and other improvements made upon the Leased Property. Section 19.2 Rights Upon Holding Over. At the expiration of the Term, or any earlier termination of this Lease, Developer shall yield up immediate possession of the Leased Property and the Developer Improvements to the CRA but in the event that Developer fails to do so, Developer shall pay to the CRA for the whole time such possession is 89 withheld beyond the date of expiration or termination of this Lease a sum per day equal to two hundred percent (200%) times 1/365th of the aggregate of the Rent paid or payable to the CRA for the immediately preceding calendar year. Section 19.3 No Waiver. The provision of this Article shall not be held to be a waiver by the CRA of any right of entry or reentry as set forth in this Lease, nor shall the receipt of a sum, or any other act in apparent affirmance of the tenancy, operate as a waiver of the right to terminate this Lease for any breach of Developer under this Lease (subject to any applicable notice and/or cure periods). Section 19.4 Survival. The provisions of this Article shall survive the expiration or earlier termination of this Lease. ARTICLE XX ENVIRONMENTAL LIABILITY Section 20.1 Definition of Terms. For purposes of this Article XX, the following terms shall have the meanings attributed to them in this Section: a. "Hazardous Materials" means (1) petroleum and its constituents; (ii) radon gas, asbestos in any form which is or could become friable, urea formaldehyde, foam insulation, transformers or their shipment which contain dielectric fluid containing levels of polychlorinated biphenyls in excess of federal, state or local safety guidelines, whichever are more stringent; (iii) any substance, gas, material or chemical which is or may hereafter be defined as or included in the definition of "hazardous substances," "hazardous materials," "hazardous wastes," "pollutants or contaminants," "solid wastes" or words of similar import under any Environmental Law; and (iv) any other chemical, material, gas or substance, the exposure to or release of which is regulated by any governmental authority. 90 b. "Environmental Laws" means all applicable requirements relating to the protection of human health or the Environment, including, without limitation, requirements relating to reporting, licensing, permitting, investigation and remediation of any Release or Threat of Release of Hazardous Materials, into the Environment, or relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials or pertaining to the protection of the health and safety of employees or the public, as such requirements are contained in all applicable federal, state and local environmental, public health, and safety laws, regulations, orders, permits, licenses, approvals, ordinances and directives, now or hereafter in effect, including, but not limited to, all applicable requirements of the Clean Air Act (42 U.S.C. §7401 et seq.); the Clean Water Act; the Resource Conservation, and Recovery Act, as amended by the hazardous and Solid Waste Amendments of 1984 (42 U.S.C. §6901 et seq.); the Safe Drinking Water Act; the Comprehensive Environmental Response, Compensation and Liability Act, as amended by the Superfund Amendments and Reauthorization Act of 1986 (42 U.S.C. §9061 et seq.); the Hazardous Materials Transportation Act (49 U.S.C. §1801 et seq.); the Occupational Health and Safety Act; the Toxic Substances Control Act; the Federal Water Pollution Prevention and Removal Act, as amended (33 U.S.C. §1251 et seq.); the Florida Pollutant Discharge Prevention and Removal Act (Florida Statutes, Chapter 376); the Water Resources Drinking Water Act; Florida Environmental Reorganization Act of 1975 (Florida Statutes, Chapter 403). c. "Environment" means soil, surface waters, groundwaters, land, stream sediments, surface or subsurface strata and ambient air. d. "Costs" means all costs incurred in connection with correcting any violations of any Environmental Laws. 91 e. "Release" means any releasing, seeping, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, disposing, or dumping into the Environment. f. "Threat of Release" means a substantial likelihood (as determined by an environmental consultant selected by Developer and reasonably acceptable to the CRA) of a Release which requires action to prevent or mitigate damage to the Environment which may result from such Release. g. "Clean Up" means any remediation and/or disposal of Hazardous Materials at or from the Leased Property which is ordered by any federal, state, or local environmental regulatory agency, if necessary, to avoid injury to persons or property. Section 20.2 Environmental Obligations of Developer. Developer hereby covenants and agrees that during the Term it shall not: (a) cause or permit any Hazardous Materials to be generated, produced, brought, used, stored, treated, discharged, released, spilled or disposed of upon, in, under or about the Leased Property by Developer or any of Developer's tenants, or by any subsidiaries, assignees or invitees thereof, or by any of the employees, agents, contractors or subcontractors of any of the foregoing (all the foregoing collectively, "Related Parties"), which is, in any case, in violation of the Environmental Laws, or (b) otherwise cause or permit the violation of any Environmental Law in connection with the Leased Property. Upon termination of expiration of the Lease, Developer shall, at is sole cost and expense, cause all Hazardous Materials, including their storage devices, placed in or about the Leased Property by Developer or its Related Parties, or at their direction to be removed from the Leased Property and transported for use, storage or disposal in accordance and compliance with all applicable Environmental Laws. Section 20.3 Developer's Liability for Contamination During Lease Term. Developer shall undertake at Developer's sole cost and expense, any 92 necessary action, including any remediation and/or disposal reasonably required, as determined by Developer in good faith, as a result of a Release of a Hazardous Material occurring on or from the Leased Property in connection with any activity or acts of Developer or any of its Related Parties, during the Term. Section 20.4 Indemnity. Developer shall defend, indemnify, and hold harmless the CRA and its agents, officials, and employees, to the fullest extent permitted by law, from and against all expenses of remediation, disposal or other similar type of clean up or action necessary for compliance with the Environmental Laws, and any and all claims, causes of action, or demands, in law or in equity, including, but not limited to, all lien claims, administrative claims, claims for injunctive relief, claims of property damage, natural resources damages, environmental response and clean up costs, fines, penalties, and expenses (including, without limitation, counsel fees, consultant fees and expert fees, costs and expenses incurred in investigation and defending against the assertion of such liabilities), which may be sustained, suffered or incurred by the CRA, its agents, officials or employees in connection with failure by Developer or its Related Parties to fully comply with the provisions of this Article. The parties acknowledge and agree that the indemnification provided above in this Section is conditioned upon the failure of Developer to fully comply with the provisions of this Article and that such indemnification does not cover any costs of clean-up required by the presence of any Hazardous Materials on the Leased Property resulting solely from the acts or negligence of any third party or parties other than Developer or the Related Parties. Section 20.5 Notices. If Developer or the CRA receives any written notice of a Release, Threat of Release or environmental condition at the Leased Property or a written notice with regard to air emissions, water discharges, noise emissions, recycling, or any violation of any Environmental Law (any such notice, an "Environmental Complaint") independently or by 93 notice form any governmental authority, or with respect to any litigation regarding environmental conditions at or about the Leased Property, then such party shall give prompt written notice of the same to the other party detailing all relevant facts and circumstances. Section 20.6 CRA's Remedies. Promptly after becoming aware of any violation of any Environmental Law at the Leased Property, Developer shall commence to remediate in accordance with its obligations hereunder and thereafter diligently pursue the completion thereof in a reasonable time (and in any event in accordance with Environmental Laws). If Developer fails to do so, the CRA may give written notice of such failure to Developer, and if such failure continues for five (5) days after Developer receives such notice, the CRA shall have the right, but not the obligation, to enter onto the Leased Property and to take such action as it reasonably deems necessary or advisable to clean-up, remove, resolve or minimize the impact of or otherwise deal with any Hazardous Materials, Release, Threat of Release or Environmental Complaint upon its obtaining knowledge of such matters independently or by receipt of any notice from any person or governmental authority, and all of the reasonable costs and expenses of the CRA in connection therewith shall be deemed to be additional Rent due from the Developer to the CRA hereunder. ARTICLE XXI INDEMNIFICATION AND RELEASE OF CRA Section 21.1 General Indemnification of CRA Without Limitation of Any Other Indemnity Given Hereunder. Developer shall indemnify, defend and save harmless the CRA and the CRA's successors, permitted assigns, officials, employees and agents (the "CRA Indemnified Parties") from and against any and all claims, actions, proceedings, damages, losses, liabilities, costs and expenses (including, without limitation, reasonable attorneys' fees and costs) by or on behalf of any person, arising out of, resulting from, or in 94 any way connected to: (i) any development, construction or other work in or about Developer Improvements and/or Leased Property; (ii) a hazardous condition of or present on the Developer Improvements and/or Leased Property; (iii) any breach or default on the part of Developer in the performance of any of Developer's obligations pursuant to the terms of this Lease; (iv) any act or negligence of Developer or any of its officers, employees, agents, servants, representatives, contractors, invitees, or licensees; or (v) any accident, injury, or damage caused to any person occurring during the Term in or on the Leased Property; provided, however, that the CRA shall not be indemnified, defended or held harmless from any of the foregoing to the extent cause by the CRA's intentional acts or gross or wanton negligence upon the Leased Property (collectively, the "Indemnified Matters"). Section 21.2 Defense. In case any action or proceeding is brought against the CRA by reason of any of the Indemnified Matters, Developer, upon sixty (60) days' written notice from the CRA, shall, at is expense, resist or defend the action or proceeding by counsel reasonably satisfactory to the CRA. Section 21.3 CRA's Participation. If Developer is required to defend any action or proceeding pursuant to this Article to which action or proceeding the CRA is made a party, the CRA shall also be entitled to appear, defend, or otherwise take part in the matter involved, at its election, and at the sole expense of the CRA by counsel located within Miami -Dade County, Florida of its own choosing, provided that: (i) such action by the CRA shall not limit or make void any liability of any insurer of the CRA or Developer with respect to the claim or matter in question; and (ii) the CRA shall not, without Developer's prior written consent, settle any such action or proceeding or interfere with Developer's defense or prosecution of such action or proceeding. 95 Section 21.4 No Limitation. The foregoing agreements of indemnity are in addition to and not by way of limitation of any other covenants in this Lease to indemnify the CRA. Section 21.5 Challenges to Lease. Developer acknowledges and agrees that: (i) the CRA shall have no liability whatsoever to Developer in connection with any such challenge, and Developer hereby forever waives and releases the CRA from any such liability, now or hereafter arising; and (ii) Developer shall, at its expense, undertake the defense of (but not indemnify the CRA against) any action brought against the CRA seeking to set aside or invalidate this Lease. The CRA may participate in any such defense, but neither party shall settle or compromise any such action without the prior written consent of the other party. Section 21.6 Survival. The provisions of this Article shall survive the expiration or sooner termination of this Lease. ARTICLE XXII MISCELLANEOUS PROVISIONS Section 22.1 No Partnership or Joint Venture. It is mutually understood and agreed that nothing contained in this Lease is intended or shall be construed in any manner or under any circumstances whatsoever as creating or establishing the relationship of co-partners, or creating or establishing the relationship of a joint venture between the CRA and Developer, or as constituting Developer as the agent or representative of the CRA for any purpose or in any manner whatsoever. Section 22.2 Recording, Documentary Stamps. This Lease shall be recorded amount the Public Records of Miami -Dade County, State of Florida and either party may cause any modification or addition to this Lease or any ancillary document relevant to this transaction to be so recorded and the cost of any such recordation, cost of any State of Florida documentary stamps which legally must be attached to any or all of said papers and the cost of the 96 applicable Miami -Dade County and State transfer tax, if applicable, shall be paid in full by the Developer. Section 22.3 Florida and Local Laws Prevail. This Lease shall be governed by the laws of the State of Florida. This Lease is subject to and shall be interpreted to effectuate its compliance with the Charter of the City of Miami and the Miami -Dade County Charter and Code. Any conflicts between this Lease and the aforementioned Codes and Charters shall be resolved in favor of the latter. If any term covenant or condition of this Lease or the application thereof to any person or circumstances shall to any extent, be illegal, invalid, or unenforceable because of present or future laws or any rule or regulations of any governmental body or entity or becomes unenforceable because of judicial construction, the remaining terms, covenants and conditions of this Lease, or application of such term, covenant or condition to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and each term, covenant, or condition of this Lease shall be valid and be enforced to the fullest extent permitted by law. Section 22.4 Conflicts of Interest; CRA Representatives Not Individually Liable. No member, official, representative, or employee of the CRA or the Executive Director shall have any personal interest, direct or indirect, in this Lease, nor shall any such member, official, representative or employee, participate in any decision relating to this Lease which affects his or her personal interest or the interest of any corporation, partnership or association in which he or she is, directly or indirectly, interested. No member, official, representative or employee of the CRA or the Executive Director shall be personally liable to Developer or any successor in interest in the event of any default or breach by the CRA or the Executive Director or for any amount which may become due to Developer or successor or on any obligations under the terms of the Lease. 97 Section 22.5 Notice. A notice of communication under this Lease by either the CRA or the Executive Director, on the one hand, to Developer, or, on the other , by Developer to the CRA or the Executive Director shall be sufficiently given or delivered if dispatched by registered or certified mail, postage prepaid, return receipt requested, overnight express mail, or by a courier service which obtains receipts for delivery; and (a) Developer. In the case of a notice or communication to Developer if addressed as follows: Sawyer's Walk, Ltd. c/o Tirso San Jose Crosswinds at Poinciana, LLC 600 Corporate Drive, Suite 102 Ft. Lauderdale, Florida 33334 With a copy to: I. Barry Blaxberg, Esq. Blaxberg, Grayson, Kukoff & Segal, P.A. 25 S.E. Second Avenue, Suite 730 Miami, Florida 33131 (b) CRA. In the case of a notice or communication to the CRA or the Executive Director, if addressed as follows: 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, Esq., City Attorney City of Miami 444 SW 2nd Avenue, Suite 945 Miami, Florida 33130 98 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 Miami, Florida 33128 or is such notice is addressed in such other way in respect to any of the foregoing parties as that party may, from time to time, designate in writing, dispatched as provided in this Section 22.5. Notices personally delivered or sent by overnight courier shall be deemed given on the date of delivery and notices mailed in accordance with the foregoing shall be deemed given upon receipt or the date delivery is refused. Section 22.6 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 to the party which has requested the same or to any prospective Leasehold Mortgagee, assignee or Subtenant designated by Developer a certificate stating that (i) the Lease is in full force and effect and has not been modified, supplemented or amended in any way, or, if there have been modifications, the Lease is in full force and effect as modified, identifying such modification Lease, and if the Lease is not in force and effect, the certificate shall so state: (ii) the Lease as modified represents the entire agreement between the parties as to this leasing, or, if it does not, the certificate shall so state; (iii) the dates on which the term of this Lease commenced and will terminate; (iv) all conditions under the Lease 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 not existing defenses or offsets which the CRA or Developer, as the case may be, has knowledge against the enforcement of the Lease by the other party, or, if such conditions have not been satisfied or if there are any defenses or offsets, the certificate 99 shall so state; and (v) the rental due and payable for the year in which such certificate is delivered has been paid in full, or, if it has not been paid, 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 22.7 Titles of Articles and Sections. Any titles of the several parts, Articles and Sections of this Lease are inserted for convenience of reference only and shall be disregarded in construing or interpreting any of its provisions. Section 22.8 Counterparts. This Lease may be executed in counterparts, each of which shall be deemed an original, and such counterparts shall constitute one and the same instrument. This Lease shall become effective only upon execution and delivery of this Lease by the parties hereto and execution and delivery of all Exhibits referred to in Section 1.1. Section 22.9 Nondisturbance and Attornment. The CRA covenants and agrees with Developer for the benefit of any and all Subtenants or Condominium Owners occupying any part of the Leased Property or the Developer Improvements from time to time, that in the event of a termination of this Lease prior to the Lease Termination Date, the possession of each such Subtenant or Condominium Owner shall not be disturbed so long as such Subtenant shall not be in default under its Sublease or provided such Subtenant or Condominium Owner shall attorn to the CRA. This nondisturbance agreement shall be self -operative and no further agreement between the CRA and any such Subtenant or Condominium Owner shall be necessary to effect the same, however, the CRA agrees from time to time, promptly upon request of Developer of any Subtenant or Condominium Owner, it will enter into agreements with the Developer and any such Subtenant or Condominium Owner confirming such nondisturbance 100 agreement. Any such confirmatory agreement may be made on behalf of the CRA by the Executive Director. In the event of a termination of this Lease, each Subtenant or Condominium Owner shall attorn to the CRA. Developer covenants that each Sublease to which it shall be a party shall contain a clause expressly providing that the Subtenant or Condominium Owner thereunder shall attorn to the CRA in the event of a termination of this Lease prior to the Lease Termination Date, but the absence of such a clause from any Sublease or shall not relieve the Subtenant or Condominium Owner from the provisions of this Section 22.9. Section 22.10 Successors and Assigns Except to the extent limited elsewhere in this Lease, all of the covenants conditions and obligations contained in this Lease shall be binding upon and inure to the benefit of the respective successors and assigns of the CRA and the Developer. Section 22.11 Entire Agreement. This instrument and its attachments constitute the sole and only agreement of the parties hereto and correctly sets forth the right, duties, and obligations of each to the other as of its date. Any prior agreements, promises, negotiations, or representations not expressly set forth in this Lease are of no force or effect. Section 22.12 Amendments. No Amendments to this Lease shall be binding on either party unless in writing and signed by both parties. Section 22.13 Challenge. In the event that any person or entity files a challenge (the "Challenge") with respect to this Lease, either judicially or administratively after the Effective Date of this Lease, Developer, shall, at its sole cost and expense, be obligated to defend the Challenge, with counsel acceptable to the Executive Director. Developer acknowledges and agrees that the CRA shall have no liability whatsoever to Developer in connection with any Challenge and Developer hereby forever waives and releases the CRA and the City from any liability whatsoever, now or hereafter arising in connection with any Challenge. 101 Section 22.14 Waiver of Claim. Developer waives any and all claims which they now have or may hereafter have against the CRA and/or the City as a result of any Challenge, and Developer acknowledges and agrees to assume the risk of any Challenge. Under no circumstances shall Developer be entitled to any recovery with respect to any claims or any cause of action against the City or the CRA resulting from any Challenge, all such claims being expressly waived by Developer. Section 22.15 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 ON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS LEASE OR ANY AMENDMENT OR MODIFICATION OF THIS LEASE, OR ANY OTHER AGREEMENT EXECUTED BY AND BETWEEN THE PARTIES IN CONNECTION WITH THIS LEASE, 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 22.16 Conflict of Interest. Developer agrees to comply with the conflict of interest provisions of the Miami City Code, Miami -Dade County Code and the State of Florida Statutes. No member, official, or employee of the CRA shall have any personal interest, direct or indirect, in this Lease, nor shall any member, official, or employee participate in any decision relating to this Lease which affects his or her personal interests or the interests of any other person in which he or she is, directly or indirectly, interested. No member, official, or employee of the CRA shall be personally liable to Developer, its successors and assigns, or any claiming by, through or under Developer or any successor in interest to the Leased Property, in the 102 event of any default or breach by the CRA or for any amount which may become due to Developer, its successors and assigns, or any successor in interest to the Leased Property, or on any obligation under the terms of this Lease. Section 22.17 Covenants to Run with the Leasehold Estate. All covenants, agreements, conditions and undertakings in this Lease shall extend and inure to the benefit of and be binding upon the successors and assigns of each of the parties and be construed as covenants running with the Leasehold Estate and the Developer Improvements. Subject to all provisions respecting the rights of assignment or subleasing, this Lease shall be binding upon and inure to the benefit of the respective successors and assigns of the parties. Wherever in this Lease 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 22.18 Brokerage. Each party represents and warrants to the other that it has not dealt with any broker or finder in connection with the transactions contemplated and each party agrees to indemnify, defend and hold the other harmless of and from any and all manner of claims, including, but not limited to, reasonable attorneys' fees and expenses, incurred by the other party and arising out of any claim by any broker or finder if it is ultimately determined that the indemnifying party has breached the foregoing representation and warranty. Section 22.19 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 Lease, shall be deemed to include, without limitation, any paraprofessional fees, investigative fees, administrative costs 103 and other charges billed by the attorney to the prevailing party (including any fees and costs associated with collecting such amounts). ARTICLE XXIII ARBITRATION Section 23.1 Panel. A panel of arbitrators ("Arbitration Panel") shall be established when required by this Lease. (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. 104 Section 23.2 Actions, Hearings and Decisions. All actions, hearings and decisions of the Arbitration Panel shall be conducted, based upon and in accordance with the Commercial Arbitration Rules of the American Arbitration Association. In all controversies, disputes or claims with respect to the evaluation of real estate referred to Arbitration under the provisions of this Lease, the Arbitration shall be conducted in accordance with the Real Estate Valuation Rules of the American Arbitration Association, if applicable. In determining any matter before them, the Arbitration Panel shall apply the terms of this Lease, and shall not have the power to vary, modify or reform any terms or provisions of the Lease in any respect. The Arbitration Panel shall afford a hearing to the CRA and to the Developer and the right to submit evidence with the privilege of cross-examination on the question at issue. All arbitration hearings shall be held at a place designated by the Arbitration Panel in Miami -Dade County, Florida. A hearing shall be commenced within sixty (60) days following the selection of the last of the three arbitrators. A court reporter shall make a transcript of the hearing. The parties and the Arbitration Panel shall use their best efforts to conclude the hearing with ten days. The parties shall be entitled to such pre-trial discovery as they may agree, or as determined by the Arbitration Panel. The Arbitration Panel shall have the right to question witnesses at the hearing, but not to call witnesses. The Arbitration Panel may grant continuances for good cause or with the agreement of both parties. The Arbitration Panel may render a decision at the close of the hearing, or may request briefs on any or all issues. Any and all such briefs, including reply briefs, shall be filed with the terms and on the schedule set by the Arbitration Panel, but in any event no later than forty-five (45) days following the commencement of the hearing. The Arbitration Panel shall render a determination within sixty (60) days from the conclusion of the hearing. If no determination is rendered within such time, unless the parties agree otherwise, a new Arbitration Panel shall be selected as described 105 above, but the new Arbitration Panel shall render a determination solely upon review of the record of the hearing without a further hearing. The Arbitration Panel selected hereunder shall agree to observe the Code of Ethics for Arbitrators in Commercial Disputes promulgated by the American Arbitration Association and the American Bar Association, or any successor code. The decision of a majority with respect to any matter referred to it under this Lease shall be final, binding and conclusive on the CRA and Developer and enforceable in any court of competent jurisdiction. Together with the determination, the Arbitration Panel shall provide a written explanation of the basis for the determination. Each party shall pay the fees and expenses of the member of the Arbitration Panel designated by such party, such party's counsel and witness fees, and one-half (1/2) of all expenses of the third member of the Arbitration Panel. 106 IN WITNESS WHEREOF, Developer and the CRA have executed this Lease of the day and year first above written. [NEED CORRECT SIGNATURE BLOCK] DEVELOPER: Signed in the presence of: SAWYERS WALK, LTD. Print Name: By: Title: Print Name: CRA: SOUTHEAST OVERTOWN / PARK WEST COMMUNITY REDEVELOPMENT AGENCY, an agency of the State of Florida Print Name: By: Frank Rollason Title: Executive Director Print Name: ATTEST: Priscilla A. Thompson Clerk of the Board APPROVED AS TO LEGAL APPROVED AS TO INSURANCE SUFFICIENCY: REQUIREMENTS: Holland & Knight LLP, as Insurance Manager special counsel 107 STATE OF FLORIDA ) )SS COUNTY OF MIAMI-DADE ) Sworn to (or affirmed) and subscribed before me this day of , 200_, by , as for Sawyers Walk, Ltd., 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: # 1564562_v21 108 EXHIBIT F Schedule of Rental Upon Execution $ 4,400,000.00* First Anniversary 525,000.00* Second Anniversary 525,000.00* Third Anniversary 525,000.00* Fourth Anniversary 525,000.00* Every Year Thereafter 1.00 * Subject to set-off based upon Settlement Payments. # 2574460_v1 EXHIBIT E Poinciana Stipulation SOUTHEAST OVERTOWN/PARK WEST COMMUNITY DEVELOPMENT AGENCY, an agency of the State of Florida Plaintiff/Counter-Defendant, v. IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA GENERAL JURISDICTION DIVISION POINCIANA VILLAGE OF MIAMI, LTD., a Florida limited partnership through its General partner, INDIAN RIVER INVESTMENTS OF MIAMI, INC., a Florida corporation, Defendant/Counter-Plaintiff/ Third -Party Plaintiff v. CITY OF MIAMI, a Florida municipal corporation Third -Party Defendant. CASE NO. 02-06846 CA 09 consolidated with CASE NO. 00-28860 CA 09 / STIPULATION OF SETTLEMENT AND FOR DISMISSAL WITH PREJUDICE Pursuant to Rule 1.420 of the Florida Rules of Civil Procedure, the parties hereby stipulate to the dismissal with prejudice of this action, with the Court reserving jurisdiction to enforce the terms of the parties' Settlement Agreement dated HOLLAND & KNIGHT LLP 701 Brickell Avenue Suite 3000 Miami, FL 33131 Ph: (305) 374-8500 By: Sanford L. Bohrer (FBN 160643) Attorneys for Plaintiff/Counter-Defendant Southeast Overtown/Park West Community Redevelopment Agency and Third -Party Defendant, the City of Miami # 1726895_v1 CASE NO.: 02-06846 CA 09 WHITE & CASE LLP 200 S. Biscayne Blvd. Suite 4900 Miami, FL 33131 Ph: (305) 371-2700 By: Charles C. Kline (FBN 137737) Attorneys for Defendant/ Counter -Plaintiff/ Third- Party Plaintiff Poinciana Village of Miami, Ltd. and Indian River Investments of Miami, Inc. 2 EXHIBIT F Sawyer's Walk Stipulation CITY OF MIAMI, a Florida municipal corporation, and SOUTHEAST OVERTOWN/PARK WEST COMMUNITY DEVELOPMENT AGENCY, an agency of the State of Florida, P1 aintiffs/Counter-Defendants, v. IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA GENERAL JURISDICTION DIVISION CASE NO. 00-28860 CA 09 consolidated with CASE NO. 00-06846 CA 09 SAWYER'S WALK, LTD., a Florida limited partnership through its general partner, INDIAN RIVER INVESTMENTS COMMUNITIES, INC., a Florida corporation, Defendants/Counter-Plaintiffs. / STIPULATION OF SETTLEMENT AND FOR DISMISSAL WITH PREJUDICE Pursuant to Rule 1.420 of the Florida Rules of Civil Procedure, the parties hereby stipulate to the dismissal with prejudice of this action, with the Court reserving jurisdiction to enforce the terms of the parties' Settlement Agreement dated HOLLAND & KNIGHT LLP 701 Brickell Avenue, Suite 3000 Miami, FL 33131 Ph: (305) 374-8500 WHITE & CASE LLP 200 S. Biscayne Blvd, Suite 4900 Miami, FL 33131 Ph: (305) 371-2700 By: By: Sanford L. Bohrer (FBN 160643) Charles C. Kline (FBN 137737) Attorneys for Plaintiffs/Counter-Defendants Attorneys for Defendants/ City of Miami and Southeast Counter -Plaintiffs Sawyer's Overtown/Park West Community Walk, Ltd. and Indian River Redevelopment Agency Investment Communities, Inc. EXHIBIT G Poinciana Order SOUTHEAST OVERTOWN/PARK WEST COMMUNITY DEVELOPMENT AGENCY, an agency of the State of Florida Plaintiff/Counter-Defendant, v. IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA GENERAL JURISDICTION DIVISION POINCIANA VILLAGE OF MIAMI, LTD., a Florida limited partnership through its General partner, INDIAN RIVER INVESTMENTS OF MIAMI, INC., a Florida corporation, Defendant/Counter-Plaintiff/ Third -Party Plaintiff v. CITY OF MIAMI, a Florida municipal corporation Third -Party Defendant. CASE NO. 02-06846 CA 09 consolidated with CASE NO. 00-28860 CA 09 / FINAL JUDGMENT In accordance with the parties' Stipulation For Dismissal, this action is dismissed with prejudice, each party to bear its own costs, including attorneys fees. The Court reserves jurisdiction to enforce the parties' Settlement Agreement. ORDERED in Miami, Florida this day of , 200 Copies to: Sanford L. Bohrer Charles C. Kline Circuit Court Judge # 1800254_v1 EXHIBIT H Sawyer's Walk Order CITY OF MIAMI, a Florida municipal Corporate, and SOUTHEAST OVERTOWN/PARK WEST COMMUNITY DEVELOPMENT AGENCY, an agency of the State of Florida, Plaintiffs/Counter-Defendants, v. SAWYER'S WALK, LTD., a Florida limited partnership through its general partner, INDIAN RIVER INVESTMENTS COMMUNITIES, INC., a Florida corporation, IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA GENERAL JURISDICTION DIVISION CASE NO. 00-28860 CA 09 consolidated with CASE NO. 00-06846 CA 09 Defendants/Counter-Plaintiffs. / FINAL JUDGMENT In accordance with the parties' Stipulation For Dismissal, this action is dismissed with prejudice, each party to bear its own costs, including attorneys fees. The Court reserves jurisdiction to enforce the parties' Settlement Agreement. ORDERED in Miami, Florida this Copies to: Sanford L. Bohrer Charles C. Kline # 2574428_v1 day of , 200. Circuit Court Judge EXHIBIT 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 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 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 llth 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 # 1928482_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 OvertownfPark 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 llth 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 llth 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 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 llth 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 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 Priscilla A. Thompson WITNESSES: CRA: Print Name: Print Name: ATTESTATION: Priscilla A. Thompson, Clerk of the Board SOUTHEAST OVERTOWN/ PARK WEST COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF MIAMI 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. # 2574167_v1 T '-N EXHL IT M County Settlement Agreement MIAMI-DADE COUNTY, a political subdivision of the State of Florida, Plaintiff, vs. 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, Defendants. SETTLEMENT AGREEMENT Florida Bar No.180724 Plaintiff, MIAMI-DADE COUNTY, a political subdivision of the 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 ATTORNEY. MIAMI-DADE COUNTY. FLORIDA TELEPHONE 13051 375-5151 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 WEST COMMUNITY REDEVELOPMENT AGENCY will execute quit claim deeds to MIAMI- 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. White's Resubdivision, Plat Book 'B' at Page 34 and for Lots 1 through 12 of Blocks 45N and 56N of A. L. Knowlton's Map of Miami, Plat Book `B' at Page 41 (the "Property"). Said property being the subject of this quiet title suit and more particularly described on Exhibits A to the quit claim deeds attached as Exhibits 1 and 2 to this Agreement. 2. The quit claim deeds will be held by Miami -Dade County General Services Administration (GSA) in escrow for a period of four (4) years, said period to begin August 1, 2003 and end not later than August 1, 2007. 3. Unless the CITY OF MIAMI and/or SOUTHEAST OVERTOWN PARK WEST COMMUNITY 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 CITY OF MIAMI and SOUTHEAST OVERTOWN/PARK WEST COMMUNITY REDEVELOPMENT AGENCY have commenced or caused to have commenced OFFICE OF COUNTY ATTORNEY. MIAMI-DADE COUNTY. FLORIDA TELEPHONE (305) 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 through 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 "commenced construction of development" shall mean that all required construction and development permits have been issued on a complete set or sets of plans for a specific project or projects of one or more constructed floors of residential, conunercial, 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 of the 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 Property, to the CITY OF MIAMI and/or SOUTHEAST OVERTOWN/PARK WEST COMMUNITY REDEVELOPMENT AGENCY from the chosen developer(s), then the CITY OF MIAMI and/or SOUTHEAST OVERTOWN/PARK WEST COMMUNITY REDEVELOPMENT AGENCY shall, prior to entering into any development agreement(s) for the Property, submit said proposed agreement(s) to the Board of County Commissioners for its approval prior to entering into said agreement. Upon delivery of the proposed development OFFICE OF COUNTY ATTORNEY. MIAMI-DADE COUNT; FLORIDA TELEPHONE (305) 375-515I 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, 111 N.W. First Street Miami, Florida 33128-1993 Bv: Thomas Goldstein Assistant County Attorney Attorney for Plaintiff CITY OF MIAMI ATTORNEY'S OFFICE 444 S.W. 2nd Avenue, Suite 945 Miami, Florida 33130 B Charles C. Mays OFFICE OF COUNTY ATTORNEY. MIAMI-DADE COUNTY. FLORIDA TELEPHONE (3031 3 73-3131 Miami -Dade County vs. FEC Case No. 99-00100 Page No. 5 Assistant City Attorney City of Miami, Florida THOMPSON COBURN LLP One Firstar Plaza Suite 3100 St. Louis, MO 63101 By. ary : • : corsi, Esquire Attorn or Southeast Overtown/ Park West Community Redevelopment Agency This Settlement Agreement has been approved on July'22, 2203, by Resolution No. R-879-03 of the Board of County Commissioners of Miami -Dade County, Florida. A certified copy of said resolution is attached hereto Exhibit 3. This Settlement Agreement has been approved on , 2003, by Isolution No. of the City of Miami, Miami Dade County, Florida..A certified copy of said resolution is attached hereto as Exhibit 4. This Settlement Agreement has been approved on 2003, by Resolution No. of Southeast Overtown Park/West Community Redevelopment Agency, and agency of the State of Florida, in Miami, Miami -Dade County, Florida. A certified copy of said resolution Is attached hereto as Exhibit 5. OFFICE OF COUNTY ATTORNEY. MIAMI-DADE COUNTY. FLORIDA TELEPHONE (303) 373-3151 ' 7 41, 4 • "Te'v tt • 24- t- - • , • • •-• N• • 11 L. 'NI Ar. •,1.;j"7":"111k - "FOLKLIKE VILLAGE (BLOCKS F & G) HIGHLIGHT 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 H H H 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 hereto and 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 Plan 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 in Section 6.5. it in Section 6.1.2. Section 6.1.3. Section 6.1.1. Section 6.1.4. "Completion Date" shall have the meaning ascribed to it "Construction Budget" shall have the meaning ascribed to "Construction Contract" has the meaning ascribed to it in "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. 4 "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 Project Schedule" shall have the meaning ascribed to it in Section 4.1. "Project Schedule" has the meaning ascribed to it in Section 4.1. "Project" 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 (i.e., 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 6 "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. 7 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 11 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 13 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 18 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 Nock 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 BUILDING B Stacked. 2 Level Lie 1 Wock • 6 stury residential above A RQ UI TEC TONICA 550 Brickell Avenue, Suite 200 Miami, Florida 33131 305.372.1812 TEL 305.372.1175 FAX www.arqintl.com THE DESIGNS INDICATED IN THESE DRAWINGS ARE PROPERTY OF AROUITECTONICA INTERNATIONAL ALL COPYRIGHTS RESERVED 2004 c 2004 ARQUITECTONICA INTERNATIONAL. Inc. 4 story bulldn at socked, 2levil Wee /work BUILDING A BOLDING B CRQSWU\DS COMMUNITIES 11.29.04 OVERTOWN MASTERPLAN 1/27/2005 Overtown Masterplan - Capacity Study Tower Midrise Live/Work Subtotal 15/17 Levels 6 Levels 2 Levels Commercial Area Required Provided Parking Block (GSF) (GSF) (GSF) (GSF) Unit Count (GSF) Parking Street 1 Garage Levels Block 46 2 Level Live/Work - - 71,600 28 71,600 35 - 6 Levels (above) - 107,400 84 107,400 105 - subtotal - 107,400 71,600 - 112 179,000 140 - 140 3 Block 45 2 Level Live/Work - 105,600 40 105,600 50 - 237 6 Level Midrise (above) - 158,400 126 158,400 158 - Stacked 2 Level Live/Work - 42,000 20 42,000 25 8 Commercial 2,250 2,250 subtotal - 158,400 147,600 2,250 186 308,250 233 8 237 4 BIoCk 55 i 2 Level Live/Work - 252,000 96 252,000 120 - 6 Level Midrise (above) 234,000 192 234,000 240 - 15 Level Tower (above) 315,000 270 315,000 338 - Commercial - 5,400 5,400 5 - subtotal 315,000 234,000 252,000 5,400 558 806,400 703 - 687 7 Block 56 2 Level Live/Work - 108,000 42 108,000 53 - 237 4 6 Level Midrise (above) - 162,000 132 162,000 165 - Stacked 2 Level Live/Work - 42,000 20 42,000 25 8 Commercial 2,250 2,250 subtotal - 162,000 150,000 2,250 194 314,250 243 8 237 4 TOTAL 315,000 661,800 621,200 9,900 1,050 1,318 16 1,301 18 Block Resid. FAR Allowable Avail. Lot Area (GSF) Resid. Area Allowable Resid. Area Provided Coml Area Provided Available Acres Units Provided Density (du/ac) Average Unit Size GSF NSF 46 4.3 77,000 331,100 179,000 - 1.53 112 73 1,598 45 2.0 122,500 245,000 306,000 2,250 2.07 186 90 1,645 55 4.0 215,250 861,000 801,000 5,400 3.44 558 162 1,435 56 2.0 122,500 245,000 312,000 2,250 2.07 194 94 1,608 TOTAL 537,250 1,682,100 1,598,000 9,900 9,11 1,050 115 1,522 15 Tower 55 1.2 GSF/FL Units/Floor Unit Size Pub Unit Size GSF 21,000 17 1,235.29 1,029, 41 2 Level LW+6 Midrise 45 26,400 21 1,257.14 1,047.62 2 Level LW+6 Midrise 56 27,000 21 1,285.71 1,071.43 2 Level LW+6 Midrise 55 39,000 32 1,218.75 1,015.63 2 Level LW 45 2 Level LW 56 21,000 21,000 10 2,100.00 1,750.00 10 2,100.00 1,750.00 EXHIBIT Q Overtown Area NET Bound/Wand Canniuntly DevelbOrneld Tweet Area SoUndary ,. Mertrarill Lino ard Stedare %Luce KaArirrs Departmeifft ar400, EXHIBIT R FIRST SOURCE HIRING AGREEMENT COMMUNITY BENEFITS PROGRAM This Agreement is made this day of , 200_, by and between the SOUTHEAST OVERTOWN/PARK WEST COMMUNITY REDEVELOPMENT AGENCY, a public agency and body corporate created pursuant to Section 163.356, Florida Statutes (the "CRA") and SAWYER'S WALK, LTD., a Florida limited partnership ("Developer"). RECITALS A. Developer and the CRA have entered into that Amended and Restated Southeast Overtown/Park West Lease and Development Agreement dated ("Lease"), for the development of a mixed use project containing approximately one thousand fifty (1,050) residential units (collectively, the "Residential Units") on the property, more particularly described in Exhibit "A", attached hereto (the "Property") consisting of apartments, townhouses, lofts, live/work units (i.e., commercial units which are bundled with a residential unit) (the "Live/Work Units"), which Residential Units will be constructed in mid -rise structures and high-rise structures and approximately seventy-five thousand (75,000) square feet of retail and office space, which is more particularly described on Exhibit "B" attached hereto (the "Project"). B. To supplement the local community involvement in the Project, Developer has agreed to comply with Section 18-110 of the City of Miami Code to foster participation in the construction and operation of the Project by Low Income Individual residents of the City of Miami and Miami -Dade County, including, but not limited to those who are participants of South Florida Workforce training and Subject to conforming to the terms of the Settlement Agreement within 30 days of the Effective Date of the Settlement Agreement. employment programs and other residents of the City of Miami and Miami -Dade County. NOW THEREFORE, in consideration of ten dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows: SECTION 1. DEFINITIONS As used in this Agreement, the following capitalized terms shall have the following meanings. All definitions include both the singular and plural form. Capitalized terms not specifically defined herein are as defined in the Lease. "Agency" shall mean the South Florida Work Force, a state and federally funded 501 C3 organization or an organization equally acceptable to the Executive Director. In the event the Agency ceases to exist, upon request of CRA or the Developer, the Developer shall create or select a similar entity capable of handling the responsibilities designated to the Agency hereunder, acceptable to the Executive Director. "Agreement" shall mean this First Source Hiring Agreement in its entirety. "CRA" shall mean the Southeast Overtown/Park West Community Redevelopment Agency, as represented by the Executive Director of the Southeast Overtown/Park West Community Redevelopment Agency. "Construction Contract" shall mean a contract in excess of Two Hundred Thousand and No/100 Dollars ($200,000.00) related to the construction of any portion of the Project. "Construction Contract" shall not include any contracts related to renovations to the Project after completion of the Project. "Construction Contractor" shall mean a contractor who enters into a contract with the Developer related to the construction of the Project, or any part thereof, of at least Two Hundred Thousand and No/100 Dollars ($200,000.00). "Developer" shall mean the Sawyer's Walk, Ltd., a Florida limited partnership. "Full Time Employee" shall mean an individual employed for a minimum of thirty-five (35) hours per standard five day work week. "Low -Income Individual" shall mean an individual whose household income is no greater than 80% if the median income for Miami -Dade County based on the local Census data or is unemployed. "Overtown Area" shall mean that area as depicted in Exhibit "C" attached hereto and made a part hereof. "Residents" shall comply with the definition as adopted or as determined by the Agency, and may include prior residency with accompanying proof, satisfactory to the Agency, of residency within specific targeted areas as of January 1, 2006 or since. "Site" shall mean the real property more particularly described on Exhibit "A" attached hereto and made a part hereof. "Subcontractor" shall mean any subcontractor entering into a contract relating to the construction of the Project, or any part thereof, of at least Two Hundred Thousand and No/100 Dollars ($200,000.00). SECTION 2. FIRST SOURCE HIRING PROGRAM A. Construction 1. The purpose of this Section of the Agreement is to develop reliable resources for the prescreening of resumes and operation of training programs that will facilitate the skills and the employment of Low - Income Individuals that reside in the City of Miami and Miami Dade County for the construction of the Project. This Section aims to accomplish this stated goal by (i) establishing a mechanism whereby Low -Income Individuals can receive job training in the skills requested by employers involved in constructing the proposed improvements to be constructed by the Developer, and (ii) establishing a system for prompt reliable pre-screening and referral of applicants by employers as jobs become available. The Developer shall require each Construction Contractor for the Project, or any portion thereof, and each Subcontractor retained by a Construction Contractor or Subcontractor with total contract amount in excess of Two Hundred Thousand and No/100 Dollars ($200,000.00) for work related to the Project, or any portion thereof, to provide employment opportunities generated by the Project to qualified Low Income Individuals residing within the City of Miami and Miami -Dade County, including, but not limited to, those who are participants in the Agency's training and employment programs, subject to the Construction Contractor's obligation to fill vacancies generated by the Project with Construction Contractor's employees from other jobs. It is understood that jobs may be offered on the basis of qualifications, however, should qualifications be equal, such employment opportunities shall be offered by Construction Contractor(s) and Subcontractor(s) in the following order of priority: (a) to residents of the Overtown Area, (b) other City of Miami residents, and (c) to residents of Miami -Dade County. 2. Provisions Benefiting Residents. a) Two (2) months prior to the anticipated commencement of construction of Phase I of the Project, unless otherwise approved by the Executive Director, the Developer, in coordination with the Agency, shall establish a Skills Training Center ("Skills Training Center") during construction to provide for on -site or off -site, as approved by the Executive Director, training for a minimum of fifteen percent (15%) of the entire construction workforce, whether union or non -union, of the entire construction associated with the Project, excluding any renovations after final certificates of occupancy have been issued for all units comprising the Project. The requirement for participation in the program will be included all the Construction Contracts with respect to any Phase of the Project and participation in the program by all Subcontractors. The purpose of the Skills Training Center program will be to teach the Low -Income Individuals marketable construction skills. The Developer will operate or cause to be operated the Skills Training Center, which will provide for the advancement of skills for the construction personnel at the Project. It will teach a tight curriculum of safety fundamental skills for untrained people, advanced skills for trained personnel, additional skills for certificates in alternate trades, and management of construction operations. b) The Developer and the Construction Contractor shall notify the Agency in a timely manner, as necessary and appropriate, to develop customized training programs, which enable Low - Income Individuals to qualify for and secure entry level and apprenticeship construction positions, whether union or non- union. The Developer may provide rent-free space within the Site, or elsewhere, for the local offices of the Agency. In the event the Agency does not perform in a timely manner, the Developer or Construction Contractor shall notify the Agency, with a copy to the CRA, of such deficiency. If the Agency does not implement steps to cure such deficiency within fifteen (15) days of such notice, the Developer shall immediately identify or establish a new Agency acceptable to the Executive Director to fill the role of the Agency. c) The Developer and each Construction Contractor will notify the Agency in a timely manner of entry-level and apprenticeship positions, whether union or non -union job openings, resulting from the Construction Contract requirements that will not be filled through the Skills Training Center including the number of positions needed and the minimum qualifications required for each position. d) The Developer and each Construction Contractor will utilize the Agency as the "first source" in identifying candidates for its Skills Training Center and except for those positions filled through the Skills Training Center, will declare the Agency the "first source" to identify candidates for those entry-level, apprenticeship positions, whether union or non -union positions. e) The Developer and each Construction Contractor shall give preference and first consideration on the basis of qualifications, however, should qualifications be equal among candidates, the Developer and each Construction Contractor, to the extent permitted by law and any existent labor agreements, such employment opportunities shall be offered by Developer and each Construction Contractor in the following order of priority: (a) to residents of the Overtown Area, (b) other City of Miami residents, and (c) to residents of Miami -Dade County. f) The Developer and each Construction Contractor shall advertise or cause to be advertised through the Agency, in local minority media and City TV, the City of Miami community television channel, and hold job fairs seeking to attract Low Income Individuals residing in the City of Miami and Miami -Dade County to seek training and employment at the Project. g) The Developer and each Construction Contractor shall offer jobs to all those that successfully complete Skills Training Center, which training was developed for the purpose of developing skills for construction jobs at the Project. As long as these persons remain employed, their positions will continue to be counted toward this threshold regardless of any change in their status as a Low Income Individual. Annual thresholds shall be pro -rated monthly as required. Priority among equally qualified persons will be given to those residing within the City of Miami. In the event there is not a sufficient number of qualified Low Income Individuals that reside within the City of Miami, then the balance of the percentage can be met utilizing Low Income Individuals that reside within Miami -Dade County. h) In the event that the Agency is unable to identify qualified persons to fill these positions identified by the Contractor within a reasonable time frame acceptable to the Developer or Construction Contractor, any unfilled targeted positions may be filled by any qualified person, irrespective of their residence. i) To the extent portions of the Project constitute union jobs, the Developer and each Construction Contractor shall use good faith to register a resident apprentice training program with the local unions for Construction Contracts or subcontracts totaling Two Hundred Thousand and No/100 Dollars ($200,000.00) or more in order to involve trained City of Miami residents and Low Income Individuals as apprentices and ultimately as journeypersons for the benefit of the Project. j) The CRA acknowledges that all employees of the Project will be required to have the necessary employment skills, as well as meeting the requirements of the Project insurance policy, including, without limitation, requirements for a drug free workplace. In addition, the CRA acknowledges that various employment opportunities may require union membership, and may require security clearances consistent with the Project's security policies and procedures. For purposes of this Agreement, to the extent the Agency provides the above services, the Developer may rely on the information provided by the Agency for verification purposes. k) To the extent that the procedures set forth in this section are in conflict with the procedures implemented by the Developer or Construction Contractor in order to comply with the applicable federal, state and local laws, the Construction Contractor may substitute other procedures, acceptable to the Executive Director, in order to accomplish the purpose and intent of this Agreement. 1) Agreed upon Mechanics. Exhibit "D", attached hereto and made a part hereto sets forth the agreed upon mechanics of the programs applicable during construction. B. Property Management 1. This purpose of this Section is to develop reliable resources for the prescreening of resumes and operation of training programs that will facilitate the skill and the employment of Low Income Individuals that reside in the City of Miami and Miami -Dade County, for the property management phase of the Project. This Section aims to accomplish that goal by (i) establishing a mechanism whereby Low Income Individuals can receive job training in property management activities and (ii) establishing a system for prompt, reliable, pre-screening and referral of applicants to employers as jobs become available. 2. Developer and each condominium association controlled by Developer with respect to each Phase of the Project, as well as each contractor retained by Developer or by any condominium association controlled by Developer with a total contract amount of in excess of Twenty Thousand and No/100 Dollars ($20,000.00) for providing property management services such as security, landscaping and property maintenance, shall be required to provide employment opportunities generated by the Project to qualified Low -Income Individuals residing within the City of Miami and Miami -Dade County, including, but not limited to, those who are participants in the Agency's training and the employment programs. It is understood that jobs may be offered on the basis of qualifications, however, should qualificiations be equal, such employment opportunities shall be offered by the Developer in the following order of priority: (a) to residents of the Overtown Area; (b) other City of Miami residents; and (c) to residents of Miami -Dade County. 2. Provisions Benefiting Residents. a) Two months prior to the anticipated issuance of the first temporary certificate of occupancy for the first unit in the first Phase of the Project, unless otherwise approved by the Executive Director, the Developer will set up a Property Management Skills Training Center (the "PM Skill Training Center") to provide training for a minimum of fifteen percent (15%) of the entire workforce to be involved in property management activities associated with the Project. The purpose of the PM Skill Training Center will be to teach Low Income Individuals, marketable property management skills. The Developer will operate or cause to be operated the PM Skill Training Center, which will provide for the advancement of skills for property management personnel at the Project. b) The Developer may notify the Agency to assist in developing and maintaining customized training programs, and will notify the Agency in a timely manner, as necessary and appropriate, to assist in developing customized training programs, which enable Low Income Individuals to qualify for and secure the operations jobs, as well as to improve the skills and capabilities of employees for self improvement and career advancement. c) The Developer will maintain an up-to-date job opening database. The Developer may notify the Agency electronically in a timely manner of applicable job openings containing the approximate number and type of jobs that will need to be filled, the basic qualifications necessary, and contact information for obtaining further information and information for applying for jobs. d) The Developer shall give preference and first consideration to the highest qualified candidates. Among equally qualified candidates, to the extent permitted by law and any existent labor agreements, preference shall be given to candidates the Agency refers. e) The Developer shall advertise or cause to be advertised through the Agency in local minority media and City TV, the City of Miami community television channel, and hold, directly or through the Agency, job fairs seeking to attract Low Income Individuals residing in the City of Miami to seek employment at the Project; 0 A minimum threshold of twenty-five percent (25%) of all initial Full Time Employee Job Openings or one hundred percent (100%) of those candidates who have successfully completed the PM Skill Training Center shall be filled by Low -Income Individuals. As long as these same persons remain employed, their positions will continue to be counted toward this threshold, irrespective of their status as a Low -Income Individual. Priority will be given among equally qualified candidates to those residing within the City of Miami. In the event there is not a sufficient number of qualified Low Income Individuals that reside within the City of Miami, then the balance of the threshold can be met utilizing Low Income Individuals that reside within Miami -Dade County. This shall apply to the initial job openings and shall continue so long as the Developer is in control of the various Phases of the Project or on the tenth anniversary of the issuance of the first temporary certificate of occupancy, whichever comes later. g) The Developer shall provide or cause to be provided to the CRA monthly reports defining the progress and employment status of those candidates who are hired. h) If Developer anticipates difficulty meeting the percentage threshold requirements referenced above, Developer shall, meet and confer with the Executive Director to determine mutually agreeable additional steps which can be taken to meet the percentage threshold requirement. i) Exhibit "E" attached hereto and made a part hereof sets forth the agreed upon mechanics of the program regarding property management. C. Default and Remedy. The Developer's failure to meet the percentage threshold requirements of Section 2(A) and 2(B) shall not be a breach or default under this Agreement or the Lease, however, if the Executive Director determines, in its reasonable discretion, that the Developer, a Construction Contractor or a condominium association controlled by the Developer has not, in any given calendar year period, used reasonable efforts to meet the percentage threshold requirements, then the CRA may assess a penalty of Ten Thousand and No/100 Dollars ($10,000.00) for each percentage point or fraction thereof below the threshold requirements for each such applicable period with respect to Sections 2(A) and 2(B). This penalty shall be the only liability that Developer shall have regarding the percentage threshold requirements of Sections 2(A) and 2(B). Money paid by the Developer to the CRA shall be used for job training of Low -Income Individuals residing in the Overtown area. In the event that the Developer disputes the determination of the Executive Director, Developer may submit the dispute to arbitration in accordance with the provisions of Article XXIII of the Lease, which provisions are incorporated herein by reference and made a part hereof except all references therein to the Lease shall be deemed references to this Agreement. SECTION 3. MONITORING AND ENFORCEMENT A. Monthly Reports: Construction. The Developer, will provide, or cause to be provided, regular monthly electronic reports regarding the disposition of all individuals trained in the Skills Training Center including the position applied for and whether such individual was hired or not. If the individual was not hired, then the Developer's report should further provide a brief explanation of why any such candidate was not hired or considered qualified. Copies shall be provided by the Developer to the Executive Director. B. Monthly Reports: Property Management. During Operations, Developer will provide, or cause to be provided, the CRA with monthly reports regarding date and number of initial position requests, date required for candidate to commence work, the disposition of all individuals trained in the PM Skill Training Center referrals, including the position applied for and whether such individual was hired or not. If the individual was not hired, then the report should further provide a brief explanation of why any such candidate was not hired or considered qualified. C. Quarterly Reports Analysis. The Developer shall prepare, or cause to be prepared, detailed quarterly reports on the implementation of all sections of this Agreement during construction of the Project and as long as the Developer has control of the Project or through the tenth anniversary of the issuance of the first temporary certificate of occupancy with respect to the Project, whichever comes later, including those sections where a Construction Contractor or condominium association controlled by the Developer is the party hiring the individuals. These reports shall provide, at a minimum, a listing of the individuals, ethnicity, residency, classification applied for, employer's name, date of hire, status of employment (i.e., still employed or date terminated), total hours worked for the reporting period, gross monthly earnings, recruitment source and percentage of Low Income Individuals when they were initially hired for any component of the Project, which status shall continue to be applicable to any thresholds that are set, no matter of changes in employee status as a Low Income Individual. These reports should further provide a comprehensive summary of the above, including, but not limited to, the following: • total number of positions hired to -date • total number of positions held by Low Income Individuals residing in the Overtown Area at date of hire • total number of positions held by Low Income Individuals residing in the City of Miami (including the Overtown Area) at date of hire • total number of positions held by Low Income Individuals residing in Miami -Dade County at date of hire • total new hires this reporting period • total new hires from prior reporting period • total new hires to -date • total number of individuals referred from each respective recruiting source • total number of individuals hired and not hired from each respective recruiting source. These reports shall be provided to the CRA, consistent with any security provisions of the Project. If the report indicates that the percentage threshold requirement is not being met, the Developer will include as part of the report a discussion of the reasons why that is the case. In compiling this report, Developer shall be entitled to rely on information provided by the Construction Contractor(s) without responsibility to perform independent investigation. Further, in the event the Agency prepares the report on behalf of the Developer, the Developer shall be entitled to rely on information provided by the Agency. D. Enforcement by the CRA. The Executive Director shall determine the necessity of investigating complaints relating to implementation of this Agreement. The Developer shall cooperate fully and promptly with any such investigation, and shall make available at no cost, to the Executive Director requested records and information the Executive Director reasonably deems relevant to monitoring the implementation of this Agreement, consistent with security procedures and policies. If the Executive Director determines that the provisions of this Agreement are not being followed, he will determine the necessity of engaging and will proceed to engage in a good -faith effort to hear respective issues and to negotiate a resolution. During the process of such investigation, the investigation and its findings will be held in the most strict and confidential manner, reporting findings only to the Executive Director and the Developer. If negotiations do not arrive at a resolution within a reasonable period of time, the Executive Director may pursue any available legal remedies, including but not limited to any or all of the following practices: 1. A legal action to enforce this Agreement and/or any term or covenant thereof. The court shall award reasonable attorneys fees and costs to the prevailing party in an action enforcing or interpreting the requirement of this Agreement. 2. A declaration of ineligibility for future CRA and City of Miami contracts and/or redevelopment agreements with the CRA and/or the City of Miami until penalties and restitution have been paid in full. Nothing in this Section 4 shall derogate or limit the rights of the CRA to enforce this Agreement through pursuit of any available legal or equitable remedies. E. CRA shall provide Developer with written notice of finding prior to action and will provide Developer with 60 days to cure. SECTION 4. IMPLEMENTATION OF FIRST SOURCE HIRING PROGRAM A. Inclusion of this Agreement in Contracts. 1. Construction Contracts and Business Users Agreements. The Developer shall not execute any contract related to construction of the Site, or portion thereof, unless this Agreement is included as a material term of the contract. 2. Developer Assurance Regarding Preexisting Contracts. Developer warrants and represents that as of a date of mutual execution of this Agreement, it has executed no Construction Contract(s) or agreement that would violate any provision of this Agreement had it been executed after the date of mutual execution of this Agreement. SECTION 5. NOTICES Correspondence. All correspondence shall be in writing and shall be addressed to the affected parties at the addresses set forth below. A party may change its address by giving notice in compliance with this Section 5 the addresses of the parties are: (a) Developer. In the case of a notice or communication to Developer if addressed as follows: Sawyer's Walk, Ltd. c/o Tirso San Miguel Crosswinds at Poinciana, LLC 600 Corporate Drive, Suite 102 Ft. Lauderdale, Florida 33334 With a copy to: I. Barry Blaxberg, Esq. Blaxberg, Grayson, Kukoff & Segal, P.A. 25 S.E. Second Avenue, Suite 730 Miami, Florida 33131 (b) CRA. In the case of a notice or communication to the CRA or the Executive Director, if addressed as follows: 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, Esq. 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 Miami, Florida 33128 SECTION 6. GENERAL PROVISIONS A. Severability Clause. If any term, provision, covenant, or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions shall continue in full force and effect. B. Binding on Successors. This Agreement shall be binding upon and inure to the benefit of the heirs, administrators, executors, successors in interest, and assigns of each of the parties hereto. Any reference in this Agreement to a specifically named party shall be deemed to apply to any successor in interest, heir, administrator, executor, or assign of such party. C. Intended Beneficiaries. The CRA is an intended third -party beneficiary of contracts and other agreements, which incorporate this Agreement, with regard to the terms of this Agreement. The CRA shall therefore have the right to enforce the provisions of this Agreement against all parties incorporating this Agreement into contracts or other agreements. D. Term. Section 5 Monitoring and Enforcement, of this Agreement shall become effective on the date of mutual execution of this Agreement, and shall remain in effect for as long as the Developer remain in control of the Project or for ten years from the issuance of the first temporary certificate of occupancy for any portion of the Project, whichever comes later. E. Material Terms. The provisions of this Agreement are material terms of the Lease for the Project. The provisions of this Agreement are material terms of any contract in which it is included. F Waiver. The waiver of any provision or term of this Agreement shall not be deemed as a waiver of any other provision or term of this Agreement. The mere passage of time, or failure to act upon a breach, shall not be deemed as a waiver of any provision or terms of this Agreement. G. Estoppel. Both parties agree to provide the other within 15 days of request an estoppel letter acknowledging that the other party is not in default of this Agreement. H. Construction. Each of the parties has been represented by counsel in the negotiation and drafting of this Agreement. Accordingly, this Agreement shall not be strictly construed against any party, and the rule of construction that any ambiguities be resolved against the drafting party shall not apply to this Agreement. I. Entire Agreement. This Agreement contains the entire agreement between the parties and supersedes any prior agreements, whether written or oral. This Agreement sets forth the general framework for a First Source Hiring Policy and may be supplemented by additional memoranda approved by the Developer and the Executive Director detailing the procedures and deadlines for carrying out this policy. J. Amendments. This Agreement may not be altered, amended or modified, except by an instrument in writing signed by the Developer and Executive Director. K. Authority of Signatories. The individuals executing this Agreement represent and warrant that they have the authority to sign on behalf of the respective parties. L. Waiver of Jury Trial. The parties hereby knowingly, irrevocable, voluntarily and intentionally waive any right either may have to a trial by jury in respect of any action, proceeding or counterclaim based on this Agreement, or arising out of, under or in connection with this Agreement or any amendment or modification of this Agreement, or any course of conduct, course of dealing, statements (whether verbal or written) or actions of any party hereto. This waiver of jury trial provision is a material inducement of the CRA and Developer entering into the subject transaction. IN WITNESS WHEREOF, the CRA and the Developer executed this Agreement the day and year first above written: DEVELOPER: Signed in the presence of: SAWYERS WALK, LTD. Print Name: By: Title: Print Name: CRA: SOUTHEAST OVERTOWN / PARK WEST COMMUNITY REDEVELOPMENT AGENCY, an agency of the State of Florida Print Name: By: Frank Rollason Title: Executive Director Print Name: ATTEST: Priscilla A. Thompson Clerk of the Board APPROVED AS TO LEGAL APPROVED AS TO INSURANCE SUFFICIENCY: REQUIREMENTS: Holland & Knight LLP, as Insurance Manager special counsel EXHIBIT A PROPERTY EXHIBIT B PROJECT EXHIBIT C OVERTOWN AREA EXHIBIT "D" AGREED UPON MECHANICS CONSTRUCTION As long as the Developer adheres to the following procedures, he will be in compliance with the Agreement: 1. Include the terms and provisions of this Agreement in any Construction Contract for on -site work in excess of $200,000. 2. Assure that a minimum of 15% of all construction positions, notwithstanding the Construction Contract amount, whether union or non -union jobs, in construction are made available to Low Income Individuals as defined by this Agreement. 3. Consult with the Agency in scheduling employment needs, requirements, schedule, training required, duration of training, job fairs, and advertising in local City media, and solicit candidates for openings from the Agency. 4. Provide such information required by the Agency in a timely manner as required by the Agency in order to provide the requisite training and identification of Low Income Individuals for training and employment as contemplated by this Agreement. 5. Establish procedures that will facilitate ease of electronic file, data, and report transfer. 6. Establish procedures wherein Construction Contractors are to solicit unions to provide job training to candidates, with respect to any union jobs. 7. Two months prior to the commencement of construction of Phase I of the Project, the Developer will provide an on -site, or off -site as approved by the Executive Director, Skills Training Center training for a minimum of 15% of the entire construction workforce during construction to improve the skills of employees and to aid them in career growth. Developer and Construction Contractor shall offer jobs to all individuals that successfully complete Skills Training, which training was developed for the purpose of developing skills for the construction jobs of the Project. 8. The Developer and the Construction Contractor will notify the Agency in a timely manner of all positions resulting from the Construction Contract requirements that will not be filled through the Developer's Skills Training Center. 9. Job openings will be granted on the basis of qualifications. Among equally qualified candidates, priority employment opportunities shall be offered in the following order of priority: (a) to residents of the Overtown Area, (b) other City of Miami residents, and (c) to residents of Miami -Dade County. 10. Developer may work with the Agency, security personnel and any other available agency acceptable to the Executive Director to help the Developer obtain requirements and records necessary for security clearances. 11. Resolve any problems or lack of success in meeting these procedures with the Executive Director in a timely manner. 12. Provide monthly and quarterly reports as provided for in the Agreement, consistent with other required personnel reporting data, to the CRA, outlining the performance of the program. 13. The Developer shall not execute any contract related to construction unless the Agreement is included as a material term of the contract. EXHIBIT "E" AGREED UPON MECHANICS PROPERTY MANAGEMENT As long as the Developer adheres to the following procedures, he will be in compliance with the Agreement: 1. Include the terms and provisions of this Agreement in any contract for property management services for the Site in excess of $20,000.00. 2. Assure that a minimum of 15% of all property management positions are made available to Low Income Individuals as defined by this Agreement. 3. Consult with the Agency in scheduling employment needs, requirements, schedule, training required, duration of training, job fairs, and advertising in local city media, and solicit candidates for openings from the Agency. 4. Provide such information required by the Agency in a timely manner as required by the Agency in order to provide the requisite training and identification of Low Income Individuals for training and employment as contemplated by this Agreement. 5. Establish procedures that will facilitate ease of electronic file, data, and report transfer. 6. Two months prior to the issuance of a temporary certificate of occupancy for the first unit in Phase I of the Property, the Developer will provide an on -site, or off -site as approved by the Executive Director, PM Skills Training Center training for a minimum of 15% of the entire property management workforce to improve the skills of employees and to aid them in career growth. Developer and condominium associations controlled by the Developer shall offer jobs to all individuals that successfully complete PM Skills Training, which training was developed for the purpose of developing skills for the property management jobs of the Project. 7. The Developer and any condominium associations controlled by the Developer will notify the Agency in a timely manner of all property management positions that will not be filled through the PM Skills Training Center. 8. Job openings will be granted on the basis of qualifications. Among equally qualified candidates, priority employment opportunities shall be offered in the following order of priority: (a) to residents of the Overtown Area, (b) other City of Miami residents, and (c) to residents of Miami -Dade County. 9. Developer may work with the Agency, security personnel and any other available agency acceptable to the Executive Director to help the Developer obtain requirements and records necessary for security clearances. 10. Resolve any problems or lack of success in meeting these procedures with the Executive Director in a timely manner. 11. Provide monthly and quarterly reports as provided for in the Agreement, consistent with other required personnel reporting data, to the CRA, outlining the performance of the program. 12. The Developer and any condominium association controlled by Developer shall not execute any contract related to property management unless the Agreement is included as a material term of the contract. # 1894673_v4 EXHIBIT S REVOCABLE LICENSE This Agreement is entered into this day of , 2005, (the "Effective Date") by and between the SOUTHEAST OVERTOWN/PARK WEST COMMUNITY REDEVELOPMENT AGENCY, a public agency and body corporate created pursuant to Section 163.356, Florida Statutes ("Licensor") and SAWYER'S WALK, LTD., a Florida limited partnership ("Licensee"). RECITALS: A. Licensor, Licensee City of Miami, a municipal corporation of the State of Florida, and Poinciana Village of Miami entered into a Settlement Agreement dated as of January 27, 2005, in which Licensor agreed to enter into a revocable license agreement with Licensee to maintain sales trailer and signs on a portion of the property described on Exhibit "A" (the "Property") to engage in marketing activities for the Sawyer's Walk Project (the "Project") to be developed by Licensee. B. Licensor has agreed to allow Licensee to utilize a portion of the Property on a temporary non-exclusive basis to conduct Licensee's sales and marketing activities, subject to the terms and conditions hereinafter set forth. NOW, THEREFORE, in consideration of the mutual covenants and promises herein contained, Licensor and the Licensee agree as follows: TERMS: 1. RECITALS: The recitals are true and correct and are hereby incorporated into and made a part of this Agreement. 2. TERM: This Agreement shall terminate days from the date hereof unless the Licensor and Licensee agree in writing, to extend the telni of this Agreement (the "Term"). Subject to conforming to the terms of the Settlement Agreement within 30 days of the Effective Date of the Settlement Agreement. Notwithstanding the foregoing, Licensor may terminate this Agreement, in its sole discretion, at any time by giving Licensee thirty (30) days prior written notice of its desire to terminate this Agreement. Upon receipt of such notice to terminate, Licensee shall within thirty (30) days vacate the Property and restore the Property to the condition that existed as of the date of this Agreement. 3. GRANT OF LICENSE: Licensor hereby grants to Licensee a non-exclusive, revocable license for the sole purpose of maintaining a sales trailer and marketing signage, which have been approved by the Executive Director of the CRA on the Property to engage in marketing and sales activities related to the Project. The license granted hereunder is revocable at will by Licensor, subject to Section 2 hereof. 4. PAYMENT: As consideration for the grant of this non-exclusive revocable license, Licensee shall pay to Licensor a use fee equal to and No/100 Dollars .00) per month, beginning on the Effective Date of this Agreement and continuing through until the final month of the Term. Payment shall be made by bank draft, cashier's check, or company check payable to Licensor only. No in -kind payments or trade agreements will be accepted as payment. Payments not received within five (5) days from the due date shall accrue interest at the rate of one percent (1.0%) per month. 5. RESTORATION OF PROPERTY: Upon the earlier of (i) the termination of this Agreement or (ii) such time that Licensee permanently vacates the Property, Licensee agrees to promptly remove the trailer, all signage and all other materials from the Property and shall restore the Property to substantially the same condition as existed as of the date hereof. All costs and expenses incurred by Licensee in connection with the restoration of the Property shall be paid for by Licensee. Page 2of13 6. AWARD OF AGREEMENT: Licensee represents and warrants to Licensor that it has not employed or retained any person or company employed by Licensor to solicit or secure this Agreement and that it has not offered to pay, paid, or agreed to pay any person any fee, commission, percentage, brokerage fee, or gift of any kind contingent upon or in connection with, the award of this Agreement. 7. PUBLIC RECORDS: Licensee understands that the public shall have access, at all reasonable times, to all documents and information pertaining to Licensor's contracts, subject to the provisions of Chapter 119, Florida Statutes, and agrees to allow access by the Licensor and the public to all documents subject to disclosure under applicable law. Licensee's failure or refusal to comply with the provisions of this Section shall result in the immediate cancellation of this Agreement by the Licensor. 8. COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS: Licensee understands that agreements between private entities and public agencies are subject to certain laws and regulations, including laws pertaining to public records, conflict of interest, record keeping, etc. Licensor and Licensee hereby agree to comply with and observe all applicable federal, state and local laws, rules, regulations, codes and ordinances, as they may be amended from time to time. Licensee is aware of the conflict of interest laws of the City of Miami (Chapter 2, Article V, Sections 2-611 - 2-650 of the Code of the City of Miami, Florida), Miami - Dade County Florida (Chapter 2, Article I, Section 2-11.1 of the Code of Miami -Dade County, Florida) and the State of Florida (Chapter 112, Part III, Sections 112.311-112.326, Florida Statutes) and agrees that it shall fully comply in all respects with the terms of said laws. 9. INDEMNIFICATION: Licensee hereby agrees to indemnify, defend, and hold harmless Licensor and its officials, employees and agents (collectively referred to as Page 3 of 13 "Indemnitees") from and against any and all claims, liabilities, losses, damages, and causes of action, of whatever nature, arising out of the Licensee's performance under this Agreement, including all acts or omissions to act on the part of the Licensee or any of its contractors, subcontractors, employees, agents, or any person acting for or on its behalf; and notwithstanding whether such claim shall be made by an employee or member of Licensee, an employee of the Licensor, or by any third party, or whether the claim relates to injury to persons (including death) or damage to property or whether it is alleged that the Indemnitees were jointly negligent. Licensee shall, at its own cost and expense, pay and satisfy all costs, expenses, interest, attorneys' fees, and damages, entered in any action and save harmless the Licensor from all costs, attorneys' fees, expenses, and liabilities incurred in the defense or investigation of any such claim or potential claim. This provision shall survive the termination of this Agreement. 10. DEFAULT: Licensor shall have the opportunity to revoke the license and terminate this Agreement upon any default, without any notice of such default and without providing Licensee any opportunity to cure such default. 11. RESOLUTION OF DISPUTES: Licensee understands and agrees that all disputes between Licensee and the Licensor based upon an alleged violation of the terms of this Agreement by the Licensor shall be submitted to the City Manager of the City of Miami for his/her resolution, prior to Licensee being entitled to seek judicial relief in connection therewith. Licensee shall not be entitled to seek judicial relief unless: (i) it has first received the City Manager's written decision, approved by the City Commission if the amount of compensation hereunder exceeds $4,500; or (ii) a period of sixty (60) days has expired, after submitting to the City Manager a detailed statement of the dispute, accompanied by all supporting documentation (90) days if the City Manger's decision is subject to City Commission approval); or (iii) the Page 4 of 13 Licensor has waived compliance with the procedure set forth in this section by written instrument, signed by the City Manager and the Executive Director of the CRA. 12. LICENSER'S TERMINATION RIGHTS: A. The license granted hereunder is revocable at will by Licensor. Additionally, the Licensor shall have the right to terminate this Agreement without cause at any time by giving written notice to Licensee thirty (30) calendar days prior to the Effective Date of such termination. Upon termination, the Licensee shall pay to Licensor any amounts due and payable hereunder. In no event shall the Licensor be liable to Licensee for any consequential or incidental damages with respect to this Agreement. B. The Licensor shall have the right to terminate this Agreement, upon the occurrence of an event of default hereunder, in accordance with the provisions of Section 12 hereof. In such event, Licensee shall pay to Licensor any amounts due and payable hereunder. In no event shall the Licensor be liable to Licensee for any consequential or incidental damages. 13. LICENSEE'S TERMINATION RIGHTS: The Licensee shall have the right to terminate this Agreement upon thirty (30) calendar days notice to Licensor. Upon termination, Licensee shall pay to Licensor all amounts due and payable hereunder. In no event shall the Licensor be liable to Licensee for any consequential or incidental damages. 14. INSURANCE: Licensee shall provide, pay for, and maintain in force at all times during the term of this license, the insurance coverages set forth herein. The required insurance policies shall be issued by companies authorized to do business under the laws of the State of Florida, with the following qualifications as to management and financial strength: all companies shall be rated "A" as to management, and no less than class "X" as to financial strength, in accordance with the latest edition of Best's Key Rating Guide, or hold a valid Florida Certificate of Authority and be a Page 5 of 13 member of the Florida Insurance Guarantee Fund. Licensee shall specifically name Licensor as an additional insured under each of the required insurance policies. All policies shall be endorsed to provide Licensor with at least thirty (30) days notice of cancellation or restriction. If any of the insurance coverages will expire while this license is in effect, copies of renewal policies shall be furnished at least thirty (30) days prior to the date of their expiration. Licensee shall furnish to Licensor's Administrator of Risk Management Certificates of Insurance and/or endorsements evidencing the insurance coverages specified herein prior to beginning performance under this Agreement. Required insurance shall include: A. Commercial General Liability Insurance. A Commercial General Liability Insurance Policy shall be provided with policy limits of not less than a Combined Single Limit for Bodily Injury and Property Damage, of One Million Dollars ($1,000,000.00) per occurrence and Two Million Dollars ($2,000,000.00) aggregate. Coverage must be afforded on a form no more restrictive than the latest edition of the Commercial General Liability Policy, without restrictive endorsements, as filed by the Insurance Services Office and must include: a) Personal and Advertising Injury; b) Premises and Operations; c) Independent Contractors; d) Products and/or Completed Operations for contracts; e) Broad Form Contractual Coverage applicable to this specific Agreement, including any hold harmless and/or indemnification agreement. Personal and Advertising Injury coverage shall have a minimum limit of One Million Dollars ($1,000,000.00). B. Business Automobile Liability. A Business Automobile Liability Policy with minimum limits of One Million Dollars ($500,000.00) per occurrence, Combined Single Limit for Bodily Injury Liability and Property Damage Liability. Coverage must be afforded on a form no more restrictive than the latest edition of the Business Automobile Liability policy, without Page6of13 restrictive endorsements, as filed by the Insurance Services Office, and must include: a) Owned Vehicles and b) Hired and Non -Owned Vehicles. Automobile coverage may be waived by the if the Licensor provides written confirmation that no automobiles will be used in connection with this agreement C. Workers' Compensation Insurance. Worker's Compensation in such form and amounts as required by Florida law. Coverage shall include Employers Liability Insurance with minimum limits for Bodily Injury by Accident of not less than Five Hundred Thousand Dollars ($500,000.00) each accident; Bodily Injury by Disease of not less than Five Hundred Thousand Dollars ($500,000.00) each employee; and, Five Hundred Thousand Dollars ($500,000.00) Policy Limit. If, in the reasonable judgment of the Licensor, prevailing conditions warrant the provision by Licensee of additional insurance coverage, Licensor reserves the right to require additional insurance coverage from the coverage provided and shall afford written notice of such change in requirements thirty (30) days prior to the date on which the requirements shall take effect. Should the Licensee fail or refuse to satisfy the changed insurance requirement within thirty (30) days following the Licensor's written notice, Licensee shall be in default of the terms of this Agreement. 15. NONDISCRIMINATION: Licensee represents and warrants to the Licensor that Licensee does not and will not engage in discriminatory practices and that there shall be no discrimination in connection with Licensee's performance under this Agreement on account of race, color, sex, religion, age, handicap, marital status or national origin. Licensee further covenants that no otherwise qualified individual shall, solely by reason of his/her race, color, sex, Page7of13 religion, age, handicap, marital status or national origin, be excluded from participation in, be denied services, or be subject to discrimination under any provision of this Agreement. 16. MINORITY AND WOMEN BUSINESS AFFAIRS AND PROCUREMENT PROGRAM: The City of Miami has established a Minority and Women Business Affairs and Procurement Program (the "M/WBE Program") designed to increase the volume of procurement and contracts with Black, Hispanic, and Women -owned businesses. The M/WBE Program is found in Ordinance No. 10062, a copy of which has been delivered to, and receipt of which is hereby acknowledged by Licensee. Licensee understands and agrees that the Licensor shall have the right to terminate and cancel this Agreement, and to eliminate Licensee from consideration and participation in future contracts if Licensee, in the preparation and/or submission of the Proposal, submitted false or misleading information as to its status as a Black, Hispanic and/or Women owned business and/or the quality and/or type of minority or women owned business participation. 17. ASSIGNMENT: This Agreement shall not be assigned or transferred by Licensee, in whole or in part. A sale or other transfer of a majority of the Licensee's stock or partnership shares (as applicable) is an assignment for the purposes of this Section. 18. NOTICES: All notices or other communications required under this Agreement shall be in writing and shall be given by hand -delivery or by registered or certified U.S. Mail, return receipt requested, addressed to the other party at the address indicated herein or to such other address as a party may designate by notice given as herein provided. Notice shall be deemed given on the day on which personally delivered; or, if by mail, on the fifth day after being posted or the date of actual receipt, whichever is earlier. TO LICENSEE: TO LICENSOR: Page8of13 SOUTHEAST OVERTOWN/PARKWEST COMMUNITY REDEVELOPMENT AGENCY Attn: Executive Director 49 N.W. 5th St., Ste. 100 Miami, FL 33128 With a copy to: Jorge L. Fernandez, Esq. City Attorney — City of Miami 444 S.W. 2° Ave., Ste. 945 Miami, FL 33130 19. MISCELLANEOUS PROVISIONS: A. SAWYER'S WALK, LTD. c/o Tirso San Miguel Crosswinds at Poinciana, LLC 600 Corporate Dr., Ste. 102 Ft. Lauderdale, FL 33334 With a copy to: I. Barry Blaxberg, Esq. Blaxberg, Grayson, Kutoff & Segal, P.A. 25 S.E. Second Ave., Ste. 730 Miami, FL 33131 This Agreement shall be governed and construed under the laws of the State of Florida. Any action involving the enforcement or interpretation of any rights hereunder shall be submitted to the jurisdiction of the state courts of the Eleventh Judicial Circuit in and for Miami - Dade County, Florida. By entering into this Agreement, Licensee and the Licensor hereby expressly waive any right either party may have to a trial by jury of any civil litigation between them related to, or arising out of, this Agreement. B. Title and paragraph headings are for convenient reference and are not a part of this Agreement. C. No waiver or breach of any provision of this Agreement shall constitute a waiver of any subsequent breach of the same or any other provision hereof, and no waiver shall be effective unless made in writing. D. Should any provision or term contained in this Agreement be determined by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, such provision or term shall be deemed modified to the extent necessary in order to be valid, legal or otherwise enforceable, or if not modifiable, then same shall be deemed severable, and in either event, the Page9of13 remaining terms and provisions of this Agreement shall remain unmodified and in full force and effect. E. The parties acknowledge that they have sought and received whatever competent advice and counsel as was necessary for them to form a full and complete understanding of all rights and obligations herein and that the preparation of this Agreement has been their joint effort. The language agreed to expresses their mutual intent and the resulting document shall not, solely as a matter of judicial construction, be construed more severely against one of the parties than the other, it being agreed that the agents of both parties have equally participated in the preparation of this Agreement. F. This Agreement constitutes the sole and entire agreement between the parties hereto. No modification or amendment hereto shall be valid unless in writing and executed by properly authorized representatives of the parties hereto. G. No amendment or modification of this Agreement shall be valid unless in writing and duly executed by Licensor and Licensee, and all approvals have been obtained to the extent required by Applicable Law. 20. THIRD PARTY BENEFICIARIES: Neither Licensee nor the Licensor intend to directly or substantially benefit a third party by this Agreement. Therefore, the parties agree that there are no third party beneficiaries to this Agreement and that no third party shall be entitled to assert a claim against either of them based upon this Agreement. The parties expressly acknowledge that it is not their intent to create any rights or obligations in any third person or entity under this Agreement. 21. SUCCESSORS AND ASSIGNS: This Agreement shall be binding upon the parties hereto, their heirs, executors, legal representatives, or successors. Page l0 of 13 22. INDEPENDENT CONTRACTOR: Licensee is providing its services as an independent contractor, and not as an agent or employee of the Licensor. Accordingly, Licensee's employees shall not attain, nor be entitled to, any rights or benefits under the Civil Service or Pension Ordinances of the City of Miami, nor any rights generally afforded classified or unclassified employees. Licensee further understands that Florida Workers' Compensation benefits available to employees of the Licensor are not available to Licensee, and agrees to provide workers' compensation insurance for any employee or agent of Licensee rendering services to the Licensor under this Agreement. 23. CERTIFICATION: By signing this Agreement Licensee certifies that Licensee has familiarized itself with section 18-102 of the Code of the City of Miami, Florida and that neither Provider nor any of its principal owners or personnel have been convicted of an offense that would be cause for debarment under section 18-102 of the Code of the City of Miami, Florida or debarred or suspended by any federal, state or other governmental entity. 24. ENTIRE AGREEMENT: This instrument and its attachments constitute the sole and only agreement of the parties relating to the subject matter hereof and correctly set forth the rights, duties, and obligations of each to the other as of its date. Any prior agreements, promises, negotiations, or representations not expressly set forth in this Agreement are of no force or effect. 25. COUNTERPARTS: This Agreement may be executed in two or more counterparts, each of which shall constitute an original but all of which, when taken together, shall constitute one and the same agreement. Page 11 of 13 IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed by their respective, duly authorized, officials, as of the day and year first above written. Witnesses: By: Print Name: By: Print Name: Witnesses: By: Print Name: By: Print Name: LICENSEE: SAWYER'S WALK LTD, a Florida limited partnership By: Indian River Investment Communities, Inc., a Florida corporation, its general partner B y: Name: Ted H. Weitzel Title: President LICENSOR: SOUTHEAST OVERTOWN/PARK WEST COMMUNITY REDEVELOPMENT AGENCY, a public agency and body corporate created pursuant to Section 163.356 Florida Statutes By: Name: Frank K. Rollason Title: Executive Director Page 12of13 # 2523872_v2 EXHIBIT "A" DESCRIPTION OF PROPERTY Page 13 of 13 EXHIBIT T Prepared by: William R. Bloom, Esq. Holland & Knight LLP 701 Brickell Avenue, Suite 3000 Miami, Florida 33131 ASSIGNMENT OF LEASE AND DEVELOPMENT AGREEMENT THIS ASSIGNMENT is made and entered into this day of , 200 , by and between POINCIANA VILLAGE OF MIAMI, LTD., a Florida limited partnership (hereafter the "Assignor"), and SAWYER'S WALK, LTD., a Florida limited partnership (hereafter the "Assignee"). RECITALS A. Assignor is the lessee under that certain Southeast Overtown/Park West Lease and Development Agreement dated June 15, 1988, as amended (the "Lease"). B. Assignor desires to assign and transfer to Assignee all of its right, title and interest as lessee under the Lease in and to the property commonly known as Poinciana Village Phase II and more particularly described in Exhibit "A", attached hereto ("Phase II"). NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Assignor and Assignee hereby agree as follows: 1. Recitals to this Agreement are true and correct and are hereby incorporated by reference and made a part hereof. 2. Assignor does hereby assign, transfer, sell, convey and set over unto assignee all of Assignor's right, title and interest as lessee under the Lease in and to Phase II. 3. Assignee hereby accepts the assignment of Assignor's right, title and interest as lessee under the Lease in and to Phase II and assumes the obligations under the Lease arising from and after the date hereof with respect to Phase II. 4. Assignor hereby agrees to indemnify, defend and hold Assignee harmless from and against any and all losses, damages, claims and demands with respect to Phase II arising prior to the date hereof, and Assignor agrees to pay all costs and expenses (including reasonable attorneys' fees and court costs through all appellate levels and post judgment proceedings) incurred by Assignee in enforcing this indemnity provision. 5. Assignee hereby agrees to indemnify, defend and hold Assignor harmless from and against any and all losses, damages, claims and demands with respect to Phase II arising from and after the date hereof, and Assignee agrees to pay all costs and expenses (including reasonable attorneys' fees and court costs through all appellate levels and post judgment proceedings) incurred by Assignor in enforcing this indemnity provision. IN WITNESS THEREOF, the undersigned executed this Assignment on the day and year first above written. Witnessed by: ASSIGNOR: Print Name Print Name POINCIANA VILLAGE OF MIAMI, LTD., a Florida limited partnership BY: INDIAN RIVER INVESTMENTS OF MIAMI, INC., a Florida corporation, its general partner By: Name: Ted H. Weitzel Title: President Date Executed: Witnessed by: ASSIGNEE: Print Name: SAWYER'S WALK, LTD., a Florida limited partnership BY: INDIAN RIVER INVESTMENT COMMUNITIES, INC., a Florida Print Name: corporation, its general partner By: Name: Ted H. Weitzel Title: President Date Executed: 2 STATE OF FLORIDA ) ) COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 200, by Ted H. Weitzel, as President of INDIAN RIVER INVESTMENTS OF MIAMI, INC., a Florida corporation, its general partner of POINCIANA VILLAGE OF MIAMI, LTD., a Florida limited partnership, on behalf of the corporation and the partnership, who is personally known to me, or has produced as identification. Notary Public Type, Print or Stamp Name My Commission Expires: STATE OF FLORIDA ) ) COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 200 , by Ted H. Weitzel, as President of INDIAN RIVER INVESTMENT COMMUNITIES, INC., a Florida corporation, the general partner SAWYER'S WALK, LTD., a Florida limited partnership, on behalf of the corporation and the partnership, who is personally known to me, or has produced as identification. # 2574318_v1 3 Notary Public Type, Print or Stamp Name My Commission Expires: EXHIBIT A Phase II 4 EXHIBIT U FILED CERTIFIC°,TE OF LIMITED PARTNI5F1TP 3 17'H 86 POINCIANA VILLAGE OF MIAMI, SIXEIAR O ;TATE TALLAHASSE L. F LORIOA I NAME: The name of this Limited Partnership shall be: POINCIANA VILLAGE OF MIAMI, LTD. II. .CHARACTER OF BUSINESS: The business of the Limited Partner- ship shall consist of the investment in and ownership, operation and maintenance of improved and unimproved real estate, securities, mortgages and other tangible and intangible personal property and such other property as may from time to time be transferred to the Limited Partnership in accordance with the terms and provisions of this Certificate. Said authority shall include, but not he limited to, the acquisition, sale, transfer, exchange, mortyaq.Lng, leasing, pledging and other disposition of all property, real or personal; acquired by the Limited Partnership. III. PRINCIPAL PLACE OF BUSINESS: The location of the principal place of business oL the Limited Partnership shall be 1023 N.W. 3rd Avenue, Miami, Florida 33136, or such otL.._, _cation as tha General Partner may designate, but the business of the Limited Partnership or any part thereof, maybe conducted elsewhere. IV. NAMES AND PLACES OF RESIDENCE OF MEMBERS OF LIMITED PARTNERSHIP: (1) CENERA.L PARTNER: INDIAN RIVER INVESTMENTS OF MIAMI, INC. 1023 N W. 3rd Avenue Miami, FL 33136 (2) LIMITED PARTNER: SAWYER DEVELOPMENT CORP. 160 N. W. 7th Street Miami, P1. 33136 V. TERM OF PARTNERSHIP: The original term of the Limited Partnership shall be from January 15, 1986 through December 31, 1989, and thereafter from year to year, unless at least nine (9) calen..ar months before December 31 of any year, the General or any one of the Limited Partners shall have de- livered to the principal office of the Limited Partnership a written notice that he or she desires the Limited Partnership to terminate at the close of business on December 31 of such year, in which event the Limited Partnership shall terminate at the time so designated. VI. CONTRIBUTION OF LIMITED PARTNERS: The contribution of the Limited Partner is as follows: SAWYER DEVELOPMENT CORP. $150,000.00 VII. ADDITIONAL CONTRIBUTIONS: In the event the General Partner under the authority vested in it by paragraph XIII of this Certificate, shall decide to issue addditional Partnership Interests, the Limited Partner shall have the right to purchase said additional Partnership Interests before they are sold to a new Limited Partner. VIII. RETURN OF CONTRIBUTIONS: Limited Partners' contributions shall be returned upon termination of the Limited Partnership or upon twelve (12) months written notice to all members of the Limited Partnership. Provided, however; that in no event shall any Limited Partner be entitled to demand and receive property other than cash in return for his contri- bution. IX. SHARE OF PROFITS BY LIMITED PARTNERS: (1) The Limited Partners shall receive ten percent (10%) /per-annum interest on the amount of funds the Limited Partners have Invested in the Limited Partnership from time to time, calculated on a daily basis and paid monthly, quarterly or annually by the tenth of the following month. For the purpose of this paragraph, funds in- vested in the business shall mean funds actually employed in the real estate operations of the Limited Partnership or deposited in the Limited Partnership's checking account and shall not include funds -2- invested in mortgages or held in savings accounts, certifi- cates of deposit or other accounts or investment media having a fixed or predetermined rate of return. (2? The Limited Partners shall also receive actual interest earned on mortgages, savings accounts, certificates of deposit and other accounts or investment media having a fixed or .pre- determined rate of return. This interest will be paid directly to the Limited Partner by the institution or to the General Partner which will then pay the Limited Partner (3) The Limited Partner is to receive 10% of the profits earned by the Limited Partnership over and above the ten percent (10%) interest paid to the Limited Partner . For the purpose of this paragraph, the term profits shall mean the net difference between cash income and cash or accrued expenditures. X. SHARE OF PROFITS BY GENERAL PARTNER: The General Partner is to receive ninety percent (90%) of the profits of the Limited Partnership. For the purpose of this paragraph, the term profits shall mean the net difference between cash income and cash or accrued expen- ditures. XI. DISTRIBUTION OF PROFITS AND LOSSES: The profits and losses of the Limited Partnership shall be distributed annually. XII. RIGHT TO SELL OR ASSIGN: The Limited Partners shall have /sell oA the right to assign their interest in the Limited Partner- ship. XIII. ADDITIONAL LIMITED PARTNERS: Except as otherwise set forth in paragraph XVI of this Certificate, additional Limited Partners or substituted Limited Partners shall be admitted to the Limited Partnership only upon written consent of the General Partner. ?:Iv. PRIORITY BETWEEN LIMITED PARTNERS: There shall be no priority as to the distribution of income or the return of capital between the Limited Partners. :;V. DEATH OF A LIMITED PARTNER: If a Limited Partner shall die, or become physically or mentally incompetent, said Limited Partner's Personal Representative, Guardian, Executor or Administrator shall have all the rights of such Limited -3- XVI . XVII . Partner, and the share of such Limited Partner in the assets of the Limited Partnership shall, until the termination of the Limited Partnership, be subject to the terms, provisions and conditions of this Certificate as if such Limited Partner had not died or become incompetent. RESPONSIBLE FOR OBLIGATIONS: The General Partner shall be responsible for the obligations of the Limited Partnership to the extent that a General Partner is now liable under the Laws of the State of Florida, but no Limited Partner shall at any time be liable for the debts and losses of the Limited Part- nership in excess of the amounts contributed or then due to be contributed by him to the capital of the Limited Partnership. TERMINATION OF PARTNERSHIP: Upon termination of the Limited Partnership, the General Partner shall distribute the assets• of the Limited Partnership in accordance with the laws of the :State of Florida in existence on the date of a termination of the Limited Partnership. XVIII. CERTICATE BINDING ON PARTIES: This Certificate shall be binding upon the parties hereto, their heirs, successors, assigns and legal personal representatives. Witnesses: Indian River Investments of _ami, Inc. l Ted H. eitzel, President 'Horace C. Davis, Vice President Randall J. Weitzel, Vic President and Secretary -4- STATE OF FLORIDA COUNTY OF Dade I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State and County aforesaid to take acknowledgements, personally appeared TED H. WEITZEL as President of Indian River Investments of Miami, Inc., a Florida corporation, to me known to be the person described in and who executed the foregoing instrument and he acknow- ledged and swore before me that he executed the same. WITNESS my hand and official seal in the County and State last aforesaid this 0/2g day of ,Tan{,{(fY, 1986. (SEAL) g1OTAR4 DUBtIC STATE OE rtOR1DA MY COMMISSION EXPIRES OCT; 11986 Er THPU CFNERAL INSURANCE UND STATE OF FLORIDA COUNTY OF Dade lZliY cZ-, Notary Puic, ' l My Commission Expires: I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State and County aforesaid to take acknowledgements, personally appeared HORACE C. DAVIS, as Vice President of Indian River Investments of Miami, Inc., a Florida corporation, to me known to be the person described in and who exectued the foregoing instrument and he acknow- ledged and swore before me that he executed the same. WITNESS my hand and official ,a,eal in the County and State last aforesaid this ;2C day of aticLa/'y , 1986. Notary P licF, Stat�.f Florida (SEAL) My Commission Expires gOTAR9 tiOBLIC STTTE or €1O121DD MY COMMISSION EXPIRES BONDED THRU GENERAL INSURANCE i a986 CE UND STATE OF FLORIDA COUNTY OF DADE I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State and County aforesaid to take acknowledgements, personally appeared RANDALL J. WEITZEL, as Vice President and Secretary of Indian River Investments of Miami, inc., a Florida corporation, to me known to be the person described in and who executed the foregoing instrument and he swore before me that he executed the same. WITNESS my hand and official seal in the County and State aforesaid this day of ,T(DfcLa E_D , 1936. N�TAR4 Tmnc STATE OK rtoRiD`A MY COMMISSION EXPIRES 0(1, 11986 BONDED THRU GENERAL INSURANCE UND I (SEAL) My Commission Expires Witnesses: Sawyer Deve opJRen"t Cbrp. C1 CMG !"LL y 4'71. Y,) tom--"411iam B SAWYER `l, t,,v, �� r.QL - C,UG:.L "_ President STATE OF FLORIDA COUNTY OF Dade I HEREBY CERTIFY that this day, before me, an officer duly authorized in the State and County aforesaid to take acknowledgements, personally appeared WILLIAM B. SAWYER, as President of Sawyer Development Corp., a Florida corporation, to me known to be the person described in and who executed the foregoing instrument and he acknowledged and swore before me that he executed the same. WITNESS my hand ajld official d/al in the County and i1 State last aforesaid this ol.q day of o11i,Laj,- , 1986. (SEAL) Notary Pt b1i State , My Commission Expires: MY COMMISSION EXPIRES OCT, 129881 BONDED IHRU GENERAL INSURANCE UND -6- 2004 LIMITED PARTNERSHIP ANNUAL REPORT (AR) DUE BY MAY 1, 2004 DOCUMENT # A22022 1. Ermty Name VILLAGE OF MIAMI, LTD. :=, .. -I-POINCIANA ji Ponc-:at Place of 6usness Moilmg A3d(eSs 269 NW 7TH ST. 269 NW 7TH ST. MIAMI FL 33136 MIAMI FL 33136 III 2. P,ncpal FIaC601 Bosness 3. I , I,,„u.7-,_-,IIII ��� N. W. , UT 5t>_t�.t II IIHIIHH� 1111 ILI� IlftIllh1I. ,te Apt a etc "°f` Jul ' `:`- ii40L MOORE CR2E003 (11 03) C,ly d Stale ., , :.I,1,. 4. FEI Nun,oar Applle0 For Miami, El . 59-2806166 Not Applicable Counrry -'33136 C u USA 8.75 Add onal 5. CenatCale of Status Desired 0 Fee Required 6. Name and Address of Current Registered Agent 7. Name and Address et New Registered Agent rJ_!ne WEITZEL, TED H 269 NW 7TH STREET Straer Address (P 0 Sax Number Is Nor Acceptable) 201 N. W 7th Strut, #401 MIAMI FL 33136 N(iami , FL i'p Cooe 33136 8. The abo,e named army .,Omits ma em,gaL:ons of reglstevec tnla statement for the purpOS, of on , -in) Ig s t<g,SlertU Utuce or Icgtstcl 20 agent of min III the Stale o) Florlaa I am lamtl,ar win. and accept agent _ Ted H. Weitzel 4-19-04 SIuNATURE DATE v' 9. Cacl;al CCnula,flon; $150,000.00 as Snows 3n racara 10. A noun) of Capital ContrlbutIons RI FLORIDA to date 11. MAKE CHECK PAYABLE TO FL. DEPT_OF STATE SEE REVERSE SIDE FOR FEE INFORMATION A GENERAL PARTNER THAT IS A BUSINESS ENTITY MUST BE REGISTERED AND ACTIVE WITH THIS OFFICE. NOTE: General Partners MAY NOT be changed on the farm; an amendment muss be filed to change a general partner. 12. GENERAL PARTNER INFORM TION 13- ADDRESS CHANGES ONLY 06C0 .1EN1 r I 5554 M 16669 INDIAN RIVER INVESTMENTS OF MIAMI, INC. mEETADDRESS 201 N. W. 7th Street, #401 STF.211,2107tESS 269 NW 7TH ST, -._I o-n? (MIAMI FL 33136 CBI-ST-ae Miami, Fl. 33136 nIEmT; itnE❑ ,•DOilts5 ,IIt=.a7 tODRESS -,.I _ :FP CITY-SI-'.I? �I,,f1I 1UL31.1ES5 S1FEE'0GCHESS ]Pr :,-ZIP -.I '0 n'i6ARNI r r..:ni£ STREf1 ...OGRESS -T,1T ONES ciR it :IP — ; oaE I ..JDIIESS .J STFZE7 ;D01ESS _ .� -,'Y ST-SP CITY .1-30 — t51 (.,.(O1; S _ = SIiIE 1 O0IIESS --- ETr0" .,?00E`_: I IIIY)1-DP 14. I nercoy .snag mat me miorma .na,ca(e0 on LOIS repon I$'Dye4no ,ne recel,er Jr 1l05laa arnpowe /// SIGNATURE: jon supplied wan Ems ',ling does not qualify for the eaemouon stated In 35diO4 119 57(3)(1). Ronda Statutes I (inner Certify that fne ,nrorrnauon accurate and Ina, my s,gnalure ,nail nave Ina ,an>< Icgal atlecl as ,I ma0e under Gain. ma! I am a General Panne( o! me I,mied parmersnlp or ea to exe le InIs repot aS ,equo5o o). Cnaptr; 62u rwl„ie 5talules pp 305-377-2509 1+ d }� Weitzel 4-1J—OQ i SGN� Ud� L`_, wra Pt., r THE .0 TYPED OR PHINTE� SIG GE 'Rm. HTNEH POINCIANA VILLAGE OF MIAMI, LTD. 269 N.W. 7TH STREET MIAMI. FLORIDA 33736 (305( 35E1.8030 „` er 1 Florida Department of State Five Hundred Twenty Six & 25/100 WACHOVIA BANK, N.A. .:cn H;T 307003032 ,4IAh11 FLUB, A 3166 Poinciana Village of Miami, Ltd. ir?22022 3631 63-631670 p,t�Fpril 19, 2004 1 $ 526.25 Dollars 8 - 5' onnnn1P,I>.B• t!ri 7nnRn��LcL��N• FILED 085 JULI I 1 AM 11 39 CT' TE FLORIDA ARTICLES OF INCORPORATION OF INDIAN RIVER INVESTMENTS OF MIAMI, INC. The undersigned subscriber to these Articles of Incor- poration, being a natural person competent to contract, does hereby form a corporation under the laws of the State of Florida. ARTICLE I The name of this corporation is: INDIAN RIVER INVESTMENTS OF MIAMI, INC. ARTICLE II The nature of the business of this corporation is any and all lawful business which a corporation is permitted to conduct in the State of Florida. ARTICLE III The capital stock of this corporation shall be 500 shares of $1.00 par value common stock. Said stock shall be issued pursuant to a plan under Section 1244 of the Internal Revenue Code of 1954 as amended by the Small Business Tax Revision Act of 1958. All of said stock shall be payable in cash, or property other than stock or securities in lieu of cash, at a just valuation to be determined by the stockholders of this corporation. ARTICLE IV The amount of capital with which this corporation will begin business is Five Hundred Dollars ($500.00). ARTICLE V This corporation shall exist perpetually. ARTICLE VI This initial registered agent and registered office of this corporation in the State of Florida is: RANDALL J. WEITZEL, 1023 Northwest Third Avenue, Miami, FL 33136. The stockholders may from time to time move the principal office to any other address in Florida. ARTICLE VII The Board of Directors of this corporation shall consist of the stockholders of the corporation. ARTICLE VIII The names and addresses of the officers are: NAME ADDRESS OFFICE TED H. WEITZEL 672 Park Ave. President Titusville, FL 32796 RANDALL J. WEITZEL 1023 NW Third Ave. Sec./Vice-Pres. Miami, FL 33136 HORACE C. Davis 310 S.W. 68 Blvd. Vice -President Pembroke Pines Florida 33023 ARTICLE IX The names and post office addresses of the subscribers to the Certificates of Incorporation are as follows: NAME ADDRESS TED H. WEITZEL 672 Park Avenue Titusville, FL 32796 ARTICLE X These Articles of Incorporation may be amended in the manner provided by law. Every amendment shall be approved at a stockholder's meeting by a majority of the stock entitled to vote thereon, unless all of the stockholders sign a written statement manifesting their intention that a certain amendment of these Articles of Incorporation be made. ARTICLE XI Every stockholder, upon the sale for cash of any new stock of this corporation of the same kind, class or series as that which he already holds, shall have the right to purchase his prorate share thereof (as nearly as may be done without issuance -2- of fractional shares) at the price at which it is offered to others. ARTICLE XII At each election for directors every stockholder entitled to vote at such election shall have the right to cumulate his votes by giving one candidate as many votes as the number of his shares, or by distributing such votes on the same principal among any number of candidates. IN WITNESS WHEREOF, the undersigned, being the original subscriber to the capital stock hereinabove named, for the purpose of forming a corporation to do business in the State of Florida, under•the laws of Florida, does make and file these Articles of Incorporation, hereby declaring and certifying that the facts herein stated are true, and hereunto sets his hand and seal this 6th day of June, 1985. TED H. Q iZE STATE OF FLORIDA COUNTY OF BREVARD BEFORE ME, the undersigned authority, an officer duly authorized to administer oaths and take_ acknowledgements, personally appeared TED H. WEITZEL, to me well known to be the persons who executed the foregoing Articles of Incorporation, and acknowledged before me that they executed the same freely and voluntarily for the purposes therein expressed. 1985. WITNESS my hand and official seal this 6th day of June, Notary Public, State of Florida at Large My Commission Expires: -3- 2004 FOR PROFIT CORPORATION ANNUAL REPORT (AR) DOCUMENT # M16669 1. 6nl,ty Name INDIAN RIVER INVESTMENTS OF MIAMI, INC. t . ,. �% - 0. I �_., S �' Pon:,pat P,aca 31 9usiness MO...i,o-.aa1us, 269 NW 7TH ST 269 NW 7TH ST MIAMI FL 33101 MIAMI FL 33101 US US 201 NW, 7th StreetIIII° 1 I I1111ICIU lI UIII 1111 II ' ft S_.te 301 a etc Sae, Apt d ,pr tt401 MOORE CR2E034 (1 03) G;; 5 Su-aa C.,y d Stoic A. FEI Numcet Applied For Miami, Fl . 59-2559262 Not Apphcanle . Counuy. Zip 33136 Couu rl, U S A 38.75 Addmonal s. Camticara or Srarus Des0e0 ❑ Fee Requited 6. Name and Address of Current Registered Agent 7. Name and Address of New Registered Agent Name WEITZEL, TED H 201 NW 17TH STREET a401 ]beet Address tP O Box Numbers Not Acceptable) MIAMI FL 33136 l.dy FL ',p Codc 8. 'r 4 abo)c named ent.ly suomns m,s itatenlent for d,e purpose 31 cnangmg as teg,s,eled Jmce or registered agent or coal. In the Slate of Flown I am familiar with, dna accept Ina outgo -;ens of r e9,sterea agent _ SIGNATURE ii,.z 11rw. .1.:..s-1 vo,.a rom .0., Ai,. . euw.....z N01e 0s , ..a ,,,0.,.0<,ra0,:,..,,r, ,,-tins; DAr5 FILE NOW!!! FEE IS;150.00 After May 1, 2004 Fee will be $550.00 Make Check Payable to Florida Department of State 9. Election Campaign Financing $5.00 May Be Trust Fund Comrtbueon. ❑ Added to Fees 10. OFFICERS AND DIRECTORS I1. ADDITIONS/CHANGES TO OFFICERS AND DIRECTORS IN 1 I RILE .o;mE STREEI.DSSISS c1.1-.1 _a PO L7 Orme WEITZEL, TED H 201 NW 7TH STREET, A401 MIAMI FL 33136 t4« Ia^t.0 sisal *DRESS CIn-i1 ZIP ❑ Change ❑ Addition ll1,E writ 510EE1.;.rort173 E:T1-ST-]P SVD ❑ Delete DAVIS, C. HORACE 13234 NW 13TH STREET PEMBROKE PINES FL 33028 [At nu.+E ilReel *DRESS 2I'l SI-ZIP ❑ Charge ❑ Addition Mill 7.4111E 111RE1T ..DDREES S 7 - SI.,r ❑ Delete n1ei I WdE 3116ET ADDRESS UR-ST-ZIP ❑ Change ❑ Adod,eo 'ME❑ hAM1IE :TREST.1DFE._ CJY-i;._r Dame �TE, (LAME STREET ADDRESS DI', SI - JP ❑ Change ❑ Addmon I.17i FAa1t 7TF1T .i0K55 0,Tr - ST. _,7 0 Delete • RILE :LIME STREET ADDRESS CD IY • i1-LP ❑ Cnalige ❑.AOd1110n IDLE ( i`U71 1TREc1 V;Dti1 2110 • .1 •U: 0 Delete Hill 111516E sn1EET ADDRESS CITY -Sr TIP ❑ Change ❑ Addidal T 12. 1 Perecy candy mat me inmlm Audit supplied with Ins Nog noes not quality or ;Ile -.anlphon sta ed In Section 119.0713)10. Flonda Statutes. I tonner cen,ly that the mtormauon 4-1o13atco on mIS Icport Or 5117v91emenl0l re4Jn 15 true a00 a1Gu, 3`e and 'no i1 vynarur snail nave ant same legal cllecl as d made under oam. that I am an otlrCer or O,reclOf cl :ne 0erporatt.: Or me recelser or I1Uiree empOwercd IJ r•nCulc Iny ,eVu ii' u,cy,, ad uy 0napte; 007 Flonda Stawles and Inal my name appears In Block 10 or Block 11 ,1 00on903 0I On an aIlacnnentlw4n an adatess wen all om,e c1 1ieinput'. se SIGNATURE: Ted H. Weitzel 4-19-04 305-377-2509 ,p1 :nAw L A110r OR PHIM IE0 Y Of F,CER OR OWES' 104 Jar wv •T.., �p,CnAlitOpE POINCIANA VILLAGE OF MIAMI, LTD. 269 N.W. 7TH STREET MIAMI FLORIDA 33136 ;3051 358-6030 ram' f1` Florida Department of State One Hundred Fifty & 00/100 WACHOVIA BANK, N.A. i011 A 1 66100ia32 S1EiMl. FL1R10A 3316p Indian River Invesments of Miami, Inc. #M16669 000003.631.11' t:0670064321:269230564645211' Datc April 19,2004 3634 13 63-343/ 670 $ 150.00 Dollars a = - A 1 � it a EXHIBIT V POINCIANA VILLAGE OF MIAMI, LTD., PARTNERS General Partner: Indian River Investments of Miami, Inc. Shareholders: Ted H. Weitzel 1/3 Horace C. Davis 1/3 Randall J. Weitzel 1/3 Limited Partner: Sawyer Development Corp. 100% 54 EXHIBIT W 011791 LIMITED PARTNERSHIP AGREEMENT Agreement of Limited Partnership made this L1T day of January, 1991, by and among Indian River Investment Communities, Inc., a Florida Corporation, whose address is 269 Northwest 7th Street, Miami, Florida 33136 herein referred to as the General Partner, and to William Sawyer and Bernice Sawyer whose address is 201 Northwest 7th Street, Unit 404, Miami, Florida 33136 and Bernice S. Watson whose address is 5400 Murdock Court, Virginia Beach, Virginia 23464, herein referred to as the Limited Partners. All references herein to all "Partners" shall refer to all of the General Partners and all of the Limited Partners. ARTICLE I Formation 1.01 Organization. The parties form a Limited Partner- ship under the laws of the State of Florida, herein called the Partnership. 1.02 Statutory Requirement. The parties to this Agreement shall immediately execute a Certificate of Limited Partnership, and cause the certificate to be filed in the appropriate office. During the term of this Partnership, the parties shall execute and cause to be filed amended certificates evidencing the formation and operation of this Limited Partnership whenever required under the laws of the State of Florida and of any other states where the Partnership shall determine to do business. The General Partner is authorized and empowered by all the Limited Partners to prepare, file, and publish either the original or any amended or modified Certificates of Limited Partnership as may be necessary or desirable and each Limited Partner specifically designates and appoints the General Partner, as his, her or its attorneys -in -fact for the exclusive purposes of signing and attesting to the original or amended Certificates of Limited Partnership. The creation of the foregoing power of attorney is coupled with an interest and shall be irrevocable. 1.03 Purposes of Partnership. The purposes of the Partnership shall be as follows: (1) To engage generally in the real estate business, including investment in and ownership, operation and maintenance of improved and unimproved real estate and mortgages and other tangible and intangible personal property; to improve or develop real estate; to construct, alter, or repair buildings or structures on real estate; to acquire, sell, transfer, exchange, lease, mortgage, pledge and other disposition of all property and to make contracts concerning real estate. (2) To enter Partnership Agreements in the capacity of a General Partner or a Limited Partner. To become a member of a joint venture, or to participate in some other form of syndication for investment in real estate. ARTICLE II Name and Place of Business 2.01 Name of Limited Partnership. The name of the Limited Partnership shall be Sawyer's Walk, Ltd. The business of the Partnership shall be conducted under this name and under any variations of this name that may be necessary to comply with the laws of other states within which the Partnership may do business or make investments. 2.02 Fictitious Name Certificates. The General Partner shall promptly execute and duly file with the proper offices in each state in which the Partnership may conduct the activities authorized in this Agreement, one or more certificates as required by the fictitious names law or similar statute in effect as to each state in which the activities are conducted. 2.03 Location of Principal Place of Business. The principal place of business shall be located at 269 Northwest 7th Street, , Miami, Florida, or at such other place or places as the General Partner may designate. The General Partner may designate a new place of business by delivering a written notice to all the Limited Partners. 2.04 Names and Addresses or Places of Residence of Partners. The names and addresses of the General and Limited Partners of this Partnership are set forth in Exhibit A attached hereto and by this reference made a part of this Agreement. There are no other General Partners of this Partnership and no other person or entity has any right to take part in the active management of the business affairs of the Partnership. There are no other Limited Partners to the Partnership other than those listed in the attached Exhibit A. ARTICLE III Term of Partnership The Partnership shall commence on the date that a Certificate of Limited Partnership is duly filed as required by law, and shall continue in existence until January 31, 2001, unless sooner terminated, liquidated, or dissolved by law or as hereinafter provided. 2 ARTICLE IV Contributions of Capital 4.01 Initial Capitalization. Each of the Partners shall contribute to the capital of the Partnership in cash, in property or in services, in the amount and having the agreed value as set out opposite his, her or its name as listed in the attached Exhibit A. 4.02 Future Contributions. Each Partner, General or Limited, may make additional contributions to the capital of the Partnership in cash, in property, or in services, in such amounts as may from time to time be agreed upon in advance by all of the Partners. The Partners, General or Limited, shall not be required to make any additional capital contributions and in no event shall a Limited Partner be personally liable for any losses, obligations, or debts of the Partnership in excess of his, her or its respective capital contribution. 4.03 Initial Limited Partners. Notwithstanding any other provision herein, William Sawyer, Bernice Sawyer, and Bernice S. Watson (herein collectively referred to as the "Initial Limited Partners") must approve in writing any and all changes whatsoever in the percentage investment of the General Partners from the Percentage of Partnership Units set forth in Paragraph 5.02 below, throughout the duration of the Partnership. To the extent that the terms and conditions of this Paragraph 4.03 conflict with or are contrary to any other provisions in this Agreement, the terms and conditions of this Paragraph 4.03 shall supercede and prevail. ARTICLE V Division of Profits, Losses and Cash Flow 5.01 Definition of Net Profits and Net Losses. The term "net profits and net losses" shall mean the net profits and net losses of the Partnership as determined for federal income tax purposes by the independent certified public accountant servicing the partnership account. 5.02 Division of Net Profits and Net Losses. All net profits and net losses of the Partnership shall be divided and borne among the Partners in the following proportions set forth opposite their respective name: 3 General Partner Percentage of Partnership Units Indian River Investment 2% Communities, Inc. Limited Partners Percentage of Partnership Units William Sawyer Bernice Sawyer Bernice S. Watson Indian River Investment Communities, Inc. and William Sawyer 2% 2% 2% 92% However, the liability of the Limited Partners for the losses of the Partnership shall in no event exceed the amount of their respective contributions to the capital of the Partnership. 5.03 Division of Cash Flow. The cash flow of the Partnership shall be the net profits and net losses of the Partnership as defined in Paragraph 5.01 above, plus depreciation and other noncash charges deducted in determining the profits and losses, minus principal payments on all mortgages, and any other cash expenditures that have not been deducted in determining the net profits and net losses of the Partnership, and minus any amount reasonably -determined by the General Partner as being required to maintain sufficient working capital and a reasonable reserve for repairs, replacement, or other reasonable contingencies. The cash flow, as so determined, may be distributed by the General Partner to all the Partners in equal proportions per Partnership Unit, in the sole discretion of the General Partner. There shall be no obligation to return to the General Partner, or to the Limited Partners, or to any one of them, any part of the respective capital contributions for so long as the Partnership continues to exist. No General Partner or Limited Partner shall be entitled to any priority or preference over any other Partner as to the distribution of the cash flow of the Partnership. ARTICLE VI Ownership of Partnership Property All real or personal property acquired by the Partnership shall be owned by the Partners as tenants in partnership. An individual Partner's rights in Partnership property is not assignable, except in connection with the assignment of the rights 4 of all the Partners in the same property. Each Partner hereby expressly waives the right to require partition of any Partnership Property. ARTICLE VII Fiscal Matters 7.01 Partnership Accounting Year. The Partnership's books and records and all required income tax returns shall be kept or made on the calendar -year basis. The General Partner shall determine whether the cash or accrual method of accounting is to be used in keeping the Partnership records. 7.02 Books and Records. The General Partner shall keep at the principal place of business and make available to all Partners, at any time during normal business hours, just and true books of account and all other Partnership records. The copying by a Partner or by his, her or its designated agent of any part of all of the records, at the personal expense of that Partner is specifically authorized. Within ninety (90) days after the close of each calendar year of the Partnership, the General Partner shall furnish to all Partners a year -ending balance sheet for the Partnership and a full and detailed financial report on the business operations of the Partnership for and during the entire preceding year. In addition, within ninety (90) days after the close of each calendar year of the Partnership, the General Partner shall furnish to all Partners any additional information necessary to complete their federal and state income tax returns, including statements of the net distributable income or loss to each Partner from the operation of the Partnership. The cost of all of the above duties and services to be performed by the General Partner shall be deemed an expense of the Partnership. 7.03 Partnership Bank Account. The General Partner shall receive all money of the Partnership and shall deposit it in one or more Partnership bank accounts. All expenditures by the General Partner on Partnership interests shall be made by checks drawn against the Partnership bank accounts. Withdrawals from the Partnership bank accounts shall be made on such signature or signatures as the General Partner shall authorize. ARTICLE VIII Management of Partnership Affairs 8.01 Control and Management. The General Partner shall have sole and exclusive control of the Partnership. Subject to any limitations set forth in this Agreement, the General Partner shall have the power and authority to take any action from time to time 5 as they may deem to necessary, appropriate, or convenient in connection with the management and conduct of the business and affairs of the Partnership, including without limitation the power to: (1) Acquire or dispose of real property (including any interest therein) for cash, securities, other property, or any combination thereof upon such terms and conditions as the General Partner may, from time to time, determine (including, instances where the property is encumbered, on either an assumption or a "subject to" basis); (2) Acquire, own, hold, improve, manage, and lease any property, either alone or in conjunction with others through partnerships, limited partnerships, joint ventures or other business associations or entities; (3) Finance the Partnership's activities either with the seller of the property or by borrowing money from third parties, all on any terms and conditions the General Partner deems appropriate. In instances where money is borrowed for Partnership purposes, the General Partner shall be, and hereby is, authorized to pledge, mortgage, encumber, and grant a security interest in Partnership properties for the repayment of the loans; (4) Employ, retain, or otherwise secure or enter into other contracts with personnel or firms to assist in the acquisition, developing, improving, managing, and general operation of the Partnership properties, including, but not limited to, real estate brokers or agents, supervisory, development, and building management agents, attorneys, accountants, and engineers, all on any terms and for any consideration the General Partner deems advisable; and (5) Take under applicable law and to the acquisition, management, leasing, and property. any and all other action that is permitted that is customary or reasonably related ownership, development, improvement, disposition of real, personal, or mixed 8.02 Responsibility of General Partner. The General Partner shall exercise ordinary business judgment in managing the affairs of the Partnership. Unless fraud, deceit, or a wrongful taking is involved, the General Partner shall not be liable or obligated to the Limited Partners for any mistake of fact or judgment made by the General Partner in operating the business of the Partnership, which results in any loss to the Partnership or its Partners. The General Partner does not, in any way, guarantee the return of the Limited Partners' capital or a profit from the operations of the Partnership. Neither shall the General Partner be responsible to any Limited Partners because of a loss of his, her or its investment or a loss in operations, unless the loss was 6 caused by fraud, deceit, or a wrongful taking by the General Partner. The General Partner shall devote such attention and business capacity to the affairs of the Partnership as may be reasonably necessary. In this connection, the parties hereby acknowledge that any General Partner may be the Manager or General Partner of other partnerships and may continue to manage other partnerships, and may continue to engage in other distinct or related businesses, including the investment in or ownership or development of property, whether or not competitive with the business of the Partnership. 8.03 Nominees. All Partners recognize that sometimes there are practical difficulties in doing business as a Limited Partnership, occasioned by outsiders seeking to satisfy themselves relative to the capacity of the General Partner to act for and on behalf of the Partnership, or for other reasons. Therefore, the Limited Partners hereby specifically authorize the General Partner to acquire all real and personal property, arrange all financing, enter contracts, and complete all other arrangements needed to effectuate the purpose of this Partnership, either in their own name or in the name of a nominee, without having to disclose the existence of this Partnership. If the General_Partner decides to transact the Partnership business in their own name or in the name of a nominee, they shall place a written declaration of trust in the Partnership books and records that acknowledges the nominee's capacity in which it acts and the name of the true or equitable owner, being the Partnership. 8.04 Removal of General Partner. Any General Partner may be removed by the affirmative vote of ninety-five percent (95%) in interest, not in number, of all of the Partners. Written notice of the General Partner's removal shall be served on the General Partner by certified mail. The notice shall set forth the day on which removal is to be effective. This date shall not be less than thirty (30) days after the service of the notice on the General Partner. Within thirty (30) days after an affirmative vote to remove a General Partner, the Partners shall elect a new General Partner. A new General Partner shall be elected on the vote of the holders of two-thirds (2/3) of the Partnership Units, in interest, not in number, then outstanding, at a special meeting called for that purpose. If a new General partner is not elected within this period, the Partnership business shall be terminated and wound up in accordance with Paragraph 12.03 of this Agreement. The removal of a General Partner shall cause his, her or its interest in the Partnership to be converted to a Limited Partnership interest, but shall not alter or change his, her or its rights or responsibilities pursuant to Paragraphs 11.02 and 11.03 of this Agreement. 8.05 Compensation of General Partners. The General Partner will receive no compensation for acting as General Partner. The General Partner shall be entitled to reimbursement for any 7 expenses paid by him, her or it arising out of the business of the Partnership and to reasonable and customary compensation for services as a real estate broker or agent rendered by a General Partner other than in his, her or its capacity as manager of the Partnership business. 8.06 Restrictions on Limited Partners. The Limited Partners shall not have either the obligation or the right to take part, directly or indirectly, in the active management of the business of the Partnership. No Limited Partner is authorized to do or perform any act, thing, or deed in the name of or for or on behalf of either the General Partner or the Partnership. Limited Partners are not authorized to and shall note, directly or indirectly, have a voice in or take part in the business affairs or business operations of the Partnership. No Limited Partner shall receive any compensation for being a Partner. Limited Partners are not authorized, and shall not be permitted, to do any_ act, deed, or thing that will cause the Limited Partner to be classified as a General Partner of the Partnership. ARTICLE IX Liabilities 9.01 Liability of Partners. The liability of the General Partner arising from carrying on the business affairs or operations of the Partnership or for the debts of the Partnership is unrestricted. The liability of the Limited Partners with regard to the Partnership in all respects is restricted and limited to the amount of the actual capital contributions (and loans, if any) that each Limited Partner makes or agrees to make to the Partnership. The Limited Partners cannot be assessed an additional capital contribution to the Partnership above that which each Limited Partner agrees to make to the Partnership. If additional capital contributions to the Partnership are required and are made by a General Partner, it shall not entitle the General Partner to a greater share of the Partnership Units, or of the profits or cash distributions of the Partnership than otherwise is provided for by this Agreement. 9.02 Loans to the Partnership. Nothing is this Agreement shall prevent or prohibit a General or Limited Partner loaning money to the Partnership on a promissory note or similar evidence of indebtedness for a reasonable rate of interest. Any Partner loaning money to the Partnership shall have the same rights and risks regarding the loan as would any person or entity making the loan who was not a Partner of the Partnership. 8 ARTICLE X Prohibited Transactions During the time of the organization or continuance of this Partnership, neither the General nor Limited Partners shall do any one of the following: (1) Use the name of the Partnership (or any substantially similar name) or any trademark or trade name adopted by the Partnership, except in the ordinary course of the Partnership business; (2) Disclose to any nonpartner any of the Partnership business practices, trade secrets, or any other information not generally known to the business community; (3) Do any other act or deed with the intention of harming the business operations of the Partnership; (4) Do any act contrary to this Partnership Agreement, except with the prior expressed approval of all Partners; (5) Do any act that would make it impossible to carry on the intended or ordinary business of the Partnership; (6) Confess a judgment against the Partnership; (7) Abandon or wrongfully transfer or dispose of Partnership Property, real or personal; (8) Admit another person or entity as a General -or Limited Partner, except with the prior expressed approval of all of the Initial Limited Partners. Further, the General Partner shall not use, directly or indirectly, the assets of this Partnership for any purpose other than carrying on the business of this Partnership, for the full and exclusive benefit of all its Partners. 9 ARTICLE XI Restrictions on Transfers 11.01 Prohibition Against Transfer. Except as set forth in this Agreement, no Limited Partner shall sell, assign, transfer, encumber, or otherwise dispose of any interest in the Partnership without the written consent of the General Partner. 11.02 Permitted Sales. (1) In the event a Limited Partner receives a bona fide offer for the purchase of all or a part of his, her or its interest in the Partnership, the Limited Partner shall either refuse the offer or give the General Partner written notice setting out full details of the offer. The notice, among other things, shall specify the name of the offeror, the percentage of interest in the Partnership covered by the offer, the terms of payment, whether for cash or credit, and, if on credit, the time and interest rate, as well as any and all other consideration being received or paid in connection with the proposed transaction, and any and all other terms, conditions, and details of the offer. (2) Upon receipt of the notice with respect to an offer, the General Partner shall have the exclusive right and option, exercisable at any time during a period of thirty (30) days from the date of the notice, to purchase the interest in the Partnership covered by the offer in question at the same price and on the same terms and conditions of the offer as set out in the notice. If the General Partner decides to exercise the option, he, she or it shall give written notice to that effect to the Limited Partner desiring to sell. The sale and purchase shall be consummated within thirty (30) days after the date of the written notice. If the General Partner does not elect to exercise his, her or its option or waives his, her or its rights in writing, the selling Limited Partner shall be so notified in writing. Subject to any prohibitions or restrictions on transfer imposed by the General Partner for purposes of compliance with applicable securities law, the Limited Partner shall then be free to sell the interest in the Partnership covered by the offer. The sale must be consummated within ninety (90) days thereafter, or the interest shall once again become subject to the restrictions of this Article. The sale, if permitted, shall be made strictly on the terms and conditions and to the person described in the required notice. (3) Any assignment made to anyone not already a Partner shall be effective only to give the assignee the right to receive the share of profits to which the assignor would otherwise be entitled. The assignor shall not be relieved from liability under any agreement to make additional contributions to capital or from liability under the provisions of this Agreement. The assignee shall not have the right to become a substituted Limited Partner. 10 Neither the General Partner nor the Partnership shall be required to determine the tax consequences to a Limited Partner, or the assignee, arising from the assignment of a Limited Partnership interest. The Partnership shall continue with the same basis and capital account for the assignee as was attributable to the owner who assigned the Limited Partnership interest. The Partnership interest of the General Partner cannot be voluntarily assigned or transferred except if it occurs by operation of law. 11.03 Death of Limited Partner. (1) Upon the death of a Limited Partner, at the Effective Date (defined in Paragraph 11.03 (3) below) the deceased Limited Partner's heirs or legatees will have the option of having the Limited Partnership interest pass on to said Limited Partner's heirs or legatees, in which event, the beneficiaries will then be entitled to the rights of an assignee as is provided in Paragraph 11.02 (3) of this Agreement; or (2) In the event that the Limited Partner's heirs or legatees choose not to have the Limited Partnership interest pass on to them, then each General Partner shall have an obligation to purchase from the Estate of the deceased Limited Partner, and the Estate of the deceased Limited Partner shall then have an obligation to sell to the General Partner (and if more than one General Partner then to each General Partner, on a pro rata basis) the interest of the deceased Limited Partner in the Partnership at the price and on the terms and conditions set forth in this Paragraph 11.03. The purchase price for the deceased Limited Partner's proportionate interest in the Partnership shall be the deceased Limited Partner's proportionate interest in the fair market value of the Partnership Property, as determined as hereinafter provided, together with the assumption of all liability for any outstanding indebtedness, liabilities, liens, and obligations relating to the Partnership or the Partnership Property. Within sixty (60) days after the Effective Date the General Partner shall name an appraiser and, within sixty (60) days after the Effective Date the executor or other legal representative of the estate of the deceased Limited Partner shall name_ an appraiser. If either party fails to name an appraiser within the specified time, the other party may select the second appraiser. The two appraisers so selected shall proceed promptly to determine the fair market value of the Partnership Property, taking into consideration any outstanding indebtedness, liabilities, liens, and obligations relating to the Partnership Property. The determination of the fair market value of the Partnership Property by the two appraisers shall be final and binding on all parties. If the two appraisers are unable to agree on the fair market value of the Partnership Property, the two appraisers shall select a third appraiser whose determination as to fair market value shall be final and binding on all parties. The appraisers shall deliver a written report of their appraisal or the appraisal of the third appraiser, as the case may be, to the General Partner and to the 11 executor or other legal representative of the Estate of the deceased Limited Partner. Each party shall pay the fee and expenses of the respective appraiser selected by that party. If a third appraiser is appointed, the fee and expenses of the third appraiser shall be borne one-half (1/2) by the General Partner and one-half (1/2) by the Estate of the deceased Limited Partner. During the period between the date of death and the date the purchase price is paid to the Estate of the deceased Limited Partner, the General Partner shall contribute the deceased Limited Partner's share of any contribution required to be made to the Partnership under the provisions of this Agreement; provided, however, that the amount of any payment made by the General Partner during the period between the date of the deceased Limited Partner's death and the date of the appraisers' report shall be deducted from the amount of the purchase price to be paid to the Estate of the deceased Limited Partner. The purchase price shall be evidenced by a negotiable promissory note in the principal amount equal to the purchase price of the deceased Limited Partner's interest at the rate as computed herein, providing for interest at the rate of six percent (6%) per annum, payable in three (3) equal annual installments, and containing acceleration and other customary clauses. The note shall bear.interest from the date of death of the Limited Partner with the first principal and accrued interest payment being due and payable one (1) year after the Effective Date. The General Partner shall have the right to prepay any and all installments of the note at any time with no premium or penalty. Upon delivery of the note and the assumption by the General Partner of all liability of the deceased Limited Partner for any outstanding indebtedness, liabilities, liens, and obligations relating to the Partnership, the Estate of the deceased Limited Partner shall have no further interest in the Partnership or in its business or assets, and the executor or other legal representative of the Estate of the deceased Limited Partner shall execute and deliver any deeds, conveyances and other instruments that may be reasonably necessary to evidence and render fully effective the transfer of the interest of the deceased Limited Partner in the Partnership and its business and assets. The interest of the deceased Limited Partners shall be acquired by_the General Partner who shall become Limited Partners to the extent of the interest. (3) The deceased Limited Partner's heirs or legatees shall provide written notice to the General Partner, within thirty (30) days after the Effective Date as to which option under Paragraph 11.03 (1) or 11.03 (2) they select for the disposition of the deceased Limited Partner's interest. Absent written notice as required herein, the General Partner shall have the right to select the method of disposition of the deceased Limited Partner's interest as set forth in Paragraph 11.03 (1) or 11.03 (2) of this Agreement. The Effective Date for purposes of this Agreement shall be the later of January 17, 1995 or the date of death of a Limited Partner. 12 ARTICLE XII Termination of the Partnership 12.01 Termination Upon withdrawal, Bankruptcy, Insolvency, Dissolution, Death, or Incapacity of General Partner. The General Partner, effective as of the last day of any calendar year of the Partnership, may voluntarily withdraw from the Partnership as General Partner. A withdrawal shall have the effect of terminating the Partnership as of the close of business on that last day. The bankruptcy, insolvency, dissolution, death, incapacity, or resignation of one General Partner (if there shall at the time of such event then be more than one General Partner) shall not have the effect of terminating the Partnership and the other General Partner shall continue to serve as the General_ Partner. Upon bankruptcy, insolvency, dissolution, death, incapacity, or resignation of both of the General Partner(s), the holders of two-thirds (2/3) of the Limited Partnership Units, in interest, not in number, then outstanding, at a special meeting called for that purpose, may elect to continue the Partnership business and name a new General Partner, in which event the Partnership Units owned by the former General Partner(s) are to be purchased by the new General Partner with the purchase price to be computed as set forth herein. The purchase price for the General Partner's interest in the Partnership shall be the General Partner's proportionate interest in the fair market value of the Partnership Property, determined hereinafter provided, together with the assumption of all liability for any outstanding indebtedness, liabilities, liens, and obligations relating to the Partnership or the Partnership Property. Within ten (10) days after the election of a new General Partner, the Limited Partners shall name an appraiser and the former General Partner and/or his, her or its legal representative shall name an appraiser. If either party fails to name an appraiser within the specified time, the other party may select the second appraiser. The two appraisers so selected shall proceed promptly to determine the fair market_ value of the Partnership Property, taking into consideration any outstanding indebtedness, liabilities, liens and obligations relating to the Partnership Property. The determination of the fair market value of the Partnership Property by the two appraisers selected shall be final and binding on all parties. If the two appraisers are unable to agree on the fair market value of the Partnership Property, the two appraisers shall select a -third appraiser whose determination as to fair market value shall be final and binding on all parties. The appraisers shall deliver a written report of their appraisal or the appraisal of the third appraiser, as the case may be, to the Limited Partners and the former General Partner and/or his, her or its legal representative. Each party shall pay the fee and expenses of the respective appraiser selected by that party. If a third appraiser is 13 appointed, the fee and expenses of the third appraiser shall be borne one-half (1/2) by the Limited Partners and one-half (1/2) by the former General Partner and/ or his, her or its legal representative. During the period between the date of election of the new General Partner and the date that the purchase price is paid by the new General Partner to the former General Partner and/or his, her or its legal representative, any contributions required to be made on behalf of the former General Partner shall be made to the Partnership under the provisions of this Agreement; provided, however, that the amount of any payment so made between the date of election of the new General Partner and the date of the appraiser's report shall be deducted from the amount of the purchase price to be paid to the former General Partner and/or his, her or its legal representative. The purchase price shall be evidenced by a negotiable promissory note in the principal amount equal to the purchase price as computed herein, providing for interest at the rate of six percent (6%) per annum, payable in three (3) equal annual installments, and containing acceleration and other customary clauses. The note shall bear interest from the date of election of the new General Partner with the first principal and accrued interest payment being due and payable six (6) months after the date of election. The new General Partner shall have the right to prepay any and all installments of the note at any time with no premium or penalty. Upon delivery of the note and assumption by the new General Partner of all liability of the former General Partner for any outstanding indebtedness, liabilities, liens and obligations relating to the Partnership, the former General Partner and/or his, her or its legal representative shall have no further interest in the partnership or in its business or assets, and the former General Partner and/or his, her or -its legal representative shall execute and deliver any deeds, conveyances, and other •instruments that may be reasonably necessary to evidence and render fully effective the transfer of the interest of the former General Partner in the Partnership and its business and assets. The interest of the former General Partner shall be acquired by the new General Partner who shall become General Partner to the extent of the interest. 12.02 Voluntary Termination -- Effect of Death or Incapacity of Limited Partner. The Partnership may be terminated upon any date specified in a notice of termination, signed by the General Partners and the holders of two-thirds (2/3) of the Limited Partnership Units, in interest, not in number. The death' or incapacity of a Limited Partner shall have no effect on the life of the Partnership, which shall continue. 12.03 Effect of a Termination on the Partnership. Upon the termination of the Partnership, regardless of how it is terminated, the affairs of the Partnership shall be wound up by the General Partner. If for any reason there is no General Partner, or if they refuse to serve, or are incapable of serving, the holders of a majority of the Limited Partnership Units, in 14 interest, not in number, may appoint or designate a Trustee -in - Liquidation who shall serve to wind up the affairs of the Partnership. The Trustee -in -Liquidation need not be a commercial corporate trustee, need not be bonded, and may be a Limited Partner. Whoever serves to wind up the affairs of the Partnership, the following procedure shall be followed: Upon termination, the assets of the Partnership shall be applied first to payment of the outstanding Partnership liabilities. An appropriate reserve may be maintained in an amount determined by the General Partner or Trustee -in -Liquidation for any contingent liability until the contingent liability is satisfied. The balance of the reserve, if any, shall be distributed, together with any other sum remaining after payment of the outstanding Partnership liabilities, to the Partners in the following order of priority: (1) To the Limited Partners in respect of their share of profits. (2) To the Limited Partners in respect of their capital accounts. (3) To the General Partner in respect of compensation, then profits, then capital. Nothing contained in this Agreement shall defeat the right of either a Limited or a General Partner to require and to have a court -supervised winding -up, liquidation, and dissolution of the Partnership. No Partner shall be entitled to demand a distribution be made in Partnership Property. However, the General Partner may make or direct property distributions to be made, using the property's fair market value as of the time of distribution as the basis for making the distribution. ARTICLE XIII Miscellaneous Provisions 13.01 Amendment. This Agreement may be amended or modified by the Partners from time to time, but only by a written instrument executed by the General Partner, by all of the Initial Limited Partners, and by the holders of two-thirds (2/3) of the Limited Partnership Units, in interest, not in number. 13.02 Notices. Except as may be otherwise specifically provided in this Agreement, all notices required or permitted under this Agreement shall be in writing and shall be deemed to be delivered when deposited in the United States mail, postage prepaid, registered or certified mail, return receipt requested, or by hand delivery, or overnight express delivery, addressed to 15 the parties at the respective addresses set forth in Exhibit A or at such other addresses as may have been previously specified by written notice delivered in accordance with this Paragraph. 13.03 Meetings. Meetings of the Partners shall be held not less than fifteen (15) days nor more than thirty (30) days after receipt of written notice from the General Partner. The General Partner shall give notice of a meeting of the Partners at any time on their own choosing or within five (5) days after they shall receive written demand for a meeting from the holders of two- thirds (2/3) of the Limited Partnership Units, in interest, not in number. 13.04 Applicable Law. This Agreement shall be construed under and in accordance with the laws of the State of Florida and all obligations of the parties created under this Agreement are performable in Dade County, Florida. 13.05 Other Instruments. The parties covenant and agree that they will execute such other and further instruments and documents as are or may become necessary or convenient to effectuate and carry out the Partnership created by this Agreement. 13.06 Headings. The headings used in this Agreement are used for administrative purposes only and do not constitute substantive matters to be considered in construing the terms of this Agreement. 13.07 Parties Bound. This Agreement shall be binding on and inure to the benefit of the parties and their respective heirs, executors, administrators, legal representatives, successors, and assigns where permitted by this Agreement. 13.08 Legal Construction. If any one or more of the provisions contained in this Partnership Agreement for any reason are held to be invalid, illegal, or unenforceable in any respect, the invalidity, illegality, or unenforceability shall not effect any other provision of this Agreement. This Partnership Agreement shall be construed as if the invalid, illegal, or unenforceable provision had never been contained herein. 13.09 Enforcement. In the event any party shall incur legal expenses to enforce or interpret any provision of this Agreement, the prevailing party shall be entitled to recover such legal expenses including without limitation, reasonable attorneys' fees, costs and necessary disbursements, at the trial and appellate levels, in addition to any other relief to which such party shall be entitled. 13.10 Counterparts. This Agreement may be executed in any number of counterparts and each counterpart shall for purposes be deemed to be an original. 16 IN WITNESS WHEREOF, each party has executed this Agreement or a counterpart of it as of the date first above written. General Partner Indian River Investment Communities, Inc. a Florida Co oration. Ted H. Weitzel P Limited Partners: WilliamSawyer BerniceSawye Bernice S. Watson 17 THN 722 91 IN WITNESS WHEREOF, each party has executed this Agreement or a counterpart of it as of this date first above written. General Partner Indian River Investment Communities, Inc. a Florida Corporation. By; President Limited Partners; William Sawyer Bernice Sawyer Bernice S. Watson 17 AFFIDAVIT OF CAPITAL CONTRIBUTIONS The undersigned, who is the only General Partner of Sawyer's Walk, Ltd., declare that the capital contributions of all the Limited Partners in the Partnership are as follows: 1.• The Limited Partners have made capital contributions in the following amounts: Name of Limited Partner Amount of Contribution/ % of Partnership Units William Sawyer 201 NW 7 Street .Unit 404 Miami, FL 33136 Bernice Sawyer 201 NW 7 Street Unit 404 Miami, FL 33136 Bernice S. Watson 5400 Murdock Court Virginia Beach, VA 23464 Indian River Investment Communities, Inc. and William Sawyer $33,333.33 (2%) $33,333.33 (2%) $33,333.33 (2%) Development and Start - Up Services (92%) 2. It is anticipated that the Limited Partners listed above will make no future capital contributions to the Limited Partnership. January 17, 1991 State of Florida ) County of Dade ) Miami, Florida Indian River Investment Commu ities, Inc., a Florida Cor.• ation, as General Partner ei tze , Pre ident The foregoing instrument was acknowledged before me this , as President of Indian River Investment Couununities, Inc., as General Partner of Sawyer's Walk, Ltd., a Florida Limite Partnership. 17day of January , 1991 by Ted H. Weitzel My Commission Expires: .;Notary Public Notary Public, State of Florida My Commission Expires Ocl, 6, 1992 AFFIDAVIT OF CAPITAL CONTRIBUTIONS The undersigned, who is the only General Partner of Sawyer's Walk, Ltd., declare that the capital contributions of all the Limited Partners in the Partnership are as follows: 1. The Limited Partners have made capital contributions in the following amounts: Name of Limited Partner Amount of Contribution/ % of Partnership Units William Sawyer 201 NW 7th Street Unit 404 Miami, Fl. 33136 Bernice Sawyer 201 NW 7th Street Unit 404 Miami, Fl. 33136 Bernice S. Watson 5400 Murdock Court Virginia Beach, VA 23464 Indian River Investment Communities, Inc. and William Sawyer $ 5,000 (2%) $ 5,000 (2%) $ 5,000 (2%) Development and Start-up Services (92%) 1-0 2. It is anticipated that the Limited Partners listed above will make no future capital contributions to the Limited Partnership. • March 24, 1997 Miami, Florida Indian River Investment Communities, Inc., a Florida Corporation, as General Partner Bv: ed H. Weitzel, 'residet and Registered Agent State of Florida ) County of Dade ) The foregoing instrument was acknowledged before me this 24 day of March, 1997 by Ted H. Weitzel, as President of Indian River Investment Communities, Inc., as General Partner of Sawyer's Walk, Ltd., a Florida Limited Partnership. My Commission Expires: Notary Public 104;- HORACE C. DAVIS MY COMMISSION / CC 492839 EXPIRES: October 29, 1999 Banded Thu Wry Pubic UndenMnen STATE OF FLORIDA COUNTY OF DADE BEFORE ME, the undersigned authority, personally appeared TED H. WEITZEL, to me known to be the person described in and who acknowledged before me that he consented to the appointment as Registered Resident Agent of Sawyer's Walk, Ltd to accept service of process within the State. MY COMMISSION E �' 3' v HORACE C. DAVIS MY COMMISSION M CC 492639 EXPIRES: October 29, 1999 , ' Boded Thru Notary Pubic UndemRkKs a NOTARY PUBLIC 2004 LIMITED PARTNERSHIP ANNUAL REPORT Due By May 1, 2004 DOCUMENT #A97000000734 SAWYERS WALK, LTD. , .;,,., ,, Prnnpm Place of 6, anus Mauulg Auoress 269 NORTHWEST 7TH STREET 269 NORTHWEST 7TH STREET MIAMI, FL 33136 MIAMI, FL 33136 II1J��IIryp�II'Mtly uy Iq1 ppp'''IWy� ��Mq�q ��gre yp��ppl�Il 111ypy � I'I 2 Prnapal Paced ate... S. Mam„ Auowe 201 N. W. 7th Street 1II■�� 11�16 M � I�P IW IY IY W � ai Wa iY aura. Api a. me S.aa. Apt 02252004 Cng-LP CR2E003(10'09) Cry 4 Sure Cur 6 Stale Miami, El. 4. FEI Nurnoer 65.0735596 APpbad For Nd',wawa.. _W Country 2.P 33136 C.s.lpSA ,. z.,,,, d 3uxu Dew. ❑ M•Rnu5A W"Y 0. tale end Aaw..a of Curren Renewed Agra 1. Noma See Adel«o of fa" R.ermrW A4.re WEITZEL, TED H INDIAN RIVER INVESTMENT COMMUNITIES, INC. 269 NORTHWEST 7TH STREET MIAMI, FL 33136 .,.... Wet U1 [V:P$116i` j ep1dO181 4401 Miami FL LP33136 A. Tna am.. nmao ant fr, ua61w,1 u. ar Pvi...s. ul :, Nor u as l,.ystm.., vow ....pwlr..r nont .0 r w .. do Stole a Fu'ua I m unulw wan. ar'u acup1 no oouvocos drop 6, SIGNATURE Ted H. Weitzel 4-19-04 a. Capaa Co.-,.od,db ,ra,.,, d. r,,n,n, S 15,000.00 IQ of al COnlnOuKels .FLORID., o Odle. A GENERAL PARTNER THAT IS A BUSINESS ENTITY MUST BE REGISTERED AND ACTIVE WITH THIS OFFICE NOTE General Partners MAY NOT be changed on 8M form; An Amondfflont albs* E. 111W Co change a general partner. 12. GENERAL PARTNER INFORMATION 13. ADDRESS GRANGES ONLY Ofrourin r voei ilxt[14.us, . , ,r 2r P97000014392 INDIAN RIVER INVESTMENT COMMUNITIES. INC. 269 NORTHWEST 7TH STREET MIAMI. FL 33136 strir.pors' En-, tv 201 N. W. 7th Street 401 Miami, F1. 33136 .....r r lwrf na0r,aoxtia m-sr ne arrtr.meae ❑n fiQW 4444 il2fi! 6WPFSi ..n 1.IP STPE4114064455 Gn,511P Alu[af r SINE 2? un-t W EI 600,*S aN.ST•N, ' r.411.71441111 M14E111.04.44 :1m-ai 1P SMUT talAni nn ar '.W r .w,Kt x,,,, .1aur.mxas la. I nme.o anal lna Y.e NIC .cola ttl wYn Ins whit Po. nd Waey' bt s span .a a mltl re or v fagot Yla, naW Ire rant, m v I�u ve wa report w rayu.ao or Cn.P SIGNATURE' e aatl.Pl,,,. alaal .n YCIM 119.07131.1 FIo'loa ]talWes Ivan. c.n.v 1 Irb nw'n= orl. b wym . as Y 1i1a ,1Nm win. Ula l m a Ganral Yarine(d ma Imbd pyirorWp d !'lunno ilaWds Ted H. Weitzel 44—L9-04 5 377 2509 POINCIANA VILLAGE OF MIAMI, LTD. 269 N.W. 7TM STREET MIAMI. FLORIDA 33136 (305) 358.8030 Pay [o [lie order of Florida Department of State One H.lndred Ninety Three & 75;00 WACHOVIA BANK, N.A. ACH R/T 067006432 MIAMI, FLORIDA 33166 d Sawyer's Walk, Ltd. For#A97000000734 3646 63-643/ 670 Date May 12, 2004 1 $193.75 Dollars 8 00000364610 406 70064321: 26923056461,S 211a CERTMF:GATE OP` 1NCORPORAT=ON Olr IND ZAN RIVER =N'VESTMENT COMMLJNJETTM t . =NC We, the undersigned, hereby make, subscribe and acknowledge this Certificate of Incorporation for the purpose of becoming a corporation under the laws of the State of Florida. 1. The name of the corporation shall be: INDIAN RIVER INVESTMENT COMMUNITIES, INC. . and its existence shall be perpetual. 2. The general nature of the business to be transacted shall be real estate development and to transact any lawful business for which corporations may be incorporated under the laws of the State of Florida and to have all otfieowers provided by the laws of the State of Florida. 3. The capital stock of the corporation shall consist of 100 shares of $1.00 Dollar par value. 4. The principal office of the corporation shall be: 269 N. W. 7th Street, Miami, Florida, 33136 5. The number of the directors shall be at least one (1) and the name and post office address of the first Board of Directors and Officers are: NAME Ted H. Weitzel Horace C. Ddvis Randall J. Weitzel John C. Harrison, Jr. OFFICE Director Director. Director Director ,POST OFFICE ADDRESS 269 N. W. 7th Street Miami, Florida 33136 Same Same Same cn Lp 7-3 rn rn 6. The Corporation designates Ted H. Weitzel 269 N.W. 7th Street, Miami Florida 33136, as its Resident Agent, to accept service of process within this State. IN WITNESS WHEREOF, the undersigned hereby subscribed to this Certificate of Incorporation at Miami, Dade County, Florida, this 19th day of December, 1990. I Ted H. Weitzel CERTIFICATE DESIGNATING PLACE OF BUSINESS OR DOMICILE FOR SERVICE OF PROCESS WITHIN THIS STATE, NAMING AGENT UPON WHOM PROCESS MAY BE SERVED In pursuance of Chapter 48.091, Florida Statues, the following is submitted, in compliance with said Act. First that INDIAN RIVER INVESTMENTS COMMUNITIES, INC., desiring to organize under the laws of the State of Florida with its principal offices ---as indicated in the Certificate of Incorporation at 269 N.W. 7th Street, County of Dade, State of Florida, has named Ted H. Weitzel located at 269 N.W. 7th Street, Miami, Florida, 33136, as Registered Resident Agent to accept Service of Process within this State. Having been named to accept Service of Process for the above stated corporation at the place designated in this Certificate, I hereby accept to act in this capacity and agree to comply with the provisions of said Act relative to keeping open said office. Ted H. Weitzel STATE OF FLORIDA COUNTY OF DADE BEFORE ME, the undersigned authority, personally appeared TED H WEITZEL, sole subscriber, to me known to be the person described in and who executed the foregoing Certificate of Incorporation, who acknowledged before me that he subscribed thereto and did so for the purpose and uses therein mentioned and that TED H. WEITZEL consented to the appointment as Registered Resident Agent of the corporation to accept. service of process within the State. MY COMMISSION EXPIRES: tiM.:f HORACE C. DAVIS sin .= MY COMMISSION/ CC 492639 �•�°�.-;; EXPIRES:October29,1999 ?Kral`°c•` Boded Thni Notary Public Undenv tte1 NOTARY PUBLIC D rrl CTti d) Tomo w7,3 N r_,_ r - ▪ U (-- C3fn Y 411 cow 2004 FOR PROFIT CORPORATION ANNUAL REPORT (AR) DOCUMENT # P97000014392 1. Emit; N31ne INDIAN RIVER INVESTMENT COMMUNITIES, INC. 5 i `= c PrmC.^.a: Pta.e or Bustness Nadeau -,03ress 269 NW 7TH STREET 269 NW 7TH STREET MIAMI FL 33136 MIAMI FL 33136 2. P,.-_•p3,Pi0000Business 3. `'Ol Irl_uWe'_7th SY1'PPt11111II1111I1I1II1tIl1I11��1�[ I 1 __.le ,. : 210 ' _wee -:pi 3 ell #401 MOORE CR2E034 {1103) CI s Stale City s State Miami, Fl. 4. FEI Nrlm0er 65-0735596 Apples For Not Applicable Cdunuy - 33 i36 C,.,,,.,.,, USA 5. Certificate of Status Desued ❑ $8.75 Additional Fee Required O. Name and Address of Current Registered Agent I 7. Name and Address of New Registered Agent WEITZEL, TED H Ple,n-a 201 NW 7TH STREET 401 Slreat Address iP O. Boa Number Is Not Acceptable) MIAMI FL 33136 _111 FL Zip Code 8. T',= Sine nomad cnt,ly S4d(10 INS 4lalen1c0110r Inc P.d {.u_c Jl Cnaogwg ,Ie c,Jn1c,,:,1 ,Jn..c .,I regulcica c4Vll Oi DOIn ill the Slate of Florida 1 am famnlar wan. and accepl Ile .;bl.gal,ons 01 tegtstereo agent SIGNATURE Lure FILE NOW!I! FEE IS $150.00 After May 1, 2004 Fee will be $550.00 Make Check Payable to Florida Department of State 9- Election Campaign Finanang $5.00 May Ba trust Fund Contnbuaon. ❑ Added lD Fees 10. OFFICERS AND DIRECTORS 11, AODITIONSICHANGES TO OFFICERS AND DIRECTORS IN 11 nil,' ;nide STRE--D:AiS 0Ih-4-44' PD 0 Delete WEITZEL. TED H 201 NW 7TH STREET 0401 MIAMI FL 33136 ulrt NAME 1111Ee1w00400 CITY-5r•27P 0 CI>ange ❑ Aodmon 1LE rw06 sr'.Ee1-.X60 : C:11'•T-74' SD 0 Delete DAVIS, HORACE C 13234 NW 13TH STREET PEMBROKE PINES FL 33028 MU [taut RUED wERESS 017-S1-ZIP ❑ Change ❑ FD01e0n 4IL4 1a11 11nEi= ,:ir:4e» :111-1T.L D 0 Delete WEITZEL, RANDALL J 201 NW 7TH STREET 401 MIAMI FL 33136 r11U 1.341E SRNEE1 4000ESS CITY-sr-4P ❑ Change 0 MO" are m�r4. 0lsEET 42i.-Y0_ " -:7 j D 0 Delete HARRISON, JOHN C JR 1000 NW 54TH STREET MIA3vit EL 33127 414E AM* ''111461 A000ESS city 51-LP aenange 0 Addition 247 Minorca Avenue Coral Gables, Fl . 33134 •1r1i 0 Delete ,i1nli 41010 laEcc Qr1-S- ' aitE 114A4 WEE A00FESS Clfr ST-21P 0 Change ❑ Fb0n10n 1'1t= 0 Ueiete N.:4I STREET i,..ii „211 . 0-s nUE /WA '1114ECI.1140lirs: c,lv ;r .11, ❑ Change ❑ Adek4On — 12, I-tereny 22mty mat ose ,nlormaaon mc:Glec on 14 0 re1On Cr supple 01 . corpot anon o, me racetver e Cn J1gea et- on an au3cnmeru m SIGNATURE: upplieo wan Tea tiling Joe; IIOt qu3hW I31 Ito a. ,p la4, stated in Section 1190713o1L Flouaa Statutes. I turner cer1Jy mar me Ini0rma0On ,dial tenon a Irue 'cno .,..Cw. 0 ,tu..r mat my mgn c 5na11 nave in, Sane tegai effect as 11 made Wider 03Ih Mal I am an OQ4Oer or dlleClO4 Ifuslee 2lnpuwalcu 1., .:..c,..,tc 111,s tap.,.' _5 ,vq I J Ly Cnapta, U0: Florida Statutes aria Inat my name appears In Block 10 dr Block 1 7 If -n - 1e SS will 311 Carl, I,he cmpuwemJ / ed H. Weitzel 4-19-04 305-377-2509 SIGRATURE AND',ED OR PRWTE0 RAYS OF 51 RG ER OR OIRECIO Dew 4y0tahor., POINCIANA VILLAGE OF MIAMI, LTD. 269 N W. 7TH STREET MIAMI, FLORIDA 33136 ,305) 358-9030 Florida Dept. of State One Hundred Fisty 0 00j100 WACHOVIA BANK, N.A. 3633 63-643/670 VdIE: - A1,ril19, 2004 ACI1 R.1 067006432 I� ._.._ . _.. MLV.11, FLORID. 33166 Indian River Investment Communities, Inc. 7J •,*P97000014392 11'000036310 t:0670061,321:2692305g1,65211' 14 rs $ 150.00 --Dliilars EXHIBIT X SAWYER'S WALK, LTD. PARTNERS General Partner: Indian River Investment Communities, Inc. Limited Partners: # 1564509_v24 2% Shareholders: Ted H. Weitzel 25% Horace C. Davis 25% John C. Harrison 25% Randall J. Weitzel 25% William Sawyer 2% Bernice Sawyer 2% Bernice S. Watson 2% Indian River Investment 92% Communities, Inc. and William Sawyer 55 EXHIBIT Y NEW SAWYER'S WALK PARTNERS Crosswinds at Poinciana, LLC 95% Indian River Investment Communities, Inc. 5% # 2574819_v1 EXHIBIT Z AMENDED AND RESTATED PARTNERSHIP AGREEMENT FOR SAYWER'S WALK LTD. To be provided within 30 days of the Effective Date of the Settlement Agreement. # 2574813 v1