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HomeMy WebLinkAboutCRA-R-08-0064 Legislation• • rr) Op City of Miami Legislation CRA Resolution City Hall 3500 Pan American Drive Miami, FL 33133 www.miamigov.com File Number: 08-01332 Final Action Date: A RESOLUTION OF THE BOARD OF COMMISSIONERS OF THE SOUTHEAST OVERTOWNIPARK WEST COMMUNITY REDEVELOPMENT AGENCY, WITH ATTACHMENT(S), AUTHORIZING THE EXECUTIVE DIRECTOR TO EXECUTE AN AGREEMENT, IN SUBSTANTIALLY THE ATTACHED FORM, WITH DEV-CON URBAN PARTNERS & AFFORDABLE, LLC FOR THE DEVELOPMENT OF PARKING LOT P-2, AT 229-247 N.W. 12TH STREET, MIAMI, FLORIDA. WHEREAS, the Southeast Overtown/Park West Community Redevelopment Agency ("CRA") is responsible for carrying out community redevelopment activities and projects within the Redevelopment Area in accordance with the approved Redevelopment Plan; and WHEREAS, on April 28, 2008, the Board of Commissioners directed the Executive Director to issue a Request for Proposals ("RFP'°) for development of parking lot P-2, at 229-247 N.W. 12th Street ("CRA parking lot P-2"); and WHEREAS, on May 7, 2008, the CRA issued an RFP for the development of CRA parking lot P-2; and WHEREAS, two (2) responses to the RFP were received by the Clerk of the Board on June 5, 2008; however, one of the responses was untimely; and WHEREAS, a selection committee was formed to evaluate the responses and recommended negotiation with Dev-Con Urban Partners & Affordable, LLC ("Dev-Con"); and WHEREAS, the Board of Commissioners, by Resolution No. CRA-R-08-0044, passed and adopted on September 3, 2008, directed the Executive Director to attempt to negotiate an agreement with Dev-Con; and WHEREAS, the proposal submitted by Dev-Con consisted of approximately 40 affordable rental units, replacement of existing parking, and commercial/retail space; and WHEREAS, Dev-Con and the CRA have negotiated an agreement for the development of the CRA parking lot P-2 in accordance with the proposal; and WHEREAS, the Board of Commissioners wishes to authorize the Executive Director to execute an agreement with Dev-Con for the development of CRA parking lot P-2; NOW, THEREFORE BE IT RESOLVED BY THE BOARD OF COMMISSIONERS OF THE SOUTHEAST OVERTOWN/PARK WEST COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF MIAMI, FLORIDA; Section 1. The recitals and findings contained in the Preamble to this resolution are City of Mlaird Page I of' Printed On: I I/14/200,S File Number: 08-01332 • adopted by reference and incorporated herein as if fully set forth in this Section. Section 2. The Board of Commissioners authorizes the Executive Director to execute an agreement, in substantially the attached form, with Dev-Con Urban Partners & Affordable, LLC for the development of parking lot P-2, at 229-247 N.W. 12th Street, Miami, Florida. Section 3. This resolution shall become effective immediately upon its adoption. APPROVED AS TO FORM AND CORRECTNESS: WIL AM R. BLOOM SPECIAL COUNSEL City of Miami Page 2 of 2 Printed On: 11/1412008 • • • DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT (the "Agreement") is made as of the day of November, 2008, by and between DEV-CON URBAN PARTNERS & AFFORDABLE, LLC, a Florida limited liability company (the "Developer"), and the SOUTHEAST OVERTOWN/PARK WEST COMMUNITY REDEVELOPMENT AGENCY, a public agency and body corporate created pursuant to Section 163.356, Florida Statutes (the "CRA"); RECITALS A. The Southeast Overtown/Park West Project area was designated as a community redevelopment area (the "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. B. The CRA issued a request for proposals (the "RFP") for the development of a parking lot P-2 located within the Redevelopment Area which is more particularly described on Exhibit "A" (the "Property"). C. In response to the RFP Developer submitted a proposal for the development of approximately forty (40) affordable rental units and approximately Eight thousand eight hundred (8,800) rentable square feet of commercial space on the Property, all as more particularly described in the proposal submitted by Developer (the "Proposal"). D. Based upon the evaluations of all proposals submitted to the CRA in response to the RFP, the proposal submitted by Developer was selected and pursuant to Resolution Number , the Board of Commissioners authorized the executive director of the CRA (the "Executive Director") to negotiate the definitive terms of the transaction contemplated by the Proposal. E. Based upon such negotiations the Developer has agreed to lease the Property from the CRA and the CRA has agreed to lease the Property to Developer, subject to the terms and conditions hereinafter set forth. 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. 2. PROPERTY. The property to be leased by the CRA to Developer at closing consists of the Property and all appurtenances belonging thereto, including any and all rights, privileges and easements in any way pertaining thereto, all right, title and interest of the CRA in and to any adjoining sidewalk and in and to any adjoining street or alley. • • • 3. DEPOSIT. Simultaneously with the execution of this Agreement, Developer shall deliver to Chicago Title Insurance Company, as escrow agent (the "Escrow Agent"), the sum of One Hundred Thousand and No/100 Dollars ($100,000.00) (the "Deposit"). Upon receipt of Developer's tax identification number, the Escrow Agent shall invest the Deposit in an interest - bearing account. All interest accrued or earned thereon shall be paid or credited to Developer except in the event of default of Developer, in which event the Deposit together with the interest accrued thereon shall be disbursed to CRA, as liquidated damages and a complete settlement of all liability of Developer hereunder, except as herein provided. 4. [Intentionally Deleted] 5. INSPECTION PERIOD. 5.1 Inspections. Developer shall have until 5 p.m. on the sixtieth (60th) day after the Effective Date, as hereinafter defined, (the "Inspection Period") to perform, at Developer's sole cost and expense, such investigations and inspections of the Property the Developer, in Developer's sole and absolute discretion deems appropriate, including, without limitation, soil tests, zoning investigations, utility availability and environmental matters (collectively the "Inspections") to determine whether the Property is acceptable to Developer, in its sole discretion. Prior to performing any on -site Inspections, Developer shall provide at least one (1) business day's prior written notice to 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). 5.2 Restoration. Following any such Inspections, Developer shall promptly restore the Property to the condition existing immediately prior to such inspections. The Inspections shall be conducted in accordance with all applicable laws and by licensed and insured professionals, and Developer shall cause its inspectors to obtain, at Developer's sole cost and expense, any and all licenses and permits required to conduct the Inspections, as applicable. 5.3 Environmental Audit. Should Developer 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 acknowledges that Developer shall be authorized, at Developer's sole cost and expense, to obtain the Phase II Report during the Inspection Period. 5.4 Disclosure. Developer agrees that in the event the need arises to notify, under applicable laws, any federal, state or local public agencies of any conditions at the Property as a result of the Inspections performed by Developer, its agents, employees, contractors and/or representatives, Developer shall provide the Executive Director with any pertinent reports, written material or other evidence of the condition requiring such disclosure, if any. Any required disclosures shall be made directly by the CRA, if deemed necessary thereby, and not Developer, to any such public agencies, unless the Developer is required to make such disclosures by applicable law, and the CRA fails to timely make such disclosures. • • • 5.5 Indemnification. Developer shall assume all risks associated with the Inspections and agrees to indemnify and hold harmless the CRA 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 Developer's agents, employees, contractors and other representatives in or upon the Property for the purpose of the Inspections. The foregoing indemnification obligations of Developer shall survive the expiration or termination of this Agreement. 5.6 Insurance. Developer shall, prior to entering the Property and performing any Inspections, provide to the CRA evidence of insurance by Developer and its contractors, as applicable, as specified on Exhibit "B" attached hereto, insuring against any liability by any one or more of Developer, its 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 Developer, its agents, employees, contractors or other representatives in or upon the Property for the purpose of the Inspections. Developer shall provide the CRA with a certificate of insurance evidencing such insurance coverage, naming the CRA as additional insureds thereon and which insurance coverage shall be kept in force until the expiration or early termination of this Agreement. 5.7 Acceptance of Property. If for any reason whatsoever Developer, in its sole discretion, determines during the Inspection Period that it does not wish to proceed with the transaction contemplated by this Agreement, Developer shall have the absolute right to terminate this Agreement by giving written notice of such termination to the CRA in the manner hereinafter provided to give notices prior to the expiration of the Inspection Period. Upon the CRA'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 those obligations which expressly survive the termination. If Developer does not terminate this Agreement prior to the expiration of the Inspection Period, then it shall be presumed conclusively that Developer has had adequate opportunity to review and inspect all portions of the Property, including, without limitation, the environmental condition of the Property and, Developer has determined that the condition of all portions of the Property are satisfactory to Developer and Developer has accepted every portion of the Property in its "AS IS, WHERE IS, WITH ALL FAULTS" condition. 5.8 No Lien. Developer shall not create or permit to be created any mechanic's liens upon the Property, or any part thereof, as a result of the Inspections. If any lien shall at any time be filed against the Property, or any part thereof in connection with the Inspections, Developer shall cause same to be discharged or transferred to bond in accordance with applicable laws within thirty (30) days after Developer first becomes aware that such lien has been recorded against the Property. This provision shall survive the expiration or termination of this Agreement. 5.9 CRA Deliveries. Prior to the date of this Agreement, the CRA has provided to Developer copies of all surveys, title policies and environmental studies which the CRA has been able to locate with respect to the Property (collectively the "CRA Deliveries"). Any reliance upon the CRA Deliveries is at the sole risk of Developer and the CRA makes no • • • representations or warranties, express or implied, with respect to the accuracy or completeness of the CRA Deliveries, and any reliance upon same is at the sole risk of Developer. 5.10 Disclaimer of Representations by Developer. Developer hereby expressly acknowledges and agrees that, except as specifically provided in this Agreement: 5.10.1 The CRA makes and has made no warranty or representation whatsoever as to the condition or suitability of any portion of the Property for the Development Plan, as hereinafter defined. 5.10.2 The CRA makes and has made no warranty, express or implied, with regard to the accuracy or completeness of any information furnished to Developer, and the CRA shall not be bound by any statement of any broker, employee, agent or other representative of the CRA. 5.10.3 The CRA has made no representations, warranties or promises to Developer not explicitly set forth in this Agreement. 5.10.4 The CRA has made no representations or warranties, express or implied, with regard to the neighborhood, that the Redevelopment Area will be developed, or as to the precise type or quality of improvements that will be constructed within the Redevelopment Area or the timing thereof. 5.10.5 The CRA makes and has made no representation or warranty, express or implied, concerning any portion of the Property, its 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. 5.11 Developer specifically acknowledges that the transaction contemplated by this Agreement and the time frame for performance by Developer under this Agreement is not contingent upon the redevelopment of the Redevelopment Area, the removal of slum or blight from the Redevelopment Area, the reduction of crime in the Redevelopment Area or the status of any other projects in the Redevelopment Area. 5.12 Copies of Reports. Developer shall provide the CRA with copies of any third party reports prepared for Developer regarding the physical condition of the Property within ten (10) days of receipt of same. 6. TITLE AND SURVEY. 6.1 Developer shall obtain a title insurance commitment (the "Commitment") and a survey (the "Survey") of the Property, at the Developer's sole cost and expense. The Commitment and the Survey shall show the CRA to be vested in fee simple title to the Property, subject to each of the following (the "Permitted Exceptions"): 6.1.1 Ad valorem real estate taxes and assessments for the year of closing and subsequent years. 4 • • • 6.1.2 All applicable laws, ordinances and governmental regulations, including, but not limited to, all applicable building, zoning, land use, environmental ordinances and regulations. 6.1.3 Any matters arising by, through, or under Developer. 6.1.4 Those matters listed on Exhibit "C" attached hereto and made a part hereof. 6.2 Developer shall have until 5:00 p.m. on the sixtieth (60th) day following the Effective Date (the "Title Review Period") to obtain and examine the Commitment and the Survey. Developer shall promptly provide the CRA with a copy of the Commitment and the Survey upon Developer's receipt of same. The survey shall be certified to Developer and the CRA. If the Commitment and Survey reflect defects in the title to the Property, Developer shall, no later than the expiration of the Title Review Period, notify the CRA in writing of the defect(s). If Developer fails to give the CRA written notice of the defect(s) prior to the end of the Title Review 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 Developer has given CRA written notice of defect(s) rendering title unmarketable prior to the end of the Title Review 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 does not elect to cure the title defect(s), Developer shall have the option, to be exercised within ten (10) days after Developer receives written notice from the CRA that the CRA has elected not to cure the title defect(s), 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 Escrow Agent shall disburse the Deposit, together with all interest accrued thereon, to the Developer and the parties shall be released from any further obligations under this Agreement, except for those obligations that expressly survive the termination of this Agreement. 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 commercially reasonable efforts to cure same (the "Cure Period"). If the CRA elects to cure the title defect(s), the CRA shall discharge any lien(s), judgment(s) or other matters affecting title to the Property in a liquidated amount. The CRA shall not be required to commence litigation to resolve any matters. In the event the CRA attempts to cure the title defects and the CRA is not able to cure the defect(s) prior to the end of the Cure Period, Developer shall have the option, to be exercised within ten (10) 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 Escrow Agent shall disburse the Deposit, together with all interest accrued thereon, to the Developer and the parties shall be released from any further obligations under this Agreement, except for those obligations that expressly survive the termination of this Agreement. 6.3 In the event of any new title defect(s) arising from and after the effective date of the Commitment and prior to the Closing Date, the CRA shall use commercially reasonable efforts to cure such title defect(s) prior to the Closing Date. The CRA shall discharge any lien(s), judgment(s) or other matters affecting title to the Property that are in a liquidated • • • amount. 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 Closing Date after using commercially reasonable efforts, Developer shall have the option on the Closing Date of: (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 Deposit, together with all interest accrued thereon, shall be returned to the Developer and the parties shall be released from all further obligations under this Agreement, except for those obligations that expressly survive the termination of this Agreement. 7. DEVELOPMENT PLAN. 7.1 Preliminary Development Plans. Developer intends to construct an eight - story mixed use, LEED (as hereinafter defined) certified building on the Property containing (i) forty (40) affordable rental units (each a "Unit", and collectively the "Units"), consisting of five (5) one bedroom/one bathroom units containing approximately 575 square feet each, twenty (20) two bedroom/one bathroom units containing approximately 830 square feet each, ten (10) three bedroom/ one bathroom units containing approximately 985 square feet each, and five (5) three bedroom/two bathroom units containing approximately 1025 square feet each, of which all Units will be washer/dryer unit ready; (ii) approximately square feet of common areas space to be utilized for the benefit of the residents of the Units, which area shall consist of a community room containing approximately square feet (the "Community Room"), a learning center containing approximately square feet (the "Learning Center"), a daycare center containing approximately square feet (the "Daycare Center"), a laundry room located on each residential floor and each containing approximately (�) square feet (collectively, the "Laundry Rooms", together with the Daycare Center, the Community Room, and the Learning Center are collectively, the "Common Area"); (iii) approximately 8,800 rentable square feet of commercial space (the "Commercial Space"); and (iv) a _ story parking garage containing approximately one hundred four (104) parking spaces (the "Parking Garage"), of which twenty four (24) parking spaces will serve the Commercial Space, sixty (60) parking spaces will serve the residents of the Units, and twenty (20) parking spaces, located on the lower level of the Parking Garage, shall be designated for use by the public and made available to the public at no charge (the "Public Parking Spaces") (the Units, the Commercial Space, the Common Area, and the Parking Garage (including the Public Parking Spaces are collectively, the "Project"), to be developed substantially in accordance with the preliminary development plans for the Project, the preliminary site plan for the Project, and a preliminary project schedule for the Project, all of which are attached hereto as Exhibit "D" (the "Preliminary Development Plans"). 7.2 Detailed Development Plan. Within sixty (60) days of the Effective Date, Developer shall submit to the Executive Director for review and approval a detailed plan for the Project which shall be substantially consistent with the Preliminary Development Plans (the "Detailed Development Plans") which shall include, without limitation, the following: (i) site plan for the Project; and (ii) a project schedule for the Project; and (iii) Strep schematic design documents for the Project. • • • 7.3 Approval by CRA. All aspects of the Detailed Development Plans, including, without limitation, the Project design, and the 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 and consistent with the pending amended redevelopment plan for the CRA Redevelopment Area dated November, 2004 for the CRA (the "CRA Development Requirements"). 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. 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 all aspects of the Project. The Executive Director shall have fifteen (15) days after receipt of the Detailed Development Plans to approve same. If the Executive Director fails to timely respond, the submitted Detailed Development Plans 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 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 Preliminary Development Plans and the CRA Development Requirements and the requirements of this Agreement. 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 or deemed approved by the Executive Director. The Executive Director and Developer 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, Developer 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 or deemed approved by the Executive Director, shall mean the "Development Plan". 7.4 Development Requirements. Developer shall be required to develop the Project substantially in accordance with the Development Plan. Any material 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, the CRA Development Requirements and this Agreement. The Development Plan shall be incorporated into the Covenant, as hereinafter defined. 7.5 Development Time Frame. 7.5.1 Project Schedule. Developer shall 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 Covenant. 8. DEVELOPMENT AND FINANCIAL APPROVALS. 8.1 Development of Project. As soon as available but in no event later than one hundred fifty (150) days of the Effective Date, Developer shall submit to the Executive Director for review and approval, which approval shall not be unreasonably withheld, conditioned or delayed the following: 7 • • • 8.1.1 Budget. A detailed budget reflecting all hard and soft costs anticipated to be incurred by Developer in connection with the development of the Project (the "Budget"). 8.1.2 Plans and Specifications. The proposed plans and specifications for the Project which (i) shall be completed in accordance with the Development Plan, (ii) shall be Leadership in Energy and Environmental Design ("LEED") certified at level gold, and (iii) shall be of sufficient detail to enable Developer to obtain a building permit with respect to the Project (the "Plans and Specifications"). 8.1.3 Project Team. The names, together with background information, with respect to all proposed members of the development team for the Project (the "Development Team"), including without limitation, the architect, the structural engineer, the civil engineer, and the general contractor for the Project. The Executive Director may withhold approval with respect to (i) an individual who has committed a material breach of 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; or (iii) is on the United States Treasury Department's Office of Foreign Asset Control List of Specifically Designated National and Blocked Persons or similar governmentally issued "terrorist" list. The CRA acknowledges that the proposed members of the Development Team identified on Exhibit "E" attached hereto have been approved by the CRA. 8.1.4 Construction Contract. The Construction Contract for the Project (the "Construction Contract"), together with the "schedule of values" for the Project, which shall include the obligation of the general contractor to comply with the minority participation requirements set forth in Section 10.2.1.1 and 10.2.3.1 of this Agreement. 8.1.5 Construction Schedule. A detailed schedule for development and construction for the Project (the "Construction Schedule"). 8.1.6 Minority Participation. Evidence of compliance with the applicable minority participation requirements under Section 10.2.1 and 10.2.2 with respect to architectural services and construction services for the Project. 8.1.7 Loan Commitment. A loan commitment from a financial institution evidencing that Developer has obtained a construction loan commitment for the development of the Project (the "Loan Commitment") which shall be in form and substance acceptable to the Executive Director. 8.1.8 Equity. Evidence reasonably satisfactory to the Executive Director that Developer has sufficient equity available to meet the equity requirement of the Loan Commitment with respect to the Project (the "Equity"). 8.1.9 Tri-Party Agreement. The CRA, Developer, and the Developer's lender providing financing in accordance with the Loan Commitment (the "Lender") shall agreed to the terms of an agreement (the "Tri-Party Agreement") in form and substance acceptable to the Executive Director, which will include, without limitation, the following: • • • 8.1.9.1 The disbursement of the Deposit and the CRA Development Contribution, as hereinafter defined. 8.1.9.2 The procedure for submission of monthly draw requests and partial lien waivers to the CRA and to the Lender, for review and approval. 8.1.9.3 The inspection of the Project during construction for the benefit of the CRA and the Lender, and approval of the percentage of work completed. 8.1.9.4 The approval of the Budget and any amendments thereto by the CRA and the Lender. 8.1.9.5 The approval of the re -allocation of funds to different line items in the Budget by the CRA and the Lender. 8.1.9.6 The determination of whether there are adequate funds included in the Budget to complete the Project and whether the Budget is "in balance" by the CRA and the Lender. If it is determined that due to cost overruns the Budget is not "in balance" the Developer will be required to fund the amount determined by the CRA and the Lender, to keep the Budget "in balance" prior to there being any further disbursement of the CRA Contribution. 8.1.9.7 The procedure for approving change orders by the CRA and the Lender. 8.1.9.8 The procedure for approving changes to the Plans and Specifications by the CRA and the Lender. 8.2 The Executive Director shall have fifteen (15) days after receipt of each of the items required by Section 8.1 to review and approve same, which approval shall not be unreasonably withheld. In the event of disapproval of any such item, the Executive Director shall specify the reasons for such disapproval. In such event the Developer shall utilize its good faith efforts to address the comments and concerns of the Executive Director. • • • 9. CRA CONTRIBUTION. The CRA covenants and agrees to allocate One Million Six Hundred Thousand and No/100 Dollars ($1,600,000.00) for the administration, design and development and administration of the Project (the "CRA Contribution"). Provided all of the CRA Conditions Precedent are satisfied or waived by the CRA, the CRA shall contribute to the Project One Million Four Hundred Thousand and No/100 Dollars ($1,400,000.00) (the "CRA Development Contribution") to be paid to the Developer in accordance with the terms of the Tri- Party Agreement. The balance of the CRA Contribution in the amount of Two Hundred Thousand and No/100 Dollars ($200,000.00) shall be utilized by the CRA to pay attorney fees and costs incurred by the CRA in connection with the negotiation of this Agreement , the Lease, as hereinafter defined, and the Tri-Party Agreement and administrative costs and expenses to be incurred by the CRA in connection with overseeing and monitoring the obligations of the Developer in accordance with this Agreement, the Tri-Party Agreement and the Covenant. 10. MINORITY AND WOMEN'S PARTICIPATION AND EQUAL EMPLOYMENT OPPORTUNITY. 10.1 Minority and Women Participation and Equal Opportunity. With respect to all Phases of the Project, 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 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 10. 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. 10 • • • 10.2 Participation Requirements. Developer agrees to comply with the following voluntary minority and female participation requirements (the "Minority Participation Requirements") for the Project: 10.2.1 Subcontractor Participation. 10.2.1.1 Construction. Developer agrees to comply with the following voluntary minority and female participation requirements with respect to subcontractor participation in construction of the Project: 28% Black subcontractor owned business participation 8% Female subcontractor owned business participation 15% Hispanic subcontractor owned business participation 10.2.1.2 Design. Developer agrees to comply with the following voluntary minority and female participation requirements with respect to subcontractor participation in design of the Project: 10% Black subcontractor owned business participation 5% Female subcontractor owned business participation 10% Hispanic subcontractor owned business participation 10.2.2 Marketing. Developer agrees to comply with the following voluntary minority participation requirements with respect to the overall marketing staff for the Project: 28% Black subcontractor owned business participation 8% Female subcontractor owned business participation 15% Hispanic subcontractor owned business participation 10.2.3 Employee Participation. 10.2.3.1 Construction. Developer agrees to comply with the following voluntary minority participation requirement with respect to employee participation in the overall construction workforce for the Project: 28% Black employees 8% Female employees 15% Hispanic employees 10.2.3.2 Design. Developer agrees to comply with the following voluntary minority participation requirements with respect to employee participation in the overall design workforce for the Project: 10% Black employees 5% Female employees 10% Hispanic employees 11 • • • 10.2.4 Property Management. Developer agrees to comply with the following voluntary minority participation requirements with respect to the overall employee participation in Property Management of the Project: 51 %o of the personnel employed by the Property Manager with respect to the Project shall be Black, Female or Hispanic, or any combination thereof to satisfy the 51% participation requirement 10.3 Report Requirements. Developer shall be required to provide on a semi- annual basis, on or before January 15 and July 15 of each year, for each respective calendar year, such documentation as the Executive Director may reasonably request to evidence compliance with the Minority Participation Requirements with respect to each of the categories described in Section 10.2 during the preceding six month period (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. 11.Penalties for Non -Compliance. To the extent that Developer fails to comply with the applicable Minority Participation Requirements with respect to the Project in each of the categories described in Section 10.2 during any twelve month period for each calendar year, Developer shall pay to the CRA as a penalty One Thousand Five Hundred and No/100 Dollars ($1,500.00) for each percentage point below the requirements set forth in the applicable subsections of Section 10.2 in each respective category Developer fails to meet the applicable Minority Participation Requirement with respect to the Project during that calendar year (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. 11.1 Impossibility to Perform. In the event that Developer, in good faith, believes that it is impossible to satisfy some or all of the Minority Participation Requirements as a result of there not being a sufficient number of minority and female job candidates or contractors available to comply with the applicable Minority Participation Requirements, Developer may request that the Executive Director reduce the Minority Participation Requirements, in the applicable category, provided that Developer is able to provide to the Executive Director irrefutable evidence that there was not a sufficient number of minority and/or female job candidates or contractors available to comply with the applicable Minority Participation Requirements. The decision of the Executive Director shall be binding on Developer and the CRA. 12. EMPLOYMENT TRAINING PROGRAM. 12 • • • 12.1 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" at or near the Project which shall provide for training of construction personnel for residents in the Redevelopment Area and in the City. Developer shall submit the detailed plan for the Skills Training and Employment Program to the Executive Director for his review and approval within one hundred fifty (150) 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 Developer 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. Developer shall be required to comply with the terms and provisions of the Skills Training and Employment Program as approved by the Executive Director. 12.2 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" at or near the Project which shall provide for training of property management personnel for residents in the Redevelopment Area and in the City. Developer shall submit the detailed plan for the Property Management Training and Employment Program to the Executive Director for his review and approval within one hundred fifty (150) 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 Developer 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. Developer shall be required to comply with the terms and provisions of the Property Management Training and Employment Program as approved by the Executive Director. 13. AFFORDABLE RENTAL HOUSING. 13.1 Affordable Rental Requirement. Developer shall rent (i) one third (1/3) of the Units to qualified renters whose gross income is between 60% and 80% of the Miami -Dade County median income, (ii) one third (1/3) of the Units to qualified renters whose gross income is between 80.01 % and 120% of the Miami -Dade County median income, and (iii) one third (1/3) of the Units to qualified renters whose gross income is between 120.01% and 150% of the Miami -Dade County median income (collectively the "Affordable Rental Requirement") for a period of twelve (12) years from the date of the issuance of a certificate of occupancy or certificates of occupancy for all of the Units in the Project. 13.2 Reporting Requirements and Compliance. 13.2.I Affordable Rental Reports. From and after the issuance of the first certificate of occupancy for any Unit, Developer shall be required to submit to the Executive Director, on an annual basis, reports evidencing compliance with the Affordable Rental Requirement (the "Affordable Rental Reports"). The Affordable Rental Reports shall consist of 13 • • • a certification to the CRA by an independent compliance agency which is selected by the Developer and reasonably acceptable to the Executive Director. 13.2.2 Disputes. To the extent of any disputes between Developer and the Executive Director with respect to whether the renters of the Units meet the applicable requirements of Section 11.1, the dispute will be submitted to arbitration for resolution, which resolution shall be binding on the parties. 13.3 Penalties for Non -Compliance. To the extent that Developer fails to comply with the Affordable Rental Requirement as determined in accordance with Section 13.3 above, then in such event, Developer shall pay to the CRA, as a penalty for non-compliance with the Affordable Rental Requirement the sum of Four Thousand Dollars ($4,000.00) for each Unit which is not in compliance, determined on an annual basis. Any amounts, if any, due from Developer in accordance with this Section 13.3 shall be calculated annually as of each January lst and paid by Developer within ten (10) business day of notice by the CRA of the amount due. 13.4 The provisions of this Section 13 shall be incorporated into the Covenant, as hereinafter defined (the "Covenant"). 14. CONVERSION TO CONDOMINIUM. In the event that upon the expiration of the Affordable Rental Requirements Developer elects to convert the Units to a condominium form of ownership and convey the Units, the Developer hereby acknowledges and agrees to pay to the CRA a fee in the amount of seven percent (7%) of the gross sales price of each Unit sold. This provision shall be incorporated into the Lease. 15. CRA CONDITIONS PRECEDENT. 15.1 The obligations of the CRA to close the transaction contemplated by this Agreement are subject to the satisfaction or waiver of the following conditions precedent (the "CRA Conditions Precedent"): 15.1.1 The Executive Director shall have approved the Budget. 15.1.2 The Executive Director shall have approved the Skill Training and Employment Program. 15.1.3 The Executive Director shall have approved the Property Management Training and Employment Program. 15.1.4 The Executive Director shall have approved the Plans and Specifications. Contract. 15.1.5 The Executive Director shall have approved the Project Team. 15.1.6 The Executive Director shall have approved the Construction 14 • • • 15.1.7 The Executive Director shall have approved the Construction Schedule. 15.1.8 The Executive Director shall have confirmed compliance with the minority participation goals with respect to construction of the Project pursuant to Section 10.2. 15.1.9 The Executive Director shall have confirmed compliance with minority participation goals with respect to architectural services for the Project pursuant to Section 9.2.2. 15.1.10 The Executive Director shall have approved the Loan Commitment for the Project. 15.1.11 The Executive Director shall have confirmed that Developer has sufficient equity to meet the requirements under the Loan Commitment for the construction of the Project. 15.1.12 The Executive Director and the Lender have approved the Tri- Party Agreement. 15.1.13 The Lender under the Loan Commitment is prepared to close the construction loan with respect to the Project in accordance with terms of the Commitment Letter. 15.1.14 The Executive Director shall have confirmed that there is no change in the ownership structure of Developer or the ownership interest in the Developer. 15.1.15 Developer shall have provided to the Executive Director a payment and performance bond in form and substance satisfactory to the CRA and amount equal to one hundred percent (100%) of the constructions costs for the Project, which shall be issued by a surety having a credit rating of "A" or higher with a fmancial strength of X or higher (the 'Payment and Performance Bond"). The Performance Bond shall ensure lien -free completion of the Project. 15.1.16 The Developer has obtained a building permit to enable the Developer to construct the Project in accordance with the Plans and Specifications. 15.2 In the event the CRA Conditions Precedent are not satisfied or waived by the CRA on or before the Closing Date then the CRA may either (i) terminate this Agreement in which event Escrow Agent shall return the Deposit to Developer 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) waive the condition and proceed in accordance with this Agreement. 16. CLOSING DATE. 15 • • • 16.1 Closing. The closing of the transaction contemplated by this Agreement (the "Closing Date") shall occur on the earlier of (a) ten (10) days after all the CRA Conditions Precedent to closing have been either satisfied or waived by the CRA or (b) May 1, 2010, time being of the essence. On the Closing Date the following shall occur: 16.1.1 The CRA shall deliver to Developer at closing: 16.1.1.1 The Ground Lease in the form of Exhibit "F" attached hereto and made a part hereof (the "Lease") with respect to the Property. 16.1.1.2 Certified copy of the resolution authorizing the conveyance by the CRA and the execution and delivery of the documents contemplated by this Agreement. 16.1.1.3 The Tri-Party Agreement executed by the CRA. 16.1.1.4 Such other documents as the title company may reasonably request. 16.2 Developer shall deliver to the CRA or cause to be delivered to the CRA at closing: 16.2.1 The Lease. 16.2.2 Evidence of authority to close the transaction and execute and deliver the appropriate closing documents. 16.2.3 Payment and Performance Bond. 16.2.4 The Tri-Party Agreement executed by the Developer and Lender. 16.2.5 Such other documents as the title company may reasonably request. 16.3 At Closing, the CRA shall pay the CRA Development Contribution in accordance with the Tri-Party Agreement and the Escrow Agent shall deliver the Deposit, together with all interest accrued thereon, in accordance with the Tri-Party Agreement. The cost for recording the Lease shall be paid by Developer. Each party shall bear the cost of the fees of their own respective attorneys and other professionals and the cost of their own respective performance under this Agreement. 17. ORGANIZATIONAL DOCUMENTS OF DEVELOPER. As of the Effective Date, the documents attached as Exhibit "G" hereto constitute all the organisational documents with respect to Developer, including without limitation, a copy of the operating agreement. Attached hereto as Exhibit "H" is a list identifying all individuals and entities having an ownership interest in Developer. 16 • • • 18. REPRESENTATIONS OF CRA. 18.1 The CRA makes the following representations: 18.1.1 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, to carry on its business as presently conducted by the CRA, and to perform its obligations under this Agreement. 18.1.2 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. 18.1.3 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. 18.1.4 The Executive Director has no knowledge of any violation of applicable law in connection with the CRA's request for proposals for the development of the Project; or the CRA's awarding of the bid to Developer. 19. DEVELOPER'S REPRESENTATIONS. Developer makes the following representations to the CRA as follows: 19.1 Developer is a limited liability company duly organized and validly existing under the laws of the State of Florida, and have full power and capacity to own the Property, to carry on its business as presently conducted, and to enter into the transactions contemplated by this Agreement. 19.2 Developer's execution, delivery and performance of this Agreement has been duly authorized by all necessary company actions and does not and shall not conflict with or constitute a default under any indenture, agreement or instrument to which it is a party or by which it may be bound or affected. 19.3 This Agreement constitutes the valid and binding obligation of Developer, enforceable against Developer and its successors and assigns, in accordance with its respective terms, subject to bankruptcy, insolvency and other similar laws affecting the rights of creditors generally. 20. DEFAULT. 20.1 In the event of a default by Developer under this Agreement which is not cured within ten (10) days of written notice from the CRA, or if there is any material misrepresentation by Developer contained in this Agreement, without any default of the CRA, the CRA shall, as its 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 17 • • • further obligations under this Agreement except for the obligations that expressly survive the termination. 20.2 In the event of a default by the CRA under this Agreement which is not cured within ten (10) days of written notice from Developer, without any default on the part of Developer, Developer, as its sole and exclusive remedy, shall be entitled to (i) terminate this Agreement in which event Escrow Agent shall return the Deposit to Developer and the parties shall be released from all further obligations under this Agreement except for the obligations that expressly survive the termination or (ii) sue for specific performance to enforce the terms of this Agreement. Developer waives any other remedies it may have against 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. 21. 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 special warranty deed. 22. ASSIGNABILITY. 22.1 This Agreement may not be assigned without the approval of the CRA, which approval may be granted or withheld by the CRA, in its sole discretion. For the purpose of this Section 22.1, each of the following events shall be deemed an assignment requiring the approval of the CRA, which approval may be granted or withheld by the CRA, in its sole discretion: (i) the change in control of Developer which is currently controlled by Axel Rizo. (ii) the transfer of more than 20% of the membership interests in Developer. (iii) a change in the sole manager of Developer which is currently Axel Rizo. 22.2 This Agreement may not be assigned without the approval of the CRA, which approval may be granted or withheld by the CRA, in its sole discretion. 23. 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), sent by fax and another method provided 18 • • • herein or mailed by certified or registered mail, return receipt requested, in a postage prepaid envelope, and addressed as follows: If to Buyer: If to Seller: DEV-CON URBAN PARTNERS & AFFORDABLE, LLC Attn: Axel Rizo, Chief Operating Officer 299 Alhambra Circle, Suite 203 Coral Gables, FL 33134 Fax: (305) 443-4904 SOUTHEAST OVERTOWN / PARK WEST COMMUNITY REDEVELOPMENT AGENCY Attention: James H. Villacorta, Executive Director 49 N.W. 5th Street Suite 100 Miami, FL 33128 Fax: 305-679-6836 With a copy to: William R. Bloom, Esq. Holland & Knight, LLP Suite 3000 701 Brickell Avenue Miami, FL 33131 Fax: 305-789-7799 Notices personally delivered or sent by fax 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. 24. CHALLENGES. Developer acknowledges and agrees that the CRA shall have no liability whatsoever to Developer in connection with any challenge to this Agreement and the transaction contemplated by this Agreement and Developer hereby forever waives and releases the CRA 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 CRA in connection with any Challenges. 25. MISCELLANEOUS. 25.1 This Agreement shall be construed and govemed in accordance with the laws of the State of Florida. All of the parties to this Agreement have participated fully in the 19 • • • negotiation and preparation hereof, and, accordingly, this Agreement shall not be more strictly construed against any one of the parties hereto. 25.2 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. 25.3 In the event of any litigation between the parties under this Agreement, the prevailing party shall be entitled to reasonable attomey's fees and court costs at all trial and appellate levels. 25.4 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. 25.5 All of the exhibits attached to this Agreement are incorporated in, and made a part of, this Agreement. 25.6 Time shall be of the essence for each and every provision of this Agreement. 25.7 This Agreement may not be recorded in the Public Records of Miami- Dade County. 25.8 The "Effective Date" shall mean the date this Agreement is last executed by Developer and the CRA. 25.9 In the event Developer does not terminate this Agreement during the Inspection Period from and after the approval of the Detailed Development Plans by the Executive Director, the CRA shall execute any documents and/or applications reasonably requested by the Developer which are required to be executed by the record owner of the Property in connection with any zoning or land use approval or permit applications required to be obtained by the Developer to enable to the Project to be developed in accordance with the terms of the Detail Development Plans, provided such documents and applications do not impose any financial obligations or liability upon the CRA. 25.10 Developer acknowledges and agrees that the Developer shall not be entitled to any tax increment funds generated by the Project, notwithstanding the Developer's request for such funds in its response to the request for proposals issued by the CRA. Developer waives any claims regarding the tax increment funds generated by the Project. 25.11 Whenever any dispute hereunder is to be settled by arbitration, the parties agree that such dispute shall be resolved by means of binding arbitration in Miami -Dade County, Florida and in accordance with the commercial arbitration rules of the American Arbitration Association. Judgment upon the award rendered by the arbitrator(s) may be entered in any court of competent jurisdiction. Depositions may be taken and other discovery obtained during such arbitration proceedings to the same extent as authorized in civil judicial proceedings in the State 20 • • • of Florida. The arbitrator(s) shall be limited to awarding compensatory damages and shall have no authority to award punitive, exemplary or similar type damages. The prevailing party in the arbitration proceeding shall be entitled to recover its expenses, including the costs of the arbitration proceeding, and reasonable attorneys' fees. 26. ESCROW AGENT. 26.1 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 Developer, provided however, that if Developer defaults and such deposits are paid to the CRA, interest on same, if any, shall be paid to the CRA. 26.2 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. In the event of a dispute between the parties, the parties consent to Escrow Agent continuing to represent the CRA, notwithstanding the fact that it also shall have the duties provided for in this Agreement. 26.3 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. 26.4 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 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. 21 • • • 26.5 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. 26.6 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. 26.7 Resignation of Escrow Agent. Escrow Agent may resign upon thirty (30) days' written notice to the CRA and Developer. If a successor escrow agent is not appointed jointly by Developer 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. The CRA and Developer hereby stipulate that the attorney for the Developer is an acceptable replacement Escrow Agent. 27. 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. [SIGNATURE PAGES TO FOLLOW] 22 • IN WITNESS hereof the parties have executed this Agreement as of the date first above written. DEVELOPER: DEV-CON URBAN PARTNERS & AFFORDABLE LLC, a limited liability company B y: Name: Axel Rizo Title: Manager CRA: SOUTHEAST OVERTOWN / PARK WEST COMMUNITY REDEVELOPMENT AGENCY By: James Villacorta, Executive Director • Al !'EST: s Priscilla A. Thompson, Clerk of the Board Approved for legal sufficiency B y: William R. Bloom, Esq. Holland & Knight LLP, Special Counsel to CRA APPROVED AS TO INSURANCE REQUIREMENTS: , Risk Management Administrator 23 • • • Schedule of Exhibits A. Legal Description B. Insurance Requirements C. Title Exceptions D. Preliminary Development Plans E. Pre -approved Members of Development Team F. The Lease G. Organizational Documents H. Ownership Interests in Developer 24 • • EXHIBIT A Legal Description Lots 9, 10 and 11 in Block 9, SOSTS SUBDIVISION, according to the Plat thereof, as recorded in Plat Book B, at Page 27 of the Public Records of Miami -Dade County, Florida. • • • EXHIBIT B Insurance Requirements 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 Developer'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 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 CRA from time to time but not 26 • • • 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". 27 • • • EXHIBIT C PERMITTED EXCEPTIONS 1. Taxes and assessments for the year of the Lease is recorded and subsequent years. 2. Declaration of Restrictions recorded May 12, 1972 in Official Records Book 7703, at Page 796. 3. Declaration of Restrictions recorded June 5, 1973 in Official Records Book 8316, at Page 294. 4. Terms, conditions, covenants and agreements set forth in the Stipulation of Settlement recorded July 18, 1988 in Official Records Book 13752, at Page 1036. 5. Reversionary right reserved by the City of Miami in the Warranty Deed recorded January 17, 1996 in Official Records Book 17064, Page 152, under the conditions set forth therein. NOTE: All of the recording information contained herein refers to the Public Records of Miami - Dade County, Florida, unless otherwise indicated. 28 • • EXHIBIT D Preliminary Development Plans EXHIBIT D &It:Ca:FUSE BUILDING 29 • • • l►..47%47:At= !-;y1�1Snoa6Q.,+i Y..:it1l 'AV _ atllpre r „�a+.crs :e%.urg +Ir+�sMdiiY �':ruw -yy�—dhmr.,w -'it.= �aP�136/1, 231 N.W t 2Z7-t STREET MILM1. FLORIDA 30 • • • BcoNiIlage Green Building Features: Natural RaentNCO Package: Natural resource conservation 1a becoming more important to buyers every year. This 1saccomplished by conserving resources, using recycled content products In homes. Engineered lumber Recycled newsprint cellulose insulation Water -conserving plumblrug fixtures Fiber -cement siding and trim Recycled -content decking Recycled -Content carpet Treated wood that: does not contain arsenic. or chromium Energy Efficiency Package: Energy grades yield tower monthly energy costs In a four year period. Low-E windows High Efficiency (93% or higher), seated combustion furnace • and hot water her High SEER/EER air- conditi3oning units Flu et light bulb Add sealing and caulking to reduce drafts 2x8 wa11 training with increase insula#ion Insulated foundation indoor Air Quagly Package: improved indoor air quality is also a priordy for bornebti yera. Ws extremely lniportanat:to live in a hie free of toxic chemicals. Forrnalder►yde-fixes insulabon No or Low-Vt paints Solvent -Free wood finishes Less -toxic a dhesNes Natural linoleum instead of vinyl flooring Sealed particleboard in cabinets and countertops DEu.CDtt URBAN PARTNERS, LLC P&Pa 31 • • • Green Suing Components; A. Sits Donate Unused Materials Protect Native Soil Minirruze Disruption of Existing Plants and Trees Implement Construction Site SWIM Practices Protect Water (Imlay with Landscape Design Features Design Resource -Efficient Landscapes and Gardens Reuse Materials or Use Recycled Content Materials for Landscape Areas Provide for O.rt-site Water catchment/retention 8. Foundation Reuse Foam Boards Use Aluminum Forms C. Structural Frame Use Roeycled-Content Steel Studs for interior Framing D. Plumbing install Flow Reducers in Faucet and Showers Install Ultra -Low -Flush Toilets Install Tankless Water Heater Pre -Plumb for Graywater Conversion E. Electrical Install Compact Fluorescent Light Bulbs Install Lighting Controls install High -Efficiency Ceiling Fans with Compact Florescent Lamps F. Appliances Energy Star Dishwasher energy bent Refrigerator G. insulation Upgraded Wall and Ceiling tresulalioa to Exceed moo 24 Requirements H. V iadows Isssta® Energy-Efffdant Windows L Heating, Ventilation and Air Conditioning (HVAC) Use Duct Mastic on all Dud Joints Vent Ftange Haarl to the Outside Install Attic Ventilation System install 13 STAR and 11 £R or Higher AN Conditioning wtth a Thermostatic Expansion Valve (TXV) DEV-CON £ R 3AN PARTNERS, LLC Page 9 32 • • • .!. Removable Energy and Roofing Select Sate and Durable Roofing Materials it, Indoor Air Quality and Finishes Use LrwFNo-VOC and Forraal4tehyde-Frye Paint Use Low VOC, Water -Based Wood Finishes Use Fonxtaldehi+de-Free Medium Density Fkier Board (MDF) and Materials L Flooring Use Recycled Content. Ceramic nag Lite Exposed Concrete as Finished Floor oay.coN URBAN PARTNERS, LLC Page lit 33 • • • Natural Haag and 1. Incorporate Passive Soler Heating 2, Install Overhangs or Awnings Over South Fecrng Mndows Indoor Air Quality and Finishes: 1. install Whole House System 2. Use LovfNo-VOC and Fon naldehyd s-Free Paint 3_ Use Low VOC, water - Based Wood Finishes 4. Use Solvent -Free hesives 5, Substitute Particleboard with Formaldehyde free rater. rats 6. Use .exteriargra e plywood :far interior uses 7_ Use forrtEaldehyde free SOF and Materials t Use F'SC Certified Material 9, Use Finger tented or Recycled Content trim Roofing t, Select FSC carted wood flooring 2. Use rapidly Renewable Ping Materials 3. Use recycled content ceramic Nes Benefits: Reduces heating requirements by 30%-5O%; Reduce heat gam making the more comfortable in summer; Expels dust outside the house. Improving indoor air quality; Improves indoor air quailty, and are healthier for Installers and occupants; Reduces forrnadehyde exposure to occupants; Assures the tang -term availability of precious woods while protecting ancient, old grown forests; Uses material more effectively; saves money and resources, and s streighter and more stable than conventional; Uses recycie -content materials and are easy to maintain; Reduces demand far old growth hardwood: Eliminates the need for additional flooring easy to maintain and durable. DEV-Corr URSAN PARYNERS, LLC Page 11 34 s • SITE PROGRAM ANALYSIS Eco-village architectural plans detail a mixed -use high rise building with com nercire space and rentaifcondo residential units to be marketed to the working middle class citizens of Mann -Dade County- In *inn to the building structure, the grounds will also contain parking, swimming pool, clr rl rouse, garden/patio area, and #fitness center. Detailed flrfo m ion folbws: C-1 Restricted Commercial • Configuration: Boundaries extend north form NW 5" Street to oiler neighborhood; from NW 611b to NW 28 Street from North Miami Avenue NW North Miami Avenue NW fie" menue • Total Lot Size: 22, 512 et, more or tess • Total square feet of Commercial Space: 8,800 aquaie feet • Slumber of Commercial Rerkl 24 ilituiMing Residential Unit Description —tTnit Total NumdeWof Nurser of Unit Type Untie Bedrooms Bathrooms Square Ft. A.. .. 1 575 B 20 2 1 830 C 10 3 "} 985 D B 3 2. 10 Range & If& of Uses and Amenities Eco-village will be Cty of Manes first green residential ft m g cornmuruty. The residents and the community will berm from the following: Eco-Wellness Canter — Resident only fitness facility. Balconies — All of the urns induce balconies. 1fQS COMPLIANT Eco vMlage will meet and supersede the requirements setttorth by U.S.RUM Design Corrsbhnvy — The building design is Consistent wttb the local required homing, es specified. Community Room — Recreational spaces w iii provide residents with a venue for entrainment, socializing, and soinrnunity gatherings The rooms will consist of dolt screens, couches, and tables and chairs. Learning Center — Each building is equipped with a learning center with state of the art technology inclusive of wireless internee access. The ©enter wit! be operated by a local community non-profit ongenixat'On specializing in after -school Molting ibr chistrent. he selection of such entity will be sought from the City of Miami through the Department of Community Developments The selected applicant vuitl be scrutinized DEV-CON URBAN PARTNERS, LLC Pig, 12 • • • based on performance and type of service provided. In addition, we wi9 seek volunteer participation from the parent academy, ACCESS Miami, and the City of MwrnJ mentor program to assist the children in tutoring sessions, Standard Finishing$ — The project will include the following towel bars, toilet paper dispenser, combinations soapidish grab bar in shower, toothbrush holder, etc. Flooring — ceramic tiles in entryway, kitchen and bathrooms and carpeting in all other areas, Security — The building will have state of the art nigh -tech security system Inclusive of fiber optic security, resell:live acres points, and 1 camera systems. Ebel -Daycare Center — The daycare center is designed for the children of working family's re5idrng in the building, By having easy acmes to childcare workforce farra7ies will have the support system necessary to lisustain employment and affordable housing. Nevertheless, this center will provide an lr co -friendly environment aimed at safeguarding the health of the children outing in the community, DEV-CON URBAN PARTNERQS, LLG Pape !$ 36 • • • SITE PLAN Eco-village also boasts close proximity to access public transportation such as Metro -Bus and MetroAatt. Coo -village is centrally located whin the vicinity of the ,1822 Village Project and within proximity of downtown Miami. to addition; the project is in walking distance of the Metrorall Transit System. The project is consistent with the neighborhood revitalization master plan. PROPOSED PROJBCT SITE PLAN The following section provides detailed information an the site Marc AffOr0Obtie units EuILtftG Lri t4 F..e)ttdi 40 Units —1 i % i#1ariutt:: Rate Units0 /� tlnilS 3 Structure a STORIES Residential Parking Spaces (ingress and Crf " Parking spacet 24 Total Fmk AG Space .. 44', 16 , �Livtng Vomit T Space &IR 8,800 37 • • • EXHIBIT E PROJECT TEAM Rich Herrera — Civil Engineer Maria Flettes — Planning and Design Ines Hernandez — Civica Consulting Group, Inc. 38 • • • EXHIBIT F Ground Lease The Lease shall be substantially in the form attached hereto. The Developer and the CRA shall negotiate the terms of the Lease during the Inspection Period. 39 • • • LEASE THIS LEASE (hereinafter referred to as the "Lease"), made this day of , 200_, by and between DEV-CON URBAN PARTNERS & AFFORDABLE, LLC, a Florida limited liability company (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. Pursuant to Resolution No. passed on , 2008, the Board of Directors of the CRA authorized the Executive Director of the CRA to enter into that certain Development Agreement dated as of , 2008 by and between the Developer and the CRA (the "Development Agreement"), for the development of the Project, as hereinafter defined, upon the satisfaction of certain conditions precedent, as more particularly set forth in the Development Agreement. B. All of the conditions precedent to the entering into of this Lease set forth in the Development Agreement have been satisfied or waived and Developer and the CRA desire to enter into this Lease with respect to that certain real property more particularly described on Exhibit "A" attached hereto and made a part hereof (the "Land") on the terms and conditions hereinafter set forth. 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 CRA and Developer agree as follows: 40 • • • 28. EXHIBITS AND DEFINITIONS 28.1 Exhibits. Attached hereto and forming a part of this Lease are the following Exhibits: Exhibit "A" - Legal Description of the Leased Property Exhibit "B" - Plans and Specifications Exhibit "C" - Project Schedule Exhibit "D" - Development Plan Exhibit "E" - Permitted Exceptions Exhibit "F" — STE Program Exhibit "G" — PMTE Program 28.2 Defined Terms. As used herein, the term: "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. "Acceptable Developer's Agreement" has the meaning ascribed to it in Section 10.1.3.4. "Acceptable Purchaser" has the meaning ascribed to it in Section 9.3.3. "Additional Rental" means any and all payments required of Developer to the CRA by the terms of this Lease other than Annual Basic Rental. "Affordable Rental Report" has the meaning ascribed to it in Section 5.2.1. "Affordable Rental Requirement" has the meaning ascribed to it in Section 5.1. "Annual Basic Rental" has the meaning ascribed to it in Section 2.8.1. "Arbitration Panel" has the meaning ascribed to it in Section 22.1. "Construction Contract" means that Construction Contract for the construction of the Project, between Developer and the Contractor dated "Contractor" means "Challenge" has the meaning ascribed to it in Section 21.13 41 • • • "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 19.1.4. "Condominium Documents" has the meaning ascribed to it in Section 8.2.2. "Costs" has the meaning ascribed to it in Section 20.1.4. "County" means Miami -Dade County, a political subdivision of the State of Florida. "CPA" means a nationally recognized or regionally recognized independent certified public accounting firm reasonably acceptable to CRA and Developer . "CRA" means the Southeast OvertownlPark West Community Redevelopment Agency. "CRA Board" shall mean the Board of Directors of the CRA. "CRA Contribution" has the meaning ascribed to it in Section 4.1. "CRA Indemnified Parties" has the meaning ascribed to it in Section 20.1. "CRA Redevelopment Area" means the Southeast Overtown/Parkwest Project area designated as a community redevelopment area by the County. "Default Rate" means interest at a rate equal to five percent (5%) above that rate charged by Citibank, N.A. of New York, generally referred to as its prime rate. "Developer" means Dev-Con Urban Partners & Affordable, LLC, a Florida limited liability company, and, except as otherwise expressly limited elsewhere in this Lease, all references to the Developer shall include the permitted successors and assigns of the Developer. "Developer Improvements" means all improvements constructed on the Leased Property by Developer pursuant to the Development Plan. "Developer Utility Easement" has the meaning ascribed to it in Section 2.6.1. "Development Agreement" has the meaning ascribed to it in Recital A. "Development Plan" means that Development Plan for the Project previously approved by the Executive Director and identified on Exhibit "D", attached hereto and made a part hereof. "Effective Date" means the date this Lease is last executed by Developer and the CRA. "Environment" has the meaning ascribed to it in Section 19.1.3. "Environmental Complaint" has the meaning ascribed to it in Section 19.5. "Environmental Laws" has the meaning ascribed to it in Section 19.1.2. 42 • • • "Event of Default" has the meaning ascribed to it in Section 11.1. "Event of CRA Default" has the meaning ascribed to it in Section 11.3.1. "Executive Director" means the Executive Director of the CRA. "Hazardous Materials" has the meaning ascribed to it in Section 19.1.1. "Indemnified Matters" has the meaning ascribed to it in Section 20.1. "Indemniee" has the meaning ascribed to it in Section 21.18. "Indemnitor" has the meaning ascribed to it in Section 21.18. "Inspections" has the meaning ascribed to it in Section 2.10.1. "Insurance Trustee" means 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. "JL Homes" has the meaning ascribed to it in Section "Land" means that parcel of real property described on Exhibit "A" attached hereto and made a part hereof. "Lease" means this Lease as it may be modified from time to time. "Leased Property" 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 10.1.2. "Lender/Investor" has the meaning ascribed to it Section 10.1.2. "Lender" shall have the meaning ascribed to it in Section 10.1.2. "Minority Participation Reports" has the meaning ascribed to it in Section 6.3. "Minority Participation Requirements" has the meaning ascribed to it in Section 6.2. "Non -Compliance Funds" has the meaning ascribed to it in Section 6.4. "Owner" means any person, firm, corporation or other legal entity using or occupying or entitled to use or occupy a Unit. "Payment and Performance Bond" has the meaning ascribed to it in Section 3.7. "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. "Plans and Specifications" means the plans and specifications for the Project identified on Exhibit "B", attached hereto and made a part hereof. 43 • • • "PMTE Program" has the meaning ascribed to it in Section 7.2. "Project" means that those improvements to be development on a the Leased Property in accordance with the Development Plan, consisting of forty (40) affordable rental units (each a "Unit", and collectively the "Units"), of which five (5) are one bedroom/one bathroom units containing approximately 575 square feet each, twenty (2) two bedroom/one bathroom units containing approximately 830 square feet each, ten (10) three bedroom/one bathroom units containing approximately 985 square feet each, and five (5) three bedroom/two bathroom units containing approximately 1025 square feet each, of which all Units will be washer/dryer units ready; (ii) approximately square feet of common area space to be utilized for the benefit of the residents of the Units, which area shall consist of a community room containing approximately square feet (the "Community Room"), a learning center containing approximately square feet (the "Learning Center"), a daycare center containing approximately square feet (the "Daycare Center"), a laundry room located on each residential floor and each containing approximately square feet (collectively, the "Laundry Rooms", together with the Community Room, the Learning Center, and the Daycare Center, are collectively, the "Common Area"); (ii) approximately 8,800 rentable square feet of commercial space (the "Commercial Space"); and (iv) a _ story parking garage containing approximately one hundred four (104) parking spaces (the "Parking Garage"), of which twenty- four (24) parking spaces will serve the Commercial Space, sixty (60) parking spaces will serve the residents of the Units, and twenty (20) parking spaces, located on the lower level of the Parking Garage, shall be designated for use by the public and made available to the public at no charge (the "Public Parking Spaces"). [TO BE MODIFIED TO REFLECT WHAT IS IN THE APPROVED DEVELOPMENT AGREEMENT] "Project Schedule" means the project schedule for the Project which is attached hereto as Exhibit "C". "Public Charges" has the meaning ascribed to it in Section 2.9. "Reconstruction Work" has the meaning ascribed to it in Section 13.8.2. "Related Parties" has the meaning ascribed to it in Section 19.2. "Release" has the meaning ascribed to it in Section 19.1.5. "Rent Commencement Date" has the meaning ascribed to it in Section 2.8. "Rental" has the meaning ascribed to it in Section 2.8.1. 44 • • • "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. "Restrictive Covenants" has the meaning ascribed to it in Section 2.5. "Rules and Regulations" has the meaning ascribed to it in Section 8.2.1. "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. "STE Program" has the meaning ascribed to it in Section 7.1. "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 the Project. "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 Project under a Sublease. "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 19.1.6. "Transfer" has the meaning ascribed to it in Section 9.1. "Tri-Party Agreement" means that Agreement between Developer, the CRA and Lender dated "Unavoidable Delay" has the meaning ascribed to it in Section 11.4. "WASA" has the meaning ascribed to it in Section 3.12. 45 • • • 29. GENERAL TERMS OF LEASE OF LEASED PROPERTY 29.1 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: 29.2 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 easements hereinafter mentioned, reserved or granted, for the construction of the Project. 29.3 Term. To have and to hold the Leased Property for a term of 99 years (the "Term") commencing on the Effective Date of this Lease and terminating on (the "Termination Date"), unless sooner terminated as herein provided. 29.4 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. 29.5 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 10.1(c)(ix). 29.5.1 Use Prohibitions of the Leased Property. The Leased 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, or other similar approvals of applicable governmental authorities, or the Development Plan. 29.5.2 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 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, Iease, use or occupancy thereof. Developer will comply with all applicable state and local laws, 46 s • i 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. 29.5.3 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. 29.6 Easements. The following easements presently exist or are hereby granted: 29.6.1 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. 29.6.2 Duration of Easements. Unless a shorter term is provided, each of the rights and easements granted or reserved in Section 2.6(a) shall be for the Term of this Lease. 29.6.3 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. 29.7 Title to Leased Property. 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. 29.8 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 2.8.1 below. 29.8.1 Annual Basic Rental. Developer covenants and agrees to pay the CRA during the Term, as rental ("Rental") for the Leased Property an annual basic rental in the amount of One and NoI100 Dollars ($1.00) per year (the "Annual Basic Rental"). 29.8.2 Payment of Annual Basic Rental. Annual Basic Rental shall commence on the Rent Commencement Date. Simultaneously with the execution of this Lease, Developer 47 • • • shall pay to the CRA Ninety -Nine and No/100 Dollars ($99.00) representing the Annual Basic Rental for the Term. 29.8.3 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. 29.9 Covenants for Payment of Public Charges by Developer. Developer, in addition to the Annual Basic 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, the Project, 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, official receipts of the appropriate taxing authority, or other proof satisfactory to the Executive Director evidencing the payment of all Public Charges. 29.10 Condition of Leased Property. 29.10.11nspection. The Developer has inspected the physical condition, matters of zoning, title, survey and all other matters with respect to the Leased Property, including, 48 • • without limitation, environmental matters (collectively the "Inspections") and has determined that the Leased Property is acceptable to Developer. 29.10.2Acceptance 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 Iimitation, 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" condition. 29.10.3Disclaimer of Representations by CRA. The Developer hereby expressly acknowledges and agrees that in connection with the execution of this Lease: 29.10.3.1 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. 29.10.3.2 The CRA has made no warranty, express or implied, with regard to the accuracy of any information furnished to the Developer, and the CRA shall not be bound by any statement of any broker, employee, agent or other representative of the CRA. 29.10.3.3 The CRA has made no representations, warranties or promises to the Developer not explicitly set forth in this Lease. 29.10.3.4 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. 29.10.3.5 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. 49 • • • 30. CONSTRUCTION OF IMPROVEMENTS 30.1 Development Plan. Developer shall construct the Project, in accordance with the Development Plan, and the Plans and Specifications. 30.2 Conformity of Plans. The construction of the Project shall be in strict conformity with the Development Plan, the terms and provisions of this Lease, all applicable governmental approvals, applicable building codes, and all other applicable state, county and local laws and regulations. 30.3 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 proposed 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. Any changes that the Executive director deems material 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. 30.4 Amendment to Plans and Specifications. All amendments to the Plans and Specifications, other than minor changes required as a result of field conditions and changes required by City buildingpartment officials, shall be submitted to the Executive Director for review and approval. The Developer shall provide the Executive Director such additional backup information as the Executive Director may reasonably request to enable the Executive Director to analyze and approve the proposed amendment to the Plans and Specifications. The Executive Director shall have five (5) business clays from receipt of the proposed amendment to the PIans and Specifications to review and approve or disapprove same. The failure of the Executive Director to respond within the five (5) business day period shall be deemed denial. 30.5 Construction Contract. The Developer shall cause the Contractor to construct the Project pursuant to the terms of the Construction Contract. Developer shall not amend the 50 • • • Construction Contract, other than the issuance of change orders issued in accordance with the Construction Contract, without the approval of the Executive Director. The Developer shall submit all amendments to the Construction Contract to the Executive Director for review and approval. The Developer shall submit to the Executive Director such additional backup information that the Executive director may reasonably request to enable the Executive Director to analyze and approve the proposed amendment to the Construction Contract. The Executive Director shall have ten (10) business days from receipt of the proposed amendment to the Construction Contract to review and approve or disapprove same. The failure of the Executive Director to respond within the ten (10) business day period shall be deemed denial. 30.6 Change in Contractor. Any change in the Contractor shall be subject to the review and approval of the Executive Director. The Developer shall provide the Executive Director such backup information that the Executive Director may reasonably request regarding the proposed replacement Contractor. The Executive Director shall have five (5) business days from receipt of such request to approve or disapprove same. The failure of the Executive Director to respond within the five (5) business day period shall be deemed denials. The Executive Director may withhold approval with respect to (i) any individual or entity which has committed a material breach of 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, or (iii) is on the United States Treasury Department's Office of Foreign Asset Control List of Specifically Designated National and Blocked Person or similar governmentally issued "terrorist" list. 30.7 Payment and Performance Bond. Developer has obtained a payment and performance bond in an amount equal to one hundred percent (100%) of the hard constructions costs for the Project, which names the CRA as a dual obligee (the "Payment and Performance Bond"), which has been approved by the Executive Director. The Developer shall not amend or modify the Payment and Performance Bond without the approval of the Executive Director. 30.8 Progress of Construction. Developer shall commence construction of the Project within sixty (60) days of the Effective Date of this Lease. Developer shall keep the Executive Director apprised of the progress with respect to the construction of the Project. During construction the Developer shall make the Project available for inspection by representatives of the CRA. The Developer shall provide suitable work space and utilities for the representatives of the CRA, at the Developer's sole cost and expense. 51 • • • 30.9 Completion of the Project. Promptly after completion of the Project in accordance with the Plans and Specifications, Developer shall provide to the Executive Director copies of the certificates of occupancy for the Units and certificates of completion for all of the retail, office and commercial space comprising the Project. 30.10 Project Schedule. Developer shall construct the Project in accordance with the Project Schedule, as same may be extended as a result of Unavoidable Delays. 30.11 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, as appropriate. Any proposed extension to the Project Schedule or, 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. 30.12 Connection of Building to Utilities. Developer, at its sole cost and expense, will install or cause to be installed all necessary connections between the Project 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, if any, of locating and installing new facilities for sewer, water, electrical, and other utilities as needed to service the Leased Property and the Project. 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. 30.13 Permits and Approvals. Developer shall secure and pay for any and all permits and approvals necessary for proper construction and completion of the Project 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. 30.14 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 the Project. Nothing herein shall limit 52 • 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. 30.15 Maintenance of the Project. The Developer shall at all times maintain the Leased Property and the Developer Improvements in good condition, repair and appearance during the term of this Lease. 31. CRA CONTRIBUTION AND PUBLIC PARKING SPACES 31.1 CRA Development Contribution. The CRA shall contribute One Million Two Hundred Thousand and No/100 Dollars ($1,400,000.00) (the "CRA Contribution") toward the design and development of the Project. 31.2 Tri-Party Agreement. The Developer, the CRA, and the Lender have entered into the Tri-Party Agreement. The CRA Contribution, together with the Deposit (as defined in the Development Agreement) shall be disbursed in accordance with the Tri-Party Agreement. Developer shall comply with the terms of the Tri-Party Agreement. 31.3 Use of the Public Parking Spaces. Developer acknowledges that the Public Parking Spaces shall be designated for use by the public, and made available to the public at no charge. 32. AFFORDABLE HOUSING 32.1 Affordable Rental Requirement. Developer shall rent one-third (1/3) of the Units to qualified renters whose gross income is between 60% and 80% of the Miami -Dade County median income; one-third (1/3) of the Units to qualified renters whose gross income is between 80.01% and 120% of the Miami -Dade County median income; and one-third (1/3) of the Units to qualified renters whose gross income is between 120.01 % and 150% of the Miami -Dade median income (collectively the "Affordable Rental Requirement"). For a period of twelve (12) years from the date the Certificate of Occupancy is issued for the last Unit, any and all Units shall be in compliance with this Section 5.1. 32.2 Reporting Requirements and Compliance. 53 • • • 32.2.1 Affordable Rental Reports. From and after the issuance of the first certificate of occupancy for any Unit, Developer shall be required to submit to the Executive Director, on an annual basis, reports evidencing compliance with the Affordable Rental Requirement (the "Affordable Rental Reports"). The Affordable Rental Reports shall consist of a certification to the CRA by an independent compliance agency, which shall be selected by the Developer and reasonably acceptable to the CRA. 32.2.2 Disputes. To the extent of any disputes between Developer and the Executive Director with respect to whether the renters of the Rental Units meet the applicable requirements of Section 5.1, the dispute will be submitted to arbitration for resolution, which resolution shall be binding on the parties. 32.2.3 Penalties for Non -Compliance. To the extent that Developer fails to comply with the Affordable Rental Requirement as determined in accordance with Section 5.4 above, then in such event, Developer shall pay to the CRA, as a penalty for non-compliance with the Affordable Rental Requirement the sum of Four Thousand Dollars ($4,000.00) for each unit which is not in compliance, determined on an annual basis. Any amounts, if any, due from Developer in accordance with this Section 5.4 shall be calculated annually as of each January 1st and paid by Developer within ten (10) business day of notice by the CRA to Developer of the amount due. 32.3 Conversion to Condominium. In the event that upon the expiration of the Affordable Rental Requirements Developer elects to convert the Units to a condominium form of ownership and convey the Units, Developer shall pay to the CRA a fee in the amount of seven percent (7%) of the gross sales price of each Unit sold. Such fee shall be paid to the CRA at the closing of each sold Unit. it will: 33. MINORITY AND WOMEN'S PARTICIPATION AND EQUAL EMPLOYMENT OPPORTUNITY 33.1 Minority and Women Participation and Equal Opportunity. Developer agrees that (i) Take definitive action in the recruitment, advertising and to attract and retain minority and female contractors and subcontractors; 54 • • • (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; 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 6.1; and (vii) In all solicitations and advertisements for employment placed by or on be. alf of Developer, state that all applicants will receive consideration for employment without regard to race, creed, color or national origin. 33.2 Participation Requirements. Developer agrees to comply with the following minority and female participation requirements (the "Minority Participation Requirements"): 33.2.1 Subcontractor Participation. 6.2.1.1 Construction. Developer agrees to comply with the following voluntary minority and female participation requirements with respect to subcontractor participation in construction of the Project: (v) 28% Black subcontractor owned business participation 8% Female subcontractor owned business participation 15% Hispanic subcontractor owned business participation 55 • • • 6.2.1.2 Design. Developer agrees to comply with the following voluntary minority and female participation requirements with respect to subcontractor participation in the design of the Project: 10% Black subcontractor owned business participation 5% Female subcontractor owned business participation 10% Hispanic subcontractor owned business participation 6.2.1.3 Marketing. Developer agrees to comply with the following voluntary minority and female participation requirements with respect to the overall marketing staff for the Project: 28% Black subcontractor owned business participation 8% Female subcontractor owned business participation 15% Hispanic subcontractor owned business participation 33.2.2 Employee Participation. 6.2.2.1 Construction. Developer agrees to utilize its best efforts to comply with the following minority and female participation requirements with respect to construction: 28% Black employees 8% Female employees 15% Hispanic employees 6.2.2.2 Design. Developer agrees to comply with the following voluntary participation requirements with respect to employee participation in the overall design workforce for the Project: 10% Black employees 5% Female employees 10% Hispanic employees 6.2.2.3 Property Management. Developer agrees to comply with the following voluntary participation requirements with respect to overall employee participation in property management of the Project: 56 • • • 51% of the personnel employed by the property manager with respect to the Project shall be Black, Female or Hispanic or any combination thereof to satisfy the requirement. 33.3 Report Requirements. Developer shall be required to provide, on a semi-annual basis, on or before January 15 and July 15 of each year, 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 6.2 during the preceding year (the "Minority Participation Reports") on a building by building 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. 33.4 Penalties for Non -Compliance. To the extent that Developer fails to comply with the Minority Participation Requirements with respect to the applicable building in each of the categories described in Section 6.2 applicable to said building during any twelve month period for each calendar year, Developer shall pay to the CRA as a penalty One Thousand Five Hundred and No/100 Dollars ($1,500.00) for each percentage point below the requirements set forth in Section 6.2, in each respective category Developer fails to meet the applicable Minority Participation Requirement with respect to the Project during that calendar year (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. 33.5 Impossibility to Perform. In the event that Developer, in good faith, believes that it is impossible to satisfy some or all of the Minority Participation Requirements for the Project as a result of there not being a sufficient number of minority and female job candidates available to comply with the Minority Participation Requirements with respect to the Project, Developer may request that the Executive Director reduce the applicable Minority Participation 57 • • • Requirements, in the applicable category, for the Project provided that Developer is able to provide to the Executive. Director 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 for the Project. The decision of the Executive Director shall be binding on Developer and the CRA with respect to the Project. 34. EMPLOYMENT TRAINING PROGRAM 34.1 Construction. The 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 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 "L" attached hereto and incorporated herein by reference (the "STE Program"). The Developer shall comply with the terms and provisions of the STE Program. 34.2 Property Management. The 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 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 "M" attached hereto and incorporated herein by reference (the "PMTE" Program"). The Developer shall comply with the terms and provisions of the PMTE Program. 35. LAND USES 35.1 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 Project be developed substantially in accordance with the Development Plan during the Term of this Lease. 58 • • • 35.2 Character and Operation of Improvements. The parties recognize and acknowledge that the manner in which the Project 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. 35.2.1 Rules and Regulations. Developer shall establish reasonable rules and regulations (the "Rules & Regulations") governing the occupancy of Subtenants and 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 Project required herein. The Rules & Regulations shall be subject to the approval of the Executive Director and shall not conflict with this Lease. The Executive Director shall also review and approve the standard form lease to be utilized to sublet any Units. 35.2.2 Condominium Documents. In the event the Units are converted to a condominium form of ownership in accordance with Section 5.3 of this Lease, Developer shall prepare condominium documents with respect to the Project (the "Condominium Documents") governing the occupancy of 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 Project required herein. The Condominium Documents shall be subject to the approval of the Executive Director and shall not conflict with this Lease. The Executive Director shall also review and approve the standard form contract to be utilized to sell any Units. • 36. ANTI -SPECULATION: ASSIGNMENT 36.1 Definitions. As used herein, the term "Transfer" means: 36.1.1 any total or partial sale, assignment or conveyance (other than by a Leasehold Mortgage) 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. 36.1.2 the change in control of JL Homes, LLC, a Florida limited liability company ("JL Homes"), which is the sole manager of Developer. JL Homes is currently controlled by Jorge A. Lopez; 36.1.3 any transfer of more than 20% of the membership interests in Developer; 59 • Lopez. • • 36.1.4 a change in the sole manager of JL Homes, which is currently Jorge A. 36.1.5 a change in the sole manager of Developer, which is currently JL Homes. 36.1.6 any merger, consolidation or sale or lease of all or substantially all of the assets of Developer; or 36.1.7 any Sublease of the Project to a single Subtenant or Subtenants who are related in their ownership. 36.2 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: 36.2.1 The importance of the development of the Leased Property to the general welfare of the community; 36.2.2 The terms and conditions and public aids that have been made available by the CRA for the purpose of making such development possible; and 36.2.3 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 is of particular concern to the community and the CRA. Developer further recognizes that it is because of 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. 36.3 Transfers. Developer represents and warrants that Developer has not made, created or suffered any Transfers. Except as permitted pursuant to subparagraphs 9.3.1 through 9.3.7 hereof, no Transfer may be made, suffered or created by Developer. The following Transfers shall be permitted hereunder: 36.3.1 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 60 • • • 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 10.1(c)(iv) of this Lease. 36.3.2 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 10.1(c)(iv) of this Lease. 36.3.3 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 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. 36.3.4 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 10.1(c)(iv) of this Lease. 36.3.5 Any Transfer by a member, which is consented to by the Executive Director, which consent shall not be unreasonably withheld provided not more than 20% of the membership interest in the Developer have not been transferred. 36.3.6 Any Transfer resulting from the death of Jorge A. Lopez, provided that same does not result in the dissolution or termination of Developer or any General Partner of Developer. 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 and void, unless said transfer of the 61 s • • 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. 36.4 Notice of Transfer: Information as to Partners and Shareholders. 36.4.1 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 manager shall have knowledge, not less than thirty (30) days prior to any such proposed Transfer and the CRA shall within fifteen (15) clays 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. 36.4.2 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 manager of JL Homes, setting forth the full names and address of holders of membership interests in Developer, and their respective percentage interest in Developer, 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. 36.5 Effectuation of Certain Permitted Transfers. No Transfer of the nature described in Section 9.3.5 through 9.3.7 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, 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 62 • • • 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 Project, 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 Iimit 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 Project and the Parking Garage. 36.6 Transfer of CRA Interest. 36.6.1 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 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. 36.6.2 Termination of CRA. Developer acknowledges that the CRA will terminate and cease to exist on September 30, , 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 Leased Property 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. 36.7 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 completion of the Project, Developer shall have the right, to enter into Subleases of any part of the Leased Property or Project 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 63 • • s 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 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. 37. MORTGAGE FINANCING: RIGHTS OF MORTGAGEE 37.1 Leasehold Mortgage. 37.1.1 Notwithstanding the provisions set forth in Article IX hereof regarding any transfer or assignment of this Lease, but subject to the provisions of this Article X, 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 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 for the sole purpose of securing the financing of the construction of the Project pursuant to the terms of this Lease, or for the long-term financing or refinancing of the Project. Developer shall submit all documents pertaining to new mortgage loans or encumbrances on the Ieasehold estate to CRA for its approval. The CRA shall review and approve same within thirty (30) days of receipt if the terms are substantially consistent with customary loan documents. The CRA however, may not approve the loan if the terms materially conflict with this Lease. Developer shall deliver to CRA promptly after execution by Developer a true and verified copy of any Leasehold Mortgage, 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. 64 i • • 37.1.2 For purposes of this Article X, "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 the Project or any portion thereof 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. 37.1.3 During the continuance of any Leasehold Mortgage until such time as the lien of any Leasehold Mortgage has been extinguished, and 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 10.1.1 above which has previously been approved by the CRA: 37.1.3.1 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. 37.1.3.2 Notwithstanding any default by Developer in the performance or observance of any covenant, condition or provision 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 to enable Lender 65 • • 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 X. 37.1.3.3 Subject to the provisions of Section 10.1.3.4 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 Project and the Parking Garage, 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 prevent a termination of this Lease as the same would have been if made done and performed by Developer instead of by Lender. 37.1.3.4 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 66 • • • 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 Section 10.1.3.4. 37.1.3.5 An Event of Default under this Lease which in the nature thereof cannot be remedied by Lender shall be deemed to be remedied 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 obligations. 37.1.3.6 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 67 • • • proceedings in the nature thereof, the times specified in Sections 10.1.3.4 and 10.1.3.5 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. 37.1.3.7 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 X. 37.1.3.8 Foreclosure of a Leasehold Mortgage or any sale thereunder, 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 X; 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 68 • • • 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 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 10.1. Lender shall be entitled to receive the benefit of this Article X 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. 37.1.3.9 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 Land or the Project 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 69 • the Project. The CRA's obligation to 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 10.1.3.9 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 10.1.3.9 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 Project. At Developer's request, the CRA will enter into an agreement with any Leasehold Mortgagee granting to the Leasehold Mortgagee the rights set forth in this Article. 37.1.3.10 The CRA and Developer shall cooperate in including in this Lease, by suitable amendment, from time to time, any provision which may 70 • • • be requested by any proposed Lender, or may otherwise be reasonably necessary, to implement the provisions of this Article X; 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. 37.2 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. 38. REMEDIES 38.1 Events of Default. The occurrence of any of the following events are hereby defined as an "Event of Default": 38.1.1 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 Rental. 38.1.2 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 Project 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, 71 • • • 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 to cure such default, until completion but in no event beyond one hundred twenty (120) days after notice thereof from the CRA. 38.1.3 Bankruptcy, etc. 38.1.3.1 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 38.1.3.2 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 38.1.3.3 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 38.1.3.4 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 38.1.3.5 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 38.1.3.6 If Developer shall abandon the Leased Property during the term of this Lease; or 38.1.3.7 If Developer shall assign this Lease or sublet any portion of the Leased Property, except as permitted herein. 72 • • • 38.2 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 to the CRA pursuant to Section 10.1(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. 38.3 Events of Default - CRA. 38.3.1 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. 38.3.2 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: 38.3.2.1 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 73 • 3S.3.2.2 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; 38.3.3 Under no circumstances shall the CRA be liable for damages as a result of the occurrence of an Event of CRA Default. 38.4 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 casually, hurricanes, earthquakes or other natural catastrophes, and governmental or court imposed moratorium or injunction which materially effects Developer's construction of Project 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 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. 38.5 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 74 • • • 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. 39. PROTECTION AGAINST MECHANICS' LIENS AND OTHER CLAIMS, INDEMNIFICATION_ 39.1 Mechanics Liens and Payments of Obligations. 39.1.1 Developer to Discharge Contractors Liens. If any such mechanics liens shall at any time be filed against the Leased Property, DeveIoper 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. 39.1.2 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 75 • • • to subcontractors in connection with the development, construction, equipment, repair or reconstruction of any of the Project 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 clue and owing and to withhold payment of such amounts pending resolution of such dispute. 39.2 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 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. 39.3 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 the Project 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. 40. INSURANCE 76 • • • 40.1 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: 40.1.1 Property Insurance. Insurance on the Project 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 "Project", 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 with respect to the Project 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 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 77 • • • 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 Project 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 Project 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. 40.1.2 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. 40.1.3 Liability Insurance. Comprehensive General Liability, including contractual liability, products and completed operations, or an equivalent policy form providing liability insurance against claims for personal injury or death or property damage, occurring on or about the Leased Property, the Project, 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 78 • • • 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. 40.1.4 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. 40.1.5 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. 40.1.6 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. 40.1.7 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. 40.1.8 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. 79 • • • 40.1.9 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 any policy, together with proof satisfactory to the CRA that all premiums have been paid. 40.2 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 Iosses 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. 40.3 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. 40.4 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, and all amounts of money paid therefore by the CRA shall be treated as 80 • • • 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. 40.5 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. 40.6 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. 40.7 Proof of Loss. Whenever the Project, or any part thereof, constructed on the Leased Property (including any personal property furnished or installed in the Project) 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. 40.8 Property Insurance Proceeds. 40.8.1 Authorized Payment. Except as otherwise provided in Section 13.8.3, all sums payable for loss and damage arising out of the casualties covered by the property insurance policies shall be payable: 40.8.1.1 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 81 • • • Leased Property and then to the curing of such default. Any remaining proceeds shall be paid over to Developer; 40.8.1.2 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 Section 13.8.2. 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. 40.8.2 Disposition of Insurance Proceeds for Reconstruction. All amounts received upon such policies shall be used, to the extent required, for reconstruction, repair or replacement of the Project and the personal property of Developer contained therein, so that the Project 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 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. 40.8.3 Lenders and Lender/Landlords May Have Benefit of Insurance Fund for Reconstruction. In the event Developer, pursuant to any Leasehold Mortgage, shall at any time authorize the Lenders 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 82 • • • request of any such Leasehold Mortgagee, be applied to the reconstruction or repair of any such building so damaged or destroyed. 40.9 Covenant for Commencement and Completion of Reconstruction. Subject to the provisions of Section 13.8.2, 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 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. 41. CONDEMNATION 41.1 Entire Leased Property Taken by Condemnation. In the event that the whole of the Leased Property and Project (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 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 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 in such condemnation suit or conveyance; 83 • • • Second: CRA and Developer shall be paid portions of the balance 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 Project bears to the total Fair Market Value of the interests and estates of both parties in the Leased Property and Project within thirty (30) days of the time of the taking. 41.2 Partial Taking of Leased Property by Condemnation. 41.2.1 In the event that less than all of the Leased Property or Project 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 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 Section 14.2.2 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 Project so that they will be comparable to the Project 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. 41.2.2 The award or awards of damages allowed to CRA and Developer 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 the CRA and Developer 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 Project pursuant to (a) above; 84 • Fourth: Developer and the CRA 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 in the same proportion as the then Fair Market Value of each party's respective interest or estate in the Leased Property and the Project bears to the total Fair Market Value of the interests and estates of both parties in the Leased Property and Project. 41.3 Adjustment of Rent Upon Partial Taking In the event a part of the Leased Property and the Project, 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 the CRA and Developer 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. 41.4 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 Project 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 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 Project, 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. 85 • • • 42. RIGHTS OF OCCUPANCY AND ACCESS, MAINTENANCE, OWNERSHIP OF DEVELOPER IMPROVEMENTS 42.1 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. 42.2 Waste. Developer shall not permit, commit or suffer waste or impairment of the Leased Property or the Developer Improvements thereon, or any part thereof. 42.3 Maintenance and Operation of Developer Improvements. Developer shall at all times keep the Project 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 Project, and of the Leased Property, shall comply with all laws, ordinances, codes and regulations applicable thereto. 42.4 Ownership of Project During Lease. Prior to the expiration or termination of this Lease, title to the Project shall not vest in the CRA by reason of its ownership of fee simple title to the Leased Property, but title to such Project shall remain in Developer and any individual owners of the Units. Upon the expiration or termination of this Lease, title to the Project shall automatically vest in the CRA, free and clear of all claims arising by, through or under Developer. 42.5 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 any work as may be reasonably necessary or appropriate for the construction of the Project 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 86 • • • utilities and facilities as may be reasonably necessary or appropriate for the construction, operation or use of the Leased Property or any improvement to be erected by Developer thereon. Developer shall pay all fees and charges for all such applications and grants. 43. DEVELOPER NOT TO ENCUMBER CRA'S INTEREST 43.1 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 Project. The fee simple estate of the CRA in the Land and the remainder or residual interest of the CRA in the Project 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 Project arising from any act or omission of Developer shall accrue only against Developer's interest in the Project. 44. LIMITATION OF LIABILITY 44.1 Limitation of Liability of Developer. 44.1.1 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. 44.1.2 Limited Carve -Out. Notwithstanding the foregoing, in the event of: (i) an actual and intentional fraud committed by any of Developer's members or managers in any written documents prepared by Developer submitted to the CRA or (ii) any misappropriation of 87 • • • insurance proceeds or condemnation awards by Developer (should same be paid directly to DeveIoper), any such members or managers 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 member or manager 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 Project for recovery of such damages. 44.2 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 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 88 • • • 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. 45. SURRENDER AND HOLDING OVER 45.1 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 Project; and (ii) all alterations, changes, additions and other improvements made upon the Leased Property. 45.2 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 Project 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 withheld beyond the date of expiration or termination of this Lease a sum per day equal to Ten Thousand and No/100 Dollars ($10,000.00) plus the applicable sales taxes. 45.3 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). 45.4 Survival. The provisions of this Article shall survive the expiration or earlier termination of this Lease. 46. ENVIRONMENTAL LIABILITY 46.1 Definition of Terms. For purposes of this Article XX, the following terms shall have the meanings attributed to them in this Section: 89 • • • 46.1.1 "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. 46.1.2 "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). 46.1.3 "Environment" means soil, surface waters, groundwaters, land, stream sediments, surface or subsurface strata and ambient air. 90 • • • 46.1.4 "Costs" means all costs incurred in connection with correcting any violations of any Environmental Laws. 46.1.5 "Release" means any releasing, seeping, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, disposing, or dumping into the Environment. 46.1.6 "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. 46.1.7 "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. 46.2 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. 46.3 Developer's Liability for Contamination During Lease Term. Developer shall undertake at Developer's sole cost and expense, any 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. 91 • • • 46.4 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. 46.5 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 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. 46.6 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 92 • • • 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. 47. INDEMNIFICATION AND RELEASE OF CRA 47.1 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 (imitation, reasonable attorneys' fees and costs) by or on behalf of any person, arising out of, resulting from, or in any way connected to: (i) any development, construction or other work in or about Project and/or Leased Property; (ii) a hazardous condition of or present on the Project 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"). 47.2 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. 47.3 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 93 • • • 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. 47.4 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. 47.5 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. 47.6 Survival. The provisions of this Article shall survive the expiration or sooner termination of this Lease. 48. MISCELLANEOUS PROVISIONS 48.1 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. 48.2 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 applicable Miami -Dade County and State transfer tax, if applicable, shall be paid in full by the Developer. 94 • • • 48.3 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. 48.4 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. 48.5 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 stall 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: 95 s • (b) Executive Director, DEV-CON URBAN PARTNERS & AFFORDABLE, LLC Attention: Axel Rizo, Chief Operating Officer 299 Alhambra Circle, Suite 203 Coral Gables, Florida 33134 Phone: (305) 443-4904 Facsimile: (305) - CRA. In the case of a notice or communication to the CRA or the if addressed as follows: SOUTHEAST OVERTOWN/PARK WEST COMMUNITY REDEVELOPMENT AGENCY Attention: James H. Villacorta, Executive Director 49 N.W. 5th Street, Suite 100 Miami, Florida 33128 Facsimile: (305) 679-6836 With a copy to: William R. Bloom, Esq. Holland & Knight LLP 701 Brickell Avenue, Suite 3000 Miami, Florida 33131 Phone: (305) 789-7712 Facsimile: (305) 789-7799 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. 48.6 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, 96 • • • 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 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. 48.7 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. 48.8 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. 48.9 Nondisturbance and Attornment. The CRA covenants and agrees with Developer for the benefit of any and all Subtenants occupying any part of the Leased Property or the Project 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 shall not be disturbed so long as such Subtenant shall not be in default under its Sublease or provided such Subtenant shall attom to the CRA. This nondisturbance agreement shall be self -operative and no further agreement between the CRA and any such Subtenant shall be necessary to effect the same, however, the CRA agrees from time to time, promptly upon request of Developer of any Subtenant, it will enter into agreements with the Developer and any such Subtenant confirming such nondisturbance 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 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 thereunder shall attorn to the CRA in the event of a 97 • • • 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 from the provisions of this Section 22.9. 48.10 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. 48.11 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. 48.12 Amendments. No Amendments to this Lease shall be binding on either party unless in writing and signed by both parties. 48.13 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. 48.14 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. 48.15 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, 98 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. 48.16 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 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. 48.17 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. 48.18 Brokers. The parties each represent and warrant to the other that there are no real estate broker(s), salespersons (salespersons) 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 attomey's fees and court costs at trial and all appellate levels) with respect to said claim for commissions. 99 • • • Notwithstanding anything to the contrary contained in this Agreement, the provisions of this Paragraph shall survive the delivery of the Lease 48.19 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 and other charges billed by the attorney to the prevailing party (including any fees and costs associated with collecting such amounts). 49. ARBITRATION 49.1 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. 100 • i • 49.2 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 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 101 • • • 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. IN WITNESS WHEREOF, Developer and the CRA have executed this Lease of the day and year first above written. Signed in the presence of: DEVELOPER: DEV-CON URBAN PARTNERS & AFFORDABLE, LLC, a Florida limited liability company By: Print Name: Name: Axel Rizo, Manager Print Name: CRA: SOUTHEAST OVERTOWN / PARK WEST COMMUNITY REDEVELOPMENT AGENCY, an agency of the State of Florida By: Print Name: Name: James Villacorta, Executive Director Print Name: 102 ATTEST: • Priscilla A. Thompson Clerk of the Board APPROVED AS TO LEGAL APPROVED AS TO INSURANCE SUFFICIENCY: REQUIREMENTS: • • Insurance Manager 103 40 STATE OF FLORIDA COUNTY OF MIAMI-DADE • • )SS Sworn to (or affirmed) and subscribed before me this day of , 200_, by Axel Rizo, the Manager of Dev-Con Urban Partners & a Florida limited liability company, on behalf of the limited liability personally known to me or has produced as Affordable, LLC, companies, who is Identification. (SEAL) Notary Public -State of Commission Number: STATE OF FLORIDA COUNTY OF MIAMI-DADE ) )SS Sworn to (or affirmed) and subscribed before me this day of 200_, by James Villacorta, 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: # 5807831_v3 104 • • • EXHIBIT G Organizational Documents 105 • Jorge A. Lopez, member Axel Rizo, member Olga Betancourt, member Ario Lundy, member # 5271078_v8 • • EXHIBIT H Percentage Interest 106