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HomeMy WebLinkAboutCRA-R-11-0020 03-28-2011 Legislation (Attachment)THE MIKADO ECONOMIC INCENTIVE AGREEMENT THIS THE MIKADO ECONOMIC INCENTIVE AGREEMENT (the "Agreement") is made as of the day of March, 2011 by and between HOTEL DE L'OPERA, LLC, a Florida limited liability company (the "Owner"), and the OMNI REDEVELOPMENT DISTRICT COMMUNITY REDEVELOPMENT AGENCY, a public agency and body corporate created pursuant to Section 163.356, Florida Statutes (the "CRA"). RECITALS: A. The CRA was formed for the purpose of removing slum and blight in the Omni Redevelopment Area (the "Redevelopment Area") and to promote redevelopment and employment within the Redevelopment Area. B. Owner is the owner of that certain real property located in the Redevelopment Area as more particularly described and identified on Exhibit "A" attached hereto and made a part hereof (the "Property"). C. Owner intends to develop the Property as more particularly described on Exhibit "B" attached hereto and made a part hereof (collectively, the "Project"). D. The Owner has requested that the CRA provide economic incentives to the Owner to assist in the redevelopment of the Project and the job creation that will result from the construction, development and operation of the Project. NOW THEREFORE, in consideration of the foregoing and of the covenants and agreements hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Owner and the CRA hereby agree as follows: 1. RECITALS. The Recitals to this Agreement are true and correct, are incorporated herein by reference and made a part hereof. 2. DEFINITIONS. The following terms used in this Agreement shall have the following meanings: 2.1 "Affiliate" of any Person (the "Specified Person") means any other Person (a) that directly or indirectly controls, is controlled by or is under common control with such Specified Person, (b) who is an officer, manager, employee or agent of, partner in, or trustee of, or serves in a similar capacity with respect to, the Specified Person (or any of the Persons names in clause (a) above, (c) of which the Specified Person is an officer, manager, employee, agent, partner or trustee, or serves in a similar capacity, or (d) who is a member of the Specified Person's family. For purposes of this definition, the term "control" means the direct or indirect possession of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of securities, by contract or otherwise. 2.2 "Auditor means an independent third party auditor, who may be retained on any given year by the Owner or the CRA, at the sole cost and expense of Owner, in accordance with Section 4. 2.3 "Base Year" with respect to the Project, shall mean the year prior to the tax rolls for that Project reflecting an increase in the assessed value of the Project as a result of the Project being Substantially Completed. 2.4 "City" means the City of Miami, a municipal corporation of the State of Florida. 2.5 "Completion" means Substantial Completion of the Project, including completion of all punch list items. 2.6 "County" means Miami -Dade County, a political subdivision of the State of Florida. 2.7 "County Approval" means the approval by the County of the Annual CRA Budget for the respective year which CRA Budget includes the line item of the payment to Owner of the Incremental TIF contemplated to be paid in accordance with the terms of this Agreement. 2.8 "CRA Approval" means the approval by the CRA Board of the annual operating budget for the CRA for the respective year, which includes the line item of the Incremental TIF contemplated to be paid in accordance with the terms of this Agreement. 2.9 "CRA Board" means the board of commissioners of the CRA. 2.10 "CRA Board Obligations" has the meaning ascribed to such term in Section 6. 2.11 "CRA Budget" means the annual budget for the operation of the CRA approved by the CRA Board. 2.12 "Development Costs" means the hard and soft costs actually incurred by Owner in connection with the design and construction of the Project through Completion, excluding land costs, costs paid to any Affiliates, and costs of tenant improvements to the office and retail space of the Project above the base building improvements but including all fixtures, furnishings and equipment for tenant improvements for all portions of the Project under the control of the Owner or operator of the Hotel and the Rental Units, as the same may be certified by an independent third party accounting fi _m retained by Owner and as further certified by Owner in the Development Costs Certificate. 2.13 "Development Certificate" means the certificate from Owner of the Development Costs, in substantially the form of Exhibit "D", which certificate shall have appropriate backup, reasonably acceptable to the Executive Director, to substantiate the Development Costs, certified as being true and correct by Owner. 2 2.14 "Development Incremental TIF" has the meaning ascribed to such term in Section 3.1.1. 2.15 "Employment Certificate" means a statement, broken down in reasonable detail, for each tenant, reflecting the number of Full -Time Jobs and Part -Time Jobs created by the Project, in substantially the form of Exhibit "E" attached hereto and made a part hereof, prepared by Owner, and certified as being true and correct by Owner. 2.16 "Executive Director" means the executive director of the CRA. 2.17 "Employment Incremental TIF" has the meaning ascribed to such term in Section 3.2.1. 2.18 "Full -Time Job" means the full time employment of an individual of not less than thirty-five (35) hours per week at the Project or by a business operated within the Project, receiving all of the employee benefits offered by the respective employer to other similarly employed individuals and classified by such employer as a full-time employee for fifty-two (52) weeks in a calendar year. For purposes of calculating economic incentives in accordance with this Agreement, (i) if an employee works for twenty-six (26) weeks during a calendar year on a full time basis, such employment shall count as one-half (1/2) of a Full -Time Job, and (ii) two (2) Part -Time Jobs shall count as one (1) Full -Time Job. 2.19 "Hotel" has the meaning ascribed to such term in Exhibit "B". 2.20 "Incremental TIF" shall mean the tax increment funds, if any, actually received by the CRA from the County and City generated from the Project for the applicable year after deducting all administrative charges imposed by the County and the City and excluding all charges and/or payments related to the Children's Trust above the tax increment funds actually received by the CRA from the County and the City for the Base Year applicable to the Project after deducting all administrative charges imposed by the County and the City and excluding all charges and/or payments related to the Children's Trust for the Base Year. 2.21 "Offices" has the meaning ascribed to such term in Exhibit "B". 2.22 "Part -Time Job" means the part-time employment of an individual of twenty (20) hours per week or more by a business operated within the Project for fifty-two (52) weeks in a calendar year. For purposes of calculating economic incentives in accordance with this Agreement, if an employee works for thirteen (13) weeks during a calendar year on a part-time basis, such employment shall count as one quarter (1/4) of a Part -Time Job. 2.23 "Person" means any individual, sole proprietorship, partnership, joint venture, limited liability company, limited liability partnership, trust, estate, unincorporated organization, association, corporation, institution, or other entity. 2.24 "Project" has the meaning ascribed to such term in the Recitals. 2.25 "Property" has the meaning ascribed to such term in the Recitals. 3 2.26 "Rental Unit" has the meaning ascribed to such term in Exhibit "B". 2.27 "Substantially Completed" or "Substantial Completion" means that the construction and development of the Project has been substantially completed in accordance with the plans and specifications, subject only to the completion of minor punch list items and a temporary certificate of occupancy, or its equivalent, has been issued by the City for the Project. 3.2.1. 2.28 "Targeted Full -Time Jobs" has the meaning ascribed to such term in Section 3. DEVELOPMENT OF PROJECT AND EMPLOYMENT. 3.1 Development of Project. Owner hereby represents and warrants to the CRA that Owner will expend Sixty -One Million Five Hundred Thousand and No/100 Dollars ($61,500,000.00) in Development Costs in connection with the development of the Project. As an inducement to Owner to undertake the development of the Project, the CRA agrees to pay to Owner a percentage of the Incremental TIF actually generated from the Project as follows: 3.1.1 Development Incremental TIF Adjustment. If the Owner expends not less than Sixty -One Million Five Hundred Thousand and No/100 Dollars ($61,500,000.00) in Development Costs in connection with the Development of the Project, the CRA shall pay to the Owner twenty-five percent (25%) of the Incremental TIF generated from the Project above the Base Year for a period commencing with the first tax year after the Base Year (the "Development Incremental TIF"), subject to the County Approval and the CRA Approval of the CRA Budget being obtained on an annual basis and terminating upon the expiration of the CRA. If Owner expends less than Sixty -One Million Five Hundred Thousand and No/100 Dollars ($61,500,000.00) in Development Costs to complete the Development of the Project, then in such event, the percentage of Development Incremental TIF which will be payable to the Owner shall be reduced by the percentage the Development Costs are less than Sixty -One Million Five Hundred Thousand and No/100 Dollars ($61,500,000.00). For example, should the Development Costs equal 75% of $61,500,000.00, based upon the Development Costs Certificate, the percentage of the Development Incremental TIF which the CRA will be obligated to pay to the Owner shall be reduced by 25%. Owner shall not receive any additional percentage of Development Incremental TIF for expending more than Sixty -One Million Five Hundred Thousand and No/100 Dollars ($61,500,000.00). 3.1.2 Development Costs Certificate. Within sixty (60) days of the Substantial Completion of the Project, the Owner shall submit to the CRA the Development Costs Certificate (certified as being true and correct by the Owner). The Development Costs Certification shall be utilized by the CRA to calculate the percentage of the Development Incremental TIF which will be payable to Owner absent manifest error. If requested by the Executive Director of the CRA, the Owner shall provide reasonable additional back up documentation for the Development Costs Certification. Owner shall not be entitled to any of the 4 Development Incremental TIF pursuant to Section 3.1.1 until Owner provides the Development Costs Certificate. 3.1.3 Disputes. In the event of a dispute between the Executive Director and Owner as to the Development Costs, the Executive Director and Owner shall proceed in good faith to resolve the dispute. If the parties are not able to resolve the dispute within thirty (30) days of written notice to the other, the dispute shall be submitted to the CRA Board for resolution within ninety (90) days of the expiration of such thirty (30) day period or such longer period as may be agreed to by the parties to this Agreement. The CRA Board's decision shall be deemed final and binding on the parties. 3.1.4 Payment of Development Incremental TIF. Subject to County Approval and CRA Approval of the CRA Budget, on an annual basis, and subject to Owner complying with Section 3.1.2, for each year after the Base Year, the CRA shall pay to the Owner the applicable percentage of the Incremental TIF due pursuant to Section 3.1.1, within the latter of (i) sixty (60) days after the CRA's receipt of the Development Costs Certificate from Owner as required by Section 3.1.2; or (ii) thirty (30) days after the CRA's receipt of the Incremental TIF from the County and the City. 3.1.5 COMPLETION OF PROJECT. The Owner acknowledges that the prompt development of the Project by the Owner is a material inducement for the CRA to enter into this Agreement. In the event that the Base Year is after 2017, then for each year the Base Year occurs after 2017, the maximum amount of Incremental TIF that the CRA shall pay to the Owner pursuant to Section 3.1.1 shall be reduced by ten percent (10%) per year. In addition, if the Base Year has not occurred prior to 2019, this Agreement shall be of no further force and effect. 3.2 EMPLOYMENT. The Project is currently anticipated to be completed by December 31, 2014. Commencing the calendar year in which the Project achieves Substantial Completion and for a period terminating upon the expiration of the CRA, subject to the County Approval and the CRA Approval of the CRA Budget being obtained annually, the CRA will pay to the Owner annually a portion of the Incremental TIF generated from the Project based upon Owner achieving the employment objectives each calendar year as follows: 3.2.1 Base Job Full -Time Incremental TIF. The Project is anticipated to generate a total of two hundred sixty-eight (268) Full -Time Jobs upon full occupancy and operation. The Project is expected to go through a ramp -up period, generating additional Full -Time Jobs over a period of time. The Project is anticipated to generate one hundred sixty-one (161) Full -Time Jobs during the first year after Substantial Completion, two hundred sixteen (216) Full -Time Jobs during the second year after Substantial Completion, and two hundred sixty-eight (268) Full -Time Jobs during the third year after Substantial Completion and in each year thereafter (the number of Project Full -Time Jobs in the applicable calendar year is the "Targeted Full -Time Jobs"). If no less than the number of Targeted Full -Time Jobs are generated by the Project during the applicable calendar year, 5 subject to the County Approval and CRA Approval of the CRA Budget, the CRA shall pay to Owner twenty-five percent (25%) of the Incremental TIF generated by the Project (the "Employment Incremental TIF"). For purposes of the calculation of Targeted Full -Time Jobs, two Part -Time Jobs shall equal one (1) Full -Time Job. If the number of Full -Time Jobs generated by the Project during the applicable calendar year is less than the number of Targeted Full -Time Jobs, then the percentage of Employment Incremental TIF payable to Owner for the generation of Full -Time Jobs shall be reduced by the same percentage that the number of Full -Time Jobs for the applicable year is less than the number of Targeted Office Full -Time Jobs. For example, if only seventy-five percent (75%) of the Targeted Full -Time Jobs is achieved in a given year, then the percentage of Employment Incremental TIF which will be payable to Owner, pursuant to this Section 3.2.1, shall be reduced by 25%. 3.2.2 Employment Certificate. On an annual basis, Owner shall submit to the CRA a statement, broken down in reasonable detail, Project reflecting the number of Full -Time Jobs and Part -Time Jobs created by the Project certified as being true and correct by the Owner (the "Employment Certificate"), provided, however, that once the submitted Employment Certificate indicate that the Targeted Full -Time Jobs have been met for two (2) consecutive years after the ramp -up period, the Owner shall only be required to submit Employment Certificates to the CRA every other year provided each such Employment Certificate indicates that at least Two Hundred Sixty -Eight (268) Targeted Full -Time Jobs has been achieved. If the Employment Certificate indicates that less than Two Hundred Sixty -Eight (268) Targeted Full -Time Jobs has been achieved, then in such event Owner shall be required to submit the Employment Certificate annually until Owner has submitted Employment Certificates for two (2) consecutive years indicating that at least Two Hundred Sixty -Eight (268) Targeted Full -Time Jobs has been achieved during each such year in which event Owner shall thereafter submit such Employment Certificates every other year provided each such Employment Certificate indicates that at least Two Hundred Sixty -Eight (268) Targeted Full -Time Jobs has been achieved. If any bi-annual Employment Certification reflects that less than Two Hundred Sixty -Eight (268) Targeted Full -Time Jobs the Executive Director shall have the right to require Owner to submit an Employment Certificate for the prior year and the Incremental TIF payable in accordance with Section 3.2.1 shall be adjusted for such prior year based upon what is reflected in the Employment Certificate. The Employment Certificate shall be utilized by the CRA to calculate the percentage of the Employment Incremental TIF which will be payable to the Owner, absent manifest error. If requested by the Executive Director of the CRA, the Owner shall provide reasonable additional back up documentation for the Employment Certificate. Owner shall not be entitled to any of the Employment Incremental TIF pursuant to Section 3.2.1. until Owner provides the applicable Employment Certificate as required by this Section. 3.2.3 Disputes. In the event of a dispute between the Executive Director and Owner as to the Employment Certificate, the Executive Director and Owner shall proceed in good faith to resolve the dispute. If the parties are not able to resolve the dispute within thirty (30) days of written notice to the other, the dispute shall be submitted to the CRA Board for resolution within ninety (90) days of the expiration of such thirty (30) day period or such longer period as may be agreed to by the parties to this Agreement. The CRA Board's decision shall be deemed final and binding on the parties. 3.2.4 Payment of Employment Incremental TIF. Subject to County Approval and CRA Approval of the CRA Budget, on an annual basis, after the Base Year, and subject to the Owner complying with Section 3.2.2, for each year after the Base Year, the CRA shall pay to the Owner the applicable percentage of the Incremental TIF, due pursuant to Section 3.2.1, within the latter of (i) sixty (60) days after the CRA's receipt of the Employment Certificate from the Owner as required by Section 3.2.2; or (ii) thirty (30) days after the CRA's receipt of the Incremental TIF from the County and the City. 4. AUDITOR. Owner acknowledges that the CRA may, upon request of the CRA's external auditor, elect to audit the Development Costs Certificate and Employment Certificate in order to substantiate the information provided therein. In the event the CRA elects to audit the Development Costs Certificate and Employment Certificate, Owner shall provide or make available to the Auditor all necessary back-up information or documentation that is requested by Auditor in order to certify the information contained therein as being true and correct. The Owner may select Auditor, or allow the CRA to select Auditor. Owner shall bear all costs associated with Auditor for services in connection with this Agreement, provided that the annual cost paid by Owner to Auditor shall not exceed Fifteen Thousand and 00/100 Dollars ($15,000.00). 5. INCREMENTAL TIF PAYMENTS AFTER SALE. Notwithstanding Owner's sale, lease or other disposition of all or any portion of the Project, except as provided for in Exhibit "B," Owner shall continue to receive both the Development Incremental TIF and the Employment Incremental TIF payable to Owner set forth in this Agreement for the term of this Agreement. 6. SUBORDINATION OF INCREMENTAL TIF. Owner acknowledges and agrees that in addition to the obligation of the CRA to make the payments to Owner contemplated by this Agreement, the obligations of the CRA under this Agreement are junior and subordinate to the obligations of the CRA to pay debt service with respect to any bonds now existing and the bonds issued in connection with the port tunnel and related improvements by the CRA or the City on the CRA's behalf or any pledge of Incremental TIF by the CRA or the City on the CRA's behalf for such bonds (collectively the "CRA Bond Obligations"). Under no circumstances shall the CRA be obligated to make payments to Owner from its general revenues or any other sources if Increment TIF is unavailable after the CRA makes all required payments under the CRA Bond Obligations. To the extent no Incremental TIF or only a portion of the Incremental TIF is available to pay the CRA's obligations under this Agreement as a result of the CRA Bond Obligations, such payments shall be reduced to the amount of Incremental TIF available, if any. The Owner covenants and agrees to execute a subordination agreement confirming that this Agreement is junior and subordinate to any CRA Bond Obligations within ten (10) days of written request by the CRA. 7 7. CHALLENGES. 7.1 No Liability. Owner hereby forever waives and releases the CRA from any liability whatsoever, now or hereafter arising in connection with any challenge to this Agreement and covenants and agrees not to initiate any legal proceedings against the CRA in connection with any challenges to this Agreement. 7.2 Duty to Defend. In the event of any challenge to this Agreement, Owner, at its sole cost and expense, may defend any such challenge. The CRA shall cooperate with Owner and, if necessary, participate in the defense of such challenge provided Owner pays the costs of such defense. 7.3 Waiver of Claim. Owner waives any and all claims which Owner now has or may hereafter have against the CRA as a result of any challenge to this Agreement, and Owner acknowledges and agrees to assume the risk of any challenge to this Agreement. Under no circumstances shall Owner be entitled to any recovery with respect to any claims or any cause of action against the CRA resulting from any challenge to this Agreement, all such claims being expressly waived by Owner. 8. REPRESENTATIONS OF OWNER. Owner makes the following representations to the CRA as follows: 8.1 Owner is a limited liability company, duly organized and validly existing under the laws of the State of Florida and has full power and capacity to own their properties, to carry on their business as presently conducted, and to enter into the transactions contemplated by this Agreement. 8.2 Owner'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 such entities are a party or by which they may be bound or affected. 8.3 This Agreement constitutes the valid and binding obligation of Owner, enforceable against Owner and its successors and assigns, in accordance with its terms, subject to bankruptcy, insolvency and other similar laws affecting the rights of creditors generally. 9. NOTICES. Notices required or permitted to be given pursuant to the terms of this Agreement will be delivered in person or by facsimile transmission (provided the original notice is delivered in person or by mail or delivery service as set forth herein) or sent by certified mail, return receipt requested, postage prepaid, by recognized contract carrier providing signed receipt for delivery, and will be deemed delivered upon receipt or refusal of delivery. Notices will be delivered at the following addresses, subject to the right of any party to change the address at which it is to receive notice by written notice to the other party: 8 OWNER: Hotel De L'Opera, LLC c/o Florida East Coast Realty, Inc. 100 South Biscayne Boulevard Suite 900 Miami, Florida 33131 Attention: Tibor Hollo, Managing Member Fax: (305) 358-1619 CRA: Omni Redevelopment District Community Redevelopment Agency 49 NW 5th Street, Suite 100 Miami, FL 33128 Attention: Pieter Bockweg, Executive Director Fax: (305) 679-6835 Copy to: Holland & Knight LLP 701 Brickell Avenue Suite 3000 Miami, Florida 33131 Attention: William R. Bloom, Esq. Fax: (305) 789-7799 Copy to: Office of the City Attorney 444 S.W. 2nd Avenue, 9th Floor Miami, Florida 33130 Attention: Veronica Xiques, Esq. Fax: (305) 416-1801 10. STATUS OF LAW. Owner acknowledges that no voter approval was obtained in connection with this Agreement. In the event this Agreement is determined to be unenforceable as a result of (i) the multi -year CRA commitment regarding the use of the Incremental TIF; (ii) the failure to obtain County Approval of the CRA Budget on an annual basis; or (iii) the failure of the CRA Board to approve the CRA Budget on an annual basis, the Owner acknowledges and agrees that the CRA shall have no liability to Owner arising under this Agreement. Owner acknowledges that this provision is a material inducement for the CRA to enter into this Agreement. 11. COUNTY APPROVAL. Owner acknowledges that this Agreement has not been submitted to the County for review or approval but that the Incremental TIF payments contemplated by this Agreement will be included in the annual budget submitted by the CRA to 9 the County, once the CRA Budget is approved by the CRA Board. The CRA shall have no liability to the Owner in the event the CRA is not permitted by the County to make the payments contemplated by this Agreement. 12. NON -RECOURSE. This Agreement is non -recourse to the CRA. In the event of breach of this Agreement by the CRA, the Owner may seek specific performance of this Agreement and any recovery shall be limited to Incremental TIF generate by the Project above the applicable Base Year, to the extent permitted to be paid to the Owner by the County. 13. DEFAULT BY OWNER. In the event Owner breaches its duties and obligations under this Agreement and such failure is not cured within thirty (30) days of Owner's receipt of written notice of default specifying the breach, or such longer period of time, not to exceed one hundred and fifty (150) days, if the default, by its nature cannot be cured within thirty (30) days and Owner has not commenced the curative action within thirty (30) days and diligently pursues same, then the CRA will have no further duties and obligations under this Agreement. Notwithstanding this section, a failure by Owner, or its successors or assigns, to file applicable documentation, including but not limited to Development Cost Certificates or Employment Certificates, or any other failure to access the Incremental TIF, as described in Section 3, shall only constitute a breach of its obligations for that calendar year, and shall not constitute a default in future years under this Agreement. 14. CONSULTANT AND PROFESSIONAL COMPENSATION. Owner may retain consultants and professionals to assist Owner with the negotiation and execution of this Agreement, and Owner may compensate those consultants and professionals at their standard hourly rate for services performed, or any other method of compensation that is considered standard and reasonable for that particular service. Notwithstanding anything to the contrary contained herein, in no event shall Owner compensate any such consultant or professional in any form that would be deemed a "bonus," "success fee" or "finder's fee" in exchange for the Board's approval of this Agreement, and subsequent receipt of the Incremental TIF. 15. ADJUSTMENT TO FOLIO NUMBERS. Owner and the CRA acknowledge that the current tax folio numbers and assessed values with respect to the Project may change as a result of the reconfiguration of the Property in connection with the Project. In such event, the Executive Director of the CRA, and the Owner shall proceed in good faith to agree as to (i) which new folio numbers are applicable to portions of the Project, based upon the adjustment in such new folio numbers by the Miami -Dade County Property Appraiser, and (ii) which assessed values will be applicable for the Base Year and thereafter with respect to the Property. 16. RELATIONSHIP BETWEEN PARTIES. This Agreement does not evidence the creation of, nor shall it be construed as creating, a partnership or joint venture between the CRA and Owner. No party can create any obligations or responsibility on behalf of the others or bind the others in any manner. Each party is acting for its own account, and it has made its own independent decisions to enter into this Agreement and as to whether the same is appropriate or proper for it based upon its own judgment and upon advice from such advisors as it has deemed necessary. Each party acknowledges that none of the other parties hereto is acting as a fiduciary for or an adviser to it in respect of this Agreement or any responsibility or obligation contemplated 10 herein. Owner further represents and acknowledges that no one was paid a fee, commission, gift or other consideration by Owner or Owner's agent, as an inducement to entering into this Agreement. 17. AGREEMENT TO RUN WITH THE LAND. This Agreement, and all rights and obligations herein, shall be binding upon the successors in interest, and assigns of Owner who are owners of the Property or portions thereof and run with the land. It is acknowledged that Owner, as the fee simple Owner of the Project, is free to convey title (fee simple, leasehold or otherwise) to third parties of all or portions of the Project subject to the terms of this Agreement. 18. INTENTIONALLY DELETED. 19. CAP ON INCREMENTAL TIF. Notwithstanding anything to the contrary contained in this Agreement, the total amount of Incremental TIF that shall be paid to Owner during any given year shall not exceed Six Hundred Thousand and No/100 Dollars. 20. CRA MEETINGS. Owner covenants and agrees to encourage the operator of the Hotel to make its meeting facilities within the Hotel available for use by the CRA, or its designee, for CRA meetings and other public meetings four (4) times a year, at no charge, other than for food services, if any, requested by the CRA, or its designee, in connection with any such meetings, and to provide free parking for up to fifty (50) cars for use in connection with such meetings. 21. CRA BUDGET. The CRA covenants and agrees to include in its annual operating budget a line item for the annual payments contemplated by this Agreement, subject to CRA Board approval. 22. DUTIES OF OWNER. As further inducement for the CRA to enter into this Agreement, the Owner and the CRA have agreed to enter into a first source hiring agreement with respect to employment during construction of the Project in the form of Exhibit "E" attached hereto, and a first source hiring agreement with respect to employment during operation of the Project in the form of Exhibit "F" attached hereto. 23. MISCELLANEOUS. 23.1 All of the parties to this Agreement have participated fully in the negotiation and preparation hereof, and, accordingly, this Agreement shall not be more strictly construed against any one of the parties hereto. 23.2 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. 23.3 In the event of any litigation between the parties under this Agreement, the parties shall bear their own attorneys' fees and costs at trial and appellate levels. 23.4 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. 11 23.5 All of the exhibits attached to this Agreement are incorporated in, and made a part of, this Agreement. 23.6 Time shall be of the essence for each and every provision of this Agreement. 23.7 No provision of this Agreement is intended, nor shall any be construed, as a covenant of any official (either elected or appointed), director, employee or agent of the Omni CRA, or City of Miami, in an individual capacity. 23.8 This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. Any action, in equity or in law, with respect to this Agreement must be brought and heard in Miami -Dade County, Florida. 23.9 This Agreement may not be recorded in the Public Records of Miami -Dade County. 23.10 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. 24. 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 shall be binding upon the parties hereto and their respective successors and permitted assigns. [SIGNATURE PAGE TO FOLLOW] 12 IN WITNESS hereof the parties have executed this Agreement as of the date first above written. OWNER: Hotel De L'Opera, LLC, a Florida Witness: limited liability company Print Name: Print Name: ATTEST: By: Name: Title: CRA: Omni Community Redevelopment Agency, a public agency and body corporate created pursuant to Section 163.356, Florida Statutes By: By: Priscilla A. Thompson Pieter Bockweg Clerk of the Board Executive Director APPROVED AS TO INSURANCE APPROVED AS TO FORM AND REQUIREMENTS CORRECTNESS: By: By: LeeAnn Brehm, Director William R. Bloom Risk Management CRA Special Counsel 13 Exhibit "A" Legal Description of Property Lots 6, 7, 10 and 11 of Miramar" according to the Plat thereof as recorded in Plat Book 5, Page 4 of the Public Records of Miami -Dade County, Florida. Exhibit "B The Project The MIKADO is mixed use development that includes (i) an approximately 250 key hotel including meeting, banquet, restaurant, function, recreation and spa facilities; (ii) approximately 45,000 square feet of office, retail (including restaurant) and commercial space; and (iii) a six (6) level parking garage. The Owner is also expected to construct 119 residential units (individually a "Residential Unit") in conjunction with the Project, however, the Residential Units will not be a part of the Project, as the term is defined hereinabove. Owner shall not be entitled to any Incremental TIF under this Agreement in connection with the Residential Units. Exhibit "C" Development Costs Certificate DEVELOPMENT COST CERTIFICATE The undersigned hereby certifies to the OMNI REDEVELOPMENT DISTRICT COMMUNITY REDEVELOPMENT AGENCY, a public agency and body corporate created pursuant to Section 163.356, Florida Statutes (the "CRA"), that HOTEL DE L'OPERA„ LLC, a Florida limited liability company ("Owner") has actually paid $ in hard and soft costs to third parties unaffiliated with Owner in connection with the development of the Project, as defined in the Mikado Economic Incentive Agreement dated , 200_ by and between Owner and the CRA, as reflected on (i) AIA Form G702, or similar form accepted by the Owner's lender, attached hereto as Exhibit "A" ("Form G702 or equivalent"), and (ii) the Schedule of Soft Costs attached hereto as Exhibit "B" ("Schedule of Soft Costs"), and that the Form G702 or equivalent, and the Schedule of Soft Costs are true and correct in all material respects. HOTEL DE L'OPERA, LLC, a Florida limited liability company By: Name: Title: Exhibit "D" Employment Costs Certificate EMPLOYMENT CERTIFICATE The undersigned hereby certifies to the OMNI REDEVELOPMENT DISTRICT COMMUNITY REDEVELOPMENT AGENCY, a public agency and body corporate created pursuant to Section 163.356, Florida Statutes (the "CRA"), that for the year commencing on , 200 and ending , 200_ the Project, as defined in the Mikado Economic Incentive Agreement dated , 200_ by and between the CRA and Owner (the "Incentive Agreement"), as more particularly reflected on that Schedule of Jobs, attached hereto as Exhibit "A" ("Number of Jobs Schedule"). The undersigned hereby further certifies to the CRA that the information contained in this certificate and in Exhibit "A," attached hereto and made a part hereof, is true and correct in all material respects as of the date hereof. HOTEL DE L'OPERA, LLC, a Florida limited liability company By: Name: Title: STATE OF FLORIDA ) )ss. COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me this day of , by , as of Hotel De L' Opera, LLC, a Florida limited liability company, on behalf of the company, who is personally known to me or has produced as identification. Notary Public, State of: Commission No.: My Commission Expires: 17 EXHIBIT "A" NUMBER OF JOBS SCHEDULE NO. NAME POSITION HIRE FULL-TIME OR PART-TIME DATE 18 Exhibit "E" First Source Hiring Agreement (Construction) 19 THE MIKADO FIRST SOURCE HIRING AGREEMENT (CONSTRUCTION) THIS AGREEMENT is made this day of , 2011, by and between OMNI REDEVELOPMENT DISTRICT COMMUNITY REDEVELOPMENT AGENCY, a public agency and body corporate created pursuant to Section 163.356, Florida Statutes (the "CRA") and HOTEL DE L'OPERA, LLC, a Florida limited liability company (the "Developer"). RECITALS A. The CRA was formed for the purpose of removing slum and blight in the Omni redevelopment area (the "Redevelopment Area") and to promote redevelopment and employment within the Redevelopment Area. B. The Developer is the owner of property located within the Redevelopment Area which is more particularly described in Exhibit "A" attached hereto and made a part hereof (the "Property"). C. Developer intends to develop the Property as more particularly described on Exhibit "B" attached hereto and made a part hereof (collectively, the "Project"). D. Simultaneously with the execution of this Agreement, the CRA and the Developer have entered into The Mikado Economic Incentive Agreement (the "Incentive Agreement") pursuant to which the CRA will make tax increment funds available to the Developer which will be used by the Developer to defray a portion of the costs of development of the Project. E. Developer has agreed to enter into this Agreement in order to induce the CRA to enter into the Incentive Agreement. NOW THEREFORE, in consideration of ten dollars ($10.00) and other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows: SECTION 1. DEFINITIONS As used in this Agreement, the following capitalized terms shall have the following meanings. All definitions include both the singular and plural form. Capitalized terms not specifically defined herein are as defined in the Incentive Agreement. "Agency" shall mean the South Florida Work Force, a state and federally funded 501(c)(3) organization, or a similar community -based organization reasonably acceptable to the CRA. In the event the Agency ceases to exist, upon request of CRA or the Developer, the Developer shall select a similar entity capable of handling the responsibilities designated to the Agency hereunder, reasonably acceptable to the CRA. The Developer may depend on the Agency to determine economic status (low-income, unemployed, etc.), residency, and other vital information of applicants or employees and may rely on all such determinations by the Agency for all purposes hereunder. "Agreement" shall mean this First Source Hiring Agreement in its entirety. "City" shall mean the City of Miami, Florida. "County" shall mean Miami -Dade County, Florida. "Construction Contract" shall mean a contract with a total contract value of $250,000 or more related to the construction of the Project or part thereof. "Construction Contract" shall not include lease agreements or contracts related to operations of ongoing business at the Project. "Construction Contractor" shall mean a prime contractor, a subcontractor, or any other business entering into a Construction Contract. "Construction Phase" shall mean the period of time beginning with the commencement of construction of the Project and ending upon the issuance of a certificate of completion. 2 "Full Time Employee" shall mean an individual employed for a minimum of thirty-five (35) hours per standard five-day work week, receiving all of the employee benefits offered by the respective employer to other similarly employed individuals. "Lease Agreement" shall mean a retail lease agreement for the leasing of space within the Project. "Low to Moderate -Income Individual" shall mean (i) an individual whose household income is no greater than 80% of the median income for the County based on the local Census data, or (ii) an individual who is unemployed. "Qualifying Individuals" are Low to Moderate -Income Individuals who are Residents. The Developer may depend on the Agency to determine whether individuals are Qualifying Individuals, as well as their employment, economic status, residency, and other vital information of applicants, or employees and may rely on all such determinations by the Agency for all purposes hereunder. "Residents" shall mean residents of the Redevelopment Area, the SEOPW Redevelopment Area or the City. "SEOPW Redevelopment Area" shall mean the Southeast Overtown/Park West Redevelopment Area. "Site" or "on -site" shall mean within the boundaries of the Project. SECTION 2. HIRING AND MINORITY EMPLOYMENT PROGRAM 2.1 Community Outreach. This section is intended to develop reliable resources for community outreach associated with exceeding a participation goal of thirty percent (30%) for new job opportunities for Qualifying Individuals during the Construction Phase of the Project, including the prescreening of resumes and the operation of training programs that will develop the 3 necessary skills to facilitate the employment of Qualifying Individuals. This section aims to accomplish these goals by (i) holding events, at least annually, that provide adequate notice to Residents of job opportunities, and (ii) collaborating with community -based organizations and other groups to ensure that appropriate training programs are developed and offered to Residents to establish (a) a mechanism whereby Qualifying Individuals can receive job training in the skills requested by employers for the Project, and (b) a system for prompt reliable pre-screening and referral of applicants to employers as jobs become available. 2.2 Construction Phase. 2.2.1 During the Construction Phase, the Developer shall utilize the services of the Agency for community outreach in striving to meet or exceed a goal of thirty percent (30%) for new job opportunities for Qualifying Individuals. 2.2.2 For each Construction Contract, Developer shall use commercially reasonable efforts to require the Construction Contractor and each of the subcontractors retained by the Construction Contractor to provide employment opportunities generated by the Project to Qualifying Individuals, including, but not limited to, those who are participants in the Agency's training and employment programs, subject to (i) the Construction Contractor's or subcontractors' obligations pursuant to applicable laws, rules, regulations, and orders and (ii) pursuant to any collective bargaining or other employment or labor agreement; and (iii) the Construction Contractor's obligations to fill vacancies generated by the Project with (a) the Construction Contractor's employees from other jobs, and (b) persons laid off by the Construction Contractor within the last two (2) years. It is understood that jobs may be offered on the basis of qualifications. However, should qualifications be equal, Developer shall use commercially reasonable efforts to cause the Construction Contractor to offer such employment 4 opportunities in the following order of priority, subject to the terms and conditions above: (a) to Residents of the Redevelopment Area; (b) Residents of the SEOPW Redevelopment Area; and (c) to Residents of the City. 2.2.3 Developer shall use commercially reasonable efforts to cause each Construction Contractor to collaborate with the Agency to ensure that appropriate skills training programs are established with the objective of training Qualified Individuals for employment as part of the on -site construction work force for the Project. 2.2.4 For each Construction Contract, the Developer shall use commercially reasonable efforts to cause the Construction Contractor to notify the Agency on a monthly basis of (i) entry level and apprenticeship positions, (ii) union and non -union job openings resulting from the Construction Contract requirements; and (iii) the number of positions needed and the minimum qualifications required for each position. 2.2.5 For each Construction Contract, the Developer shall use commercially reasonable efforts to cause the Construction Contractor to utilize the Agency as the "first source" in identifying candidates for entry-level, apprenticeship, and union and non -union positions. 2.2.6 For each Construction Contract, the Developer shall use commercially reasonable efforts to cause the Construction Contractor to give preference and first consideration on the basis of qualifications; however, should qualifications be equal among candidates, the Developer shall use commercially reasonable efforts to cause Construction Contractor, to the extent permitted by law and any existent labor agreements, and except as otherwise provided for in Section 1 hereof, to offer such employment opportunities in the following order of priority (a) to Residents of the Redevelopment Area; (b) the SEOPW Redevelopment Area; and (c) to Residents of the City to fill entry level, apprenticeship, union and non -union positions. 5 2.2.7 For each Construction Contract, the Developer shall use commercially reasonable efforts to (i) cause the Construction Contractor to advertise or cause to be advertised through: (a) the Agency; (b) local media, and (c) the City community television channel; and (ii) hold job fairs in the Redevelopment Area and the SEOPW Redevelopment Area seeking to attract Qualifying Individuals for training and employment at the Project; 2.2.8 For each Construction Contract, the Developer further agrees to use commercially reasonable efforts to cause the Construction Contractor to use its commercially reasonable efforts to ensure that thirty percent (30%) or more of those individuals offered employment are Qualifying Individuals. As long as these persons remain employed, their positions will continue to be counted toward the thresholds of Developer's performance regardless of any change in their status as a Qualifying Individual Annual thresholds shall be pro -rated monthly as required. In the event that the Agency is unable to identify Qualified Individuals for the unfilled positions needed by the Construction Contractor, any qualified person, irrespective of their status as Qualifying Individuals may be hired for the unfilled/targeted position. 2.2.9 The CRA acknowledges that all employees of the Project will be required to have the necessary employment skills, and meeting the insurance policy requirements of the Project, including, but without limitation, requirements for a drug -free workplace. In addition, the CRA acknowledges that various employment opportunities may require union membership, and may require security clearances consistent with the Project's security policies and procedures. For purposes of this Agreement, to the extent the Agency provides the above services, the Developer may rely on the information provided by the Agency for verification purposes. 6 2.2.10 To the extent that the procedures set forth in this section are in conflict with applicable federal, state and local laws, as it pertains to the Developer of Construction Contractor's procedures, the Developer or Construction Contractors may substitute other procedures, that are reasonably acceptable to the CRA, in order to accomplish the purpose and intent of this Agreement. SECTION 3. REPORTING 3.1 Semi -Annual Reports Analysis: Developer shall use commercially reasonable efforts to cause the Construction Contractors to prepare, or cause to be prepared, detailed semi- annual reports on the implementation of all sections of this Agreement during the Construction Phase. The Construction Contractor shall coordinate with the Developer in the creation of the semi-annual reports, and, the Developer will submit the completed report to the CRA. The CRA shall not unreasonably reject the semi-annual reports provided by the Construction Contractor and Developer. These reports should include, but not be limited, to the following: • total number of positions hired to -date; • total number of positions held by Qualifying Individuals residing in the Redevelopment Area, the SEOPW Redevelopment Area and the City, respectively; • total new hires this reporting period; • total new hires from prior reporting period; • total new hires to -date; • total number of individuals referred from each respective recruiting source; and • total number of individuals hired from each respective recruiting source. These reports shall be provided to the CRA, consistent with any security provisions of the Project. If the report indicates that the percentage threshold requirement is not being met, the 7 Developer shall use commercially reasonable efforts to cause each Construction Contractor to include as part of the report a discussion of the reasons the threshold requirements were not met. Further, in the event the Agency prepared the report or the initial data on Qualifying Individuals, on behalf of the Developer, the Developer shall be entitled to rely on information provided by the Agency. SECTION 4. IMPLEMENTATION OF FIRST SOURCE HIRING PROGRAM For each Construction Contract, the Developer shall use commercially reasonable efforts to cause this Agreement, or any amended version thereof, to be included as a material term of such Construction Contract. SECTION 5. NOTICES Notices required or permitted to be given pursuant to the terms of this Agreement will be (i) delivered in person; (ii) sent by facsimile transmission (provided the original notice is delivered in person or by mail or delivery service as set forth herein); or (iii) sent by certified mail, (with return receipt requested and postage prepaid), by recognized contract carrier providing signed receipt for delivery, notice will be deemed delivered upon receipt or refusal of delivery. Notices will be delivered at the following addresses, subject to the right of any party to change the address at which it is to receive notice by written notice to the other party: If to the Developer: Hotel De L'Opera, LLC c/o Florida East Coast Realty, Inc. 100 South Biscayne Boulevard Suite 900 Miami, Florida 33131 Attention: Tibor Hollo, Managing Member Fax: (305) 358-1619 8 If to the CRA: With a copy to: With a copy to: Pieter Bockweg, Executive Director Omni Redevelopment District Community Redevelopment Agency 49 NW 5th Street, Suite 100 Miami, Florida 33128 Fax: (305) 679-6835 Office of the City Attorney 444 S.W. 2nd Avenue, 9th Floor Miami, Florida 33130 Attention: Veronica Ixques, Esq. Fax: (305) 416-1801 Holland & Knight LLP 701 Brickell Avenue Suite 3000 Miami, Florida 33131 Attention: William R. Bloom, Esq. Fax: (305) 789-7799 SECTION 6. GENERAL PROVISIONS 6.1 Severability Clause: If any term, provision, covenant, or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions shall continue in full force and effect. 6.2 Binding on Successors: This Agreement shall be binding upon and inure to the benefit of the heirs, administrators, executors, successors in interest, and assigns of each of the parties hereto. Any reference in this Agreement to a specifically named party shall be deemed to apply to any successor in interest, heir, administrator, executor, or assign of such party. 6.3 Intended Beneficiaries: The CRA is an intended third -party beneficiary of contracts and other agreements, which incorporate this Agreement, with regard to the terms of this 9 Agreement. The CRA shall therefore have the right to enforce the provisions of this Agreement against each Construction Contractor. 6.4 Term: This Agreement shall become effective on the date of mutual execution of this Agreement. This Agreement shall automatically expire, and the Developer shall have no further obligations hereunder, upon substantial completion of the Project. 6.5 Waiver: The waiver of any provision or term of this Agreement shall not be deemed as a waiver of any other provision or term of this Agreement. The mere passage of time, or failure to act upon a breach, shall not be deemed as a waiver of any provision or terms of this Agreement. 6.6 Estoppel: The parties hereto agree to provide each other, within 15 days of request, an estoppel letter acknowledging that the other party is not in default of this Agreement. 6.7 Construction: The parties hereto have been represented by counsel in the negotiation and drafting of this Agreement. Accordingly, this Agreement shall not be strictly construed against any party, and the rule of construction that any ambiguities be resolved against the drafting party shall not apply to this Agreement. 6.8 No Termination of Existing Employees: Neither the Developer, nor any Construction Contractor, shall be obligated to terminate any existing employees to comply with the terms and provisions of this Agreement. Should either the Developer or Construction Contractor be unable to meet the thresholds or objectives of this Agreement, due to low employment position vacancy, the threshold will be based upon the job openings that are available. 10 6.9 Entire Agreement: This Agreement and the Incentive Agreement contain the entire agreement between the parties with respect to construction of the Project and supersedes any prior agreements, whether written or oral. 6.10 Amendments: This Agreement may not be altered, amended or modified, except by an instrument in writing signed by the Developer and the CRA. 6.11 Authority of Signatories: The individuals executing this Agreement represent and warrant that they have the authority to sign on behalf of the respective parties. 6.12 Waiver of Jury Trial: The parties hereby knowingly, irrevocably, voluntarily and intentionally waive any right either may have to a trial by jury with respect to: (i) any action, proceeding or counterclaim based on this Agreement, (ii) any action arising out of, under or in connection with (a) this Agreement; or (b) any amendment or modification of this Agreement; or (c) any course of conduct, course of dealing, statements (whether verbal or written) or actions of any party hereto. This waiver of jury trial provision is a material inducement of the CRA and Developer entering into the subject transaction. [SIGNATURE PAGES TO FOLLOW] 11 IN WITNESS WHEREOF, the CRA and the Developer executed this Agreement the day and year first above written: Witnessed: DEVELOPER: HOTEL DE L'OPERA, LLC, a Florida limited Print Name: liability company Print Name: ATTEST: Priscilla A. Thompson, Clerk of the Board By: Name: Title: CRA: OMNI REDEVELOPMENT DISTRICT COMMUNITY REDEVELOPMENT AGENCY, a public agency and body corporate created pursuant to Section 163.356, Florida Statutes By: Name: Pieter Bockweg Title: Executive Director APPROVED AS TO FORM AND CORRECTNESS: William R. Bloom CRA SPECIAL COUNSEL 12 #10197916_v2 Exhibit "F" First Source Hiring Agreement (Operations) 20 #9975505_v2 THE MIKADO FIRST SOURCE HIRING AGREEMENT (OPERATIONS) THIS AGREEMENT is made this day of March, 2011, by and between OMNI REDEVELOPMENT DISTRICT COMMUNITY REDEVELOPMENT AGENCY, a public agency and body corporate created pursuant to Section 163.356, Florida Statutes (the "CRA") and HOTEL DE L'OPERA, LLC a Florida limited liability company (the "Developer"). RECITALS A. The CRA was formed for the purpose of removing slum and blight in the Omni redevelopment area (the "Redevelopment Area") and to promote redevelopment and employment within the Redevelopment Area. B. The Developer is the owner of property located within the Redevelopment Area which is more particularly described in Exhibit "A" attached hereto and made a part hereof (the "Property"). C. Developer intends to develop the Property as more particularly described on Exhibit "B" attached hereto and made a part hereof (collectively, the "Project"). D. Simultaneously with the execution of this Agreement, the CRA and the Developer have entered into The Mikado Economic Incentive Agreement (the "Incentive Agreement") pursuant to which the CRA will make tax increment funds available to the Developer which will be used by the Developer to defray a portion of the costs of development of the Project. E. Developer has agreed to enter into this Agreement in order to induce the CRA to enter into the Incentive Agreement. NOW THEREFORE, in consideration of ten dollars ($10.00) and other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows: SECTION 1. DEFINITIONS As used in this Agreement, the following capitalized terms shall have the following meanings. All definitions include both the singular and plural form. Capitalized terms not specifically defined herein are as defined in the Incentive Agreement. "Agency" shall mean the South Florida Work Force, a state and federally funded 501(c)(3) organization, or a similar community -based organization reasonably acceptable to the CRA. In the event the Agency ceases to exist, upon request of CRA or the Developer, the Developer shall select a similar entity capable of handling the responsibilities designated to the Agency hereunder, reasonably acceptable to the CRA. The Developer may depend on the Agency to determine economic status (low-income, unemployed, etc.), residency, and other vital information of applicants or employees and may rely on all such determinations by the Agency for all purposes hereunder. "Agreement" shall mean this First Source Hiring Agreement in its entirety. "City" shall mean the City of Miami, Florida. "County" shall mean Miami -Dade County, Florida. "Full Time Employee" shall mean an individual employed for a minimum of thirty-five (35) hours per standard five-day work week. "Low to Moderate -Income Individual" shall mean (i) an individual whose household income is no greater than 80% of the median income for the County based on the local Census data or (ii) an individual who is unemployed. "Operations Phase" shall mean that time period between the Substantial Completion of the Project as defined in the Incentive Agreement and the attainment of the of the required number of Project Full -Time Jobs as required by the terms of the Incentive Agreement. 2 "Qualifying Individuals" are Low to Moderate -Income Individuals who are Residents. The Developer may depend on the Agency to determine whether individuals are Qualifying Individuals, as well as their employment, economic status, residency, and other vital information of applicants, or employees and may rely on all such determinations by the Agency for all purposes hereunder. "Residents" shall mean residents of the Redevelopment Area, the SEOPW Redevelopment Area or the City. "SEOPW Redevelopment Area" shall mean the Southeast Overtown/Park West Redevelopment Area. "Site" or "on -site" shall mean within the boundaries of the Project. SECTION 2. HIRING AND MINORITY EMPLOYMENT PROGRAM 2.1 Community Outreach. This section is intended to develop reliable resources for community outreach associated with exceeding a participation goal of thirty percent (30%) for new job opportunities for Qualifying Individuals during the Operations Phase of Project, including the prescreening of resumes and the operation of training programs that will develop the necessary skills to facilitate the employment of Qualifying Individuals. This section aims to accomplish these goals by holding quarterly job training workshops that (i) provide adequate notice to Residents of job opportunities, (ii) involve the collaboration of employers within the Project, community -based organizations and other groups to ensure that appropriate training programs are developed and offered to Residents, (iii) establish a mechanism whereby Qualifying Individuals can receive job training in the skills requested by employers within Project, and (iv) establish a system for prompt reliable pre-screening and referral of applicants to 3 employers as jobs become available (each, a "Job Training Workshop", and collectively, the "Job Training Workshops"). 2.2 Operations Phase. 2.2.1 During the Operations Phase, the Developer shall utilize the services of the Agency in striving to meet and/or exceed a goal of thirty percent (30%) new job opportunities for Qualifying Individuals. 2.2.2 During the Operations Phase, Developer shall organize and conduct no less than four (4) Job Training Workshops, each of which shall be geared toward attracting and employing Qualifying Individuals who seek training and employment at the Project. In organizing and conducting such Job Training Workshops, Developer may work with or through such institutions or organizations such as Miami Dade College or other educational or community based organizations. 2.2.3 For each Job Training Workshop, Developer shall use commercially reasonable efforts to require each employer within the Project to participate in such Job Training Workshop and to collaborate with community -based organizations to ensure that appropriate skills training programs are established with the objective of training Qualified Individuals for employment at the Project . 2.2.4 For each Job Training Workshop, the Developer shall use commercially reasonable efforts to cause employers within the Project to identify any available entry-level and apprenticeship positions, whether union or non -union job openings, including the minimum qualifications required for each position. 2.2.5 For each Job Training Workshop, the Developer shall advertise the time and location of such Job Training Workshop, in local media and the City community relevision 4 channel. Developer shall begin such advertisement no less than two (2) weeks prior to the scheduled date of such Job Training Workshop, and it shall run continuously until the date of such Job Training Workshop. SECTION 3.REPORTING 3.1 Semi -Annual Reports Analysis: During the Operations Phase, the Developer shall use commercially reasonable efforts to cause employers within the Project to prepare, or cause to be prepared, detailed semi-annual reports on the implementation of all sections of this Agreement during the Operations Phase. These reports will be coordinated and reported by the Agency or other qualifying entity, as submitted to and reasonably approved by the CRA. These reports should include, but not be limited to, the following: • total number of positions hired to -date; • total number of positions held by Qualifying Individuals residing in the Redevelopment Area, the SEOPW Redevelopment Area and the City, respectively; • total new hires this reporting period; • total new hires from prior reporting period; • total new hires to -date; • total number of individuals referred from each respective recruiting source; and • total number of individuals hired from each respective recruiting source. SECTION 4.IMPLEMENTATION OF FIRST SOURCE HIRING PROGRAM 4.1 Inclusion of this Agreement in Lease Agreements: For each lease, contract for sale or management agreement entered into by the Developer at the Project, the Developer shall use commercially reasonable efforts to cause this Agreement, or any amended version thereof, to be included as a material term of such document. 5 SECTION 5. NOTICES Notices required or permitted to be given pursuant to the terms of this agreement will be delivered in person or by facsimile transmission (provided the original notice is delivered in person or by mail or delivery service as set forth herein) or sent by certified mail, return receipt requested, postage prepaid, by recognized contract carrier providing signed receipt for delivery, and will be deemed delivered upon receipt or refusal of delivery. Notices will be delivered at the following addresses, subject to the right of any party to change the address at which it is to receive notice by written notice to the other party: If to the Developer: If to the CRA: With copy to: With a copy to: Hotel De L'Opera, LLC c/o Florida East Coast Realty, Inc. 100 South Biscayne Boulevard Suite 900 Miami, Florida 33131 Attention: Tibor Hollo, Managing Member Fax: (305) 358-1619 Pieter Bockweg, Executive Director Omni Redevelopment District Community Redevelopment Agency 49 NW 5th Street, Suite 100 Miami, Florida 33128 Fax: (305) 679-6835 Department of Community Development City of Miami 444 SW 2 Avenue, 2nd Floor Miami, FL 33130 Office of the City Attorney 444 S.W. 2nd Avenue, 9th Floor Miami, Florida 33130 Attention: Veronica Xiques, Esq. Fax: (305) 416-1801 6 With a copy to: Holland & Knight LLP 701 Brickell Avenue Suite 3000 Miami, Florida 33131 Attention: Mark I. Aronson, Esq. Fax: (305) 789-7799 SECTION 6. GENERAL PROVISIONS 6.1 Severability Clause: If any term, provision, covenant, or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions shall continue in full force and effect. 6.2 Binding on Successors: This Agreement shall be binding upon and inure to the benefit of the heirs, administrators, executors, successors in interest, and assigns of each of the parties hereto. Any reference in this Agreement to a specifically named party shall be deemed to apply to any successor in interest, heir, administrator, executor, or assign of such party. 6.3 Intended Beneficiaries: The CRA is an intended third -party beneficiary of contracts and other agreements, which incorporate this Agreement, with regard to the terms of this Agreement. The CRA shall therefore have the right to enforce the provisions of this Agreement against all parties incorporating this Agreement into contracts or other agreements. 6.4 Term: This Agreement shall become effective on the date of mutual execution of this Agreement and terminate at the end of the Operations Phase. 6.5 Waiver: The waiver of any provision or term of this Agreement shall not be deemed as a waiver of any other provision or term of this Agreement. The mere passage of time, or failure to act upon a breach, shall not be deemed as a waiver of any provision or terms of this Agreement. 7 6.6 Estoppel: The parties hereto agree to provide each other, within 15 days of request, an estoppel letter acknowledging that the other party is not in default of this Agreement. 6.7 Construction: The parties hereto have been represented by counsel in the negotiation and drafting of this Agreement. Accordingly, this Agreement shall not be strictly construed against any party, and the rule of construction that any ambiguities be resolved against the drafting party shall not apply to this Agreement. 6.8 No Termination of Existing Employees: Neither the Developer, nor any employer within the Project shall be obligated to terminate any existing employees to comply with the terms and provisions of this Agreement. Should either of the Developer or any employer within the Project not be able to meet the thresholds or objectives of this Agreement due to low employment position vacancy, the threshold will be based upon the job openings that are available. 6.9 Entire Agreement: This Agreement and the Incentive Agreement contain the entire agreement between the parties with respect to employment during operations of the Project and supersedes any prior agreements, whether written or oral. 6.10 Amendments: This Agreement may not be altered, amended or modified, except by an instrument in writing signed by the Developer and the CRA. 6.11 Authority of Signatories: The individuals executing this Agreement represent and warrant that they have the authority to sign on behalf of the respective parties. 6.12 Waiver of Jury Trial: The parties hereby knowingly, irrevocable, voluntarily and intentionally waive any right either may .have to a trial by jury in respect of any action, proceeding or counterclaim based on this Agreement, or arising out of, under or in connection with this Agreement or any amendment or modification of this Agreement, or any course of 8 conduct, course of dealing, statements (whether verbal or written) or actions of any party hereto. This waiver of jury trial provision is a material inducement of the CRA and Developer entering into the subject transaction. IN WITNESS WHEREOF, the CRA and the Developer executed this Agreement the day and year first above written: Witnessed: DEVELOPER: Hotel DE L'OPERA, LLC, a Florida limited Print Name: liability company Print Name: ATTEST: Priscilla A. Thompson, Clerk of the Board By: Name: Title: CRA: OMNI REDEVELOPMENT DISTRICT COMMUNITY REDEVELOPMENT AGENCY, a public agency and body corporate created pursuant to Section 163.356, Florida Statutes By: Name: Pieter Bockweg Title: Executive Director APPROVED AS TO FORM AND CORRECTNESS: 9 WILLIAM R. BLOOM CRA SPECIAL COUNSEL 10 #10198033 v2