HomeMy WebLinkAboutCRA-R-12-0039 05-29-12 Legislation (signed)City of Miami
Legislation
CRA Resolution
City Hall
3500 Pan American
Drive
Miami, FL 33133
www.miamigov.com
File Number: 12-00591 Final Action Date:
A RESOLUTION OF THE BOARD OF COMMISSIONERS OF THE SOUTHEAST
OVERTOWN/PARK WEST COMMUNITY REDEVELOPMENT AGENCY
AUTHORIZING THE EXECUTION OF A DEVELOPMENT AGREEMENT, IN
SUBSTANTIALLY THE ATTACHED FORM, WITH ISLAND LIVING APARTMENTS,
LTD, A FLORIDA LIMITED PARTNERSHIP FOR THE DEVELOPMENT OF AN
AFFORDABLE HOUSING PROJECT CONSISTING OF NOT LESS THAN 70
RESIDENTIAL UNITS AND 5000 SQUARE FEET OF COMMERCIAL SPACE TO BE
LOCATED AT 1201 N.W. 3RD AVENUE, AND 229-247 N.W. 12TH STREET, MIAMI,
FLORIDA, WHICH DEVELOPMENT AGREEMENT INCLUDES THE MAKING OFA
GRANT TO THE DEVELOPER IN AN AMOUNT NOT TO EXCEED NINE MILLION
DOLLARS; AUTHORIZING THE EXECUTIVE DIRECTOR TO DISBURSE THE
GRANT, AT HIS DISCRETION, IN ACCORDANCE WITH THE TERMS OF THE
DEVELOPMENT AGREEMENT; FURTHER AUTHORIZING THE EXECUTIVE
DIRECTOR TO EXECUTE AND AMEND ALL DOCUMENTS NECESSARY FOR
SAID PURPOSE, IN A FORM ACCEPTABLE TO SPECIAL COUNSEL.
WHEREAS, the Southeast Overtown/Park West Community Redevelopment Agency ("CRA")
is responsible for carrying out community redevelopment activities and projects within its
Redevelopment Area in accordance with its approved Redevelopment Plan; and
WHEREAS, Section 2, Goal 3/Principles 2 and 3, at pages 12 and 14, of the 2009 Amended
and Restated Southeast Overtown/Park West Redevelopment Plan, lists "[c]reating infill housing," and
"variety in housing options," as stated redevelopment goals; and
WHEREAS, Section 2, Goal 4/Principle 4, at pages 12 and 14, of the 2009 Amended and
Restated Southeast Overtown/Park West Redevelopment Plan, lists "[c]reating jobs within the
Community," as stated redevelopment goals; and
WHEREAS, on April 8, 2011, the CRA issued an RFP for the development of CRA owned land
located at 1201 N.W. 3rd Avenue, and 229-247 N.W. 12th Street; and
WHEREAS, four (4) responses to the RFP were received by the Clerk of the Board on May 11,
2011; and
WHEREAS, the proposal submitted by Carlisle Development Group, LLC and Palmetto Homes
of Miami Inc., consisted of affordable rental units, replacement of existing parking spaces, and
commercial/retail space; and
WHEREAS, a selection committee was formed to evaluate the responses and recommended
negotiation with Carlisle Development Group, LLC and Palmetto Homes of Miami Inc.; and
WHEREAS, the CRA Board, by Resolution No. CRA-R-11-0038, passed and adopted on July
City of Miami
Page 1 of 2 File Id: 12-00591 (Version: 1) Printed On: 5/17/2012
File Number: 12-00591
25, 2011, authorized the Executive Director to negotiate a development agreement with Carlisle
Development Group, LLC and Palmetto Homes of Miami Inc.; and
WHEREAS, Island Living Apartments, Ltd. is an affiliate of Carlisle Development Group, LLC
and Palmetto Homes of Miami, Inc.; and
WHEREAS, the Board of Commissioners wishes to authorize the Executive Director to execute
the development agreement, in substantially the attached form, with Island Living Apartments, Ltd. for
the development of an affordable housing project consisting of not less than 70 residential units and
5,000 square feet of commercial space to be located 1201 N.W. 3RD Avenue, and 229-247 N.W.
12TH Street, Miami, Florida (the "Project"), and the making of a grant in an amount not to exceed Nine
Million Dollars pursuant to the terms of the Development Agreement;
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COMMISSIONERS OF THE
SOUTHEAST OVERTOWN/PARK WEST COMMUNITY REDEVELOPMENT AGENCY:
Section 1. The recitals and findings contained in the Preamble to this Resolution are adopted
by reference and incorporated herein as if fully set forth in this Section.
Section 2. The Executive Director is hereby authorized to execute a development agreement
with Island Living Apartments, Ltd., in substantially the attached form which includes making a grant in
an amount not to exceed $9,000,000.00 subject to the availability of funds as provided in the
Development Agreement for the development of the Project.
Section 3. The Executive Director is authorized to execute and amend all documents
necessary for said purpose, in a form acceptable to Special Counsel.
Section 4. This resolution shall become effective immediately upon its adoption.
APPROVED AS TO FORM AND CORRECTNESS:
WILLIAM R. BLOOM
SPECIAL COUNSEL
City of Miami Page 2 of 2 File Id: 12-00591 (Version: 1) Printed On: 5/17/2012
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (the "Agreement") is made as of the day of
May, 2012, by and between ISLAND LIVING APARTMENTS, LTD., a Florida limited
partnership (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.
The City assigned to the CRA the redevelopment authority granted by the County to the City.
B. The CRA issued a request for proposals (the "RFP") for the development of that
certain real property located within the Redevelopment Area which is more particularly
described on Exhibit "A" (the "Property").
C. In response to the RFP, Carlisle Development Group, LLC, a Florida limited
liability company ("Carlisle") submitted a proposal for the development of the Property, as more
particularly described in the proposal submitted by the Developer (the "Proposal").
D. Based upon the evaluations of all responses submitted to the CRA in response to
the RFP, the Proposal submitted by Carlisle was given the highest rating and pursuant to
Resolution Number CRA-R-11-0038, the Board of Commissioners of the CRA authorized the
executive director of the CRA (the "Executive Director") to negotiate the definitive terms of the
transaction contemplated by the RFP and the Proposal.
E. Based upon such negotiations the CRA has agreed to convey the Property to the
Developer, which is an affiliate of Carlisle, and the Developer has agreed to acquire the Property
from the CRA for the development of the Project, as hereinafter defined, subject to the terms and
conditions of this Agreement.
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 conveyed by the CRA to Developer pursuant to
the terms of this Agreement 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. INSPECTION PERIOD.
3.1 Inspections. Developer shall have until 5 p.m. on the forty-fifth (45th) 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 (which may be delivered by
email) at 49 N.W. 5th Street, Suite 100, Miami, Florida 33128, Phone: 305-679-6800; Facsimile:
305-679-6835; email: cwoods@miamigov.com (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). Developer shall conduct such
Inspection in a manner so as to not unreasonably interfere with the current use of the Property.
3.2 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.
3.3 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.
3.4 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, 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.
3.5 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.
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3.6 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 an additional insured thereon and which insurance
coverage shall be kept in force until the expiration or early termination of this Agreement.
3.7 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.
3.8 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.
3.9 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.
3.10 Disclaimer of Representations by Developer. Developer hereby expressly
acknowledges and agrees that, except as specifically provided in this Agreement:
3.10.1 The CRA makes and has made no warranty or representation
whatsoever as to the condition or suitability of the Property for the Project, as hereinafter
defined.
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3.10.2 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.
3.10.3 The CRA has made no representations, warranties or promises to
Developer not explicitly set forth in this Agreement.
3.10.4 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.
3.10.5 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.
3.11 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.
3.12 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 termination of this Agreement. This provision shall survive termination.
4. TITLE AND SURVEY.
4.1 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"):
4.1.1 Ad valorem real estate taxes and assessments for the year of
closing and subsequent years.
4.1.2 All applicable laws, ordinances and governmental regulations,
including, but not limited to, all applicable building, zoning, land use, environmental ordinances
and regulations.
part hereof.
4.1.3 Any matters arising by, through, or under Developer.
4.1.4 Those matters listed on Exhibit "C" attached hereto and made a
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4.2 Developer shall have until 5:00 p.m. on the forty-fifth (45th) 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, in which event 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 parties shall be released from any further obligations under this Agreement,
except for those obligations that expressly survive the termination of this Agreement.
4.3 In the event of any new title defect(s) arising from and after the effective
date of the Commitment and prior to the 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
parties shall be released from all further obligations under this Agreement, except for those
obligations that expressly survive the termination of this Agreement.
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5. PROJECT.
5.1 Description of the Project. The project (the "Project") shall consist of not
less than 70 affordable rental units, all with balconies and upgraded finishes to improve
longevity and durability with an average size of between 950 and 1,000 square feet with ground
floor commercial space constructed in a building not exceeding eleven (11) stories, will include
one -bedroom units, two -bedroom units, and three -bedroom units, the mix of which and the size
of which shall be established based upon the community input received in accordance with
Section 5.3 below and as approved by the Executive Director in accordance with Section 5.4
below together with approximately 5,000 square feet of commercial space and a sufficient
number of parking spaces to comply with the applicable zoning. In addition, the Project shall
include a playground and outside recreational area for residents of the Project to be constructed
over the parking deck.
5.2 Design of the Project. The Project shall be designed so it is consistent
with the Southeast Overtown/Park West Community Redevelopment Plan dated November 2004
prepared by Dover Kohl & Partners as updated by the Final Update of May 2009 by the City of
Miami Planning Department (ver 2.0) (collectively, the "Design Standards").
5.3 Community Input. Within sixty (60) days of the Effective Date, the
Developer shall present schematic design documents for the proposed Project to the Historic
Overtown Folk Life District Improvement Association ("HOFLDIA") and the Overtown
Community Oversight Board ("OCOB") for their review and comment. The schematic design
documents (the "Schematic Design Documents") shall consist, at a minimum, of the proposed
site plan for the Project, proposed building massing and elevations for the Project, an
architectural rendering of the Project of sufficient detail to allow the HOFLDIA and the OCOB
to evaluate the proposed Project and its design and confirm that the proposed Project is
consistent with the Design Standards. The Developer shall revise the Schematic Design
Documents to address the comments and concerns of the HOFLDIA and the OCOB.
5.4 Approval of Schematic Design Documents by CRA. Within ninety (90)
days from the Effective Date, the Developer shall submit to the Executive Director for review
and approval the Schematic Design Documents which shall have been revised by the Developer
to incorporate the comments received from the HOFLDIA and the OCOB, which must also be
consistent with the Design Guidelines. The Developer agrees to use its good faith efforts to
modify the Schematic Design Documents as necessary to satisfy the requirements of the
Executive Director. The Developer shall provide the Executive Director such additional back-up
information as the Executive Director may reasonably request to enable the Executive Director
to analyze all aspects of the Project as reflected in the Schematic Design Documents. The
Executive Director shall have fifteen (15) days from the receipt of the Schematic Design
Documents to approve same. If the Executive Director fails to timely respond, the submitted
Schematic Design Documents shall be deemed approved. In the event of disapproval, the
Executive Director shall specify the reasons for such disapproval. In the event of disapproval,
the Developer shall modify the Schematic Design Documents, as appropriate, to address the
comments and concerns of the Executive Director to ensure that the Schematic Design
Documents comply with the Design Standards and the input from HOFLDIA and OCOB, as
deemed appropriate by the Executive Director, acting reasonably. Any resubmission shall be
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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 the Developer shall proceed in good faith to attempt to
resolve any disputes regarding the Schematic Design Documents. If the Executive Director has
rejected the Schematic Design Documents two (2) times, Developer may elect to submit such
dispute regarding the approval of the Schematic Design Documents to the CRA Board for
resolution. The Schematic Design Documents, as approved or deemed approved by the
Executive Director shall mean the "Schematic Documents". The Developer shall cause the
Project to be designed in accordance with the Schematic Documents.
5.5 Construction Documents. Within one hundred twenty (120) days of the
later to occur of (a) approval or deemed approval of the Schematic Documents by the Executive
Director or (b) Bond Issue Approval, as hereinafter defined, the Developer shall submit to the
Executive Director for its review and approval the plans and specifications for the construction
of the Project, which shall be of sufficient detail to allow the Developer to apply for a building
permit for the Project ("Plans and Specifications"). The Plans and Specifications shall be subject
to the approval of the Executive Director, which approval shall not be unreasonably withheld and
which approval shall be given if the Plans and Specifications are consistent with the Schematic
Documents. The Developer agrees to utilize its good faith efforts to make modifications to the
Plans and Specifications to satisfy the requirements of the Executive Director if the Plans and
Specifications are inconsistent with Schematic Documents. The Developer shall provide to the
Executive Director such additional back-up information as the Executive Director may
reasonably request to enable the Executive Director to analyze the Plans and Specifications. The
Executive Director shall have fifteen (15) days from the receipt of the Plans and Specifications to
approve same. If the Executive Director fails to timely respond, the Plans and Specifications
shall be deemed approved. In the event of disapproval, the Executive Director shall specify the
reason for such disapproval. In the event of disapproval, Developer shall modify the Plans and
Specifications, as appropriate, to address the comments and concerns of the Executive Director
to cause the Plans and Specifications to be consistent with the Schematic Documents. Any
resubmission shall be subject to the approval of 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 the Developer shall in good faith,
attempt to resolve any disputes regarding the Plans and Specifications. If the Executive Director
has rejected the Plans and Specifications two (2) times, the Developer inay elect to submit such
dispute regarding the approval of the Plans and Specifications to the CRA Board for resolution.
The Plans and Specifications as approved or deemed approved by the Executive Director shall
mean the "Plans".
5.6 Development Requirements. Developer shall be required to develop the
Project substantially in accordance with the Plans. Any material variation to the Plans shall
require approval of the Executive Director, which approval shall not be unreasonably withheld or
delayed provided that same is in accordance the spirit and intent of Plans and this Agreement.
5.7 Development Timeframe.
5.7.1 "Project Schedule". Developer shall achieve Completion of the
Project in accordance with the Plans within sixteen (16) months from the Closing Date, as same
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may be extended as a result of Unavoidable Delays (the "Completion Date"), time being of the
essence. The term "Unavoidable Delays" shall mean delays beyond the control of the Developer
(other than delays in connection with obtaining licenses, permits and approvals from any
governmental authority relating to the Project) including, without limitation, civil commotion,
war, invasion, rebellion, hostility, military or usurped power, sabotage, insurrection, strikes or
lockouts on an area wide basis and not specific to the Project, riots, hurricanes, floods,
earthquakes, casualties, acts of the public enemy, epidemics, quarantines, restrictions, embargos
and area wide governmental restrictions. If the Developer fails to achieve Completion within
ninety (90) days of the Completion Date, Developer shall pay to the CRA One Thousand and
No/100 Dollars ($1,000.00) per day thereafter until Completion. The term "Completion" shall
mean the Project has been completed substantially in accordance with the Plans and a temporary
certificate of occupancy has been issued by the City of Miami for all residential units comprising
the Project and a certificate of completion, or its equivalent, has been issued for all of the
commercial space included in the Project. This provision shall survive the closing.
5.8 Project Budget. The preliminary budget for the Project prepared by the
Developer is attached hereto as Exhibit "D" and made a part hereof (the "Preliminary Budget").
As soon as available but in no event later than sixty (60) days after the approval of the Schematic
Documents, the Developer shall submit to the Executive Director for review and approval, which
approval shall not be unreasonably withheld, a detailed line item budget reflecting all hard and
soft costs anticipated to be incurred by the Developer in connection with the Project (the "Project
Budget"). The Developer agrees to use its good faith efforts to make all reasonable
modifications to the Project Budget to satisfy the requirements of the Executive Director. The
Developer shall provide to the Executive Director such additional back-up information as the
Executive Director may reasonably request to enable the Executive Director to analyze all
aspects of the Project Budget. The Executive Director shall have fifteen (15) days after receipt
of the Project Budget to approve same. If the Executive Director fails to timely respond to the
Project Budget submitted by the Developer, same shall be deemed approved. In the event of
disapproval, the Executive Director shall identify the reasons for such disapproval. In the event
of disapproval, the Developer shall modify the Project Budget as appropriate, to address the
comments and concerns of the Executive Director. Any resubmission shall be subject to the
approval of 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 the Developer shall, in good faith, attempt to resolve any disputes
regarding the Project Budget. If the Executive Director has rejected the Project Budget two (2)
times, the Developer may elect to submit such dispute regarding the approval of the Project
Budget to the CRA Board for resolution. The Project Budget, as approved or deemed approved
by the Executive Director, shall be deemed the "Budget". The Budget shall establish the amount
of the CRA Contribution.
6. DEVELOPMENT AND FINANCIAL APPROVALS.
6.1 Development of Project. As soon as available after 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:
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6.1.1 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 participation requirements set
forth in Section 8.2.1 and 8.2.2 of this Agreement.
6.1.2 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 reasonably acceptable to
the Executive Director. The Executive Director will not have approval rights over the loan terms
or equity investment terms. The approval of the Executive Director shall be limited to the issue
of whether the Loan Commitment reflects that funds will be available for construction of the
Project and the amount of funds that will be made available for construction.
6.1.3 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") taking into consideration the CRA
Contribution.
6.1.4 Funding Agreement. The CRA, Developer, and the Developer's
lender providing financing in accordance with the Loan Commitment (the "Lender") shall agree
to the terms of an agreement (the "Funding Agreement") in form and substance reasonably
acceptable to the Executive Director, which will provide for, without limitation, the following:
6.1.4.1 The deposit of the CRA Contribution, as hereinafter
defined, with the Lender and the disbursement of the CRA Contribution by the Lender.
6.1.4.2 The procedure for submission of monthly draw requests
and partial lien waivers to the Lender, for review and approval.
6.1.4.3 The inspection of the Project during construction for the
benefit of the CRA and the Lender, and approval by the Lender of the percentage of work
completed.
6.1.4.4 The approval of the Budget and any amendments to the
Budget by the Lender.
6.1.4.5 The approval of the re -allocation of funds to different line
items in the Budget by the Lender.
6.1.4.6 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
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 Lender, to keep the Budget "in balance"
prior to there being any further disbursement of the CRA Contribution.
6.1.4.7 The procedure for approving change orders by the Lender.
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6.1.4.8 The procedure for approving changes to the Plans by the
Lender.
6.2 The Executive Director shall have fifteen (15) days after receipt of each of
the items required by Section 6.1 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.
7. CRA CONTRIBUTION.
7.1 The CRA covenants and agrees to contribute the Property having an
agreed value of Eight Hundred Thousand and No/100 Dollars ($800,000.00) (the "Land
Contribution") and a cash contribution in an amount of up to Nine Million and No/100 Dollars
($9,000,000.00) for the administration, design and development of the Project (the "CRA
Contribution"; together with the Land Contribution, the "Total CRA Contribution"), provided all
of the CRA Conditions Precedent are satisfied or waived by the CRA. The exact amount of the
CRA Contribution will depend upon the Project Budget approved by the Executive Director and
other funding sources for the Project obtained by the Developer. The final amount of the CRA
Contribution shall be established at the time the Executive Director approves the Project Budget,
subject to adjustment in accordance with Section 7.2 and 7.3 below. Under no circumstances
shall the CRA Contribution be increasednotwithstanding any increases in the Project Budget.
7.2 The exact amount of the CRA Contribution will depend upon the Project
Budget approved by the Executive Director and other funding sources for the Project obtained by
the Developer. The CRA Contribution shall be reduced if the committed sources of funding
upon achieving Completion exceed all uses, including a fully -funded developer fee including
developer overhead and profit in an amount not exceeding the lesser of (i) eighteen percent
(18%); or (ii) the maximum developer fee, including developer overhead and profit permitted by
the Florida Housing Finance Corporation ("FHFC") guidelines for multi -family revenue bond -
financed projects pursuant to Rule 67-21, Fla. Admin. Code.
7.3 Upon Completion, the Developer, at its sole cost and expense, shall retain
Reznick Group, PC, or a similarly qualified accounting firm, to prepare a cost certificate (the
"Cost Certification"), based upon an audit of all costs and expenses incurred in connection with
achieving Completion, which Cost Certificate shall be in compliance with all FHFC guidelines
for cost certifications. Upon receipt of the Cost Certificate, the Developer shall promptly
provide a copy of same to the CRA. Should such Cost Certification show an excess of sources
over uses (including a fully -funded developer fee not in excess of the limits set for in Section
7.2), then the CRA Contribution shall be reduced by the amount of such excess. If the CRA
Contribution has been fully disbursed the Developer shall repay such amount within thirty (30)
days after written demand from the CRA. If the CRA disputes the Cost Certificate the
Developer and the Executive Director shall utilize their good faith efforts to resolve the dispute
within fifteen (15) days of the CRA's receipt of a copy of the Cost Certificate. If the Developer
and the Executive Director cannot resolve the dispute regarding the Cost Certificate within the
fifteen (15) day period, either party may submit the dispute to the CRA Board for resolution,
which shall be binding on the parties. This provision shall survive the closing.
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7.4 The CRA has advised the Developer that the CRA Contribution shall be
derived from a loan (the "CRA Bond Issue") to be obtained by the CRA which shall be secured
by tax increment revenues. The CRA Contribution shall not be security for the CRA Bond Issue
or any other indebtedness of the CRA.
7.5 The CRA is currently in the process of obtaining the CRA Bond Issue on
terms and conditions acceptable to the CRA, in its sole discretion. The CRA Bond Issue must be
approved by the CRA Board, the Board of Commissioners of the City and the Board of
Commissioners of the County (collectively, "Bond Issue Approval"). If the CRA has not
obtained the CRA Bond Issue on terms and conditions acceptable to the CRA, in its sole
discretion, which terms and conditions have also been approved by the Board of Commissioners
of the City and the Board of Commissioners of the County, on or before December 31, 2013,
then in such event, this Agreement shall automatically terminate as of December 31, 2013, in
which event, the parties shall be released from any further obligations under this Agreement,
except for those obligations that expressly survive termination of this Agreement.
7.6 Developer and the CRA agreed that, at the option of the Developer,
instead of making the CRA Contribution to the Developer the CRA shall make the CRA
Contribution to a non-profit corporation (the "Non -Profit") acceptable to the CRA which Non -
Profit would in turn loan the amount of the CRA Contribution (the "Loan") to the Developer. If
the Developer elects to utilize this structure, the Developer shall give written notice of its
election to the CRA within one hundred and twenty (120) days of the Effective Date. If the
Developer elects to cause the CRA Contribution to be made to the Non -Profit, the Developer
shall submit all proposed structure documents, including, without limitation, the loan documents,
to the CRA for its approval, which approval shall not be unreasonably withheld, provided the
CRA has the same protections currently afforded to the CRA under this Agreement, including,
without limitation, with respect to control of the CRA Contribution and the direct deposit of the
Loan proceeds with the Lender to be disbursed by the Lender in accordance with Section 6.1.4
above. In the event the Developer elects to have the CRA Contribution structured as a
contribution to a Non -Profit and as a Loan from the Non -Profit to the Developer, the Guaranty,
as hereinafter defined, will be amended as appropriate. In addition, the Non -Profit shall become
a party to the Funding Agreement, however, the CRA shall retain control over the disbursement
of the Loan to the Developer in accordance with the Funding Agreement. In the event the CRA
Contribution is made to a Non -Profit the CRA agrees that the Funding Agreement may be
restructured so that the Loan is deposited with a title company and disbursed by the title
company to the Developer without involvement of the Lender provided the CRA is provided the
equivalent protection as contemplated by the Funding Agreement.
8. MINORITY AND WOMEN'S PARTICIPATION AND EQUAL
EMPLOYMENT OPPORTUNITY.
8.1 Minority and Women Participation and Equal Opportunity. In connection
with the Project, the Developer agrees that it will:
i) Take definitive action in the recruitment, advertising and to attract
and retain minority and female contractors and subcontractors;
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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 8.
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.
8.2 Participation Requirements. Developer agrees to comply with the
following subcontractor participation requirements and laborer participation requirements (the
"Participation Requirements") with respect to the Project:
8.2.1 Subcontractor Participation. The Developer shall cause its general
contractor to hire not less than twenty percent (20%) of the subcontractors for the demolition of
the existing improvements and construction of the Project utilizing companies that have their
principal place of business either within the Redevelopment Area or within the City. For
purpose of calculating the twenty percent (20%) subcontractor participation, the twenty percent
(20%) participation shall be calculated based upon the dollar value of each subcontract given to
subcontractors whose principal place of business is in either the Redevelopment Area or the City
and the total dollar value of all subcontracts entered into by the general contract for the Project
("Subcontractor Participation Requirement").
8.2.2 Laborer Participation. Developer agrees to cause its general
contractor and all subcontractors to hire forty percent (40%) of the unskilled labor for the
demolition of the existing improvements and the construction of the Project ("Laborer
Participation Requirement") from workers residing in either the Redevelopment Area or the City.
Within thirty (30) days of approval of the Plans, Developer shall submit to the Executive
Director for review and approval Developer's estimate for the number of unskilled laborers
which will be required for the demolition of the existing improvements and the construction of
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the Project (the "Labor Estimate"). The Executive Director shall have fifteen (15) days from
receipt of the Labor Estimate to approve same which approval shall not be unreasonably
withheld. The Developer shall provide to the Executive Director such additional back-up
information as the Executive Director may reasonably request to enable the Executive Director
to analyze the Labor Estimate. The Executive Director shall have fifteen (15) days after receipt
of the Labor Estimate to approve same. If the Executive Director fails to timely respond to the
Labor Estimate submitted by the Developer, same shall be deemed approved. In the event of
disapproval, the Executive Director shall specify the reasons for such disapproval. In the event
of disapproval the Developer shall modify the Labor Estimate as appropriate, to address the
comments and concerns of the Executive Director. Any resubmission shall be subject to the
approval of the Executive Director in accordance with the procedure outlined above for the
original submission until it is approved or deemed approved by the Executive Director. The
Executive Director and the Developer shall, in good faith, attempt to resolve any disputes
regarding the Labor Estimate. If the Executive Director rejects the Labor Estimate two (2) times,
the Developer may elect to submit such dispute regarding the approval of the Labor Estimate to
the CRA Board for resolution. The Labor Estimate approved or deemed approved by the
Executive Director shall be utilized by the Executive Director to determine compliance with the
Laborer Participation Requirement unless Developer is able to establish manifest error in the
Labor Estimate based upon the actual number of laborers required for demolition of the existing
improvements and construction of the Project.
8.2.3 In the event of any disputes between the Executive Director and
the Developer as to whether any subcontractor has its principal place of business in either the
Redevelopment Area or the City or whether any laborer resides in either the Redevelopment
Area or the City, the Developer and the Executive Director shall proceed in good faith to resolve
the dispute. In the event the dispute is not resolved within ten (10) days either party may submit
the dispute to the Board for resolution which shall be binding on the parties.
8.3 Report Requirements. The Developer shall be required to submit to the
Executive Director on a monthly basis commencing thirty (30) days after commencement of
demolition of the existing improvements, detailed reports evidencing compliance with the
Subcontractor Participation Requirements and the Laborer Participation Requirements during the
prior thirty (30) day period ("Participation Reports"). The Participation Reports shall contain
such information as the Executive Director may reasonably require to enable the Executive
Director to determine whether the Developer is in compliance with the Subcontractor
Participation Requirements and the Laborer Participation Requirements.
8.3.1 Penalties for Non -Compliance with Subcontractor Participation
Requirements. To the extent Developer fails to comply with the Subcontractor Participation
Requirements, with respect to the Project, Developer shall pay to the CRA as a penalty for such
non-compliance Two Thousand Five Hundred and No/100 Dollars ($2,500.00) for each
percentage point below the Subcontractor Participation Requirement (the "Subcontractor Non -
Compliance Funds"). The Subcontractor Non -Compliance Funds shall be calculated by the
Executive Director after completion of the Project and shall be due and payable within thirty (30)
days from the date of Developer's receipt of written statement from the Executive Director
stating the amount of Subcontractor Non -Compliance Funds due. To the extent of any dispute
between the Executive Director and the Developer with respect to the compliance with the
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Subcontractor Participation Requirements, such dispute shall be submitted to the CRA Board for
resolution. The decision of the CRA Board shall be binding on the parties.
8.3.2 Penalties for Non Compliance with Laborer Participation
Requirements. To the extent Developer fails to comply with the applicable Laborer Participation
Requirements, with respect to the Project, Developer shall pay to the CRA as a penalty for such
non compliance One Thousand and No/100 Dollars ($1,000.00) for each percentage point below
the Laborer Participation Requirements (the "Laborer Non -Compliance Fund"). The Laborer
Non -Compliance Funds shall be calculated by the Executive Director after completion of the
Project and shall be due within thirty (30) from Developer's receipt of written statement from the
Executive Director stating the amount of Laborer Non -Compliance Funds due. To the extent of
any dispute between the Executive Director and the Developer with respect to the compliance
with the Laborer Participation Requirements, such dispute shall be submitted to the CRA Board
for resolution, which arbitration shall be binding upon the parties.
9. EMPLOYMENT TRAINING PROGRAM.
9.1 Developer shall cause its affiliate, Carlisle Development Group, LLC
("Carlisle") to develop a training program for Arturo Lundy of Palmetto Homes of Miami, Inc.,
designed to train Mr. Lundy to become a self-sufficient developer to ensure additional sources of
local job creation, economic empowerment and community enhancement. The program will be a
one on one mentoring program for Mr. Lundy. Developer shall provide quarterly reports to the
Executive Director regarding the training program.
10. AFFORDABLE RENTAL HOUSING.
10.1 Affordable Rental Requirement. Developer shall rent (i) not less than fifty
percent (50%) of the residential units to qualified renters whose gross income is 60% or below
the Miami -Dade County median income, and (ii) the balance of the residential units to qualified
renters whose gross income is 120% or below of the Miami -Dade County median income
(collectively the "Affordable Rental Requirement") for a period of thirty (30) years from the date
of the issuance of a certificate of occupancy or certificates of occupancy for all of the residential
units in the Project.
10.2 Reporting Requirements and Compliance.
10.2.1 Affordable Rental Reports. From and after the issuance of the first
certificate of occupancy for any residential 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 is selected by
the Developer and reasonably acceptable to the Executive Director.
10.2.2 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 10.1, the dispute will be submitted to the CRA Board for resolution,
which resolution shall be binding on the parties.
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10.2.3 Penalties for Non -Compliance. To the extent that Developer fails
to comply with the Affordable Rental Requirement, then in such event, Developer shall pay to
the CRA, as a penalty for non-compliance with the Affordable Rental Requirement the sum of
Five Thousand and No/100 Dollars ($5,000.00) 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 10.3 shall be calculated annually as of each January 1st and paid by Developer
within thirty (30) business day of notice by the CRA of the amount due.
10.2.4 Notwithstanding anything to the contrary contained in this Section
10.2, in the event that the Project is subject to a regulatory agreement or extended low income
housing agreement with the Florida Housing Finance Corporation or the Miami -Dade Housing
Finance Authority for a period of not less than fifteen (15) years, then in such event the
provisions of this Section 10.2 shall not be applicable.
10.3 To the extent permitted under applicable sections of the Internal Revenue
Code, Developer may convert the Project to a condominium project providing affordable home
ownership at any time after fifteen (15) years from the issuance of the final certificate of
occupancy for the Project.
11. CRA CONDITIONS PRECEDENT.
11.1 The obligations of the CRA to close the transaction contemplated by this
Agreement is subject to the satisfaction or waiver of the following conditions precedent (the
"CRA Conditions Precedent"):
11.1.1 The Executive Director shall have approved the Budget.
11.1.2 The Executive Director shall have approved the Plans.
11.1.3 The Executive Director shall have approved the Construction
Contract.
11.1.4 The Executive Director shall have approved the Project
Schedule.
11.1.5 The Executive Director shall have approved the Loan
Commitment for the Project.
11.1.6 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 taking into consideration the CRA Contribution.
11.1.7 The Executive Director and the Lender have approved the
Funding Agreement.
11.1.8 The Lender under the Loan Commitment is prepared to close
the construction loan with respect to the Project in accordance with terms of the Loan
Commitment.
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11.1.9 The Executive Director shall have confirmed that (i) the
Developer is controlled by CDG, as hereinafter defined; (ii) CDG is controlled by Matthew S.
Greer; and (iii) that there has been no other change in the ownership interest in the Developer
other than the transfer of the up to 99.9% of the limited partnership interest in Developer to tax
credit investors.
11.1.10 The Executive Director has confirmed that Palmetto Homes of
Miami, Inc., a Florida corporation ("PHM") has a ten percent (10%) interest in the developer fee
and profit earned by the Developer or an entity owned or controlled by Carlisle and/or Matthew
S. Greer (collectively, the "Developer Entity") to be paid para passu with the amounts paid to the
Developer Entity and that PHM has a twenty percent (20%) ownership interest in the Developer
as reflected on Exhibit G.
11.1.11Developer shall have provided to the Executive Director a payment
and performance bond in form and substance satisfactory to the CRA in 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 financial strength of X or higher (the
"Payment and Performance Bond").
11.1.12 The Developer has obtained a building permit to enable the
Developer to construct the Project in accordance with the Plans.
11.2 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 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.
12. CLOSING DATE.
12.1 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) three hundred sixty
(360) days after the CRA has obtained Bond Issue Approval, time being of the essence. On the
Closing Date the following shall occur:
12.1.1 The CRA shall deliver to Developer at closing:
12.1.1.1 A special warranty deed in the form of Exhibit "E"
attached hereto and made a part hereof (the "Deed") with respect to the Property.
12.1.1.2 Certified copy of the resolution authorizing the
conveyance by the CRA and the execution and delivery of the documents contemplated by this
Agreement.
12.1.1.3 The Funding Agreement executed by the CRA.
12.1.1.4 A no lien and possession affidavit.
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12.1.1.5 A FIRPTA affidavit.
12.1.1.6 Such other documents as the title company may
reasonably request.
12.2 Developer shall deliver to the CRA or cause to be delivered to the CRA at
closing:
12.2.1 Evidence of authority to close the transaction and execute and
deliver the appropriate closing documents.
12.2.2 Payment and Performance Bond.
12.2.3 The Funding Agreement executed by the Developer and Lender.
12.2.4 A guaranty of the lien free completion of the Project executed by
Carlisle and Matthew S. Greer in the form of Exhibit "F" attached hereto (the "Guaranty").
12.2.5 Such other documents as the title company may reasonably
request.
12.3 The documentary stamp tax and surtax to be affixed to the Deed and the
cost for recording the Deed 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.
13. ZONING APPROVALS. In the event Developer does not terminate this
Agreement during the Inspection Period, from and after the approval of the Schematic Design
Documents by the Executive Director, the CRA shall execute any documents and/or applications
reasonably required by the Developer which are required to be executed by the record owner of
the Property in connection with any zoning or land use approvals or permit applications required
to be obtained by the Developer for the Project to enable the Project to be developed in
accordance with the Schematic Design Documents provided such documents and applications do
not impose any financial obligations or liability upon the CRA.
14. REPRESENTATIONS OF CRA.
14.1 The CRA makes the following representations:
14.1.1 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.
14.1.2 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.
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14.1.3 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.
14.1.4 There are no lawsuits against CRA or affecting any portion of the
Property, including, but not limited to, condemnation actions.
14.1.5 As of the Closing Date the CRA will be in exclusive possession of
the Property, free and clear of all leases.
14.2 Survival of Representations. All of the representations of the CRA set
forth in this Agreement shall be true upon the execution of this Agreement, shall be deemed to be
repeated and as of the Closing Date, and shall be true as of the Closing Date. All of the
representations, warranties and agreements of the CRA set forth in this Agreement shall not
survive the Closing.
15. DEVELOPER'S REPRESENTATIONS.
15.1 Developer makes the following representations to the CRA as follows:
15.1.1 Developer is a limited partnership 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.
15.1.2 Developer's execution, delivery and performance of this
Agreement has been duly authorized by all necessary partnership actions and does not and shall
not conflict with or constitute a default under any indenture, agreement or instrument to which it
is a party or by which it may be bound or affected.
15.1.3 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.
15.1.4 Exhibit "G" lists all the entities that have an ownership interest in
the Developer as of the Effective Date of this Agreement, subject to the transfer of 99.9% of the
limited partnership interest in the Developer to tax credit investors.
15.2 Survival of Representations. All of the representations of the Developer
set forth in this Agreement shall be true upon the execution of this Agreement, shall be deemed
to be repeated and as of the Closing Date, and shall be true as of the Closing Date. All of the
representations, warranties and agreements of the Developer set forth in this Agreement shall not
survive the Closing.
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16. DEFAULT.
16.1 Developer Failure to Perform.
16.1.1 If the Conditions Precedent are not satisfied or waived by the CRA
on or before the Closing Date, this Agreement shall terminate and the parties shall be released
from all obligations under this Agreement except for the obligations that expressly survive the
termination of this Agreement.
16.1.2 In the event the Developer defaults with respect to its obligations
under Sections 8, 9 or 10, which default is not cured within thirty (30) days of written notice
from the CRA or such longer period, if the default by its nature cannot be cured within the thirty
(30) day period provided Developer commences the curative action within the thirty (30) day
period and diligently pursues the cure until completion (not to exceed 90 days) the CRA shall be
entitled to seek specific perfounance of this Agreement in addition to the penalties provided for
in this Agreement.
16.1.3 In the event this Agreement contains any material
misrepresentations by the Developer, the CRA, as its sole and exclusive remedy may terminate
this Agreement, in which event the parties shall be released from all further obligations under
this Agreement except for the obligations that expressly survive the Closing.
16.2 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 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.
17. 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.
18. ASSIGNABILITY.
18.1 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
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of this Section 19.1, 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
CDG Island Living, LLC, a Florida limited liability company
("CDG").
(ii) transfer of more than 20% of the membership interests in CDG.
(iii) changes in control of CDG which is controlled by Matthew S.
Greer.
19. 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
herein or mailed by certified or registered mail, return receipt requested, in a postage prepaid
envelope, and addressed as follows:
If to Developer:
Island Living Apartments, Ltd.
c/o Carlisle Development Group, LLC
2950 SW 29`1' Avenue, Suite 200
Miami, FL 33133
Attention: Matthew S. Greer
Fax: 305-476-1557
With a copy to:
Ryan D. Bailin, Esq.
Stearns Weaver Miller Weissler, Aldeff and Sitterson, P.A.
150 West Flagler Street, Suite 2200
Miami, FL 33130
Fax: 305-789-2635
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And with a copy to:
If to CRA:
Patricia K. Green, Esq.
Stearns Weaver Miller Weissler, Aldeff and Sitterson, P.A.
150 West Flagler Street, Suite 2200
Miami, FL 33130
Fax: 305-789-3395
SOUTHEAST OVERTOWN / PARK WEST
COMMUNITY REDEVELOPMENT AGENCY
Attention: Clarence E. Woods, III., 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
And with a copy to:
Carmen R. Cabarga, Esq.
Southeast Overtown/Park West
Community Redevelopment Agency
49 N.W. 5th Street, Suite 100
Miami, FL 33128
Fax: 305-679-6836
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.
20. 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 to this Agreement by any third parties.
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21. MISCELLANEOUS.
21.1 This Agreement shall be construed and governed in accordance with the
laws of the State of Florida. Venue shall be in Miami -Dade County, Florida. All of the parties
to this Agreement have participated fully in the negotiation and preparation hereof, and,
accordingly, this Agreement shall not be more strictly construed against any one of the parties
hereto.
21.2 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.
21.3 In the event of any litigation between the parties under this Agreement, the
prevailing party shall be entitled to reasonable attorney's fees and court costs at all trial and
appellate levels.
21.4 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.
21.5 All of the exhibits attached to this Agreement are incorporated in, and
made a part of, this Agreement.
21.6 Time shall be of the essence for each and every provision of this
Agreement.
21.7 This Agreement may not be recorded in the Public Records of Miami -
Dade County.
21.8 The "Effective Date" shall mean the date this Agreement is last executed
by Developer and the CRA.
21.9 In the event Developer does not terminate this Agreement during the
Inspection Period from and after the approval of the Schematic Documents 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 Schematic
Documents, provided such documents and applications do not impose any financial obligations
or liability upon the CRA.
21.10 Developer acknowledges and agrees that other than the CRA Contribution,
the Developer shall not be entitled to any tax increment funds generated by the Project.
Developer waives any claims regarding the tax increment funds generated by the Project.
22. 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
22
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]
23
IN WITNESS hereof the parties have executed this Agreement as of the date first
above written.
DEVELOPER:
ISLAND LIVING APARTMENTS, LTD.
a Florida limited partnership
By: CDG Island Living, LLC, a Florida limited liability company
Its managing general partner
By:
Name: Matthew S. Greer
Title: Manager
CRA:
SOUTHEAST OVERTOWN / PARK WEST
COMMUNITY REDEVELOPMENT AGENCY
By:
Clarence E. Woods, III., Executive Director
ATTEST:
Priscilla A. Thompson,
Clerk of the Board
Approved for legal sufficiency
By:
William R. Bloom, Esq.
Holland & Knight LLP,
Special Counsel to CRA
24
APPROVED AS TO INSURANCE REQUIREMENTS:
Francisco Gomez, Jr., Risk Management Administrator
25
A. Legal Description
B. Insurance Requirements
C. Permitted Exceptions
D. Preliminary Project Budget
E. Deed
F. Guaranty of Completion
G. Ownership Interests
Schedule of Exhibits
26
EXHIBIT A
Legal Description
Lots 8, 9, 10, 11, Block 9, SOST'S Subdivision, according to the Plat thereof, as
recorded in Plat Book B, at Page 27, Public Records of Miami -Dade County,
Florida.
EXHIBIT B
INSURANCE REQUIREMENTS
I. Commercial General Liability (Primary & Non Contributory)
A. Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence $1,000,000
General Aggregate Limit $ 2,000,000
Products/Completed Operations $ 1,000,000
Personal and Advertising Injury $1,000,000
B. Endorsements Required
City of Miami and Southeast Overtown/Park West Community
Redevelopment Agency as an Additional Insured (CG 2010 11/85 or its
equivalent)
Contingent Liability & Contractual Liability
Premises & Operations Liability
Explosion, Collapse and Underground Hazard
II. Business Automobile Liability
A. Limits of Liability
Bodily Injury and Property Damage Liability
Combined Single Limit
Any Auto/Owned Autos/Scheduled
Including Hired, Borrowed or Non -Owned Autos
Any One Accident $ 1,000,000
B. Endorsements Required
City of Miami & Southeast Overtown/Park West Community
Redevelopment Agency listed as an additional insured
III. Worker's Compensation
Limits of Liability
Statutory -State of Florida
Waiver of subrogation
Employer's Liability
28
A. Limits of Liability
$1,000,000 for bodily injury caused by an accident, each accident.
$1,000,000 for bodily injury caused by disease, each employee
$1,000,000 for bodily injury caused by disease, policy limit
IV. Umbrella Policy/Excess Liability (Excess Follow Form)
A. Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence $3,000,000
Aggregate $3,000,000
B. Endorsements Required
City of Miami & Southeast Overtown/Park West Community Redevelopment
Agency listed as an additional insured
V. Owner's & Contractor's Protective
Limits of Liability
Each Occurrence $1,000,000
Policy Aggregate $1,000,000
City of Miami and Southeast Overtown/Park West Community Redevelopment
Agency as Named Insured
VI. Builders' Risk
Causes of Loss: All Risk -Specific Coverage Project Location
Valuation: Replacement Cost
Deductible: $25,000 All other Perils
5% maximum on Wind
City of Miami and Southeast Overtown/Park West Community Redevelopment
Agency listed as an Additional Insured
A. Limit/Value at Location or Site - Full Replacement
B. Coverage Extensions as provided by insurer
29
The above policies shall provide the City of Miami and Southeast Overtown/Park West
Community Redevelopment Agency with written notice of cancellation or material change
from the insurer not less than (30) days prior to any such cancellation or material change,
or in accordance to policy provisions.
Companies authorized to do business in the State of Florida, with the following qualifications,
shall issue all insurance policies required above:
The company must be rated no less than "A" as to management, and no less than "Class V"
as to Financial Strength, by the latest edition of Best's Insurance Guide, published by A.M.
Best Company, Oldwick, New Jersey, or its equivalent. All policies and /or certificates of
insurance are subject to review and verification by Risk Management prior to insurance
approval.
30
EXHIBIT C
PERMITTED EXCEPTIONS
1. Taxes and assessments for the year of the Closing and subsequent years.
2. Covenant running with the land in favor of the City of Miami recorded in Official
Records Book 16456, at Page 1064, Public Records of Miami -Dade County, Florida.
3. Stipulation of Settlement recorded in Official Records Book 13752, at Page 1036,
Public Records of Miami -Dade County, Florida.
4. Agreement for Water Facilities between Miami -Dade County and Southeast
Overtown/Parkwest Community Redevelopment Agency recorded on March 13, 2008 in Official
Records Book 26265, at Page 1476 of the Public Records of Miami -Dade County, Florida.
5. Notification of an Extension to a Previously Approved Development of Regional
Impact recorded September 8, 2008 in Official Records Book 26557, at Page 217, Public
Records of Miami -Dade County, Florida.
6. Notification of an Extension to a Previously Approved Development of Regional
Impact recorded September 8, 2008 in Official Records Book 26557, at Page 223, Public
Records of Miami -Dade County, Florida.
31
EXHIBIT D
Preliminary Project Budget
Island Living - Miami, FL - Southeast
Sources & Uses
PeRu:ant Prase
sumces tier Toot 11 Per Una
Permanent Rest Nt 1Oage
2720600
1346%
38,557
ConslNclm loan
0.00%
CPA Fuming
9.000,000
44.54%
128.571
United Perinef&lity
7.861.000
3960%
112566
Deferred 0eaeto0erFee
604244
299%
8232
Tose 50(11065
20205244 100.00% 268,646
Permanent Phase
uses Toter 71 Par [Mr
Mad 000501150 n posts
12,340.666
61.06%
176296
Reaeal0narowner tie1116
353A03
1.73%
5000
Hard Cost Cbrnktga7ly
513%
617.034
3.05%
8615
Dem7ingn
1000000
D49%
1,429
040081501 55111e61 E17e056
650.174
3.05:
9,402
Permanent 3.Nrl Origination Fee
27230
0.13%
369
Pem108e_nt Lean posing C0s11
8,160
0.04%
117
Omani -ace Loan C5glna00n Fee
96000
0.47%
1,357
Culnnr1m Loan Closing Costa
19A00
0.095:
271
000607 10609i09
335490
1.66%
4.791
Dater 1.03n Closkl0 Costs
99.000
0.49%
1,414
A coomrtg Fees
40.050
00000 00 000 0090O0-L000
571
Applloalon Fees
35.000
SW
Appraisal
16610
229
A1dite0 Fee -Desgn
385,050
5214
J4d110ed Fee -slC7eraslon
45.000
643
BWMers Rlalnsliance
210.000
3.000
e1414615 Penal
108500
1.550
pall Underwriting Fee
10.719
153
EnglneeMg Fee
513.000
714
Envecome al Report
18,000
257
FHFCAS1S MOtian9 Fees
663E9
918
FHFCAppsaallon Fees
3600
43
FHFC Compml0e Mon. Fee
67,137
959
Fees
105367
1.506
tnspecnon Fees
180000
2.571
elegance- Ptopedy1.tabpty
25.000
357
Legg Fees-Pannerst4p
175.000
2500
Legs fees -Caner
55.000
786
54irketSafdy
15,000
214
Marketing dAg+e osng
75.000
1,071
100,000
1,429
00440 mom CperaR1g 01p9lses
Property -races
50.000
714
Sdr 7eot Report
111600
143
survey (oolong A3-13elit)
451100
543
TeeInsurance &Rec01ffig
199,352
2848
U510yC nna:tat Fee
106,550
1,538
Sort Cost Cxt6ttg9lq
5.0%
108.752
1.554
Sub -Tool
16.233450
Reserves Refpn5e00y Lerner
22.3,151
1.10%
3,188
Land, TO Be Aowtred
-
0.0%
DerelopersAdrin_&08M1,Hd
4.0%
677,338
3.35%
9.676
Devehmers Print
14A31
2,371,305
11.74%
33,876
Tara' PRJacr Ca0r
20.2052.44
1D0.00% 268.646
C4n9011ctIon Pease
lace! % Per Una
-
D.DD%
-
59,509WD
40.2216
135,714
9,009003
35.10%
128,571
5.122900
21.68%
73,171
-
0.00%
23,622,000 100.0014 337.457
CO0e5Ddl0n NNW
Tara! % Per Ow
12,340,685
66.48%
176295
350.003
1.89%
5600
617,031
3.32%
8,815
103,600
0.54%
1429
653,174
3.5514
9,402
27200
0.15%
389
8.160
0.04%
117
95603
0.51%
1,357
19,,002
0.10%
271
335,403
1.81%
4791
99003
0.53%
1.414
40,003
0229:
571
35,001
0.19%
503
16.000
0.09%
229
365603
19714
5214
45000
024%
63
210,000
1.1314
3,003
105,500
0.58%
1,550
10,719
0.06%
153
50,000
027%
714
18,000
0.10%
257
66.339
0.36%
948
3.000
5.02%
43
67,137
0.36%
959
105.387
0.57%
1,5055
180.003
09714
2.571
25,000
0.13%
357
175600
0.94%
2503
55603
0.30%
785
151000
0.06%
214
75.000
0.40%
1,071
100,000
0.54%
1,423
50,000
027%
714
10,000
0.0591
143
45000
024%
543
199,352
107%
2,848
105,550
0.57%
1,508
108752
0.59%
1,554
16,333,450
-
0.00%
0
-
0.00%
0
6:7,338 3.65%
9.576
952260 5.13%
13,604
18,563,048' 100.00% 265,186
32
EXHIBIT E
Form of Special Warranty Deed
[Note: Deed will contain deed restriction requiring Developer to develop the Property
substantially in accordance with the provisions of Section 8, 9, 10 and 19 of the Agreement]
33
EXHIBIT F
Guaranty of Completion
GUARANTY OF COMPLETION
THIS GUARANTY OF COMPLETION (the "Guaranty") is executed and delivered, jointly
and severally, as of the day of , 2012 by MATTHEW S. GREER, an individual, and
CARLISLE DEVELOPMENT GROUP, LLC, a Florida limited liability company (each a
"Guarantor", and collectively, the "Guarantors") in favor of SOUTHEAST OVERTOWN/PARK
WEST COMMUNITY REDEVELOPMENT AGENCY, a public agency and body corporate
created pursuant to Section 163.356, Florida Statutes (the "CRA").
WITNES SETH:
A. Island Living Apattiiients, Ltd., a Florida limited partnership (the "Developer")
has requested that the CRA make a grant to Developer in the amount of Nine Million and
No/100 Dollars ($9,000,000.00) (the "Grant") pursuant to the terms and conditions of that
Development Agreement dated as of , 2012, by and between Developer and the
CRA as same may be amended from time to time, (the "Development Agreement"). All terms
not otherwise defined herein shall have the meanings set forth in the Development Agreement.
B. Guarantors will benefit from the Grant and the transaction contemplated by the
Development Agreement.
C. The CRA would not make the Grant and enter into the Development Agreement
with Developer unless Guarantor agreed to unconditionally guaranty completion of the Project in
accordance with the Plans.
NOW, THEREFORE, in consideration of the CRA's making the Grant and executing the
Development Agreement, which it is acknowledged and agreed that CRA is doing in full reliance
hereon, and as an inducement to CRA to do so and to make advances pursuant thereto, and for other
good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, each
Guarantor hereby irrevocably covenants, warrants and agrees as follows:
1. That notwithstanding any provision in the Development Agreement, the Funding
Agreement or in any other agreement or document executed in connection therewith, each
Guarantor hereby unconditionally and irrevocably guarantees to CRA the following:
a. One hundred percent (100%) lien free completion of the Project in
accordance with the Development Agreement and the Funding Agreement and substantially in
accordance with the Plans, as evidenced by (i) the issuance of a final certificate of occupancy and
use (or the equivalent) by the proper governmental authority as to the Project to be constructed on
the Property; (ii) the delivery by the design/supervising architect of a certificate of completion of the
Project substantially in accordance with the Plans approved by CRA; (iii) the issuance by CRA and
CRA's supervising architect/engineer of certificates of completion of the Project (completion of the
Project shall include, but not be limited to completion of grading, landscaping, all necessary and
34
appropriate utilities, streets, sidewalks, drainage and all on -site and off -site improvements as
reflected on the Plans); and (iv) the delivery to CRA of a final as -built survey for the completed
Project; and
b. Full and punctual payment and discharge of all costs and expenses, in excess
of the Grant amount, of any nature relating to the construction and the completion of the Project as
the same become due and payable, and payment and discharge of all claims and demands for labor
and/or materials used in the construction and the completion of the Improvements substantially in
accordance with the Plans which are or, if unpaid, may become liens, claims or encumbrances on
the Project.
2. Without limiting the generality of the preceding paragraph 1, each Guarantor
hereby agrees:
a. To perform, complete and pay for the construction required by the
Development Agreement and Funding Agreement within the time period allotted therefor and to
pay all costs and expenses of said construction and completion of the Project and all costs
associated therewith, including any sum in excess of the Grant amount, and each Guarantor
hereby indemnifies and agrees to save harmless CRA from all costs and expenses which CRA
suffers as a result of the Project not being completed and paid for in the manner required and
within the time period allotted therefor as set forth in the Development Agreement and the
Funding Agreement.
b. To indemnify and save CRA harmless from any and all costs, expenses
and losses it may incur in connection with the Project (arising from any default by Developer
under the Development Agreement or the Funding Agreement including, but not limited to
losses, costs or expenses resulting from changes, alterations, modifications or deviations from
the Plans previously approved by CRA; but excluding any costs, expenses and losses that may
occur in connection with the Project as a result of the gross negligence or intentional misconduct
of CRA, and to pay any and all such amounts to CRA within fifteen (15) days of written demand,
which demand CRA may make upon any Guarantor without first having made demand upon
Developer or any other party and without having exhausted any other remedy against Developer
or any other party.
c. In the event any mechanic's or materialman's liens should be filed, or
should attach, with respect to the Property, to cause the removal of such liens or the posting of
security against the consequences of their possible foreclosure within thirty (30) days of the
filing of such liens;
d. To pay the costs and fees of all architects and engineers employed by
Developer in connection with the Project;
e. To pay within fifteen (15) days of written demand all of CRA's costs and
expenses, including reasonable attorneys' fees and costs, incurred in the enforcement of this
Guaranty.
f. That it may be impossible to accurately measure the damages to CRA
resulting from a breach of Guarantors' covenant to complete or to cause the completion of the
35
construction and equipping of the Project, and that such a breach will cause irreparable injury to
CRA, and that CRA may not have an adequate remedy at law in respect of such breach and, as a
consequence, each Guarantor agrees that such covenant shall be specifically enforceable against
it and each Guarantor hereby waives and agrees not to assert any defense against an action for
specific performance of such covenant other than the defense that completion has been achieved
with respect to the Project. The preceding sentence shall not prejudice CRA's rights to assert any
and all claims for damages incurred as a result of Guarantors' default hereunder (beyond any
applicable notice and cure periods), and CRA may, hold any Guarantor liable for all losses and
damages sustained and expenses incurred by reason of the Developer or any Guarantor failing to
construct, complete and equip the Project in accordance with the Plans, the Development
Agreement and the Funding Agreement, including, without limitation, the cost of such
completion and the payment of real estate taxes and insurance.
3. Each Guarantor hereby acknowledges and consents to the Plans, the disbursement
schedule and the other terms and conditions of the Development Agreement and related
documents governing the construction of the Project.
4. Each Guarantor hereby waives any and all requirements that CRA institute any
action or proceeding, at law or in equity, against the Developer or against any other party or
parties with respect to the Development Agreement, the Funding Agreement or any related
document as a condition precedent to bringing any action against any Guarantor upon this
Guaranty. All remedies afforded to CRA by reason of this Guaranty are separate and cumulative
remedies and no one of such remedies, whether waived by CRA or not, shall be deemed to be an
exclusion of any one of the other remedies available to CRA and shall not in any way limit or
prejudice any other legal or equitable remedy which CRA may have.
5. Each Guarantor further agrees that Guarantors shall not be released from any
obligations hereunder by reason of any amendment to or alteration of the terms and conditions of
the Development Agreement, the Funding Agreement or of any related document, nor shall
Guarantors' obligations hereunder be altered or impaired by any delay by CRA in enforcing the
terms and obligations of the Development Agreement or the Funding Agreement by any waiver
of any default by CRA under the Development Agreement, the Funding Agreement or any
related document, it being the intention that each Guarantor shall remain fully liable hereunder,
notwithstanding any such event.
6. No extension of the time of payment or performance of any obligation hereunder
guaranteed, or the renewal thereof, nor delay in the enforcement thereof or of this Guaranty, or
the taking, exchanging, surrender or release of other security therefor or the release or
compromise of any liability of any party shall affect the liability of or in any manner release the
Guarantors, and this Guaranty shall be a continuing one and remain in full force and effect until
each and every obligation hereby guaranteed shall have been fully paid and performed.
7. That until the Project is fully erected, equipped and completed as aforesaid, and
until each and all of the terms, covenants and conditions of this Guaranty are fully performed,
Guarantors shall not be released by any act or thing which might, but for this provision of this
Guaranty, be deemed a legal or equitable discharge of any Guarantor, or by reason of any
waiver, extension, modification, forbearance or delay by CRA and Guarantors hereby expressly
36
waive and surrender any defense to Guarantors' liability hereunder based upon any of the
foregoing acts, things, agreements or waivers. Guarantors shall be released from this Guaranty
upon the earlier to occur of (i) completion of the Project, lien -free and otherwise in accordance
with the requirements of the Development Agreement, the Funding Agreement and substantially
in accordance with the Plans.
8. Except as otherwise set forth herein, CRA shall not be required to give any notice
to any Guarantor hereunder in order to preserve or enforce CRA's rights hereunder (including,
without limitation, notice of any default under or amendment to the Development Agreement or
the Funding Agreement), any such notice being expressly waived by Guarantors.
9. Guarantors agree that Guarantors shall make no claim or set-off, defense,
recoupment or counterclaim of any sort whatsoever, nor shall Guarantors seek to impair, limit or
defeat in any way their obligations hereunder. Guarantors hereby waive any right to such a
claim in limitation of their obligations hereunder.
10. This Guaranty is assignable by CRA and shall bind the heirs, devisees, personal
representatives, successors and assigns of the parties hereto and shall inure to the benefit of any
successor or assign of CRA.
11. This Guaranty shall, in all respects, be governed by and construed in accordance
with the laws of the State of Florida, including all matters of construction, validity and
performance.
12. In the event that any provision of this Guaranty is held to be void or
unenforceable, all other provisions shall remain unaffected and be enforceable.
13. Except as otherwise set forth herein, each Guarantor hereby waives notice of
acceptance of this Guaranty by CRA and of presentment, demand, protest, notice of protest and
of dishonor, notice of default and all other notices relative to this Guaranty of every kind and
description now or hereafter provided by any agreement between Developer and CRA or any
statute or rule of law, except only any notices expressly required hereunder.
14. Any notice, demand or request by CRA to any Guarantor or from any Guarantor
to CRA shall be in writing and shall be deemed to have been duly given or made if either
delivered personally or if mailed by certified or registered mail, addressed to the address set forth
below (or at the correct address of any assignee of CRA), except that mailed written notices shall
not be deemed given or served until three days after the date of mailing thereof:
a. If to CRA:
SOUTHEAST OVERTOWN / PARK WEST
COMMUNITY REDEVELOPMENT AGENCY
Attention: Clarence E. Woods, III., Executive Director
49 N.W. 5th Street
Suite 100
Miami, FL 33128
Fax: 305-679-6836
37
b. If to Guarantors:
Matthew S. Greer
c/o Carlisle Development Group, LLC
2950 SW 29th Avenue, Suite 200
Miami, FL 33133
Fax: 305-476-1557
and
Carlisle Development Group, LLC
2950 SW 29th Avenue, Suite 200
Miami, FL 33133
Attention: Matthew S. Greer
Fax: 305-476-1557
EACH GUARANTOR HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVES THE RIGHTS EACH MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION
WITH THE NOTE, THIS GUARANTY AND ANY DOCUMENT CONTEMPLATED TO BE
EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE
OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTION OF ANY
GUARANTOR, DEVELOPER OR CRA.
[Signature Pages to Follow]
38
IN WITNESS WHEREOF, Guarantors have executed this Guaranty as of the day and year
first above written.
WITNESSES:
CARLISLE DEVELOPMENT GROUP, LLC,
Print Name: a Florida limited liability company
Print Name:
By:
Name:
Title:
Print Name: Matthew S. Greer, individually
Print Name:
39
STATE OF FLORIDA
): ss.
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this day of , 201_, by
Matthew S. Greer, as of Carlisle Development Group, LLC, a Florida limited liability
company, on behalf of the limited liability companies. He is personally known to me or has produced
as identification.
Notary Public
Name of Notary Printed:
My commission expires: (NOTARY SEAL)
My commission number is:
STATE OF FLORIDA )
): ss.
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this day of , 201_, by
Matthew S. Greer. He is personally known to me or has produced as
identification.
My commission expires:
My commission number is:
Notary Public
Name of Notary Printed:
(NOTARY SEAL)
40
EXHIBIT G
Ownership Interest
General Partnership Interests in Developer:
Palmetto Homes of Miami, Inc.
CDG Island Living, LLC
Limited Partnership Interests in Developer:
Matthew S. Greer*
Palmetto Homes of Miami, Inc.*
1754, LLC owns 99% of CDG Island Living, LLC and Matthew S. Greer is the
sole member of 1754, LLC
1754MM, Inc. owns 1% of CDG Island Living, LLC and is 100% owned by
Matthew S. Greer
*It is anticipated that Palmetto Homes of Miami, Inc. and Matthew S. Greer will
assign their limited partnership interests to the tax credit investor.
.002%
.008%
79.992%
19.998%
41
#10725743_v11