HomeMy WebLinkAboutCRA-R-12-0043 AttachmentH&K Revision
June 14, 2012
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (the "Agreement") is made as of the • day of
June, 2012, by and between LYRIC DEVELOPMENT LLC, a Florida limited liability company
(the "Developer"), and the SOUTHEAST OVERTOWN/PARK WEST COMMUNITY
REDEVELOPMENT AGENCY, a public agency and body corporate created pursuant to Section
163.356, Florida Statutes (the "CRA");
RECITALS
A. The Southeast Overtown/Park West Project area was designated as a community
redevelopment area (the "Redevelopment Area") by Miami -Dade County, a political subdivision
of the State of Florida (the "County"). A redevelopment plan was approved by the
Commissioners of the City of Miami (the "City") 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, Developer 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 Gatehouse Group, LLC, a Massachusetts limited liability
company ("Gatehouse") was given the highest rating and pursuant to Resolution Number 07-
01508, 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 Gatehouse, 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. DEFINITIONS. Capitalized terms not specifically defined herein shall have the
meaning ascribed to them elsewhere in the Agreement.
"AMI" shall have the meaning ascribed to it in Section 12.1.
"Arbitration" means an arbitration be administered in accordance with the then
current Commercial Arbitration Rules of the American Arbitration Association. Any matter to
be settled by arbitration shall be submitted to the American Arbitration Association in Miami -
Dade County, Florida. The parties shall attempt to designate one arbitrator from the American
Arbitration Association. If they are unable to do so within thirty (30) days after written demand
therefor, then the American Arbitration Association shall designate an arbitrator. The arbitration
shall be final and binding, and enforceable in any court of competent jurisdiction. The arbitrator
shall award attorneys' fees and costs to the prevailing party and charge the cost of arbitration to
the party which is not the prevailing party.
"Block 36 Notice" shall mean written notice from the Executive Director advising
the Developer that the CRA has entered into the Reverter Settlement Agreement with the City
and the County.
"Black Archive" means The Black Archives, History and Research Foundation of
South Florida, Inc., a Florida non-profit corporation.
Section 13.1.
Section 15.1.
"Block 36 Restrictions" shall have the meaning ascribed to it in Section 5.4.
"Bond Issue Approval" shall have the meaning ascribed to it in Section 9.9.6.
"CBO" shall have the meaning ascribed to it in Section 28.
"City" shall have the meaning ascribed to it in Recital "A".
"Commitment" shall have the meaning ascribed to it in Section 5.1.
"Cost Certification" shall have the meaning ascribed to it in Section 7.8.3.
"County" shall have the meaning ascribed to it in Recital "A".
"CRA" shall have the meaning ascribed to it in the introductory paragraph.
"CRA Board" shall mean the Board of Commissioners of the CRA.
"CRA Bond Issue" shall have the meaning ascribed to it in Section 9.9.5.
"CRA Deliveries" shall have the meaning ascribed to it in Section 4.9.
"CRA Phase I Conditions Precedent" shall have the meaning ascribed to it in
"CRA Phase II Conditions Precedent" shall have the meaning ascribed to it in
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Section 17.1.
Section 19.1.
Section 7.8.1.
Section 9.9.1.
"CRA Phase III Conditions Precedent" shall have the meaning ascribed to it in
"CRA Phase IV Conditions Precedent" shall have the meaning ascribed to it in
"CRA Phase I Contribution" shall have the meaning ascribed to it in
"CRA Phase III Contribution" shall have the meaning ascribed to it in
"Cure Period" shall have the meaning ascribed to it in Section 5.2.
"Design Guidelines" shall mean the Southeast Overtown/Park West Community
Redevelopment Plan dated November 2004 by Dover Kohl & Partners as updated by the Final
Update of May 2009 by the City of Miami Planning Department (ver. 2.0).
"Developer" shall have the meaning ascribed to it in the introductory paragraph.
"DOSP" shall have the meaning ascribed to it in Section 9.10.
"Effective Date" shall mean the date this Agreement is last executed by Developer
and the CRA.
"Executive Director" shall have the meaning ascribed to it in Recital "D".
"FHFC" shall have the meaning ascribed to it in Section 7.8.2.
"Gatehouse" shall have the meaning ascribed to it in Recital "D".
"GGI" shall have the meaning ascribed to it in Section 27.1.1.
"HOFLDA" shall have the meaning ascribed to it in Section 6.2.
"Incremental TIF" shall have the meaning ascribed to it in Section 29.
"Indemnitor" shall have the meaning ascribed to it in Section 26.
"Indenulitee" shall have the meaning ascribed to it in Section 26.
"Inspections" shall have the meaning ascribed to it in Section 4.1
"Inspection Period" shall have the meaning ascribed to it in Section 4.1.
"Institutional Investor" shall have the meaning ascribed to it in Section 7.6.3.
"Labor Estimate" shall have the meaning ascribed to it in Section 11.2.2.
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"Laborer Non -Compliance Fund" shall have the meaning ascribed to it in
"Laborer Participation Requirement" shall have the meaning ascribed to it in
"Laborer Priority" shall have the meaning ascribed to it in Section 11.2.2.
"Loan" shall have the meaning ascribed to it in Section 7.8.4.
"Lyric Plat" means the proposed replat of Block 36 of P.W. White's Subdivision
recorded in Plat Book "B" at Page 34 of the Public Records of Miami -Dade County, Florida, a
copy of which has been provided to the Developer.
"Non -Profit" means a non-profit corporation which must be a 501(c)(3) not -for -
profit corporation which is not affiliated in any way with the CRA and the Developer.
"Non -Profit Loan" shall have the meaning ascribed to it in Section 7.8.1.
"Non -Profit Grant Agreement" shall have the meaning ascribed to it in Section
Section 11.6.
Section 11.2.2.
7.8.6.
"OCOB" shall have the meaning ascribed to it in Section 6.2.
"Phase I Payment and Performance Bond" shall have the meaning ascribed to it in
Section 13.1.9.
"Parking Garage" shall have the meaning ascribed to it in Section 6.1(iii).
"Participation Reports" shall have the meaning ascribed to it in Section 11.3.
"Participation Requirements" shall have the meaning ascribed to it in
Section 11.2.
Section 12.1.
Section 12.2.1.
"Permitted Assignee" shall have the meaning ascribed to it in Section 27.2.
"Permitted Exceptions" shall have the meaning ascribed to it in Section 5.1.
"Phase I" shall have the meaning ascribed to it in Section 6.1(i).
"Phase I Affordable Rental Requirement" shall have the meaning ascribed to it in
"Phase I Affordable Rental Reports" shall have the meaning ascribed to it in
"Phase I Budget" shall have the meaning ascribed to it in Section 7.5.
"Phase I Closing Date" shall have the meaning ascribed to it in Section 14.1.
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Section 7.6.1.
Section 7.8.1.
Section 7.2.
Section 7.6.2.
Section 7.6.4.
"Phase I Completion" shall have the meaning ascribed to it in Section 7.4.
"Phase I Completion Date" shall have the meaning ascribed to it in Section 7.4.
"Phase I Construction Contract" shall have the meaning ascribed to it in
"Phase I Easement" shall have the meaning ascribed to it in Section 14.1.1.6.
"Phase I Equity" shall have the meaning ascribed to it in Section 7.6.3.
"Phase I Land Contribution" shall have the meaning ascribed to it in
"Phase I Lender" shall have the meaning ascribed to it in Section 7.6.4.
"Phase I Loan" shall have the meaning ascribed to it in Section 7.6.4.1.
"Phase I Property" shall have the meaning ascribed to it in Section 6.1(i).
"Phase I Plans" shall have the meaning ascribed to it in Section 7.2.
"Phase I Plans and Specifications" shall have the meaning ascribed to it in
"Phase I Project Schedule" shall have the meaning ascribed to it in Section 7.4.
"Phase I Preliminary Budget" shall have the meaning ascribed to it in Section 7.5.
"Phase I Project Budget" shall have the meaning ascribed to it in Section 7.5.
"Phase I Report" shall have the meaning ascribed to it in Section 4.3.
"Phase I Loan Commitment" shall have the meaning ascribed to it in
"Phase I Funding Agreement" shall have the meaning ascribed to it in
"Phase II" shall have the meaning ascribed to it in Section 6.1(ii).
"Phase II Budget" shall have the meaning ascribed to it in Section 8.6.
"Phase II Plans" shall have the meaning ascribed to it in Section 8. 3.
"Phase II Project Budget" shall have the meaning ascribed to it in Section 8.6.
"Phase II Closing Date" shall have the meaning ascribed to it in Section 16.1.
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"Phase II Completion" shall have the meaning ascribed to it in Section 8.5.
"Phase II Completion Date" shall have the meaning ascribed to it in Section 8.5
"Phase II Construction Contract" shall have the meaning ascribed to it in
Section 8.7.1.
"Phase II Loan Commitment" shall have the meaning ascribed to it in
Section 8.7.2.
"Phase II Equity" shall have the meaning ascribed to it in Section 8.7.3.
"Phase II Payment and Performance Bond" shall have the meaning ascribed to it
in Section 15.1.7.
"Phase II Plans and Specifications" shall have the meaning ascribed to it in
Section 8.3.
"Phase II Property" shall have the meaning ascribed to it in Section 6.1(ii).
"Phase II Report" shall have the meaning ascribed to it in Section 4.3.
"Phase II Schedule" shall have the meaning ascribed to it in Section 8. 5.
"Phase III" shall have the meaning ascribed to it in Section 6.1(iii).
"Phase III Budget" shall have the meaning ascribed to it in Section 9.6.
"Phase III Closing Date" shall have the meaning ascribed to it in Section 18.1.
"Phase III Completion" shall have the meaning ascribed to it in Section 9.5.
"Phase III Completion Date" shall have the meaning ascribed to it in Section 9.5.
"Phase III Conditions Precedent" shall have the meaning ascribed to it in
Section 17.1.
"Phase III Construction Contract" shall have the meaning ascribed to it in
Section 9.7.1.
"Phase III Equity" shall have the meaning ascribed to it in Section 9.7.3.
"Phase III Payment and Performance Bond" shall have the meaning ascribed to it
in Section 17.1.9.
"Phase III Plans" shall have the meaning ascribed to it in Section 9. 3.
"Phase III Plans and Specifications" shall have the meaning ascribed to it in
Section 9. 3.
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"Phase III Project Budget" shall have the meaning ascribed to it in Section 9.6.
"Phase III Project Schedule" shall have the meaning ascribed to it in Section 9.5.
"Phase III Schedule" shall have the meaning ascribed to it in Section 9.5.
"Phase III Lender" shall have the meaning ascribed to it in Section 9.7.4.
"Phase III Funding Agreement" shall have the meaning ascribed to it in
Section 9.7.4.
Section 9.7.5.
Section 10.7.1.
Section 10.7.2.
"Phase III Property" shall have the meaning ascribed to it in Section 6.1(iii).
"Phase III/IV Easement Agreement" shall have the meaning ascribed to it in
"Phase IV" shall have the meaning ascribed to it in Section 6.1(iv).
"Phase IV Closing Date" shall have the meaning ascribed to it in Section 20.1.
"Phase IV Completion" shall have the meaning ascribed to it in Section 10.5.
"Phase IV Completion Date" shall have the meaning ascribed to it in Section 10.5.
"Phase IV Construction Contract" shall have the meaning ascribed to it in
"Phase IV Loan Commitment" shall have the meaning ascribed to it in
"Phase IV Equity" shall have the meaning ascribed to it in Section 10.7.3.
"Phase IV Payment and Performance Bond" shall have the meaning ascribed to it
in Section 19.1.7.
"Phase IV Plans" shall have the meaning ascribed to it in Sectionl0.3.
"Phase IV Plans and Specifications" shall have the meaning ascribed to it in
Section 10.3.
"Phase IV Budget" shall have the meaning ascribed to it in Section 10.6.
"Phase IV Project Budget" shall have the meaning ascribed to it in Section 10.6.
"Phase IV Schedule" shall have the meaning ascribed to it in Section 10.5.
"Phase IV Project Schedule" shall have the meaning ascribed to it in Section 10.5.
"Phase IV Equity" shall have the meaning ascribed to it in Section 10.7.3.
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"Phase IV Property" shall have the meaning ascribed to it in Section 6.1(iv).
"PILOT" shall have the meaning ascribed to it in Section 31.
"Property" shall have the meaning ascribed to it in Recital "B".
"Project" shall have the meaning ascribed to it in Section 6.1.
"Proposal" shall have the meaning ascribed to it in Recital "C".
"Redevelopment Area" shall have the meaning ascribed to it in Recital "A."
"Reverter Settlement Agreement" means a settlement agreement between the
CRA, the City and the County in Case Number 07-46851 CA 31 pending in the Circuit Court of
the 11th Judicial Circuit in and for Miami -Dade County, Florida, styled City of Miami, et al.,
Plaintiffs, vs. Miami -Dade County, Defendant (the "Reverter Litigation") pursuant to which the
County shall convey the Phase III Property and the Phase IV Property to the CRA.
"RFP" shall have the meaning ascribed to it in Recital "B".
"Schematic Design Documents" shall mean, at a minimum, the site plan for the
applicable Phase, proposed building massing and elevations for such Phase, an architectural
rendering for such Phase of sufficient detail to allow for the evaluation of the proposed design by
HOFLDA, OCOB and the Executive Director.
Section 7.1.
Section 8.2.
Section 9.2.
Section 10.2.
Section 11.4.
"Schematic Documents for Phase I" shall have the meaning ascribed to it in
"Schematic Documents for Phase II" shall have the meaning ascribed to it in
"Schematic Documents for Phase III" shall have the meaning ascribed to it in
"Schematic Documents for Phase IV" shall have the meaning ascribed to it in
"Subcontractor Non -Compliance Funds" shall have the meaning ascribed to it in
"Subcontractor Participation "Requirements" shall have the meaning ascribed to it
in Section 11.2.1.
"Subcontractor Priority" shall have the meaning ascribed to it in Section 11.2.1.
"Survey" shall have the meaning ascribed to it in Section 5.1.
"Title Review Period" shall have the meaning ascribed to it in Section 5,2.
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"Total Phase I CRA Contribution" shall have the meaning ascribed to it in
Section 7.8.1.
"Total Phase III CRA Contribution" shall have the meaning ascribed to it in
Section 9.9.1.
"Unavoidable Delays" shall mean delays beyond the Developer's control (other
than delays in connection with obtaining licenses, permits, and approvals from 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 public enemy, epidemics, quarantines, restrictions, embargos and area -wide governmental
restrictions.
3. 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.
4. INSPECTION PERIOD.
4.1 Inspections. Developer shall have until 5 p.m. on the sixtieth (60th) day
after the Effective Date (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 the
commencement of on -site Inspections, Developer shall provide advance written notice to the
Executive Director at 49 N.W. 5th Street, Suite 100, Miami, Florida 33128, Phone: 305-679-
6800; Facsimile: 305-679-6835 (or such other CRA representatives as designated by the
Executive Director), which written notice shall provide reasonable detail regarding the type and
scope of Inspection(s) to be performed and the scheduled date and time for such Inspection(s)
and provide the Executive Director the opportunity to have a representative from the CRA
present at any such Inspection(s). Developer shall conduct such Inspection in a manner so as to
not unreasonably interfere with the current use of the Property.
4.2 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.
4.3 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.
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4.4 Disclosure. Developer agrees that in the event the need arises to notify,
under applicable laws, any federal, state or local public agencies of any conditions at the
Property as a result of the Inspections performed by Developer, its agents, employees,
contractors and/or representatives, Developer shall provide the Executive Director with any
pertinent reports, written material or other evidence of the condition requiring such disclosure, if
any. Any required disclosures shall be made directly by the CRA, if deemed necessary thereby,
and not Developer, to any such public agencies, unless the Developer is required to make such
disclosures by applicable law, and the CRA fails to timely make such disclosures.
4.5 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 shall not apply to any diminution in the value
of the Property or costs or expenses which might arise due to the uncovering of the existence of
adverse conditions (e.g., environmental conditions), provided, however, the foregoing is not
intended to relieve the Developer from liability if Developer, its agents, employees, contractors
or other representatives causes such conditions to exist. The foregoing indemnification
obligations of Developer shall survive the expiration or termination of this Agreement.
4.6 Insurance. Developer shall, prior to entering the Property and performing
any Inspections, provide to the CRA evidence of insurance by Developer and its contractors, as
applicable, as specified on Exhibit "B" attached hereto, insuring against any liability by any one
or more of Developer, its agents, employees, contractors or other representatives arising from,
out of or in connection with or otherwise relating to the entry by any one or more of Developer,
its agents, employees, contractors or other representatives in or upon the Property for the purpose
of the Inspections. Developer shall provide the CRA with a certificate of insurance evidencing
such insurance coverage, naming the CRA as additional insured thereon and which insurance
coverage shall be kept in force until (a) the expiration or early termination of this Agreement or;
(b) with respect to any Phase, until completion of construction of such Phase.
4.7 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.
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4.8 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.
4.9 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 and a copy of he Design Guidelines
(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.
4.10 Disclaimer of Representations by Developer. Developer hereby expressly
acknowledges and agrees that, except as specifically provided in this Agreement:
4.10.1 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.
4.10.2 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.
4.10.3 The CRA has made no representations, warranties or promises
to Developer not explicitly set forth in this Agreement.
4.10.4 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.
4.10.5 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.
4.11 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.
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4.12 Copies of Reports. Developer shall provide the CRA with copies of any
third party reports prepared for Developer regarding the physical condition of the Property
within ten (10) days of receipt of same.
5. TITLE AND SURVEY.
5.1 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"):
5.1.1 Ad valorem real estate taxes and assessments for the year of
closing and subsequent years.
5.1.2 All applicable laws, ordinances and governmental regulations,
including, but not limited to, all applicable building, zoning, land use, environmental ordinances
and regulations.
5.1.3 Any matters arising by, through, or under Developer.
5.1.4 Those matters listed on Exhibit "C" attached hereto and made
a part hereof.
5.2 Title Review. 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), other than the Permitted Exceptions, 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
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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 with respect to the Phase or Phases affected by such defect, except for those
obligations that expressly survive the termination of this Agreement.
5.3 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 with respect to the applicable Phase, as
hereinafter defined, the CRA shall use commercially reasonable efforts to cure such title
defect(s) within ten (10) days, if practicable, and in any event prior to the Closing Date with
respect to such Phase. 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 with respect to such Phase after using commercially reasonable efforts, Developer
shall have the option on the Closing Date with respect to such Phase 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 with respect to such
Phase, whereupon the parties shall be released from all further obligations under this Agreement
with respect to such Phase, except for those obligations that expressly survive the termination of
this Agreement.
5.4 Developer acknowledges that the current drafts of the Reverter Settlement
Agreement require the CRA to enter into a declaration of restrictions substantially in the form of
Exhibit "D" attached hereto (the "Block 36 Restrictions") with respect to the Phase III Property
and the Phase IV Property as part of the Reverter Settlement Agreement. Simultaneously with
providing the Block 36 Notice, the CRA shall provide the Developer with a copy of the Block 36
Restrictions in final form. The Developer shall within ten (10) days from receipt of the Block 36
Notice to elect by written notice to the CRA to either (a) accept the Phase III Property and Phase
IV Property subject to the Block 36 Restrictions; (b) or terminate this Agreement with respect to
Phase III and Phase IV, in which event this Agreement shall terminate as to Phase III and Phase
IV and the parties shall be released from all obligations with respect to Phase III and Phase IV
except for the obligations that expressly survive termination. If the Developer does not terminate
this Agreement with respect to Phase III and Phase IV, the Block 36 Restrictions shall be
deemed a Permitted Exception with respect to the Phase III Property and the Phase IV Property.
5.5 The CRA shall utilize its good faith efforts to cause Lyric Plat to be
recorded within twelve (12) months from the Effective Date, as same may be extended by
Unavoidable Delays and delays caused by the Black Archives. The Executive Director will keep
the Developer advised of the status of the Lyric Plat.
6. PROJECT.
6.1 Description of the Project. The "Project" shall consist of the following:
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(i) Phase I of the Project ("Phase I") shall consist of between 90-100
affordable rental units with ground floor commercial space along Northwest 2nd Avenue and a
commercial or residential liner which will wrap around the corner of Ninth Street Mall
constructed in a building not exceeding eight (8) stories. Phase I will include not more than
twenty-six percent (26%) one -bedroom units with an average size of 600 square feet, two -
bedroom units with an average size of 800 square feet, and not less than thirty percent (30%)
three -bedroom units with an average size of 950 square feet, together with approximately five
thousand (5,000) square feet of commercial space, to be made available to rent to the public and
a sufficient number of parking spaces to comply with the applicable zoning. Phase I amenities
may include a tot lot, fitness center, library, community space, and offices serving Phase I.
Phase I shall be constructed on that portion of the Property more particularly described on
Exhibit "E", attached hereto and made a part hereof ("Phase I Property").
(ii) Phase II ("Phase II") will consist of approximately 80-120
residential units in a building not to exceed twelve (12) stories consisting of one -bedroom units,
two -bedroom units, and three -bedroom units, the mix of which and the size of which shall be
established based upon market conditions and with a sufficient number of parking spaces to
comply with the applicable zoning requirements, to be developed on that portion of the Property,
which is more particularly described on Exhibit "F" attached hereto and made a part hereof (the
"Phase II Property").
(iii) Phase III of the Project ("Phase III") will consist of a public
parking garage containing approximately 300 parking spaces (the "Parking Garage") to be built
by the Developer for the CRA on that portion of the Property more particularly described on
Exhibit "G", attached hereto made a part hereof ("Phase III Property"). Approximately fifty
(50) parking spaces in the ground level of the Parking Garage shall be allocated for use
exclusively in connection with Phase IV. The balance of the Parking Garage shall be operated
by the CRA, or its designee, as a public parking garage and parking spaces will be available for
use by the general public and members of the International Longshoremen's Association Local
1416 and parking spaces will be made available for use by the general public attending events at
the Lyric Theatre. Charges for use of the balance of the Parking Garage not being utilized in
connection with Phase IV, if any, shall be determined in accordance with the provisions of the
Phase III/IV Parking Easement Agreement.
(iv) Phase IV of the Project ("Phase IV") will consist of approximately
25,000 - 37,000 square feet of commercial space with a sufficient number of parking spaces to
comply with the applicable zoning and shall be developed in a manner consistent with the
Proposal, the Design Standards, and the applicable zoning, to be constructed on that portion of
the Property more particularly described on Exhibit "H" attached hereto and made a part hereof
(the "Phase IV Property"). Any material increase in the size of Phase IV or change in the use of
Phase IV shall be subject to the approval of the CRA Board.
6.2 Community Input in the Project Design. Within sixty (60) days of the
Effective Date, the Developer shall present Schematic Design Documents for Phase I together
with site plans, building massings and elevations for Phase II to the Historic Overtown Folk Life
District Association ("HOFLDA") and the Overtown Community Oversight Board ("OCOB")
for their review and comment. The Developer shall revise the Schematic Design Documents for
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Phase I to address reasonable and financially feasible comments and concerns of the HOFLDA
and OCOB. As soon as available Developer shall present Schematic Design Documents for
subsequent Phases of the Project to HOFLDA and OCOB for their review and comment. The
Developer shall use good faith efforts to revise the Schematic Design Documents for each
applicable Phase to address the reasonable and financially feasible comments and concerns of
HOFLDA and OCOB.
7. PHASE I.
7.1 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 for Phase I, which shall have been revised by the
Developer to address reasonable and financially feasible comments received from the HOFLDA
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 for Phase I as necessary
to address 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 Phase I as reflected
in the Schematic Design Documents. The parties agree to use reasonable, good faith efforts to
agree to on necessary modifications to comply with the terms of this Agreement. The Executive
Director shall have fifteen (15) days from the receipt of the Schematic Design Documents for
Phase I to approve same. If the Executive Director fails to timely respond, the submitted
Schematic Design Documents for Phase I 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 and the. Executive Director shall modify the Schematic Design
Documents for Phase I, as appropriate, to address the comments and concerns of the Executive
Director to ensure that the Schematic Design Documents for Phase I comply with the Design
Guidelines and the input from HOFLDA and OCOB, as deemed appropriate by the Executive
Director. Any resubmission shall be subject to approval by the Executive Director in accordance
with the procedure outlined above for the original submission until same is approved 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 for
Phase I. If the Executive Director has rejected the Schematic Design Documents for Phase I and
the Executive Director and the Developer are not able to resolve the rejection of the Schematic
Design Documents for Phase I by the Executive Director within fifteen (15) days after the
Developer's receipt of notice of such rejection, the Developer may elect to submit such dispute
regarding the approval of the Schematic Design Documents for Phase I to the CRA Board for
resolution. The Schematic Design Documents for Phase I, as approved or deemed approved by
the Executive Director shall mean the "Schematic Documents for Phase I". The Developer shall
cause Phase I of the Project to be designed in accordance with the Schematic Documents for
Phase I.
7.2 Phase I Construction Documents. As soon as practicable after approval or
deemed approval of the Schematic Documents for Phase I by the Executive Director, the
Developer shall submit to the Executive Director for its review and approval the plans and
specifications for the construction of Phase I, which shall be of sufficient detail to allow the
Developer to apply for a building permit for Phase I ("Phase I Plans and Specifications"). The
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Phase I Plans and Specifications shall be subject to the approval of the Executive Director, which
approval shall not be unreasonably withheld and such approval shall be given if the Phase I Plans
and Specifications are consistent with the Schematic Documents for Phase I. The Developer
agrees to utilize its good faith efforts to make modifications to the Phase I Plans and
Specifications 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 the Phase I Plans and
Specifications. The Executive Director shall have fifteen (15) days from the receipt of the Phase
I Plans and Specifications to approve same. If the Executive Director fails to timely respond, the
Phase I Plans and Specifications shall deemed approved. In the event of disapproval, the
Executive Director shall specify the reason for such disapproval. In the event of a disapproval,
Developer shall modify the Phase I Plans and Specifications, 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 agree upon modifications to
the Phase I Plans and Specifications to resolve any disputes regarding the Phase I Plans and
Specifications. In the event of disapproval and failure within 15 days to resolve said dispute, the
Developer may elect to submit such dispute regarding the approval of the Phase I Plans and
Specifications to the CRA Board for resolution. The Phase I Plans and Specifications, as
approved or deemed approved by the Executive Director shall mean the "Phase I Plans".
7.3 Phase I Development Requirements. Developer shall be required to
develop Phase I substantially in accordance with the Phase I Plans. Any material variation to the
Phase I Plans shall require approval of the Executive Director, which approval shall not be
unreasonably withheld provided that same is in accordance the spirit and intent of Phase I Plans.
The Executive Director shall have ten (10) days from the receipt of any material variation in the
Phase I Plans to approve same. If the Executive Director fails to timely respond, the material
variation shall be deemed approved.
7.4 Phase I Project Schedule. Developer shall complete construction of Phase
I substantially in accordance with the Phase I Plans ("Phase I Completion") within eighteen (18)
months from the Phase I Closing Date, as same may be extended as a result of Unavoidable
Delays (the "Phase I Completion Date"), time being of the essence. If Developer fails to achieve
Phase I Completion within ninety (90) days of the Phase I Completion Date, Developer shall pay
to the CRA One Thousand and No/100 Dollars ($1,000.00) per day for each day thereafter until
Phase I Completion. The term "Phase I Completion" shall mean that Phase I has been completed
substantially in accordance with the Phase I Plans and a temporary certificate of occupancy has
been issued by the City for all residential units comprising Phase I and the commercial space
comprising a portion of Phase I.
7.5 Phase I Project Budget. The preliminary budget for Phase I prepared by
the Developer is attached hereto as Exhibit "I" and made a part hereof (the "Phase I Preliminary
Budget"). As soon as available but in no event later than thirty (30) days after the approval of
the Phase I Plans, the Developer shall submit to the Executive Director for review and approval,
which approvals 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 Phase I (the
16
"Phase I Project Budget). The Developer, agrees to use its good faith efforts to make all
reasonable modifications to the Phase I Project Budget to satisfy the requirements of the
Executive Director; provided, however, that such modifications are approved by the Developer's
lenders or investors. 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 Phase I Project Budget. The Executive Director shall have
fifteen (15) days after receipt of the Phase I Project Budget to approve same. If the Executive
Director fails to timely respond to the Phase I Project Budget submitted by the Developer, same
shall be deemed approved. In the event of disapproval, the Developer shall modify the Phase I
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 agree upon budget modifications to resolve any disputes regarding the Phase I
Project Budget. In the event of disapproval or failure within fifteen (15) days to resolve any
disputes, the Developer may elect to submit such dispute regarding the approval of the Phase I
Project Budget to Arbitration for resolution. The Phase I Project Budget, as approved or
deemed approved by the Executive Director, shall be deemed the "Phase I Budget". The Phase I
Budget shall establish the amount of the CRA Contribution.
7.6 Development of Phase I. As soon as available, Developer shall submit to
the Executive Director for review and approval, which approval shall not be unreasonably
withheld, the following:
7.6.1 Phase I Construction Contract. The construction contract for
Phase I (the "Phase I Construction Contract"), together with the "schedule of values" for Phase I,
which shall include the obligation of the general contractor to comply with the participation
requirements set forth in Section 11.2 of this Agreement.
7.6.2 Loan Commitment. A loan commitment from a financial
institution evidencing that Developer has obtained a construction loan commitment for the
development of Phase I (the "Phase I Loan Commitment") which shall be in form and substance
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 Phase I Loan Commitment reflects that funds will be
available for construction of Phase I and the amount of funds which will be available for
construction of Phase I.
7.6.3 Equity. Evidence reasonably satisfactory to the Executive
Director that Developer has sufficient equity available to meet the equity requirement of the
Phase I Loan Commitment taking into consideration the CRA Contribution (the "Phase I
Equity"). A written commitment from an institutional investor providing equity to the Developer
with respect to the purchase of the tax credits (the "Institutional Investor") in the amount of the
equity requirement shall be deemed satisfactory.
7.6.4 Funding Agreement. The CRA, the Developer, the Developer's
lender providing financing in accordance with the Phase I Loan Commitment (the "Phase I
17
Lender") and the Institutional Investor(s) providing equity to the Developer with respect to the
purchase of the tax credits shall agree to the terms of an agreement (the "Phase I Funding
Agreement") in form and substance reasonably acceptable to the Executive Director, which will
include, without limitation, the following:
7.6.4.1 The disbursement of the CRA Phase I Contribution, the
funding and disbursement of the proceeds of the loan contemplated by the Phase I Loan
Commitment (the "Phase I Loan") and the funding and disbursement of the equity to be provided
by the Developer and the Institutional Investor. The Non -Profit Loan shall be disbursed on a
pari passu basis with the proceeds of the Phase I Loan or on such other basis as mutually agreed
by the Executive Director, the Phase I Lender and the Institutional Investor. The Non -Profit
shall either deposit the Non -Profit Loan in a segregated account with Phase I Lender pursuant to
the Phase I Funding Agreement or, if agreeable to the Phase I Lender and Institutional Investor,
fund the Non -Profit Loan in stages as approved by the Phase I Lender.
7.6.4.2 The procedure for submission of monthly draw requests and
partial lien waivers to the Phase I Lender for review and approval.
7.6.4.3 The inspection of Phase I during construction for the benefit
of the CRA and the Phase I Lender, and approval of the percentage of work completed.
7.6.4.4 The approval of the Phase I Budget and any amendments to
the Phase I Budget by the Phase I Lender.
7.6.4.5 The approval of the re -allocation of funds to different line
items in the Phase I Budget by the Phase I Lender.
7.6.4.6 The approval of use of funds allocated to the contingency
line items of the Phase I Budget by the Phase I Lender.
7.6.4.7 The determination of whether there are adequate funds
included in the Phase I Budget to complete Phase I and whether the Phase I Budget is "in
balance" by the Phase I Lender. If it is determined that due to cost overruns the Phase I Budget is
not "in balance" the Developer will be required to fund the amount determined by the Phase I
Lender, to keep the Phase I Budget "in balance" prior to there being any further disbursement of
the Non -Profit Loan and the Phase I Loan.
7.6.4.8 The procedure for approving change orders by the Phase I
Lender.
7.6.4.9 The procedure for approving changes to the Phase I Plans by
the Lender.
7.7 CRA Approval. The Executive Director shall have fifteen (15) days after
receipt of each of the items required by Section 7.6 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
18
its good faith efforts to address the comments and concerns of the Executive ' Director to
amicably resolve any disputes.
7.8 CRA PHASE I CONTRIBUTION.
7.8.1 The CRA covenants and agrees to contribute the Phase I
Property having an agreed upon value of One Million Four Hundred Fifty -Seven Thousand Two
Hundred Fifty and No/100 Dollars ($1,457,250.00) (the "Phase I Land Contribution") and a cash
contribution to a Non -Profit in an amount of up to Ten Million and No/100 Dollars
($10,000,000.00) for the administration, design and development of Phase I (the "CRA Phase I
Contribution", and together with the Phase I Land Contribution, the "Total Phase I CRA
Contribution"); provided all of the CRA Phase I Conditions Precedent are satisfied or waived by
the CRA. The CRA Phase I Contribution to the Non -Profit shall be loaned (the "Non -Profit
Loan") by the Non -Profit to the Developer as hereinafter provided and disbursed in accordance
with the Phase I Funding Agreement. Under no circumstances shall the CRA Phase I
Contribution be increased notwithstanding any increases in the Phase I Budget.
7.8.2 The exact amount of the CRA Phase I Contribution will depend
upon the Phase I Project Budget approved by the Executive Director and other funding sources
for Phase I obtained by the Developer. The CRA Phase I Contribution shall be reduced if the
committed sources of funding upon achieving Phase I 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%0) or (ii) the Florida Housing Finance Corporation
("FHFC") guidelines for multi -family revenue bond -financed projects pursuant to Rule 67-21,
Fla. Admin. Code. The amount of the CRA Phase I Contribution shall be established at the time
the Executive Director approves the Phase I Project Budget and adjusted upon completion in
accordance with Section 7.8.3.
7.8.3 Upon Phase I Completion, the Developer, at its sole cost and
expense, shall retain Reznick Group, PC to prepare a cost certificate (the "Cost Certification"),
based upon an audit of all costs and expenses incurred in connection with achieving Phase I
Completion, and in compliance with all FHFC guidelines for such Cost Certifications. 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 7.8.2), then the CRA Phase I. Contribution and
the Non -Profit Loan shall be reduced by the amount of such excess. If the CRA Phase I
Contribution and the Non -Profit Loan has been fully disbursed the Developer shall repay such
amount within thirty (30) days after written demand from the CRA to the Non -Profit which will,
in turn, repay such portion of the CRA Phase I Contribution to the CRA. If the Developer
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 Developer'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 Arbitration for resolution, which shall be binding on the parties. This provision shall
survive the closing with respect to Phase I. Upon receipt of the Cost Certificate the Developer
shall promptly provide a copy of same to the Executive Director and the Non -Profit.
19
7.8.4 The CRA has advised the Developer that the CRA Phase I
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 Phase I Contribution shall not be
security for the CRA Bond Issue or any other indebtedness of the CRA. The Developer
acknowledges that restrictions associated with the CRA Bond Issue will require that the Non -
Profit Loan be utilized only with respect to the design and construction of the residential portion
of Phase I and that the CRA Phase I Contribution be paid to the Non -Profit.
7.8.5 Developer and the CRA agreed that the CRA shall make the
CRA Phase I Contribution to a Non -Profit acceptable to the CRA which Non -Profit would in
turn loan the amount of the CRA Phase I Contribution to the Developer. Within thirty (30) days
from the Effective Date, the Developer shall identify the Non -Profit and submit all proposed
structure documents, including, without limitation, the loan documents (the "Non -Profit 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
and the Non -Profit and the Non -Profit Loan Documents comply with the requirements of the
CRA Bond Issue, including, without limitation, with respect to control of the CRA Phase I
Contribution and the direct deposit of the Non -Profit Loan proceeds with the Phase I Lender or a
title company approved by the CRA to be disbursed in accordance with the Phase I Funding
Agreement. The Non -Profit shall be a party to the Phase I Funding Agreement, however, the
CRA shall retain control over the disbursement of the Non -Profit Loan to the Developer in
accordance with the Phase I Funding Agreement.
7.8.6 The CRA and the Non -Profit will enter into an agreement (the
"Non -Profit Grant Agreement") which shall govern the use of the CRA Phase I Contribution.
The Non -Profit Grant Agreement will require the Non -Profit to make the Non -Profit Loan of the
CRA Phase I Contribution to the Developer as contemplated by this Agreement. In the event the
Non -Profit Loan is repaid by the Developer to the Non -Profit, the Non -Profit shall be required to
use the funds for capital housing projects that have a useful life that is at least equal to the term
of the CRA Bond Issue. The Non -Profit shall not be permitted to retain any portion of the CRA
Phase I Contribution and any fees and costs of the Non -Profit must be paid from sources other
than the CRA Phase I Contribution.
7.8.7 The Executive Director shall have fifteen (15) days after receipt
of information regarding the Non -Profit and the Non -Profit Loan Documents to approve same,
which approval shall not be unreasonably withheld provided the Non -Profit and the Non -Profit
Loan Documents comply with the requirements of the CRA Bond Issue and this Agreement. In
the event of disapproval, the Executive Director shall specify the reasons for such disapproval.
If the Executive Director has not approved the Non -Profit and the Non -Profit Loan Documents
prior to August 1, 2012, this Agreement shall be of no further force and effect, at the option of
the Executive Director, in which event the parties shall be released from all further obligations
under this Agreement except for the obligations that expressly survive termination.
7.8.8 The CRA shall take all necessary action to set aside the CRA
Phase I Contribution to the reasonable satisfaction of the Phase I Lender and Developer.
8. PHASE II.
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8.1 Community Input. Developer shall comply with the provisions of Section
6.2 with respect to the Schematic Design Documents for Phase II.
8.2 Approval of Schematic Design Documents by CRA. The Developer shall
submit to the Executive Director for review and approval the Schematic Design Documents for
Phase II, which shall have been revised by the Developer to address comments received from the
HOFLDA and 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 for Phase II as
necessary to address 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 for Phase II. The parties agree to use reasonable,
good faith efforts to agree to on necessary modifications to comply with the terms of this
Agreement. The Executive Director shall have fifteen (15) days from the receipt of the
Schematic Design Documents for Phase II 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 and the Executive Director shall modify the Schematic
Design Documents for Phase II, as appropriate, to address the comments and concerns of the
Executive Director to ensure that the Schematic Design Documents for Phase II comply with the
Design Guidelines and the input from HOFLDA and OCOB, as deemed appropriate by the
Executive Director. Any resubmission shall be subject to approval by the Executive Director in
accordance with the procedure outlined above for the original submission until same is approved
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 for Phase II. If the Executive Director has rejected the Schematic Design Documents
for Phase II and the Executive Director and the Developer are not able to resolve the rejection of
the Schematic Design Documents for Phase II by the Executive Director within fifteen (15) days
after the Developer's receipt of notice of such rejection, Developer may elect to submit such
dispute regarding the approval of the Schematic Design Documents for Phase II to the CRA
Board for resolution. The Schematic Design Documents for Phase II, as approved or deemed
approved by the Executive Director shall mean the "Schematic Documents for Phase In The
Developer shall cause Phase II to be designed in accordance with the Schematic Documents for
Phase II.
8.3 Phase II Construction Documents. The Developer shall submit to the
Executive Director for its review and approval the plans and specifications for the construction
of Phase II, which shall be of sufficient detail to allow the Developer to apply for a building
permit for Phase II ("Phase II Plans and Specifications"). The Phase II 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 Phase II Plans and
Specifications are consistent with the Schematic Documents for Phase II. The Developer agrees
to utilize its good faith efforts to make modifications to the Phase II Plans and Specifications 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 the Phase II Plans and Specifications. The Executive
Director shall have fifteen (15) days from the receipt of the Phase II Plans and Specifications to
21
approve same. If the Executive Director fails to timely respond, the Phase II Plans and
Specifications shall deemed approved. In the event of disapproval, the Executive Director shall
specify the reason for such disapproval. In the event of a disapproval, Developer shall modify
the Phase II Plans and Specifications, 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 agree upon modifications to the Phase II Plans and
Specifications to resolve any disputes regarding the Phase II Plans and Specifications. In the
event of disapproval and failure within fifteen (15) days to resolve said dispute, the Developer
may elect to submit such dispute regarding the approval of the Phase II Plans and Specifications
to the CRA Board for resolution. The Phase II Plans and Specifications, as approved or deemed
approved by the Executive Director shall mean the "Phase II Plans".
8.4 Phase II Development Requirements. Developer shall be required to
develop Phase II substantially in accordance with the Phase II Plans. Any material variation to
the Phase II Plans shall require approval of the Executive Director, which approval shall not be
unreasonably withheld, provided that same is in accordance the spirit and intent of Phase II
Plans. The Executive Director shall have ten (10) days from receipt of any material variation in
the Phase II Plans to approve same. If the Executive Director fails to timely respond, the
material variation shall be deemed approved.
8.5 Phase II Project Schedule. Developer shall complete construction of
Phase II substantially in accordance with the Phase II Plans within thirty-six (36) months from
the Phase II Closing Date, as same may be extended as a result of Unavoidable Delays (the
"Phase II Completion Date"). If Developer fails to achieve Phase II Completion within ninety
(90) days of the Phase II Completion Date, Developer shall pay to the CRA One Thousand and
No/100 Dollars ($1,000.00) per day for each day thereafter until Phase II Completion. The term
"Phase II Completion" shall mean that Phase II has been completed substantially in accordance
with the Phase II Plans and a temporary certificate of occupancy has been issued by the City for
all residential units comprising Phase II and for the shell of all commercial space included in
Phase II, if any.
8.6 Phase II Project Budget. The Developer shall submit to the Executive
Director for comment a detailed line item budget reflecting all hard and soft costs anticipated to
be incurred by the Developer in connection with Phase II (the "Phase II Budget"). 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 Phase II Budget.
8.7 Development of Phase II. As soon as available, Developer shall submit to
the Executive Director for review and approval, which approval shall not be unreasonably
withheld, the following:
8.7.1 Phase II Construction Contract. The construction contract for
Phase II (the "Phase II Construction Contract"), together with the "schedule of values" for Phase
22
II, which shall include the obligation of the general contractor to comply with the participation
requirements set forth in Section 11.2 of this Agreement.
8.7.2 Loan Commitment. A loan commitment from a financial
institution evidencing that Developer has obtained a construction loan commitment for the
development of Phase II (the "Phase II Loan Commitment"). The Executive Director's approval
of the Phase II Loan Commitment shall be limited to confirming that the Phase II Budget is the
budget utilized by the Phase II Lender in issuing the Phase II Loan Commitment and
confirmation that the amount of the loan contemplated by the Phase II Loan Commitment and
the amount of Phase II Equity is sufficient to complete Phase II in accordance with the Phase II
Budget.
8.7.3 Equity. Evidence that Developer has sufficient equity available
to meet the equity requirement of the Phase II Loan Commitment with respect to Phase II taking
into consideration the equity being provided to the Developer by the Institutional Investor, if any
(the "Phase II Equity").
8.8 CRA Review. The Executive Director shall have fifteen (15) days after
receipt of each of the items required by Section 8.7 to review and approve same, which approval
shall not be unreasonably withheld. The Executive Director may request additional information
from the Developer necessary to complete his review and approval of the aforementioned items.
In the event of disapproval of any such item, the Executive Director shall specify the reason for
such disapproval. In such event, the Developer shall utilize its good faith efforts to address the
comments and concerns of the Executive Director to amicably resolve any disputes.
9. PHASE III.
9.1 Community Input. Developer shall comply with the provisions of Section
6.2 with respect to the Schematic Design Documents for Phase III.
9.2 Approval of Schematic Design Documents by CRA. The Developer shall
submit to the Executive Director for review and approval the Schematic Design Documents for
Phase III, which shall have been revised by the Developer to address comments received from
the HOFLDA and 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 for
Phase III as necessary to address 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 for Phase III. The parties agree to use
reasonable, good faith efforts to agree to on necessary modifications to comply with the terms of
this Agreement. The Executive Director shall have fifteen (15) days from the receipt of the
Schematic Design Documents for Phase III 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 and the Executive Director shall modify the Schematic
Design Documents for Phase III, as appropriate, to address the comments and concerns of the
Executive Director to ensure that the Schematic Design Documents for Phase III comply with the
23
Design Guidelines and the input from HOFLDA and OCOB, as deemed appropriate by the
Executive Director. Any resubmission shall be subject to approval by the Executive Director in
accordance with the procedure outlined above for the original submission until same is approved
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 for Phase III. If the Executive Director has rejected the Schematic Design
Documents for Phase III and the Executive Director and the Developer are not able to resolve the
reason for such rejection of the Schematic Design Documents for Phase III by the Executive
Director within fifteen (15) days after the Developer's receipt of notice of such rejection,
Developer may elect to submit such dispute regarding the approval of the Schematic Design
Documents for Phase III to the CRA Board for resolution. The Schematic Design Documents for
Phase III, as approved or deemed approved by the Executive Director shall mean the "Schematic
Documents for Phase III". The Developer shall cause Phase III to be designed in accordance
with the Schematic Documents for Phase III.
9.3 Phase III Construction Documents. The Developer shall submit to the
Executive Director for its review and approval the plans and specifications for the construction
of Phase III, which shall be of sufficient detail to allow the Developer to apply for a building
permit for Phase III ("Phase III Plans and Specifications"). The Phase III 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 Phase III Plans and
Specifications are consistent with the Schematic Documents for Phase III. The Developer agrees
to utilize its good faith efforts to make modifications to the Phase III Plans and Specifications 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 the Phase II Plans and Specifications. The Executive
Director shall have fifteen (15) days from the receipt of the Phase III Plans and Specifications to
approve same. If the Executive Director fails to timely respond, the Phase III Plans and
Specifications shall deemed approved. In the event of disapproval, the Executive Director shall
specify the reason for such disapproval. In the event of a disapproval, Developer shall modify
the Phase III Plans and Specifications, 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 agree upon modifications to the Phase III Plans and
Specifications to resolve any disputes regarding the Phase III Plans and Specifications. In the
event of disapproval and failure within 15 days to resolve said dispute, the Developer may elect
to submit such dispute regarding the approval of the Phase III Plans and Specifications to the
CRA Board for resolution. The Phase III Plans and Specifications, as approved or deemed
approved by the Executive Director shall mean the "Phase III Plans".
9.4 Phase III Development Requirements. Developer shall be required to
develop Phase III substantially in accordance with the Phase III Plans. Any material variation to
the Phase III Plans shall require approval of the Executive Director, which approval shall not be
unreasonably withheld, provided that same is in accordance the spirit and intent of Phase III
Plans. The Executive Director shall have ten (10) days from receipt of any material variation in
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the Phase III Plans to approve same. If the Executive Director fails to timely respond, the
material variation shall be deemed approved.
9.5 Phase III Project Schedule. Developer shall complete construction of
Phase III substantially in accordance with the Phase III Plans within eighteen (18) months from
the Phase III Closing Date, as same may be extended as a result of Unavoidable Delays (the
"Phase III Completion Date"). If Developer fails to achieve Phase III Completion within ninety
(90) days of the Phase III Completion Date, Developer shall pay to the CRA One Thousand and
No/100 Dollars ($1,000.00) per day for each day thereafter until Phase III Completion. The term
"Phase III Completion" shall mean that Phase III has been completed substantially in accordance
with the Phase III Plans and a temporary certificate of occupancy has been issued by the City for
the Parking Garage.
9.6 Phase III Project Budget. The Developer shall submit to the Executive
Director for review a detailed line item budget reflecting all hard and soft costs anticipated to be
incurred by the Developer in connection with Phase III (the "Phase III Project Budget"). 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 Phase III Project Budget. The Executive Director shall have fifteen (15) days from
receipt of the Phase III Project Budget to approve same. If the Executive Director fails to timely
respond to the Phase III Project Budget submitted by the Developer, same shall be deemed
approved. In the event of disapproval, the Developer shall modify the Phase III 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 agree upon budget modifications to resolve any disputes regarding the Phase III
Project Budget. In the event of disapproval and failure within fifteen (15) days to resolve any
disputes, the Developer may elect to submit such dispute regarding the approval of the Phase III
Project Budget to Arbitration for resolution. The Phase III Project Budget as approved or
deemed approved by the Executive Director, shall be deemed the "Phase III Budget".
9.7 Development of Phase III. As soon as available, Developer shall submit
to the Executive Director for review and approval, which approval shall not be unreasonably
withheld, the following:
9.7.1 Phase III Construction Contract. The construction contract for
Phase III (the "Phase III Construction Contract"), together with the "schedule of values" for
Phase III, which shall include the obligation of the general contractor to comply with the
participation requirements set forth in Section 11.2 of this Agreement.
9.7.2 Loan Commitment. A loan commitment from a financial
institution evidencing that Developer has obtained a construction loan commitment for the
development of Phase III (the "Phase III Loan Commitment") which shall be in form and
substance 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 Phase III Loan Commitment reflects that
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funds will be available for construction of Phase III and the amount of funds which will be
available for construction of Phase III. The Phase III Loan Commitment shall not be required if
the CRA Phase III Contribution and the Phase III Equity is sufficient based upon the Phase III
Budget.
9.7.3 Equity. Evidence reasonably satisfactory to the Executive
Director that Developer has sufficient equity available to meet the equity requirement of the
CRA Phase III Loan Commitment taking into consideration the Phase III Contribution (the
"Phase III Equity").
9.7.4 Phase III Funding Agreement. The CRA, Developer, and the
Developer's lender providing financing in accordance with the Phase III Loan Commitment (the
"Phase III Lender"), if any, shall agree to the terms of an agreement (the "Phase III Funding
Agreement") in form and substance reasonably acceptable to the Executive Director, which will
include, without limitation, the following:
9.7.4.1 The disbursement of the CRA Phase III Contribution and the
Phase III Equity required based upon the Phase III Budget, and the proceeds of any loan from the
Phase III Lender, if any. The Phase III Contribution shall be funded on a pari passu basis with
the Phase III Loan and the Phase III Equity or on such other -basis as mutually agreed by the
Executive Director and the Phase III Lender, if any.
9.7.4.2 The procedure for submission of monthly draw requests and
partial lien waivers to the Phase III Lender or to the CRA, if there is no Phase III Lender, for
review and approval.
9.7.4.3 The inspection of Phase III during construction for the
benefit of the CRA and the Phase III Lender, and approval of the percentage of work completed.
9.7.4.4 The approval of the Phase III Budget and any amendments to
the Phase III Budget by the Phase III Lender or the CRA, if there is no Phase III Lender.
9.7.4.5 The approval of the re -allocation of funds to different line
items in the Phase III Budget by the Phase III Lender or the CRA, if there is no Phase III Lender.
9.7.4.6 The determination of whether there are adequate funds
included in the Phase III Budget to complete Phase III and whether the Phase III Budget is "in
balance" by the Phase III Lender or the CRA, if there is no Phase III Lender. If it is determined
that due to cost overruns the Phase III Budget is not "in balance" the Developer will be required
to fund the amount determined by the Phase III Lender, to keep the Phase III Budget "in balance"
prior to there being any further disbursement of the CRA Phase III Contribution.
9.7.4.7 The procedure for approving change orders by the Phase III
Lender or the CRA if there is no Phase III Lender.
9.7.4.8 The procedure for approving changes to the Phase III Plans
by the Phase III Lender or the CRA, if there is no Phase III Lender.
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9.7.4.9 The approval of the use of funds allocated to the contingency
line items in the Phase III Budget by the Phase III Lender or the CRA, if there is no Phase III
Lender.
9.7.5 Phase III/IV Parking Easement. The terms and provisions of
the Phase III/IV parking easement agreement (the "Phase III/IV Parking Easement Agreement")
in form and substance reasonably acceptable to the Executive Director, which shall include,
without limitation, the following:
9.7.5.1 Easements required for the construction of Phase III and
Phase IV, respectively, to the extent reasonably necessary.
9.7.5.2 Easements for ingress and egress to and from Phase III and
Phase IV to surrounding roadways.
shifting of buildings.
9.7.5.3 Easements for encroachments as a result of settling and
9.7.5.4 Easements for utilities.
9.7.5.5 Requirement that if Developer designs the Parking Garage as
an integral part of Phase IV, that the owner of Phase IV pay all of the additional costs and
expenses associated with the construction of the Parking Garage over and above what the
Parking Garage would have cost if it were a stand alone structure.
9.7.5.6 Easements establishing the exclusive use of ground level
parking spaces in the Parking Garage for use by the owner of the Phase IV Property and its
invitees and guests.
9.7.5.7 Requirements that upon completion of Phase IV as
evidenced by the issuance of a certificate of occupancy for any portion of Phase IV the owner of
Phase IV pay its prorata share of the cost to operate and maintain the Parking Garage, including
security costs and capital improvement costs, based upon the number of parking spaces the
owner of Phase IV has the exclusive right to utilize and the total number of parking spaces in the
Parking Garage, provided that if any parking spaces exclusively dedicated to the Phase IV owner
are open and unattended, the allocable costs shall exclude the cost of attendants, but not the costs
for providing security during the hours of operation of any business located within Phase IV.
9.7.5.8 Requirement that the owner of the Phase III Property
maintain the Parking Garage in good condition and repair.
9.7.5.9 Requirement that the public portion of the Parking Garage
will be made available by the CRA, or its designee, as a public parking garage and parking
spaces made available for use by the general public, members of the International
Longshoreman's Association Local 1416, and the general public attending events at the Lyric
Theatre as contemplated by Section 6.1(iii).
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9.7.5.10 Provisions regarding parking charges for users of the public
portion of the Parking Garage.
9.8 CRA Approval. The Executive Director shall have fifteen (15) days after
receipt of each of the items required in Section 9.7 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 in order to
amicably resolve any disputes.
9.9 CRA PHASE III CONTRIBUTION.
9.9.1 The CRA covenants and agrees to contribute an amount of up to
Three Million and No/100 Dollars ($3,000,000.00) for the administration, design and
development of Phase III (the "CRA Phase III Contribution), provided all of the CRA Phase III
Conditions Precedent are satisfied or waived by the CRA.
9.9.2 The exact amount of the CRA Phase III Contribution will
depend upon the Phase III Budget approved by the Executive Director. The final amount of the
CRA Phase III Contribution shall be established at the time the Executive Director approves the
Phase III Project Budget.
9.9.3 The CRA shall take all necessary action to set aside the CRA
Phase III Contribution to the reasonable satisfaction of the Phase III Lender or the Developer, if
there is no Phase III Lender.
9.9.4 The Developer and the CRA acknowledge that the estimated
cost to complete the Parking Garage exceeds the amount of the CRA Phase III Contribution. To
supplement the CRA Phase III Contribution, the Developer shall be entitled to utilize a portion of
the Incremental TIF to enable Developer to construct the Parking Garage as provided in Section
29. The parties acknowledge that the Parking Garage may not be feasible if the CRA Phase III
Contribution and the Developer's estimate of the Phase IV TIF is not sufficient to construct the
Parking Garage.
9.9.5 The CRA has advised the Developer that the CRA Phase III
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 Phase III Contribution shall not be
security for the CRA Bond Issue or any other indebtedness of the CRA.
9.9.6 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 with
respect to Phase III, in which event, the parties shall be released from any further obligations
28
under this Agreement with respect to Phase III, except for those obligations that expressly
survive termination of this Agreement with respect to Phase III.
9.10 Within ninety (90) after the Executive Director has approved the
Schematic Documents for Phase III, the CRA may elect not to have the Developer construct the
Parking Garage. In such event, the CRA will reimburse Developer for its out of pocket costs and
expenses and preparing the Schematic Documents for Phase III within thirty (30) days of the
provided documentation as to those expenses by the Developer. In such event, the CRA shall
retain the Department of Off Street Parking of the City of Miami ("DOSP") to construct the
Parking Garage, at the sole cost and expense of the CRA.
10. PHASE IV.
10.1 Community Input. Developer shall comply with the provisions of Section
6.3 with respect to the Schematic Design Documents for Phase IV.
10.2 Approval of Schematic Design Documents by CRA. The Developer shall
submit to the Executive Director for review and approval the Schematic Design Documents for
Phase IV, which shall have been revised by the Developer to address comments received from
the HOFLDA and 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 for
Phase IV as necessary to address 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 for Phase IV. The parties agree to use
reasonable, good faith efforts to agree to on necessary modifications to comply with the terms of
this Agreement. The Executive Director shall have fifteen (15) days from the receipt of the
Schematic Design Documents for Phase IV 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 and the Executive Director shall modify the Schematic
Design Documents for Phase IV, as appropriate, to address the comments and concerns of the
Executive Director to ensure that the Schematic Design Documents for Phase IV comply with
the Design Guidelines and the input from HOFLDA and OCOB, as deemed appropriate by the
Executive Director. Any resubmission shall be subject to approval by the Executive Director in
accordance with the procedure outlined above for the original submission until same is approved
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 for Phase IV. If the Executive Director has rejected the Schematic Design
Documents and the Executive Director and the Developer are not able to resolve the rejection of
the Schematic Design Documents for Phase IV by the Executive Director within fifteen (15)
days after the Developer's receipt of notice of such rejection, the Developer may elect to submit
such dispute regarding the approval of the Schematic Design Documents for Phase IV to the
CRA Board for resolution. The Schematic Design Documents for Phase IV, as approved or
deemed approved by the Executive Director shall mean the "Schematic Documents for Phase
IV". The Developer shall cause Phase IV to be designed in accordance with the Schematic
Documents for Phase IV.
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10.3 Phase IV Construction Documents. The Developer shall submit to the
Executive Director for its review and approval the plans and specifications for the construction
of Phase IV, which shall be of sufficient detail to allow the Developer to apply for a building
permit for Phase IV ("Phase IV Plans and Specifications"). The Phase IV 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 Phase IV Plans and
Specifications are consistent with the Schematic Documents for Phase IV. The Developer agrees
to utilize its good faith efforts to make modifications to the Phase IV Plans and Specifications 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 the Phase IV Plans and Specifications. The
Executive Director shall have fifteen (15) days from the receipt of the Phase IV Plans and
Specifications to approve same. If the Executive Director fails to timely respond, the Phase IV
Plans and Specifications shall deemed approved. In the event of disapproval, the Executive
Director shall specify the reason for such disapproval. In the event of a disapproval, Developer
shall modify the Phase IV Plans and Specifications, 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 agree upon modifications to the Phase IV Plans
and Specifications to resolve any disputes regarding the Phase IV Plans and Specifications. In
the event of disapproval and failure within 15 days to resolve said dispute, the Developer may
elect to submit such dispute regarding the approval of the Phase IV Plans and Specifications to
the CRA Board for resolution. The Phase IV Plans and Specifications, as approved or deemed
approved by the Executive Director shall mean the "Phase TV Plans".
10.4 Phase IV Development Requirements. Developer shall be required to
develop Phase IV substantially in accordance with the Phase IV Plans. Any material variation to
the Phase IV Plans shall require approval of the Executive Director, which approval shall not be
unreasonably withheld, provided that same is in accordance the spirit and intent of Phase IV
Plans. The Executive Director shall have ten (10) days from receipt of any material variation in
the Phase IV Plans to approve same. If the Executive Director fails to timely respond, the
material variation shall be deemed approved.
10.5 Phase IV Project Schedule. Developer shall complete construction of
Phase IV substantially in accordance with the Phase IV Plans within twenty-four (24) months
from the Phase IV Closing Date, as same may be extended as a result of Unavoidable Delays (the
"Phase IV Completion Date"). If Developer fails to achieve Phase IV Completion within ninety
(90) days of the Phase IV Completion Date, Developer shall pay to the CRA One Thousand and
No/100 Dollars ($1,000.00) per day for each day thereafter until Phase IV Completion. The term
"Phase IV Completion" shall mean that Phase IV has been completed substantially in accordance
with the Phase IV Plans and a temporary certificate of occupancy has been issued by the City for
the shell of all commercial space included in Phase IV.
10.6 Phase IV Project Budget. The Developer shall submit to the Executive
Director for comment a detailed line item budget reflecting all hard and soft costs anticipated to
be incurred by the Developer in connection with Phase IV (the "Phase IV Budget"). The
30
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 Phase IV Project Budget.
10.7 Development of Phase IV. As soon as available, Developer shall submit
to the Executive Director for review and approval, which approval shall not be unreasonably
withheld, conditioned or delayed the following:
10.7.1 Phase IV Construction Contract. The construction contract for
Phase IV (the "Phase IV Construction Contract"), together with the "schedule of values" for
Phase IV, which shall include the obligation of the general contractor to comply with the
participation requirements set forth in Section 11.2 of this Agreement.
10.7.2 Loan Commitment. A loan commitment from a financial
institution evidencing that Developer has obtained a construction loan commitment for the
development of Phase IV (the "Phase IV Loan Commitment") which shall be in form and
substance reasonably acceptable to the Executive Director. The Executive Director shall 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 when the Phase IV Loan Commitment reflects
if funds will be available for the construction of Phase IV and the amount of funds which will be
available for construction of Phase IV.
10.7.3 Equity. Evidence reasonably satisfactory to the Executive
Director that Developer has sufficient equity available to meet the equity requirement of the
Phase IV Loan Commitment with respect to Phase IV (the "Phase IV Equity").
10.8 CRA Approval. The Executive Director shall have fifteen (15) days after
receipt of each of the items required by Section 10.7 to review and approve the 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
and Executive Director shall utilize its good faith efforts to address the comments and concerns
of the Executive Director to amicably resolve any disputes.
11. MINORITY AND WOMEN'S PARTICIPATION AND EQUAL
EMPLOYMENT OPPORTUNITY.
11.1 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;
(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;
31
(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 16.
(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.
11.2 Participation Requirements. Developer agrees to comply with the
following subcontractor participation requirements and laborer participation requirements (the
"Participation Requirements") with respect to each Phase of the Project:
11.2.1 Subcontractor Participation. With respect to each Phase of the
Project, the Developer shall cause its general contractor to hire not less than twenty percent
(20%) of the subcontractors for such Phase utilizing companies that have their principal place of
business within the County, giving first priority to subcontractors whose principal place of
business is the Redevelopment Area, second priority to subcontractors whose principal place of
business is Overtown, third priority to subcontractors whose principal place of business is within
District 5 of the City, fourth priority to subcontractors whose principal place of business is the
City and last priority to subcontractors whose principal place of business is Miami -Dade County
(the "Subcontractor Priority"). 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 within the County (utilizing the Subcontractor Priority) and the total dollar value of
all subcontracts entered into by the general contractor for such Phase ("Subcontractor
Participation Requirements").
11.2.2 Laborer Participation. Developer agrees to cause its General
contractors and all subcontractors to hire forty percent (40%) of the unskilled labor for
construction of the applicable Phase ("Laborer Participation Requirement") from workers
residing in the County giving first priority to workers residing in the Redevelopment Area,
second priority to workers residing in Overtown, third priority to workers residing in District 5 of
32
the City, fourth priority to workers residing in the City and last priority to workers residing in the
County (the "Laborer Priority"). Within thirty (30) days of approval of the plans for the
applicable Phase, 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
construction of such Phase (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 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 and fails
within fifteen (15) days to resolve the dispute, 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 for such
Phase unless Developer is able to establish manifest error in the Labor Estimate for such Phase
based upon the actual number of laborers required for the construction of such Phase.
11.2.3 Disputes. In the event of any disputes between the Executive
Director and the Developer as to where any subcontractor has its principal place of business or
where any laborer resides, the determination of the Executive Director based upon
documentation provided by the Developer shall be binding upon the parties.
11.3 Report Requirements. With respect to each Phase of the Project,
Developer shall be required to submit to the Executive Director on a quarterly basis commencing
three (3) months after commencement of construction of each Phase, detailed reports evidencing
compliance with the Subcontractor Participation Requirements and the Laborer Participation
Requirements during the prior three (3) month 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,
including without limitation whether Developer has complied with the Subcontractor Priority
and the Laborer Priority requirements.
11.4 Failure to Comply with Priority Requirements. In the event the Developer
fails to cause its general contractor to comply with the Subcontractor Priority, no credit will be
given for subcontractors whose principal place of business is located outside of the City in
determining satisfaction of the Subcontractor Participation Requirement. In the event Developer
fails to cause its general contractor and subcontractors to comply with the Laborer Priority, no
33
credit will be given for Laborers residing outside of the City in determining satisfaction of the
Laborer Participation Requirement.
11.5 Penalties for Non -Compliance with Subcontractor Participation
Requirements. With respect to each Phase of the Project, to the extent Developer fails to comply
with the Subcontractor Participation Requirements, with respect to such Phase, Developer shall
pay to the CRA as a penalty for such non-compliance Two Thousand Five Hundred Dollars
($2,500.00) for each percentage point below the Subcontractor Participation Requirement with
respect to such Phase (the "Subcontractor Non -Compliance Funds"). The Subcontractor Non -
Compliance Funds shall be calculated by the Executive Director after completion of each Phase,
taking into account Developer's compliance with the Subcontractor Priority, and shall be due and
payable within thirty (30) days from the date of Developer's receipt of written statement from
the Executive Director setting forth the amount of Subcontractor Non -Compliance Funds due for
such Phase. To the extent of any dispute between the Executive Director and the Developer with
respect to the compliance with the Subcontractor Participation Requirements for such Phase and
compliance with Subcontractor Priority, such dispute shall be submitted to Arbitration.
11.6 Penalties for Non -Compliance with Laborer Participation Requirements.
With respect to each Phase of the Project, to the extent Developer fails to comply with the
applicable Laborer Participation Requirements, with respect to such Phase, Developer shall pay
to the CRA as a penalty for such non-compliance One Thousand Dollars ($1,000.00) for each
percentage point below the Laborer Participation Requirement with respect to such Phase (the
"Laborer Non -Compliance Fund"). The Laborer Non -Compliance Funds shall be calculated by
the Executive Director after completion of each Phase, taking into account the Developer's
compliance with the Laborer Priority, and shall be due and payable within thirty (30) days from
the date of Developer's receipt of written statement from the Executive Director setting forth 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 for such Phase and compliance with the Laborer Priority, such
dispute shall be submitted to Arbitration, which shall be binding on the parties.
12. AFFORDABLE RENTAL HOUSING PHASE I.
12.1 Phase I Affordable Rental Requirement. Developer shall rent (i) at least
fifty percent (50%) of the units in Phase I to qualified households whose gross income is at or
below sixty percent (60%) of the Miami -Dade County median income ("AMI") and (ii) rent the
balance of the units in Phase I to qualified renters whose gross income is not more than 120% of
the AMI (collectively the "Phase I Affordable Rental Requirement") for a period of fifteen (15)
years from Phase I Completion.
12.2 Reporting Requirements and Compliance.
12.2.1 Affordable Rental Reports. From and after the issuance of the
first certificate of occupancy for any residential unit within Phase I, Developer shall be required
to submit to the Executive Director, on an annual basis, reports evidencing compliance with the
Affordable Rental Requirement for Phase I (the "Phase I Affordable Rental Reports"). The
Phase I Affordable Rental Reports shall consist of a certification to the CRA by an independent
34
compliance agency which is selected by the Developer and reasonably acceptable to the
Executive Director.
12.2.2 Disputes. To the extent of any disputes between Developer and
the Executive Director with respect to whether the renters of the units within Phase I meet the
applicable requirements of Section 12.1, the dispute will be submitted to Arbitration, which shall
be binding on the parties.
12.3 Non -Compliance. To the extent that Developer fails to comply with the
Phase I Affordable Rental Requirement as determined in accordance with Section 12.1 and 12.2
above, then in such event, the CRA, may seek specific performance of the Phase I Affordable
Rental Requirements and the CRA shall be entitled to recover its reasonable attorney fees and
costs in any such action.
12.4 Regulatory Agreement. Notwithstanding anything to the contrary
contained in this Section 12.2, in the event that Phase I 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 Section 12.2 and 12.3 shall not be applicable.
13. CONDITIONS PRECEDENT PHASE I.
13.1 The obligations of the CRA to close the transaction contemplated by this
Agreement with respect to Phase I is subject to the satisfaction or waiver of the following
conditions precedent (the "CRA Phase I Conditions Precedent"):
13.1.1 The Executive Director shall have approved the Phase I Budget.
13.1.2 The Executive Director shall have approved the Phase I Plans
and Specifications.
Construction Contract.
Commitment.
Equity.
13.1.3 The Executive Director shall have approved the Phase I
13.1.4 The Executive Director shall have approved the Phase I Loan
13.1.5 The Executive Director shall have confirmed the Phase I
13.1.6 The Executive Director, the Developer, the Institutional
Investor and the Phase I Lender have approved the Phase I Funding Agreement.
13.1.7 The Phase I Lender is prepared to close the construction loan
with respect to Phase I in accordance with terms of the Phase I Loan Commitment.
13.1.8 The Executive Director shall have confirmed that there has been
no change in the ownership structure of Developer or the ownership interest in the Developer
35
except as permitted pursuant to Section 26 and that the CBO owns not less than a twenty percent
(20%) ownership interest in the Developer.
13.1.9 Developer shall have provided to the Executive Director a
payment and performance bond in form and substance satisfactory to the Executive Director in
an amount equal to one hundred percent (100%) of the construction costs for Phase I, which shall
be issued by a surety having a credit rating of "A" or higher with a financial strength of X or
higher (the "Phase I Payment and Performance Bond"). The Phase I Performance Bond shall
ensure lien -free completion of Phase I.
13.1.10 The Developer has obtained a building permit to enable the
Developer to construct Phase I in accordance with the Phase I Plans or provided the Executive
Director with evidence that the building permit for construction of Phase I, in accordance with
the Phase I Plans, is ready to be issued only upon payment of the building permit fee and impact
fees.
13.1.11 The Executive Director has approved the Non -Profit and the
Non -Profit Loan Documents.
13.2 In the event the CRA Phase I 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. The CRA shall only consider waiving conditions set forth in Section 13.1 if
requested to do so by Developer. The decision to waive conditions set forth in Section 13.1 shall
be in the sole discretion of the CRA.
14. CLOSING DATE PHASE I.
14.1 Closing. The closing of the transaction contemplated by this Agreement
with respect to Phase I (the "Phase I Closing Date") shall occur on the earlier of (a) ten (10) days
after all the CRA Phase I Conditions Precedent have been either satisfied or waived by the CRA
in accordance with Section 13.2, or (b) Four Hundred Fifty (450) days after the Effective Date,
time being of the essence. On the Phase I Closing Date the following shall occur:
14.1.1 The CRA shall deliver to Developer at closing:
14.1.1.1 A special warranty deed in the form of Exhibit "J" attached
hereto and made a part hereof with respect to the Phase I Property.
14.1.1.2 Certified copy of the resolution authorizing the conveyance
by the CRA and the execution and delivery of the documents contemplated by this Agreement.
14.1.1.3 The Phase I Funding Agreement executed by the CRA.
14.1.1.4 No lien, gap and possession affidavit.
36
14.1.1.5 A FIRPTA affidavit.
14.1.1.6 An easement agreement to allow for parking on the Phase II
Property in the form of Exhibit "K" (the "Phase I Easement") executed by the CRA.
14.1.1.7 Such other documents as the title company may reasonably
request.
14.2 Developer shall deliver to the CRA or cause to be delivered to the CRA at
closing:
14.2.1 Evidence of authority to close the transaction and execute and
deliver the appropriate closing documents.
14.2.2 Phase I Payment and Performance Bond.
14.2.3 The Phase I Funding Agreement executed by the Developer, the
Institutional Investor and the Phase I Lender.
14.2.4 The Phase I Easement executed by the Developer.
14.2.5 Such other documents as the title company may reasonably
request.
14.3 The documentary stamp tax and surtax to be affixed to the deed, the Phase
I Easement and the cost for recording the deed and the Phase I Easement shall be paid by the
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.
14.4 Closing with respect to Phase I by the CRA shall constitute evidence of
the Developer's compliance with its obligations herein set forth in Sections 6.2, 7.1, 7.2, 7.5, 7.6,
7.7, 27, and 28 of this Agreement with respect to Phase I.
15. CONDITIONS PRECEDENT PHASE II.
15.1 The obligations of the CRA to close the transaction contemplated by this
Agreement with respect to Phase II is subject to the satisfaction or waiver of the following
conditions precedent (the "CRA Phase II Conditions Precedent"):
15.1.1 The Executive Director shall have approved the Phase II Plans
and Specifications.
15.1.2 The Executive Director shall have approved the Phase 11
Construction Contract.
15.1.3 The Executive Director shall have approved the Phase II Loan
Commitment.
15.1.4 The Executive Director shall have approved the Phase II Equity.
37
15.1.5 The Phase II Lender is prepared to close the construction loan
with respect to Phase II in accordance with the terms of the Phase II Loan Commitment.
15.1.6 The Developer has confirmed that there has been no change in
the ownership structure of the Developer or the ownership interest in the Developer except as
permitted pursuant to Section 26 and that the CBO owns not less than a twenty percent (20%)
ownership interest in the Developer.
15.1.7 Developer shall have provided to the Executive Director a
payment and performance bond in form and substance satisfactory to the Executive Director in
an amount equal to one hundred percent (100%) of the construction costs for Phase II, which
shall be issued by a surety having a credit rating of "A" or higher with a financial strength of X
or higher (the "Phase II Payment and Performance Bond"). The Phase II Performance Bond
shall ensure lien -free completion of Phase II.
15.1.8 The Developer shall have obtained a building permit to enable
the Developer to construct Phase II in accordance with the Phase II Plans, or provided the
Executive Director with evidence that the building permit for construction of Phase II in
accordance with the Phase II Plans to be issued only upon payment of the building permit fee
and impact fees.
15.2 In the event the CRA Phase II Conditions Precedent are not satisfied or
waived by the CRA on or before the Phase II Closing Date, then the CRA may either (i)
terminate this Agreement with respect to Phase II in which event the parties shall be released
from all further obligations under this Agreement with respect to Phase II except for the
obligations under this Agreement which expressly survive the termination of this Agreement
with respect to Phase II, or (ii) waive the condition and proceed in accordance with this
Agreement. The CRA shall only consider waiving conditions set forth in Section 15.1 if
requested to do so by the Developer. The decision to waive conditions set forth in Section 15.1
shall be in the sole discretion of the CRA.
16. CLOSING DA'1'h PHASE II.
16.1 Closing. The closing of the transaction contemplated by this Agreement
with respect to Phase II (the "Phase II Closing Date") shall occur on the earlier of (a) ten (10)
days after all the CRA Phase II Conditions Precedent have been either satisfied or waived by the
CRA in accordance with Section 15.2, or (b) six (6) years from the Effective Date, time being of
the essence. On the Phase II Closing Date the following shall occur:
16.1.1 The CRA shall deliver to Developer at closing:
16.1.1.1 A special warranty deed in the form of Exhibit "L" attached
hereto and made a part hereof with respect to the Phase II Property.
16.1.1.2 Certified copy of the resolution authorizing the conveyance
by the CRA and the execution and delivery of the documents contemplated by this Agreement.
16.1.1.3 No lien, gap and possession affidavit.
38
request.
closing:
16.1.1.4 A FIRPTA affidavit.
16.1.1.5 Such other documents as the title company may reasonably
16.2 Developer shall deliver to the CRA or cause to be delivered to the CRA at
16.2.1 Evidence of authority to close the transaction and execute and
deliver the appropriate closing documents.
16.2.2 Phase II Payment and Performance Bond.
16.2.3 Such other documents as the title company may reasonably
request.
16.3 The documentary stamp tax and surtax to be affixed to the deed and the
cost for recording the deed shall be paid by the 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.
16.4 Closing with respect to Phase II by the CRA shall constitute evidence of
the Developer's compliance with its obligations hereunder set forth in Sections 6.2, 8.2, 8.3, 8.6
8.7, 27, and 28 of this Agreement with respect to Phase II.
17. CONDITIONS PRECEDENT PHASE III.
17.1 The obligations of the CRA to close the transaction contemplated by this
Agreement with respect to Phase III is subject to the satisfaction or waiver of the following
conditions precedent (the "CRA Phase III Conditions Precedent"):
17.1.1 The Executive Director shall have approved the Phase III
Budget.
17.1.2 The Executive Director shall have approved the Phase III Plans
and Specifications.
17.1.3 The Executive Director shall have approved the Phase III
Construction Contract.
17.1.4 The Executive Director shall have approved the Phase III Loan
Commitment, if any.
17.1.5 The Executive Director shall have approved the Phase III
Equity, if any.
17.1.6 The Executive Director and the Phase III Lender have approved
the Phase III Funding Agreement.
39
17.1.7 The Phase III Lender, if any, is prepared to close the
construction loan with respect to Phase III in accordance with terms of the Phase III Loan
Commitment.
17.1.8 The Executive Director shall have confirmed that there has been
no change in the ownership structure of the Developer or the ownership interest of the Developer
except as permitted pursuant to Section 26 and that the CBO owns not less than twenty percent
(20%) ownership interest in the Developer.
17.1.9 Developer shall have provided to the Executive Director a
payment and performance bond in form and substance satisfactory to the Executive Director in
an amount equal to one hundred percent (100%) of the construction costs for Phase III, which
shall be issued by a surety having a credit rating of "A" or higher with a financial strength of X
or higher (the "Phase III Payment and Performance Bond"). The Phase III Performance Bond
shall ensure lien -free completion of Phase III.
17.1.10 The Developer shall have obtained a building permit to enable
the Developer to construct Phase III in accordance with the Phase III Plans, or provided the
Executive Director with evidence that the building permit for construction of Phase III in
accordance with the Phase III Plans is ready to be issued only upon payment of the building
permit fee and impact fees.
17.1.11 The Developer and the CRA have agreed to the terms of the
Phase III/IV Parking Easement Agreement.
17.2 In the event the CRA Phase III Conditions Precedent are not satisfied or
waived by the CRA on or before the Phase III Closing Date, then the CRA may either (i)
terminate this Agreement with respect to Phase III in which event the parties shall be released
from all further obligations under this Agreement with respect to Phase III 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. The CRA shall only
consider waiving conditions set forth in Section 17.1 if requested to do so by the Developer. The
decision to waive conditions set forth in Section 17.1 shall be in the sole discretion of the CRA.
18. CLOSING DATE PHASE III.
18.1 Closing. The closing of the transaction contemplated by this Agreement
with respect to Phase III (the "Phase III Closing Date") shall occur on the earlier of (a) ten (10)
days after all the CRA Phase III Conditions Precedent have been either satisfied or waived by the
CRA in accordance with Section 17.2, or (b) three (3) years after the Block 36 Notice, time being
of the essence. On the Phase III Closing Date the following shall occur:
18.1.1 The CRA shall deliver to Developer at closing:
18.1.1.1 The Phase III/IV Parking and Easement Agreement executed
18.1.1.2 The Phase III Funding Agreement executed by the CRA.
40
by the CRA..
18.2 Developer shall deliver to the CRA or cause to be delivered to the CRA at
closing:
18.2.1 Evidence of authority to close the transaction and execute and
deliver the appropriate closing documents.
18.2.2 Phase III Payment and Performance Bond.
18.2.3 The Phase III Funding Agreement executed by the Developer
and Phase III Lender, if any.
18.2.4 The Phase III/IV Parking Easement executed by Developer and
the Phase III Lender, if any.
18.3 The documentary stamp tax and surtax to be affixed to the Phase III/IV
Easement and the cost for recording the Phase III/IV Parking Easement shall be paid by the
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.
18.4 Closing with respect to Phase III by the CRA shall constitute evidence of
the Developer's compliance with its obligations set forth in subsections 6.2, 9.6, 9.7, 27, and 28
of this Agreement with respect to Phase III.
19. CONDITIONS PRECEDENT PHASE IV.
19.1 The obligations of the CRA to close the transaction contemplated by this
Agreement with respect to Phase IV is subject to the satisfaction or waiver of the following
conditions precedent (the "CRA Phase IV Conditions Precedent"):
and Specifications.
Construction Contract.
Commitment.
Equity.
19.1.1 The Executive Director shall have approved the Phase IV Plans
19.1.2 The Executive Director shall have approved the Phase IV
19.1.3 The Executive Director shall have approved the Phase IV Loan
19.1.4 The Executive Director shall have approved the Phase IV
19.1.5 The Phase IV Lender is prepared to close the construction loan
with respect to Phase IV in accordance with the terms of the Phase IV Loan Commitment.
19.1.6 The Developer has confirmed that there has been no change in
the ownership structure of the Developer or the ownership interest in the Developer except as
permitted pursuant to Section 26 and that the CBO owns not less than twenty percent (20%)
ownership interest in the Developer.
41
19.1.7 Developer shall have provided to the Executive Director a
payment and performance bond in form and substance satisfactory to the Executive Director in
an amount equal to one hundred percent (100%) of the construction costs for Phase IV, which
shall be issued by a surety having a credit rating of "A" or higher with a financial strength of X
or higher (the "Phase IV Payment and Performance Bond"). The Phase IV Performance Bond
shall ensure lien -free completion of Phase IV.
19.1.8 The Developer shall have obtained a building permit to enable
the Developer to construct Phase IV in accordance with the Phase IV Plans or provided the
Executive Director with evidence that the building permit for the construction of Phase IV in
accordance with the Phase IV Plans is ready to be issued only upon payment of the building
permit fee and impact fees.
19.1.9 The Developer and the CRA have approved the terms of the
Phase III/IV Parking Easement.
19.2 In the event the CRA Phase IV Conditions Precedent are not satisfied or
waived by the CRA on or before the Phase IV Closing Date, then the CRA may either (i)
terminate this Agreement with respect to Phase IV in which event the parties shall be released
from all further obligations under this Agreement with respect to Phase IV except for the
obligations under this Agreement with respect to Phase IV which expressly survive the
termination of this Agreement, or (ii) waive the condition and proceed in accordance with this
Agreement. The CRA shall only consider waiving conditions set forth in Section 19.1 if
requested to do so by the Developer. The decision to waive conditions set forth in Section 19.1
shall be in the sole discretion of the CRA.
20. CLOSING DATE PHASE IV.
20.1 Closing. The closing of the transaction contemplated by this Agreement
with respect to Phase IV (the "Phase IV Closing Date") shall occur on the earlier of (a) ten (10)
days after all the CRA Phase IV Conditions Precedent to closing have been either satisfied or
waived by the CRA in accordance with Section 19.2, or (b) three (3) years after the Block 36
Notice, time being of the essence. Notwithstanding the foregoing, in the event the Lyric Plat has
not been recorded within twelve (12) months from the Effective Date, as same may be extended
by Unavoidable Delays and delays caused by the Black Archives, then the time frame set forth in
this Section 20.1 shall automatically be extended one day for each additional day until the Lyric
Plat is recorded. Notwithstanding anything herein to the contrary, if the Block 36 Notice is not
issued within two (2) years of the Effective Date this Agreement shall be of no further force and
effect with respect to Phase III and Phase IV in which event the parties shall be released from all
further obligations under this Agreement with respect to Phase III and Phase IV except for the
obligations under this Agreement which expressly survive the termination of this Agreement
with respect to Phases III and IV. On the Phase IV Closing Date the following shall occur:
20.1.1 The CRA shall deliver to Developer at closing:
20.1.1.1 A special warranty deed in the form of Exhibit "M"
attached hereto and made a part hereof with respect to the Phase IV Property.
42
request.
closing:
20.1.1.2 No lien, gap and possession affidavit.
20.1.1.3 A FIRPTA affidavit.
20.1.1.4 Phase III/IV Parking Easement Agreement, executed by the
CRA, if not previously recorded.
20.1.1.5 Such other documents as the title company may reasonably
20.2 Developer shall deliver to the CRA or cause to be delivered to the CRA at
20.2.1 Evidence of authority to close the transaction and execute and
deliver the appropriate closing documents.
20.2.2 Phase IV Payment and Performance Bond.
20.2.3 Phase III/IV Parking Easement Agreement, executed by
Developer if not previously recorded.
20.2.4 Such other documents as the title company may reasonably
request.
20.3 The documentary stamp tax and surtax to be affixed to the deed and the
Phase III/IV Parking Easement Agreement, if necessary, and the cost for recording the deed and
the Phase III/IV Parking Easement Agreement, if necessary, shall be paid by the 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.
20.4 Closing with respect to Phase IV by the CRA shall constitute evidence of
the Developer's compliance with the obligations set forth in Sections 6.2, 10.2, 10.3, 10.6, 10.7,
27, and 28 of this Agreement with respect to Phase IV.
21. ADDITIONAL BLOCK 36 DEVELOPMENT REQUIREMENTS. Developer
acknowledges and agrees that the following additional requirements shall apply with respect to
the Phase III Property and the Phase IV Property under the terms of the proposed Reverter
Settlement Agreement:
21.1 compliance with the terms, conditions and timeframes of the Block 36
Restrictions.
21.2 Phase IV shall contain elements preserving history of the Overtown Area
while incorporating the theme of "Live, Work and Play" contemplated by the Design Guidelines.
21.3 information regarding job opportunities for local area residents and
businesses to allow them to participate in the construction of Phase III and Phase IV, including at
least two (2) local job fairs prior to commencement of Phase III and Phase IV.
43
21.4 information as to job opportunities for local residents and local businesses
post -construction including newly generated trade and service related jobs, including at least one
(1) local job fair upon completion of Phase III and Phase IV, respectively.
21.5 to the extent required by the City of Miami Zoning Code, Developer shall
plat Phase III and Phase IV.
22. ORGANIZATIONAL DOCUMENTS OF DEVELOPER. As of the Effective
Date, the documents attached as Exhibit "N" hereto constitute all the organizational documents
with respect to Developer, including, without limitation, a copy of the operating agreement.
Attached hereto as Exhibit "0" is a list identifying all individuals and entities having an
ownership interest in Developer. Attached hereto as Exhibit "P" is a copy of the organizational
documents of the Managing Member of the Developer and a list of all individuals and entities
having an ownership interest in the Managing Member of Developer.
23. REPRESENTATIONS OF CRA. The CRA makes the following representations:
23.1 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.
23.2 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.
23.3 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.
24. DEVELOPER'S REPRESENTATIONS. Developer makes the following
representations to the CRA as follows:
24.1 Developer is a limited liability company duly organized and validly
existing under the laws of Florida duly qualified to transact business in the State of Florida, and
has 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.
24.2 Developer's execution, delivery and performance of this Agreement has
been duly authorized by all necessary company actions and does not and shall not conflict with
or constitute a default under any indenture, agreement or instrument to which it is a party or by
which it may be bound or affected.
24.3 This Agreement constitutes the valid and binding obligation of Developer,
enforceable against Developer and its successors and assigns, in accordance with its respective
44
terms, subject to bankruptcy, insolvency and other similar laws affecting the rights of creditors
generally.
25. DEFAULT.
25.1 Developer Failure to Perforin.
25.1.1 If the Phase I Conditions Precedent are not satisfied or waived
by the CRA on or before the Phase I Closing Date, this Agreement shall terminate except for the
obligations that expressly survive termination of this Agreement.
25.1.2 If the Phase II Conditions Precedent are not satisfied or waived
by the CRA on or before the Phase II Closing Date, this Agreement shall terminate with respect
to Phase II except for the obligations that expressly survive termination of this Agreement.
25.1.3 If the Phase III Conditions Precedent and the Phase IV
Conditions Precedent are not satisfied or waived by the CRA on or before the Phase III Closing
Date and the Phase IV Closing Date, this Agreement shall terminate with respect to Phase III and
Phase IV except for the obligations that expressly survive termination of this Agreement. Should
the CRA elect to have DOSP construct Phase III pursuant to Section 9.10, the Developer's
failure to satisfy the Phase III Conditions Precedent shall not constitute grounds for termination
of this Agreement with respect to Phase IV.
25.1.4 In the event Developer defaults with respect to its obligations
under Sections 11.2 and 12.2 of this Agreement, which default is not cured within thirty (30)
days of written notice from the CRA or such longer period of time not to exceed ninety (90) days
if the default by its nature cannot be cured within thirty (30) days provided Developer
commences the curative action within the thirty (30) day period and diligently pursues the cure,
the CRA. shall be entitled to seek specific performance of Sections 11.2 and 12.2 in addition to
the penalties contained therein.
25.1.5 In the event this Agreement contains any material
misrepresentations by the Developer, the CRA, as it sole and exclusive remedy, may terminate
this Agreement with respect to any Phase not previously conveyed to Developer, in which event
the parties shall be released from all further obligations under this Agreement with respect to
such terminated Phase(s), except for the obligations that expressly survive termination.
25.2 CRA Failure to Perform. In the event of a default by the CRA under this
Agreement which is not cured within thirty (30) days of written notice from Developer or such
longer period of time reasonably required, not to exceed ninety (90) days if the default by its
nature cannot be cured within thirty (30) days provided the CRA commences the curative action
within thirty (30) days and diligently pursues the cure, without any default on the part of
Developer, Developer, as its sole and exclusive remedy, shall be entitled to (i) terminate this
Agreement, with respect to any Phase(s) that have not been conveyed to the Developer, in which
event the parties shall be released from all further obligations under this Agreement with respect
to such Phases, 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
45
remedies it may have against the CRA at law or in equity as a result of a breach of this
Agreement including, without limitation, the right to seek damages against the CRA.
26. 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.
27. ASSIGNABILITY.
27.1 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 except as provided
in Section 27.2 below. For the purpose of this Section 27.1, 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:
27.1.1 the change in control of Developer which is currently controlled
by The Gatehouse Group, Inc., a Massachusetts corporation ("GGI");
27.1.2 transfer of more than 49% of the stock ownership in GGI which
is currently owned by Marc S. Plonskier and David J. Canepari and change in control of GGI
which is controlled by Marc S. Plonskier and David J. Canepari; and
27.1.3 the transfer of more than 51% of the membership interest in
Developer.
27.2 Developer may assign its rights with respect to any Phase under this
Agreement, in whole or in part, to a Permitted Assignee. The term "Permitted Assignee" means
an entity which shall perform and assume Developer's obligations under this Agreement with
respect to the Phase or Phases assigned and may include any corporation, limited partnership, or
limited liability company, provided:
27.2.1 If a corporation, the corporation is not less than 20% owned by
Marc S. Plonskier and/or David J. Canepari and/or controlled by Marc S. Plonskier and/or David
J. Canepari.
27.2.2 If a limited partnership, the general partner(s) is owned (20% or
more) and/or controlled by Marc S. Plonskier and/or David J. Canepari.
27.2.3 If a limited liability company, the managing member(s) is
owned (20% or more) or controlled by Marc S. Plonskier and/or David J. Canepari.
46
27.3 Prior to any proposed assignment to a Permitted Assignee, Developer shall
submit to the Executive Director such documentation the Executive Director may reasonably
request to confirm that the proposed assign qualifies as a Permitted Assignee.
27.4 Upon approval of the assignment of any Phase by the CRA in accordance
with Section 27.1 or the assignment of a Phase to a Permitted Assignee in accordance with
Section 27.2, and the assumption of all of the duties and obligations under this Agreement from
and after the date of such assignment with respect to such Phase by the assignee, the Developer
shall be released from any further obligations under this Agreement arising from and after the
date of such assignment.
27.5 Upon the conveyance of a Phase by the CRA, the transfer restrictions
contained in this Section 27 shall no longer apply.
28. COMMUNITY BASED ORGANIZATIONS. Developer represents and warrants
to the CRA that a not -for -profit Florida corporation based in the Redevelopment Area (the
"CBO") shall be entitled to twenty percent (20%) ownership interest in Developer, and if any
Phase is assigned to a Permitted Assignee, twenty percent (20%) interest in the Permitted
Assignee. The Developer agrees to provide technical assistance and to help mentor and train
employees of the Non -Profit in all areas of the affordable, multi -family housing development and
management appropriate in scale and consistent with its mission, through the completion of the
Project.
29. 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:
120 Forbes Blvd., Suite 180
Mansfield, MA 02048-1150
Attention: Marc S. Plonskier
Fax: 508-337-2543
With a copy to:
Javier E. Fernandez, Esq.
Akerman Senterfitt
1 SE Third Avenue, 25th Floor
Miami, FL 33131
Fax: 305-374-5095
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If to Seller:
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
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.
30. 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 covenants and agrees not to initiate any legal proceedings against the CRA in
connection with any Challenges. The Developer, at its sole cost and expense, may contest, on
behalf of the CRA, any third party Challenge(s) to this Agreement.
31. REAL ESTATE TAXES.
31.1 It is the intention of the CRA and the Developer that upon conveyance of
the Property to the Developer that the Project shall be fully taxable for the purposes of ad
valorum real estate taxes and that the Developer and its successors or assigns not take advantage
of any tax exemptions which may allow the Developer or its successors or assigns not to be
required to pay ad valorum real estate taxes with respect to the Project. In the event for any
reason the Project is not subject to ad valorum real estate taxes as a result of an exemption, then
the Developer shall pay to the CRA a payment in lieu of taxes (a "PILOT") on or before
December 31 of each year in the amount of ad valorum real estate taxes that would have been
due with respect to the Project if the Project had not been exempt in whole or in part from the
payment of ad valorum real estate taxes.
31.2 The obligation of the Developer to make the PILOT shall constitute a
covenant running with the Property and shall constitute a first lien on the Property senior to all
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other liens and encumbrances and shall be binding upon the Developer and its successors and
assigns through December 31, 2029.
32. MISCELLANEOUS.
32.1 This Agreement shall be construed and governed in accordance with the
laws of the State of Florida. All of the parties to this Agreement have participated fully in the
negotiation and preparation hereof, and, accordingly, this Agreement shall not be more strictly
construed against any one of the parties hereto.
32.2 In the event any term or provision of this Agreement is determined by
appropriate judicial authority to be illegal or otherwise invalid, such provision shall be given its
nearest legal meaning or be construed as deleted as such authority determines, and the remainder
of this Agreement shall be construed to be in full force and effect.
32.3 In the event of any litigation between the parties under this Agreement, the
prevailing party shall be entitled to reasonable attorney's fees and court costs at all trial and
appellate levels.
32.4 In construing this Agreement, the singular shall be held to include the
plural, the plural shall be held to include the singular, the use of any gender shall be held to
include every other and all genders, and captions and Paragraph headings shall be disregarded.
32.5 All of the exhibits attached to this Agreement are incorporated in, and
made a part of, this Agreement.
32.6 Time shall be of the essence for each and every provision of this
Agreement.
32.7 This Agreement may not be recorded in the Public Records of Miami -
Dade County.
32.8 In the event Developer does not terminate this Agreement during the
Inspection Period from and after the approval of the Schematic Design Documents for a
particular Phase 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 for said Phase to enable to the Phase to be
developed in accordance with the terms of the Schematic Design Documents for such Phase,
provided such documents and applications do not impose any financial obligations or liability
upon the CRA.
33. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and
understanding between the parties with respect to the subject matter hereof and there are no other
agreements, representations or warranties other than as set forth herein. This Agreement may not
be changed, altered or modified except by an instrument in writing signed by the party against
whom enforcement of such change would be sought. This Agreement shall be binding upon the
parties hereto and their respective successors and permitted assigns.
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[SIGNATURE PAGES TO FOLLOW]
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IN WITNESS hereof the parties have executed this Agreement as of the date first above
written.
DEVELOPER:
LYRIC DEVELOPMENT, LLC,
a Florida limited liability company
The Gatehouse Group, Inc.,
a Commonwealth of Massachusetts corporation,
Its manager
By:
Name:
Title:
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
APPROVED AS TO INSURANCE REQUIREMENTS:
Risk Management Administrator
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Schedule of Exhibits
A. Legal Description
B. Insurance Requirements
C. Permitted Exceptions
D. Block 36 Restrictions
E. Legal Description for Phase I
F. Legal Description for Phase II
G. Legal Description for Phase III
H. Legal Description for Phase IV
I. Phase I Preliminary Budget
J. Form of Special Warranty Deed - Phase I
K. Phase I Easement
L. Form of Special Warranty Deed - Phase II
M. Form of Special Warranty Deed - Phase IV
N. Organizational Documents of Developer
O. List of individuals and entities that have an ownership interest in Developer
P. Organizational Documents of Manager
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EXHIBIT A
Legal Description
Parcel 1 Block 25)
Lots 5 through 17, inclusive, less the West 7.5 feet of the South 50 feet of Lot 10, all of Block
25, of NORTH, CITY OF MIAMI, according to the Plat thereof as recorded in Plat Book B,
Page 41, of the Public Records of Miami - Dade County, Florida.
Parcel 2 Block 36)
Lots 1, 2, 3, 6, 7, 8, 9, 10, 11, 14, 15, 16, 17, 18, 19, 22, 23, 24, 26, 27, 30, 31, 32, 33, 34, 35, 38,
39, 40, 41, 42, 43, 46, 47 and 48 in Block 36 of P. W. WHITE'S RE -SUBDIVISION, according
to the plat thereof as recorded in Plat Book "B", Page 34, of the Public Records of Miami - Dade
County, Florida;
LESS that portion thereof lying within the Metropolitan Dade County Metrorail right-of-way
which is described as follows:
Begin at the Southeast comer of said Block 36; thence run South 87° 46' 59" West, along the
South line of said Block 36, for a distance of 1.53 feet; thence run North 04° 44' 53" West for a
distance of 187.90 feet to a point of intersection with the arc of a circular curve concave to the
Southwest, the center of which bears South 82° 00' 08" West from said point of intersection;
thence run Northwesterly along the arc of said circular curve concave to the Southwest, having a
radius of 987.00 feet, through a central angle of 06° 39' 50", for an arc distance of 114.79 feet to
the point of intersection with the North line of said Block 36; thence run North 87° 46' 14" East,
along the North line of said Block 36, for a distance of 27.71 feet to the Northeast corner of said
Block 36; thence run South 02° 16' 19" East, along the East line of said Block 36, for a distance
of 301.01 feet to the Point of Beginning.
AND LESS AND EXCEPT:
The West 40 feet of Lots 11, 14, 19, 22, 27, 30, 35, 38, 43 and 46 of Block 36 of P. W. WHIFF'S
RESUBDIVISION, recorded in Plat Book "B", Page 34, of the Public Records of Miami - Dade
County, Florida, together with all right, title and interest, if any, of Grantor in the East 5 feet of
the 10 foot alley adjacent to Lots 11, 14, 19, 22, 27, 30, 35, 38, 43 and 46 of Block 36 of P. W.
WHITE'S RESUBDIVISION, recorded in Plat Book "B", Page 34, of the Public Records of
Miami - Dade County, Florida.
TOGETHER WITH:
All that Lot, Piece or Parcel of land situate, lying and being in Section 37, Township 53 South,
Range 41 East (the "James Hagan Donation"), City of Miami, Miami -Dade County, Florida,
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consisting of a portion of N.W. 1st Court (being indicated as an un-named right of way 40 feet in
width) in Block 36, as shown on the Plat of P. W. WHITE'S RE -SUBDIVISION OF BLOCKS
NO. 16-26 AND 36 NORTH OF THE CITY OF MIAMI, according to the plat thereof as
recorded November 30, 1990 in Plat Book "B", Page 34, of the Public Records of Dade County
(now Miami -Dade County), Florida, the same being more particularly described by metes and
bounds as follows, viz:
Begin at the Northwest corner of Lot 7 in Block 36 as shown on said Plat of P. W. WHITE'S RE -
SUBDIVISION OF BLOCKS NO. 16-26 AND 36 NORTH OF THE CITY OF MIAMI; thence
South 00° 03' 11" East along the East right of way line of said N.W. 1st Court (this line being
coincident with the West lines of Lots 7, 10, 15, 18, 23, 26, 31, 34, 39, 42 and 47 as shown on
said Plat) for 263.44 feet to a point of intersection with a line lying 37.50 feet Northerly of, as
measured at right angles to and parallel with the centerline of N.W. 8th Street (4th Street by
Plat); thence departing said East right of way line of N.W. 1st Court, North 89° 58' 56" West
along said parallel line for 40.00 feet to a point of intersection with the West right of way line of
N.W. 1st Court; thence departing said parallel line, North 00° 03' 11" West along said West right
of way line of N.W. 1st Court (this line being coincident with the East lines of Lots 46, 43, 38,
35, 30, 27, 22, 19, 14, 11 and 6 as shown on said Plat) for 263.43 feet to the Northeast comer of
said Lot 6; thence departing said West right of way line of N.W. 1st Court, East for 40.00 feet to
the Point of Beginning.
AND:
Lot 25 in Block 36 of P. W. WHITE'S RE -SUBDIVISION, according to the plat thereof as
recorded in Plat Book "B", Page 34, of the Public Records of Miami - Dade County, Florida.
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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
Loading and Unloading
Completed Operations Coverage
H. 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
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III. Worker's Compensation
Limits of Liability
Statutory -State of Florida
Waiver of subrogation
Employer's Liability
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: $2,500 All other Perils
5% maximum on Wind
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Southeast Overtown/Park West Community Redevelopment Agency listed as an
Additional Insured
A. Limit/Value at Location or Site 100% of replacement cost
B. Coverage Extensions as provided by insurer
The above policies shall provide the 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.
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EXHIBIT C
PERMITTED EXCEPTIONS
All Phases:
1. Taxes and assessments for the year of the Closing and subsequent years.
Phase I and Phase II
1. Terms and conditions of the Stipulation of Settlement recorded July 18, 1988 in Official
Records Book 13752, at Page 1036 of the Public Records of Miami -Dade County,
Florida.
Phase III and Phase IV
1. All matters contained on the Plat of P.W. White's Re -Subdivision of Block 16, 26 and 36
of Plat of North City of Miami, as recorded in Plat Book "B", at Page 34 of the Public
Records of Miami -Dade County, Florida.
2. Unity of Title recorded August 29, 2008, in Official Records Book 21589, Page 1316.
3. Easement to Florida Power & Light Company. recorded October 8, 2003, in Official
Records Book 21726, Page 4761.
4. Matters shown on the tentative plat of Lyric Subdivision, a copy of which has been
provided to Developer.
5. Terms and conditions of the Stipulation of Settlement recorded July 18, 1988 in Official
Records Book 13752, at Page 1036 of the Public Records of Miami -Dade County,
Florida.
NOTE: All of the recording information contained herein refers to the Public Records of Miami -
Dade County, Florida, unless otherwise indicated.
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