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HomeMy WebLinkAboutCRA-R-12-0054 07-30-2012 Legislation with attachmentCity of Miami Legislation CRA Resolution City Hall 3500 Pan American Drive Miami, FL 33133 www.miamigov.com File Number: 12-00821 Final Action Date: A RESOLUTION OF THE BOARD OF COMMISSIONERS OF THE SOUTHEAST OVERTOWN/PARK WEST COMMUNITY REDEVELOPMENT AGENCY, WITH ATTACHMENT(S), AUTHORIZING THE EXECUTIVE DIRECTOR TO EXECUTE A DEVELOPMENT AGREEMENT, IN SUBSTANTIALLY THE FORM ATTACHED, WITH AMC HTG 1, LTD, A FLORIDA LIMITED PARTNERSHIP, FOR THE DEVELOPMENT OF AN AFFORDABLE HOUSING DEVELOPMENT, ON THE PROPERTY ADJACENT TO THE CULMER NEIGHBORHOOD SERVICE CENTER AT 1600 NW 3RD AVENUE MIAMI, FLORIDA, WHICH PROPERTY IS CURRENTLY OWNED BY MIAMI-DADE COUNTY, FLORIDA AND IS LEASED TO A PRIVATE DEVELOPER, CONSISTING OF NOT LESS THAN 75 AFFORDABLE RENTAL UNITS, WHICH DEVELOPMENT AGREEMENT INCLUDES THE MAKING OF A GRANT IN AN AMOUNT NOT TO EXCEED $7,500,000.00 FOR THE RESIDENTIAL PORTION OF THE DEVELOPMENT; AUTHORIZING THE EXECUTIVE DIRECTOR TO DISBURSE THE GRANT, AT HIS DISCRETION, IN ACCORDANCE WITH THE TERMS OF THE DEVELOPMENT AGREEMENT; FURTHER AUTHORIZING THE EXECUTIVE DIRECTOR TO EXECUTE AND AMEND ALL DOCUMENTS NECESSARY FOR SAID PURPOSE, IN FORM ACCEPTABLE TO THE SPECIAL COUNSEL. WHEREAS, the Southeast Overtown/Park West Community Redevelopment Agency ("CRA") is responsible for carrying out community redevelopment activities and projects within its Redevelopment Area in accordance with its approved Redevelopment Plan; and WHEREAS, Section 2, Goal 3/Principles 2 and 3, at pages 12 and 14, of the 2009 Amended and Restated Southeast Overtown/Park West Redevelopment Plan, lists "[c]reating infill housing," and "variety in housing options," as stated redevelopment goals; and WHEREAS, Section 2, Goal 4/Principle 4, at pages 12 and 14, of the 2009 Amended and Restated Southeast Overtown/Park West Redevelopment Plan, lists "[c]reating jobs within the Community," as stated redevelopment goals; and WHEREAS, on April 2, 2012, the CRA issued a Request for Information No. 12-04 ("RFI"); and WHEREAS, AMC HTG 1, LTD submitted their proposed project and was selected based on the fact that their project is listed in the Global Agreement; and WHEREAS, the proposal submitted by AMC HTG 1, LTD, consisted of affordable rental units; and WHEREAS, the Board of Commissioners wishes to authorize the Executive Director to enter into the Development Agreement, in substantially the attached form (the "Development Agreement"), with City of Miami Page I of 2 File Id: 12-00821 (Version: 1) Printed On: 7/20/2012 File Number: 12-00821 AMC HTG 1, LTD, a Florida limited partnership, for the development of an affordable housing development, on the property adjacent to the Culmer Neighborhood Service Center at 1600 NW 3rd Avenue Miami, Florida, which property is currently owned by Miami -Dade County, Florida and is leased to a private developer, consisting of not less than 75 affordable rental units, which Development Agreement includes the making of a grant in an amount not to exceed $7,500,000.00 for the residential portion of the development; authorizing the Executive Director to disburse the Grant, at his discretion, in accordance with the terms of the Development Agreement; further authorizing the Executive Director to execute and amend all documents necessary for said purpose, in form acceptable to the Special Counsel. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COMMISSIONERS OF THE SOUTHEAST OVERTOWN/PARK WEST COMMUNITY REDEVELOPMENT AGENCY: Section 1. The recitals and findings contained in the Preamble to this Resolution are adopted by reference and incorporated herein as if fully set forth in this Section. Section 2. The Executive Director is hereby authorized to execute the Development Agreement, in substantially the attached form, with AMC HTG 1, LTD, a Florida limited liability corporation, for the development of an affordable housing development, on the property adjacent to the Culmer Neighborhood Service Center at 1600 NW 3rd Avenue Miami, Florida, which property is currently owned by Miami -Dade County, Florida and is leased to a private developer, consisting of not Tess than 75 affordable rental units, which Development Agreement includes the making of a grant in an amount not to exceed $7,500,000.00 for the residential portion of the development. Section 3. The Executive Director is authorized to execute and amend all documents necessary for said purpose, in a form acceptable to Special Counsel. Section 4. This resolution is subject to availability of funds. Section 5. This resolution shall become effective immediately upon its adoption. APPROVED AS TO FORM AND CORRECTNESS: William R. Bloom SPECIAL COUNSEL City of Miami Page 2 of 2 File Id: 12-00821 (Version: 1) Printed On: 7/20/2012 MICHELLE SPENCE-JONES SEOPW Board Chair Request Date: Requester: Purpose: PIETER A. BOCKWEG Executive Director REQUEST FOR INFORMATION RFI No. 12-04 April 2, 2012 Pieter A. Bockweg, Executive Director CRA Mixed -Use Development Projects The CRA is in the process of obtaining financing, to be collateralized by TIF revenues, which will enable the issuance of grant funds, Therefore, the CRA is seeking information from private developers and persons, with an ownership interest in land within the redevelopment area, to plan, design, finance, construct, and manage mixed use projects for properties within the redevelopment area. All submissions must include a detailed description of the proposed mix -use project; site plan and renderings, project budget (hard costs, soft costs, etc.) consisting of sources of funds, and a detailed statement of all financial assistance needed from any sources, and a list of all persons with an interest in the submitter's organization. The submitter will be expected to follow all guidelines set forth in the 2009 SEOPW Redevelopment Plan, which is available online at www.miamicra.com, and additional requirements, including, but not limited to: • Affordable and market rate housing; • Commercial space that will attract new businesses that provide needed services and economic opportunities; • On -street parking on the abutting streets is to be created where public rights -of way allow for it; • Plan for sustained care and maintenance; • Pedestrian friendly environment, with bicycle and walk paths; • Commitment to improve infrastructure, if necessary; • Open spaces, including parks, plazas, and green spaces; • Obtain all necessary permits/approvals; • Strengthen neighborhood identity by conforming architecture to the Design Standards and Guidelines For the Southeast Overtown/Park West Redevelopment Project; • 20% of the subcontractors must have their principal place of business in the City of Miami, with preference to those within the Redevelopment Area; • 40% of the unskilled labor for construction must be residents of the City of Miami, with preference to those within the Redevelopment Area; • Partner with a non-profit organization from the redevelopment area; • Partner with a development organization from the redevelopment area. The submission must include a current copy of submitter's contractor's license, list of five recent jobs (within the last year), an IRS W-9 Form. Submissions should include all required documents under the RFI and should be clearly marked on the outside to read, "CRA— RFI No. 12-04 " Respondents must submit two (2) copies to the City of Miami Clerk's Office, 3500 Pan American Drive, Miami, Florida 33133, by 2:00 p.m., on Tuesday, April 17, 2012. The submissions will be evaluated by CRA staff and the selected submitter will be notified by mail and phone. If you have any questions, please contact Clarence Woods, Assistant Director of the SEOPW CRA, at (305) 679-6800 or submit inquiries by email to cwoods(@,miamigov.com. The CRA reserves the right to accept any projects deemed to be in the public interest and in furtherance of the purposes of Florida's Community Redevelopment Act of 1969, to waive any irregularities in any submission, to cancel this Request for Information, to reject any or all submissions, and/or to re -advertise for information. The "cone of silence" does not apply to this RFI. Therefore, communication with the staff of the CRA and the City of Miami is permissible. Pieter A. Bo Execu erector COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF MIAMI 49 Northwest 5th Street, Suite 100 I Miami, FL 33128-1811 Tel (305) 679-6800 I Fax (305) 679-6835 I www.miamicra.org CITY OF MIAMI OFFICE OF THE CITY CLERK BID SECURITY LIST 131D ITEM: CRA Mixed -Use Development Projects BID NUMBER: RE' No. 12-04 DATE BID OPENED: Tuesday, April 17, 2012 TIME: 2:0O PM BIDDER BASE BID BID BOND (ER) AMOUNT CASHIER'S CHECK AMC I-1TG 1. Ltd. - c/o: Housing Trust Group See Attached Sec Attached Urban League of Greater Miami, Inc. - New Urban Development. LLC. See Attached See Attached Biscayne Flousin Group See Attached See Attached are r - , ra k Receivid(s) on behalf Community Redevelopment Azency Det PREPARED BY: Deputy City Clerk KtICHELCE SPENCE JONES SEOPW Board CHair PIETER A BOCKWEG Executive' birector PUBLIC NOTICE SOUTN'EAST OVERTOWN/PARK WEST COMMUNITY REDEVELOPMENT AGENCY REQUEST FOR INFORMATION CRA MIXED -USE DEVELOPMENT PROJECTS RFI NO. 12-04 TheCRA.is In the process of obtaining financing, to be collateralized by TIF•revenues, which will enable the Issuance'of grant funds, Therefore, the. CRA Is seeking information from private developers and persons, with an ownership Interest in land within the redevelopment area, to plan, design, finance, construct, and manage mixed use projects for properties within the redevelopment area. The submitter must be able to • perform every element outlined in the Request for Information, RFI No. 12-04 ("RFI'.'). Submissions should Include all required documents under the RFI and should be clearly marked on the outslde•to read, "CRA— RFI No. 12-04," Respondents must submit two (2) copies. to the City of Miami Clerk's Office, 3600 Pan American Drive, Miami, Florida 33133, by 2:00 p.m., on Tuesday, April' 17, 2012, Any re- sponses received after the•above date and time, or delivered' to a different address, will not be considered. The CRA reserves the right to. accept any projects deerned to be In the public Interest and In.furtherance of the purposes of Florida's Cornmunity Redevelopment•Act of 1969, to waive any Irregularities in any' sub- mission, to cancel this Request for Information, to reject any or all submissions, and/or to re -advertise. for • Information. . (#16467) Pieter A. Bookweg, CRA Exeoutive Director COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF MIAMI 49 Northwest Gth Street, %lite 1001 Miamr, FL 33120••1011 ' Tel. (30G) 070-91300 Fax (300 079-68351 http:lWww.mletnhora.bf0 DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT (the "Agreement") is made as of the day of , 2012, by and between AMC HTG 1, LTD., a Florida limited partnership (the "Developer") and the SOUTHEAST OVERTOWN/PARK WEST COMMUNITY REDEVELOPMENT AGENCY, a public agency and body corporate created pursuant to Section 163.356, Florida Statutes (the "CRA"); RECITALS A. The Southeast Overtown/Park West Project area was designated as a community redevelopment area (the "Redevelopment Area") by Miami -Dade County, a political subdivision of the State of Florida (the "County"). A redevelopment plan was approved by the Commissioners of the City of Miami and the Commissioners of Miami -Dade County with certain redevelopment authority granted by the County to the City for project implementation. The City assigned to the CRA the redevelopment authority granted by the County to the City. B. The CRA issued a request for information (the "RFI") for proposed developments within the Redevelopment Area. C. In response to the RFI, Developer submitted a proposal (the "Proposal") for the development of a project to be located on that certain real property more particularly described on Exhibit "A" attached hereto and made a part hereof (the "Property"), which Developer is leasing pursuant to the terms of that certain Sublease Agreement dated as of April 22, 2009 (the "Sublease") by and between Alonzo Mourning Charities, Inc., a Florida not -for -profit corporation ("Sublessor") and Developer. D. Based upon the evaluations of all responses submitted to the CRA in response to the RFI, the Proposal submitted by the Developer was given a high ranking and 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 RFI and the Proposal. E. Based upon such negotiations the CRA has agreed to make a grant for the benefit of the Developer and the Developer has agreed to develop the Project, as hereinafter defined, on the Property, 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. 2. PROPERTY ISSUES. 2.1 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 Developer to be vested in good marketable leasehold interest in the Property pursuant to the Sublease, as hereinafter defined, free and clear of all liens and encumbrances except for the following (the "Permitted Exceptions"): 2.1.1 Ad valorem real estate taxes and assessments for the year of closing and subsequent years. 2.1.2 All applicable laws, ordinances and governmental regulations, including, but not limited to, all applicable building, zoning, land use, environmental ordinances and regulations. 2.1.3 Those matters listed on Exhibit "B" attached hereto and made a part hereof. 2.2 The Developer shall provide the Executive Director with a copy of the Commitment and the Survey as soon as available to enable the Executive Director to confirm that the Developer owns a leasehold interest in the Property, pursuant to the Sublease, subject only to the Permitted Exceptions. 2.3 The Developer shall provide the Executive Director with an environmental report and a reliance letter addressed to the CRA reflecting no environmental conditions that will adversely affect the development of the Project, as hereinafter defined, as soon as available to enable the Executive Director to confirm that there are no environmental conditions that will affect the development of the Project. 2.4 The Developer shall provide the Executive Director with soil assessment reports as soon as available to enable the Executive Director to confirm that there are no soil conditions that will adversely affect the development of the Project. 2.5 Developer shall provide to the Executive Director with evidence of the following: 2.5.1 The County and Sublessor have entered into an amendment (the "Ground Lease Amendment") to that certain ground lease dated December 19, 2008 (the "Ground Lease") between the County and Sublessor incorporating the following revisions to the Ground Lease: 2.5.1.1 Amend the Commencement Date, as defined in the Ground Lease, to allow Developer to have a sufficient time frame to satisfy all of the CRA Conditions Precedent. 2.5.1.2 Amending Section 4.1.1 of the Ground Lease to permit the development of the Project, as hereinafter defined. 2.5.1.3 Amending Section 4.3 of the Ground Lease to provide the Developer sufficient time to develop the Project in accordance with the requirements of this Agreement. 2 2.5.1.4 Delete Section 4.7 of the Ground Lease. 2.5.1.5 Amending Article XI of the Ground Lease to require the Project to be restored if there is any damage or destruction for a period of thirty (30) years from Completion, as hereinafter defined, irrespective of available insurance proceeds. 2.5.1.6 Amend the affordability requirements of Section 4.1.1 of the Ground Lease to conform with Section 8.1. 2.5.2 The Developer and the Sublessor have entered into an amendment to the Sublease (the "Sublease Amendment") incorporating the following provisions into the Sublease: 2.5.2.1 Amend the Sublease to incorporate the provision of the Ground Lease Amendment. 2.5.2.2 Confirm that the Sublessor will join into the Restrictive Covenant. 2.6 If the Ground Lease Amendment and the Sublease Amendment in form and content acceptable to the Executive Director, have not been executed on or before December 31, 2012, then in such event the Executive Director may terminate this Agreement in which event the parties shall be released from all further obligations under this Agreement. 3. PROJECT. 3.1 Description of the Project. The project (the "Project") shall consist of not less than 79 affordable rental units, all with balconies and upgraded finishes to improve longevity and durability with ground floor commercial space constructed in buildings not exceeding six (6) stories, will include one -bedroom units, two -bedroom units, and three -bedroom units, the mix of which and the size of which shall be established based upon the community input received in accordance with Section 3.3 below and as approved by the Executive Director in accordance with Section 3.4 below together with a sufficient number of parking spaces to comply with the applicable zoning and the terms of the Ground Lease and Sublease. 3.2 Design of the Project. The Project shall be designed so it is consistent with the Southeast Overtown/Park West Community Redevelopment Plan dated November 2004 prepared by Dover Kohl & Partners as updated by the Final Update of May 2009 by the City of Miami Planning Department (ver 2.0) (collectively, the "Design Standards"). 3.3 Community Input. Not later than sixty (60) days of the Effective Date, the Developer shall present schematic design documents for the proposed Project to the Historic Overtown Folk Life District Improvement Association ("HOFLDIA") and the Overtown Community Oversight Board ("OCOB") for their review and comment. The schematic design documents (the "Schematic Design Documents") shall consist, at a minimum, of the proposed site plan for the Project, proposed building massings and elevations for the Project, an architectural rendering of the Project of sufficient detail to allow the HOFLDIA and the OCOB to evaluate the proposed Project and its design and confirm that the proposed Project is 3 consistent with the Design Standards. The Developer shall revise the Schematic Design Documents to address the comments and concerns of the HOFLDIA and the OCOB. 3.4 Approval of Schematic Design Documents by CRA. Within ninety (90) days from the Effective Date, the Developer shall submit to the Executive Director for review and approval the Schematic Design Documents which shall have been revised by the Developer to incorporate the reasonable comments received from the HOFLDIA and the OCOB, which must also be consistent with the Design Guidelines. The Developer agrees to use its good faith efforts to modify the Schematic Design Documents as necessary to satisfy the requirements of the Executive Director. The Developer shall provide the Executive Director such additional back-up information as the Executive Director may reasonably request to enable the Executive Director to analyze all aspects of the Project as reflected in the Schematic Design Documents. The Executive Director shall have fifteen (15) days from the receipt of the Schematic Design Documents to approve same. If the Executive Director fails to timely respond, the submitted Schematic Design Documents shall be deemed approved. In the event of disapproval, the Executive Director shall specify the reasons for such disapproval. In the event of disapproval, the Developer shall modify the Schematic Design Documents, as appropriate, to address the comments and concerns of the Executive Director to ensure that the Schematic Design Documents comply with the Design Standards and the input from HOFLDIA and OCOB, as deemed appropriate by the Executive Director, acting reasonably. Any resubmission shall be subject to approval by the Executive Director in accordance with the procedure outlined above for the original submission until same is approved or deemed approved by the Executive Director. The Executive Director and the Developer shall proceed in good faith to attempt to resolve any disputes regarding the Schematic Design Documents. If the Executive Director has rejected the Schematic Design Documents two (2) times, Developer may elect to submit such dispute regarding the approval of the Schematic Design Documents to the CRA Board for resolution. The Schematic Design Documents, as approved or deemed approved by the Executive Director shall mean the "Schematic Documents". The Developer shall cause the Project to be designed in accordance with the Schematic Documents. 3.5 Construction Documents. Within one hundred twenty (120) days of the later to occur of (a) approval or deemed approval of the Schematic Documents by the Executive Director or (b) Bond Issue Approval, as hereinafter defined, the Developer shall submit to the Executive Director for its review and approval the plans and specifications for the construction of the Project, which shall be of sufficient detail to allow the Developer to apply for a building permit for the Project ("Plans and Specifications"). The Plans and Specifications shall be subject to the approval of the Executive Director, which approval shall not be unreasonably withheld and which approval shall be given if the Plans and Specifications are consistent with the Schematic Documents. The Developer agrees to utilize its good faith efforts to make modifications to the Plans and Specifications to satisfy the requirements of the Executive Director if the Plans and Specifications are inconsistent with Schematic Documents. The Developer shall provide to the Executive Director such additional back-up information as the Executive Director may reasonably request to enable the Executive Director to analyze the Plans and Specifications. The Executive Director shall have fifteen (15) days from the receipt of the Plans and Specifications to approve same. If the Executive Director fails to timely respond, the Plans and Specifications shall be deemed approved. In the event of disapproval, the Executive Director shall specify the reason for such disapproval. In the event of disapproval, Developer shall modify the Plans and 4 Specifications, as appropriate, to address the comments and concerns of the Executive Director to cause the Plans and Specifications to be consistent with the Schematic Documents. Any resubmission shall be subject to the approval of the Executive Director in accordance with the procedure outlined above for the original submission until same is approved or deemed approved by the Executive Director. The Executive Director and the Developer shall in good faith, attempt to resolve any disputes regarding the Plans and Specifications. If the Executive Director has rejected the Plans and Specifications two (2) times, the Developer may elect to submit such dispute regarding the approval of the Plans and Specifications to the CRA Board for resolution. The Plans and Specifications as approved or deemed approved by the Executive Director shall mean the "Plans". 3.6 Development Requirements. Developer shall be required to develop the Project substantially in accordance with the Plans. Any material variation to the Plans shall require approval of the Executive Director, which approval shall not be unreasonably withheld or delayed provided that same is in accordance the spirit and intent of the Plans and this Agreement. 3.7 Development Timeframe. 3.7.1 "Project Schedule". Developer shall achieve Completion of the Project in accordance with the Plans within sixteen (16) months from the Closing Date (as defined below), as same may be extended as a result of Unavoidable Delays (the "Completion Date"), time being of the essence. The term "Unavoidable Delays" shall mean delays beyond the control of the Developer (other than delays in connection with obtaining licenses, permits and approvals from any governmental authority relating to the Project) including, without limitation, civil commotion, war, invasion, rebellion, hostility, military or usurped power, sabotage, insurrection, strikes or lockouts on an area wide basis and not specific to the Project, riots, tropical storms, hurricanes, floods, earthquakes, casualties, acts of the public enemy, epidemics, quarantines, restrictions, embargos and area wide governmental restrictions. If the Developer fails to achieve Completion within ninety (90) days of the Completion Date, Developer shall pay to the CRA One Thousand and No/100 Dollars ($1,000.00) per day thereafter until Completion. The term "Completion" shall mean the Project has been completed substantially in accordance with the Plans and a temporary certificate of occupancy has been issued by the City of Miami for all residential units comprising the Project and the County has issued an Acknowledgement of Final Completion, as defined in the Ground Lease. This provision shall survive the closing. 3.8 Project Budget. A. The preliminary budget for the Project prepared by the Developer is attached hereto as Exhibit "C" and made a part hereof (the "Preliminary Budget"). As soon as available but in no event later than sixty (60) days after the approval of the Schematic Documents, the Developer shall submit to the Executive Director for review and approval, which approval shall not be unreasonably withheld, a detailed line item budget reflecting all hard and soft costs anticipated to be incurred by the Developer in connection with the Project (the "Project Budget"). The Developer agrees to use its good faith efforts to make all reasonable modifications to the Project Budget to satisfy the requirements of the Executive Director. The Developer shall provide to the Executive Director such additional back-up information as the Executive Director may reasonably request to enable the Executive Director to analyze all 5 aspects of the Project Budget. The Executive Director shall have fifteen (15) days after receipt of the Project Budget to approve same. If the Executive Director fails to timely respond to the Project Budget submitted by the Developer, same shall be deemed approved. In the event of disapproval, the Executive Director shall identify the reasons for such disapproval. In the event of disapproval, the Developer shall modify the Project Budget as appropriate, to address the comments and concerns of the Executive Director. Any resubmission shall be subject to the approval of the Executive Director in accordance with the procedure outlined above for the original submission until same is approved or deemed approved by the Executive Director. The Executive Director and the Developer shall, in good faith, attempt to resolve any disputes regarding the Project Budget. If the Executive Director has rejected the Project Budget two (2) times, the Developer may elect to submit such dispute regarding the approval of the Project Budget to the CRA Board for resolution. The Project Budget, as approved or deemed approved by the Executive Director, shall be deemed the `Budget". The Budget shall establish the amount of the CRA Contribution. B. The Project Budget shall include a Seventy -Five Thousand and No/100 Dollars ($75,000.00) line item to be utilized solely to pay third parties retained by the CRA to assist in monitoring compliance with the terms of this Agreement and oversee construction of the Project on behalf of the CRA. The Funding Agreement, as hereinafter defined, shall include a mechanism for the Executive Director to be able to draw funds from this line item to pay third party costs and expenses incurred by the CRA. 4. DEVELOPMENT AND FINANCIAL APPROVALS. 4.1 Development of Project. As soon as available after the Effective Date, Developer shall submit to the Executive Director for review and approval, which approval shall not be unreasonably withheld, the following: 4.1.1 Construction Contract. The construction contract for the Project (the "Construction Contract"), together with the "schedule of values" for the Project, which shall include the obligation of the general contractor to comply with the participation requirements set forth in Section 6.2.1 and 6.2.2 of this Agreement. 4.1.2 Loan Commitment. A loan commitment from a fmancial institution evidencing that Developer has obtained a construction loan commitment for the development of the Project (the "Loan Commitment") which shall be reasonably acceptable to the Executive Director. The Executive Director will not have approval rights over the loan terms or equity investment terms. The approval of the Executive Director shall be limited to the issue of whether the Loan Commitment reflects that funds will be available for construction of the Project and the amount of funds that will be made available for construction. 4.1.3 Equity. Evidence reasonably satisfactory to the Executive Director that Developer has sufficient equity available to meet the equity requirement of the Loan Commitment with respect to the Project (the "Equity") taking into consideration the CRA Contribution. 6 4.1.4 Funding Agreement. The CRA, Developer, the Non -Profit, as hereinafter defined, and the Developer's lender providing financing in accordance with the Loan Commitment (the "Lender"), the GP, as hereinafter defined, and the Tax Credit Investor, as hereinafter defined, shall agree to the terms of an agreement (the "Funding Agreement") in foini and substance reasonably acceptable to the Executive Director, which will provide for, without limitation, the following: 4.1.4.1 The deposit of the CRA Contribution, as hereinafter defined, by the Non -Profit with the Lender or a title company approved by the Lender and the CRA and the disbursement of the CRA Contribution. 4.1.4.2 The procedure for submission of monthly draw requests and partial lien waivers to the Lender, for review and approval. 4.1.4.3 The inspection of the Project during construction for the benefit of the CRA, the Tax Credit Investor and the Lender, and approval by the Lender of the percentage of work completed. 4.1.4.4 The approval of the Budget and any amendments to the Budget by the Lender. 4.1.4.5 The approval of the re -allocation of funds to different line items in the Budget by the Lender. 4.1.4.6 The determination of whether there are adequate funds included in the Budget to complete the Project and whether the Budget is "in balance'•' by the Lender. If it is determined that due to cost overruns the Budget is not "in balance" the Developer will be required to fund the amount determined by the Lender, to keep the Budget "in balance" prior to there being any further disbursement of the CRA Contribution. 4.1.4.7 The procedure for approving change orders by the Lender. 4.1.4.8 The procedure for approving changes to the Plans by the Lender. 4.2 The Executive Director shall have fifteen (15) days after receipt of each of the items required by Section 4.1 to review and approve same, which approval shall not be unreasonably withheld. In the event of disapproval of any such item, the Executive Director shall specify the reasons for such disapproval. In such event the Developer shall utilize its good faith efforts to address the comments and concerns of the Executive Director. 5. CRA CONTRIBUTION. 5.1 The CRA covenants and agrees to make a cash contribution to the Non - Profit, as hereinafter defined, in an amount of up to Seven Million Five Hundred Thousand and No/100 Dollars ($7,500,000.00) for the design and development of the residential portion of the Project (the "CRA Contribution"), provided all of the CRA Conditions Precedent are satisfied or 7 waived by the CRA. The CRA Contribution to the Non -Profit shall be loaned by the Non -Profit to the Developer, as hereinafter provided, and disbursed in accordance with the Funding Agreement. The exact amount of the CRA Contribution will depend upon the Project Budget approved by the Executive Director and other funding sources for the Project obtained by the Developer. The final amount of the CRA Contribution shall be established at the time the Executive Director approves the Project Budget, subject to adjustment in accordance with Section 5.2 and 5.3 below. Under no circumstances shall the CRA Contribution be increased notwithstanding any increases in the Project Budget. 5.2 The exact amount of the CRA Contribution will depend upon the Project Budget approved by the Executive Director and other funding sources for the Project obtained by the Developer. The CRA Contribution shall be reduced if the committed sources of funding upon achieving Completion exceed all uses, including a fully -funded developer fee including developer overhead and profit in an amount not exceeding the lesser of (i) eighteen percent (18%); or (ii) the maximum developer fee, including developer overhead and profit permitted by the Florida Housing Finance Corporation ("FHFC") guidelines for multi -family revenue bond - financed projects pursuant to Rule 67-21, Fla. Admin. Code. 5.3 Upon Completion, the Developer, at its sole cost and expense, shall retain Reznick Group, PC, or a similarly qualified accounting firm, to prepare a cost certificate (the "Cost Certification"), based upon an audit of all costs and expenses incurred in connection with achieving Completion, which Cost Certificate shall be in compliance with all FHFC guidelines for cost certifications. Upon receipt of the Cost Certificate, the Developer shall promptly provide a copy of same to the Executive Director and the Non -Profit. 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 5.2), then the CRA Contribution shall be reduced by the amount of such excess. If the CRA Contribution has been fully disbursed the Developer shall repay such amount within thirty (30) days after written demand from the Executive Director and the Non -Profit which will, in turn, repay such portion of the CRA Contribution to the CRA. If the CRA disputes the Cost Certificate the Developer and the Executive Director shall utilize their good faith efforts to resolve the dispute within fifteen (15) days of the Executive Director's receipt of a copy of the Cost Certificate. If the Developer and the Executive Director cannot resolve the dispute regarding the Cost Certificate within the fifteen (15) day period, either party may submit the dispute to the CRA Board for resolution, which shall be binding on the parties. This provision shall survive the closing. 5.4 The CRA has advised the Developer that the CRA Contribution shall be derived from a loan (the "CRA Bond Issue") to be obtained by the CRA which shall be secured by tax increment revenues. The CRA Contribution shall not be security for the CRA Bond Issue or any other indebtedness of the CRA. The Developer acknowledges that restrictions associated with the CRA Bond Issue will require that the Loan, as hereinafter defined, be utilized only with respect to the design and construction of the residential portion of the Project and that the CRA Contribution be paid to 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, the County, the State of Florida or the Developer (the "Non -Profit") and otherwise comply with the terms of the Non -Profit Grant Agreement in substantially the form of Exhibit "D" attached hereto and made a part hereof (the "Non -Profit Grant Agreement"). 8 5.5 The CRA is currently in the process of obtaining the CRA Bond Issue on terms and conditions acceptable to the CRA, in its sole discretion. The exact terms and amount of the CRA Bond Issue must be approved by the CRA Board of Commissioners ("Bond Issue Approval"). If the CRA has not obtained the Bond Issue Approval 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 CRA on or before December 31, 2013, then in such event, this Agreement shall automatically terminate as of December 31, 2013, in which event, the parties shall be released from any further obligations under this Agreement, except for those obligations that expressly survive termination of this Agreement. 5.6 Developer and the CRA agreed that the CRA shall make the CRA Contribution to a Non -Profit acceptable to the CRA which Non -Profit would in turn loan the amount of the CRA Contribution (the "Loan") to the Developer as provided in the Non -Profit Grant Agreement. 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 review and approval, which approval shall not be unreasonably withheld provided the Non -Profit Loan Documents comply with the Non -Profit Grant Agreement, 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 Contribution and the direct deposit of the Loan proceeds with the Lender or a title company approved by the CRA to be disbursed in accordance with Section 4.1.4 above. The Non -Profit shall become a party to the Funding Agreement, however, the CRA shall retain control over the disbursement of the Loan to the Developer in accordance with the Funding Agreement. The CRA agrees that the Funding Agreement may be structured so that the Loan is deposited with a title company and disbursed by the title company to the Developer without involvement of the Lender provided the CRA is provided the equivalent protection and approvals as contemplated by the Funding Agreement. 5.7 The CRA and the Non -Profit will enter into the Non -Profit Grant Agreement which shall govern the use of the CRA Contribution. The Non -Profit Grant Agreement will require the Non -Profit to make the Loan of .the CRA Contribution to the Developer as contemplated by this Agreement. In the event the Loan is repaid by the Developer 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 within sixty (60) days. The Non - Profit shall not be permitted to retain any portion of the CRA Contribution and any fees and costs of the Non -Profit must be paid from sources other than the CRA Contribution. 5.8 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, the Non -Profit Grant Agreement 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, the Non -Profit Grant Agreement and the Non -Profit Loan Documents prior to September 1, 2012 this Agreement shall be of no further force and effect, at the option of the Executive Director, in 9 which event the parties shall be released from all further obligations under this Agreement except for the obligations that expressly survive termination. 6. MINORITY AND WOMEN' S PARTICIPATION AND EQUAL EMPLOYMENT OPPORTUNITY. 6.1 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; (iii) Take reasonable defmitive 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 6. (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. 6.2 Participation Requirements. Developer agrees to comply with the following subcontractor participation requirements and laborer participation requirements (the "Participation Requirements") with respect to the Project: 6.2.1 Subcontractor Participation. The Developer shall cause its general contractor to hire not less than twenty percent (20%) of the subcontractors for the demolition of any existing improvements and construction of the Project utilizing companies that have their principal place of business either within the Redevelopment Area or within the City. First priority shall be given to subcontractors that have their principal place of business in the 10 Redevelopment Area. For purpose of calculating the twenty percent (20%) subcontractor participation, the twenty percent (20%) participation shall be calculated based upon the dollar value of each subcontract given to subcontractors whose principal place of business is in either the Redevelopment Area or the City and the total dollar value of all subcontracts entered into by the general contract for the Project ("Subcontractor Participation Requirement"). 6.2.2 Laborer Participation. Developer agrees to cause its general contractor and all subcontractors to hire forty percent (40%) of the unskilled labor for the demolition of any existing improvements and the construction of the Project ("Laborer Participation Requirement") from workers residing in either the Redevelopment Area or the City. First priority shall be given to unskilled laborers who reside in the Redevelopment Area. Within thirty (30) days of approval of the Plans, Developer shall submit to the Executive Director for review and approval Developer's estimate for the number of unskilled laborers which will be required for the demolition of any existing improvements and the construction of the Project (the "Labor Estimate"). The Executive Director shall have fifteen (15) days from receipt of the Labor Estimate to approve same which approval shall not be unreasonably withheld. The Developer shall provide to the Executive Director such additional back-up information as the Executive Director may reasonably request to enable the Executive Director to analyze the Labor Estimate. The Executive Director shall have fifteen (15) days after receipt of the Labor Estimate to approve same. If the Executive Director fails to timely respond to the Labor Estimate submitted by the Developer, same shall be deemed approved. In the event of disapproval, the Executive Director shall specify the reasons for such disapproval. In the event of disapproval the Developer shall modify the Labor Estimate as appropriate, to address the comments and concerns of the Executive Director. Any resubmission shall be subject to the approval of the Executive Director in accordance with the procedure outlined above for the original submission until it is approved or deemed approved by the Executive Director. The Executive Director and the Developer shall, in good faith, attempt to resolve any disputes regarding the Labor Estimate. If the Executive Director rejects the Labor Estimate two (2) times, the Developer may elect to submit such dispute regarding the approval of the Labor Estimate to the CRA Board for resolution. The Labor Estimate approved or deemed approved by the Executive Director shall be utilized by the Executive Director to determine compliance with the Laborer Participation Requirement unless Developer is able to establish manifest error in the Labor Estimate based upon the actual number of laborers required for demolition of the existing improvements and construction of the Project. 6.2.3 In the event of any disputes between the Executive Director and the Developer as to whether any subcontractor has its principal place of business in either the Redevelopment Area or the City or whether any laborer resides in either the Redevelopment Area or the City, the Developer and the Executive Director shall proceed in good faith to resolve the dispute. In the event the dispute is not resolved within ten (10) days either party may submit the dispute to the Board for resolution which shall be binding on the parties. 6.3 Report Requirements. The Developer shall be required to submit to the Executive Director on a monthly basis commencing upon the earlier to occur of (i) thirty (30) days after commencement of demolition of the existing improvements or (ii) the commencement of construction of the Project, detailed reports evidencing compliance with the Subcontractor Participation Requirements and the Laborer Participation. Requirements during the prior thirty 11 (30) day period ("Participation Reports"). The Participation Reports shall contain such information as the Executive Director may reasonably require to enable the Executive Director to determine whether the Developer is in compliance with the Subcontractor Participation Requirements and the Laborer Participation Requirements, including details of the priority procedure established for the Redevelopment Area. 6.3.1 Penalties for Non -Compliance with Subcontractor Participation Requirements. To the extent Developer fails to comply with the Subcontractor Participation Requirements, with respect to the Project, Developer shall pay to the CRA as a penalty for such non-compliance Two Thousand Five Hundred and No/100 Dollars ($2,500.00) for each percentage point below the Subcontractor Participation Requirement (the "Subcontractor Non - Compliance Funds"). The Subcontractor Non -Compliance Funds shall be calculated by the Executive Director after completion of the Project and shall be due and payable within thirty (30) days from the date of Developer's receipt of written statement from the Executive Director stating the amount of Subcontractor Non -Compliance Funds due. To the extent of any dispute between the Executive Director and the Developer with respect to the compliance with the Subcontractor Participation Requirements, such dispute shall be submitted to the CRA Board for resolution. The decision of the CRA Board shall be binding on the parties. 6.3.2 Penalties for Non Compliance with Laborer Participation Requirements. To the extent Developer fails to comply with the applicable Laborer Participation Requirements, with respect to the Project, Developer shall pay to the CRA as a penalty for such non compliance One Thousand and No/100 Dollars ($1,000.00) for each percentage point below the Laborer Participation Requirements (the "Laborer Non -Compliance Fund"). The Laborer Non -Compliance Funds shall be calculated by the Executive Director after completion of the Project and shall be due within thirty (30) from Developer's receipt of written statement from the Executive Director stating the amount of Laborer Non -Compliance Funds due. To the extent of any dispute between the Executive Director and the Developer with respect to the compliance with the Laborer Participation Requirements, such dispute shall be submitted to the CRA Board for resolution. The decision of the CRA Board shall be binding upon the parties. 7. INSURANCE. 7.1 From the Closing Date until Completion of the Project, the Developer shall maintain the insurance required by Exhibit "E" attached hereto and made a part hereof (the "Insurance Requirements"). 8. AFFORDABLE RENTAL HOUSING. 8.1 Affordable Rental Requirement. Developer shall rent one hundred percent (100%) of the residential units, except for one unit which will be rented to a property management employee provided such employee resided in the Redevelopment Area prior to moving into the unit, to qualified renters whose gross income is 60% or below the Miami -Dade County median income, (the "Affordable Rental Requirement") for a period of thirty (30) years from the date of the issuance of a certificate of occupancy or certificates of occupancy for all of the residential units in the Project. 12 8.2 Reporting Requirements and Compliance. 8.2.1 Affordable Rental Reports. From and after the issuance of the first certificate of occupancy for any residential unit, Developer shall be required to submit to the Executive Director, on an annual basis, reports evidencing compliance with the Affordable Rental Requirement (the "Affordable Rental Reports"). The Affordable Rental Reports shall consist of a certification to the CRA by an independent compliance agency which is selected by the Developer and reasonably acceptable to the Executive Director. 8.2.2 Disputes. To the extent of any disputes between Developer and the Executive Director with respect to whether the renters of the units meet the applicable requirements of Section 8.1, the dispute will be submitted to the CRA Board for resolution, which resolution shall be binding on the parties. 8.2.3 Penalties for Non -Compliance. To the extent that Developer fails to comply with the Affordable Rental Requirement, then in such event, Developer shall pay to the CRA, as a penalty for non-compliance with the Affordable Rental Requirement the sum of Five Thousand and No/100 Dollars ($5,000.00) for each unit which is not in compliance, determined on an annual basis. Any amounts, if any, due from Developer in accordance with this Section 8.3 shall be calculated annually as of each January 1st and paid by Developer within thirty (30) business day of notice by the CRA of the amount due. In addition, the CRA may pursue all remedies available at law or in equity to enforce compliance with the Affordable Rental Requirements. 8.3 At Closing the Developer and the CRA shall execute a restrictive covenant (the "Restrictive Covenant") which will run with the land for a period of thirty (30) years from Completion requiring the Developer and its successors or assigns to comply with the requirements of this Section 8 and other terms of this Agreement that survive the Closing. The Restrictive Covenant shall be in form and substance acceptable to the Executive Director. The County, as the fee simple owner of the Property, and the Ground Lessee must join in the Restrictive Covenant. 9. CRA CONDITIONS PRECEDENT. 9.1 The obligations of the CRA to close the transaction contemplated by this Agreement is subject to the satisfaction or waiver of the following conditions precedent (the "CRA Conditions Precedent"): 9.1.1 The Executive Director shall have approved the Budget. 9.1.2 The Executive Director shall have approved the Plans. 9.1.3 The Executive Director shall have approved the Construction Contract. 9.1.4 The Executive Director shall have approved the Project Schedule. 13 9.1.5 The Executive Director shall have approved the Loan Commitment for the Project. 9.1.6 The Executive Director shall have confirmed that Developer has sufficient equity to meet the requirements under the Loan Commitment for the construction of the Project taking into consideration the CRA Contribution. 9.1.7 The Executive Director, the Non -Profit, the Tax Credit Investor and the Lender have approved the Funding Agreement. 9.1.8 The Lender under the Loan Commitment is prepared to close the construction loan with respect to the Project in accordance with terms of the Loan Commitment. 9.1.9 The Executive Director shall have confirmed that (i) the Developer is controlled by AMC HTG 1 GP, LLC, the sole general partner of Developer (the "GP"); (ii) not less than twenty percent (20%) of the GP is owned by AM Affordable Housing, Inc. (the "CDC") and the balance of the GP is owned by HTG Affordable, LLC; (iii) HTG Affordable, LLC is controlled by Randy Rieger; and (iv) that there has been no other change in the ownership interest in the Developer other than the transfer of the up to 99.98% of the limited partnership interest in Developer to tax credit investors (the "Tax Credit Investors"). 9.1.10 The Executive Director has approved the estoppel letter from the County confirming that the Ground Lessee is current and in good standing under the terms of the Ground Lease and confirming that (i) the County has approved the Plans in accordance with Article VIII of the Ground Lease; (ii) the County has approved the Construction Contract; (iii) the County has approved the Payment and Performance Bond; and (iv) that Developer has complied with the insurance requirements of the Ground Lease. 9.1.11 The Executive Director has confirmed that the CDC has a twenty percent (20%) interest in the developer fee and profit earned by the Developer to be paid para passu with the amounts paid to the Developer and that CDC has twenty percent (20%) interest in the GP of Developer other than the interests transferred to the Tax Credit Investors. 9.1.12 Developer shall have provided to the Executive Director a payment and performance bond in form and substance satisfactory to the CRA in amount equal to one hundred percent (100%) of the constructions costs for the Project, which shall be issued by a surety having a credit rating of "A" or higher with a financial strength of X or higher (the "Payment and Performance Bond"). 9.1.13 The Developer has obtained a building permit to enable the Developer to construct the Project in accordance with the Plans. 9.1.14 The CRA. has approved the Non -Profit and the Non -Profit Loan Documents. 9.1.15 The Non -Profit has executed the Non -Profit Grant Agreement and the Funding Agreement. 14 9.1.16 The Executive Director has approved the estoppel letter from the Sublessor confirming that Developer is current and in good standing under the Sublease and that all requirements relating to the construction of the Project have been satisfied or waived by Sublessor. 9.1.17 Developer has provided the Executive Director evidence that the Developer has obtained the insurance coverage required by the Insurance Requirements. 9.1.18 The Developer has provided the Executive Director an environmental assessment report reflecting no environmental conditions that will adversely affect the development of the Project. 9.1.19 The Developer has provided the Executive Director soil test reports reflecting that soil conditions will not adversely affect the development of the Project. 9.1.20 The County has agreed to join in and consent to the Restrictive Covenant. 9.2 In the event the CRA Conditions Precedent are not satisfied or waived by the CRA on or before the Closing Date then the CRA may either (i) terminate this Agreement in which event the parties shall be released from all further obligations under this Agreement except for the obligations under this Agreement which expressly survive the termination of this Agreement, or (ii) waive the condition and proceed in accordance with this Agreement. 10. CLOSING DATE. 10.1 Closing. The closing of the transaction contemplated by this Agreement (the "Closing Date") shall occur on the earlier of (a) ten (10) days after all the CRA Conditions Precedent to closing have been either satisfied or waived by the CRA or (b) three hundred sixty (360) days after the CRA has obtained Bond Issue Approval, time being of the essence. On the Closing Date the following shall occur: 10.1.1 The CRA shall deliver to Developer at closing: 10.1.1.1 Certified copy of the resolution authorizing the execution and delivery of the documents contemplated by this Agreement. 10.1.1.2 The Funding Agreement executed by the CRA. 10.1.1.3 The Restrictive Covenant executed by the CRA. 10.2 Developer shall deliver to the CRA or cause to be delivered to the CRA at closing: 10.2.1 Evidence of authority to close the transaction and execute and deliver the appropriate closing documents. 10.2.2 Payment and Performance Bond. 15 10.2.3 The Funding Agreement executed by the Developer, the Non - Profit, the Tax Credit Investor and Lender. 10.2.4 A guaranty of the lien free completion of the Project executed by Randy Rieger and Balogh Family Partnership, LLC, in the form of Exhibit "G" attached hereto (the "Guaranty"). 10.2.5 The Restrictive Covenant executed by the Developer, the County and the Ground Lessee to be recorded prior to any mortgages encumbering the Property. 10.3 The cost for recording the Restrictive Covenant shall be paid by Developer. Each party shall bear the cost of the fees of their own respective attorneys and other professionals and the cost of their own respective performance under this Agreement. 11. REPRESENTATIONS OF CRA. 11.1 The CRA makes the following representations: 11.1.1 The CRA is duly organized and validly existing under the laws of the State of Florida and has full power and capacity to own its properties, to carry on its business as presently conducted by the CRA, and to perform its obligations under this Agreement. 11.1.2 The CRA's execution, delivery and performance of this Agreement have been duly authorized by all necessary legal actions and does not and shall not conflict with or constitute a default under any indenture, agreement or instrument to which the CRA is a party or by which the CRA or CRA's property may be bound or affected, except for such approvals required by this Agreement. 11.1.3 This Agreement constitutes the valid and binding obligation of the CRA, enforceable against the CRA, and its successors and assigns, in accordance with their respective terms, subject to bankruptcy, insolvency and other similar laws affecting the rights of creditors generally. 11.2 Survival of Representations. All of the representations of the CRA set forth in this Agreement shall be true upon the execution of this Agreement, shall be deemed to be repeated and as of the Closing Date, and shall be true as of the Closing Date. All of the representations, warranties and agreements of the CRA set forth in this Agreement shall survive the Closing until Completion. 12. DEVELOPER'S REPRESENTATIONS. 12.1 Developer makes the following representations to the CRA as follows: 12.1.1 Developer is a limited partnership duly organized and validly existing under the laws of the State of Florida, and have full power and capacity to own the Property, to carry on its business as presently conducted, and to enter into the transactions contemplated by this Agreement. 16 12.1.2 Developer's execution, delivery and performance of this Agreement has been duly authorized by all necessary partnership actions and does not and shall not conflict with or constitute a default under any indenture, agreement or instrument to which it is a party or by which it may be bound or affected. 12.1.3 This Agreement constitutes the valid and binding obligation of Developer, enforceable against Developer and its successors and assigns, in accordance with its respective terms, subject to bankruptcy, insolvency and other similar laws affecting the rights of creditors generally. 12.1.4 Exhibit "H" lists all the entities that have an ownership interest in the Developer as of the Effective Date of this Agreement, subject to the transfer of 99.98% of the limited partnership interest in the Developer to Tax Credit Investors. 12.1.5 The Developer owns good marketable and insurable leasehold interest in the Property pursuant to the Sublease, free and clear of all liens and encumbrances, other than the Permitted Exceptions. 12.1.6 To the best of Developer's knowledge, the Property is in compliance in all material respects with the following (herein collectively called the "Environmental Laws"): the Resource Conservation and Recovery Act of 1976 ("RCRA"), 41 U.S.C. § 6901, et seq., as amended, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by the Superfund Reauthorization Act of 1986 ("CERCLA"), 42 U.S.C. § 9601 et seq., and any other federal, state or local statute, law, ordinance, code, rule, regulation, order or decree regulating, relating to, or imposing liability or standards of conduct concerning, any hazardous substance. Developer has not received notice of any liens on the Property created, permitted or imposed by any Environmental Laws. Developer has not received written notice of or is aware of any actual, asserted or threatened, liability or obligation of the Developer, related to the Property, under any Environmental Laws. 12.1.7 No portion of the Property is being acquired by any government authority in the exercise of its power to condemn or to acquire through eminent domain or private purchase in lieu thereof nor, to the best of Developer's knowledge, are any of these proceedings or actions threatened or imminent. 12.1.8 The Ground Lease and the Sublease are in good standing and Developer shall comply with the terms and provisions of the Ground Lease and the Sublease. 12.2 Survival of Representations. All of the representations of the Developer set forth in this Agreement shall be true upon the execution of this Agreement, shall be deemed to be repeated and as of the Closing Date, and shall be true as of the Closing Date. All of the representations, warranties and agreements of the Developer set forth in this Agreement shall survive the Closing until Completion. 13. DEFAULT. 13.1 Developer Failure to Perform. 17 13.1.1 If the Conditions Precedent are not satisfied or waived by the CRA on or before the Closing Date, this Agreement shall terminate and the parties shall be released from all obligations under this Agreement. 13.1.2 In the event the Developer defaults with respect to its obligations under Sections 6 or 8, which default is not cured within thirty (30) days of written notice from the CRA or such longer period, if the default by its nature cannot be cured within the thirty (30) day period provided Developer commences the curative action within the thirty (30) day period and diligently pursues the cure until completion (not to exceed 90 days) the CRA shall be entitled to seek specific performance of this Agreement in addition to the penalties provided for in this Agreement. 13.1.3 In the event this Agreement contains any material misrepresentations by the Developer, the CRA, as its sole and exclusive remedy may terminate this Agreement, in which event the parties shall be released from all further obligations under this Agreement. 13.2 In the event of a default by the CRA under this Agreement which is not cured within ten (10) days of written notice from Developer, without any default on the part of Developer, Developer, as its sole and exclusive remedy, shall be entitled to (i) terminate this Agreement in which event the parties shall be released from all further obligations under this Agreement except for the obligations that expressly survive the termination, or (ii) sue for specific performance to enforce the terms of this Agreement. Developer waives any other remedies it may have against the CRA at law or in equity as a result of a breach of this Agreement. In the event of a termination of this Agreement, in which event the parties shall be released from all further obligations under this Agreement except for the obligations that expressly survive the termination. 14. BROKERS. The parties each represent and warrant to the other that there are no real estate broker(s), salesman (salesmen) or fmder(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. The provisions of this Paragraph shall survive the Closing. 15. ASSIGNABILITY. 15.1 This Agreement may not be assigned without the approval of the CRA, which approval may be granted or withheld by the CRA, in its sole discretion. For the purpose of this Section 15.1, 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: 18 (i) the change in control of Developer which is currently controlled by the GP; (ii) transfer of more than 20% of the membership interests in the Developer, except to the Tax Credit Investors; (iii) changes in control of the GP which is currently controlled by Randy Rieger. 16. 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: AMC HTG 1, Ltd. 3225 Aviation Ave., Suite 602 Miami, FL 33133 Attention: Matthew Rieger Email: mattr@htgf.com With a copy to: Albert Dotson, Jr. Bilzin Sumberg Baena Price and Axelrod LLP 1450 Brickell Avenue, 23`d Floor Miami, FL 33131 Email: adotson@bilzin.com With a copy to: If to CRA: Richard Deutch, Esq. Stearns Weaver Miller Weissler, Alhadeff and Sitterson, P.A. 150 West Flagler Street, Suite 2200 Miami, FL 33130 Fax: 305-789-2613 Email: rdeutch@stearnsweaver.com 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 19 With a copy to: William R. Bloom, Esq. Holland & Knight, LLP Suite 3000 701 Brickell Avenue Miami, FL 33131 Fax: 305-789-7799 And with a copy to: Carmen R. Cabarga, Esq. Southeast Overtown/Park West Community Redevelopment Agency 49 N.W. 5tn Street, Suite 100 Miami, FL 33128 Fax: 305-679-6836 Notices personally delivered or sent by fax shall be deemed given on the date of delivery and notices mailed in accordance with the foregoing shall be deemed given upon receipt or the date delivery is refused. 17. CHALLENGES. Developer acknowledges and agrees that the CRA shall have no liability whatsoever to Developer in connection with any challenge to this Agreement and the transaction contemplated by this Agreement and Developer hereby forever waives and releases the CRA from any liability whatsoever, now or hereafter arising in connection with any challenge and covenant and agree not to initiate any legal proceedings against the CRA in connection with any challenges to this Agreement by any third parties. 18. REAL ESTATE TAXES. 18.1 It is the intention of the CRA and 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. 18.2 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 other liens and encumbrances and shall be binding upon the Developer and its successors and assigns through December 31, 2029. 20 19. MISCELLANEOUS. 19.1.1 This Agreement shall be construed and governed in accordance with the laws of the State of Florida. Venue shall be in Miami -Dade County, Florida. All of the parties to this Agreement have participated fully in the negotiation and preparation hereof, and, accordingly, this Agreement shall not be more strictly construed against any one of the parties hereto. 19.1.2 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. 19.1.3 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. 19.1.4 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. 19.1.5 All of the exhibits attached to this Agreement are incorporated in, and made a part of, this Agreement. 19.1.6 Time shall be of the essence for each and every provision of this Agreement. 19.1.7 This Agreement may not be recorded in the Public Records of Miami -Dade County. 19.1.8 The "Effective Date" shall mean the date this Agreement is last executed by Developer and the CRA. 19.1.9 Developer acknowledges and agrees that other than the CRA Contribution, the Developer shall not be entitled to any tax increment funds generated by the Project. Developer waives any claims regarding the tax increment funds generated by the Proj ect. 19.1.10 The Developer acknowledges and agrees that the Developer has no obligation to repay the CRA Bond Issue. 21 20. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and there are no other agreements, representations or warranties other than as set forth herein. This Agreement may not be changed, altered or modified except by an instrument in writing signed by the party against whom enforcement of such change would be sought. This Agreement shall be binding upon the parties hereto and their respective successors and permitted assigns. [SIGNATURE PAGES TO FOLLOW] 22 IN WITNESS hereof the parties have executed this Agreement as of the date first above written. DEVELOPER: AMC HTG 1, LTD., a Florida limited partnership By: AMC HTG GP 1, LLC, A Florida limited liability company, Its general partner By: Name: Randy Rieger Title: Manager CRA: SOUTHEAST OVERTOWN / PARK WEST COMMUNITY REDEVELOPMENT AGENCY By: Clarence E. Woods, III, Executive Director ATTEST: Priscilla A. Thompson, Clerk of the Board Approved for legal sufficiency By: William R. Bloom, Esq. Holland & Knight LLP, Special Counsel to CRA APPROVED AS TO INSURANCE REQUIREMENTS: Francisco Gomez, Jr., Risk Management Administrator 23 A. Legal Description B. Permitted Exceptions C. Preliminary Project Budget D. Non -Profit Grant Agreement E. Insurance Requirements F. Guaranty of Completion G. Ownership Interests Schedule of Exhibits 24 EXHIBIT A LEGAL DESCRIPTION a SITE LOCATION N.W. lTth Stroh! N.W. 16th STREET K.W. lsth smaETJ LOCATION MAP A PORTION OF SECTION 36, TOWNSHIP 53 SOUTH, RANGE 41 EAST. -3 MIAMI—DADE COUNTY, FLORIDA (NOT TO SCALE) t SURVEYORS NOTES: 1)—This is not o Boundary Survey, but only a GRAPHIC DEPICTION of the description shown hereon. i 2—Not valid without the signature and the original raised seal of a Florida Licensed Surveyor i and Mapper. Additions or deletions to survey maps or reports by other than the signing porty or parties Is prohibited without written consent of the signing party or parties. r 3) —There may be additional Restrictions not shown on this Sketch & Legal that may be found 1 In the Public Records of this County, Exominotlon of ABSTRACT OF TITLE will be made to determine recorded Instruments, If any affecting this property. 14) —North arrow direction and bearing shown hereon ore based on:ossumed value of NO1'34'19"W along the center line of N.W. 4st Avenue as shown on the recorded, tiPlat Book 87 Page 52 Miami —Dade County, Florida. 5) —The Sketch and Legal Description shown herein is based on (he Information provided by the Client. 6) —No title research hos been perforated to determine If there are ony conflict existing or arising out § of the creation of the easements, Right of Ways, Parcel Descriptions, or any other type of �k encumbrances that the herein described legal may be utilizes for. �SURVEYOR'S CERTIFICATE: I Hereby Certify to the best of my knowledge and belief that this drawing Is a true and correct ,p representation of the SKETCH AND LEGAL DESCRIPTION of the real property described hereon. I further certify that thle sketch was prepared In accordance with the applicable provisions of Chapter 61G17-6, Florida Administrative Code. Ford, Armenteros & Mammy, Inc. Dole: October 8, 2008. Ed J. Fernann ez, P.S,M. Professional Surveyor and Mapper State of Florida, Registration No.5676 • CULMER CENTER 1600 NW 3rd AVE-PARCEL C "' ---- SKETCH AND LEGAL DESCRIPTION • FORD, ARMENTEROS & MANUCY, INC. •-�' 1950 N.W. 94th AVENUE, 2nd FLOOR •� MIAMI, FLORIDA 33172 PH, (3051477.8472 FAX (305) 470.2805 1Q111O SKETCH OF SURVEY "•"""' HOUSING TRUST GROUP, LLC our a LO. wx: 10.08-00 yp O6am ft WA e°a' " 08-047-1000 am: 1 or 3 acre 25 A � � LEGAL DESCRIPTION: A portion of Tract "10', of "TOWNPARK SUBDIVISION 4 U.R. PROJECT FLA. R-10", according to the Plat thereof, os recorded in Plat Book 87, Page 52, of the Public Records of Miami —Dade County, Florida. More particularly described as follows: Commence at the Southeast corner of sold Tract 10; thence S87deg49min21secW, along the South line of said Tract 10 for 170.98 feet to the POINT OF BEGINNING of the hereinafter described parcel of land; thence NO2deg26min09secW, for a diostonce of 96.17 feet; thence S88deg29min15secW, for a distance of 18.76 feet; thence S88deg25min41secW, for a distance of 127.00 feet; thence N01deg32min10secW, for a distance of 97.52 feet to a point on the South line of o 40.00 feet Utility Easement; thence S87deg43mIn18secW, along sold South Line of o 40.00 feet Utility Easement, for a distance of 153.71 feet; the next three(3) courses and distances being along the West Line of said Tract 10; 1) thence S01deg34min19secE, for o -2 distance of 133.50 feet to a point of curvature of a circular curve to the left, 2) concave to the Northeast; thence South, Southeasterly along the arc of said curve, having for its elements a rodius of 25.00 feet, through a central angle of 57deg46min09sec for an arc distance of 25.21 feet to a point of reverse curvature of a circular curve to the right, 3) concave to the Southwest; thence Southeasterly along the arc of said curve, having for its elements o radius of 50.00 feet, through a central angle of 55deg05min44sec for an arc distance of 48.08 feet to a point on the South Line of said Tract 10, thence N87deg49min21secE, along said South Line, for a distance of 265.92 feet to the POINT OF BEGINNING, Containing 42,996.51 Square Feet or 0.9D Acres more or Tess. LEGEND P.QC - MKT Cr COiADiCE ROB, - PONT OF BMW P.0.1. - PONT OF 1EIOMMA1D P B. - PUT 800K PG - PACE - lI*MNr LIE - CUTTER 1ME A 1- ♦- 6- CULMER CENTER 1600 NW 3rd AVE-PARCEL C TMI°`"16" SKETCH AND LEGAL DESCRIPTION FORD, ARMENTEROS & MANUCY, INC. 1950 N,W. 94th AVENUE, 2nd FLOOR MIAMI, FLORIDA 33172 PH. (305) 477-6472 FAX (305) 470-2805 LEGAL DESCRIPTION TO ACCOMPANY SKETCH 'It HOUSING TRUST GROUP, LLC sat WWI it L.D. DAID 10.0646 ocOCOMPn 6GYL WA o® It roam 08-047.1000 2 v 3 arts 26 EDN A N.W. f11%!!/a 21, cl VII Ci Pi 17th STREET NoRTW UNE-bF'" cT 1 (P.B. 87, PG. 52) i- 1 10' O.REA 099Y SOUTHERNOIT BEM w Parcel A 20.00' BUILDING LINE (P.O. 67, PG. 52) 10' F Et FA5ENETIT r $ n I I 8 ' MALMO9 I 1 ( 1 t 1 1 t1 Parcel B 1 I li I 1 I I 1 I 10 (P.B.887 PG 52) i j 1 I t I 1 I ( I (` I --1 1 I 1 I 1 I 1 I 1 NORTH LINE OF 40' UTILITY EASEMENT I (P.B. 87. PG. 52) 587'4318-W 153.71 10' F.P.L. EASEMENT 1a+11 Parcel C 66.57"46.09. R.25.00" A.,25.21' 55'05'44" SOUTN LINE OF TRACT 10 2 �. \ 6r(P.B. 87, P0. 82) \A_48.G8 4 UTILITY EASEMENT 87, P0. 2) P 14. DPW Opp _—.4414ity A s Vra (P.B. SOUTH UNE OF 40. UTILITY EASEMENT 7, 388'29'15 18.78' 4 W 127.00 P.0.C. S.E. CORNER OF TRACT 10 (P.B. 87, PG. 52) S87'49' . i'W 170.98' PORTION OF TRACT 9 (P.B. 87, PG. 52) P.d.B. CULMER CENTER 1600 NW 3rd AVE-PARCEL C -E..— SKETCH AND LEGAL DESCRIPTION FORD, ARMEN1EROS & MANUCY, INC. 1950 N.W. 94th AVENUE, 2nd FLOOR MIAMI, FLORIDA 33172 PH. (305) 477-6472 FAX (305) 470-2805 aa1 "I' SKETCH TO ACCOMPANY EASEMENT LEGAL DESCRIPTION ' ' »'"` HOUSING TRUST GROUP, LLC our it LD. wx: 10-06-08 MA =DM EA r.�L9 awn WA "ow " 08.047.1000 3 3 9W 27 EXHIBIT B PERMITTED EXCEPTIONS 1. Resolution No. R478-67 recorded May 1, 1967, in Official Records Book 5467, Page 140 of the Public Records of Miami -Dade County, Florida. 2. Plat of TOWNPARK SUBDIVISION 4, recorded April 6, 1970, in Plat Book 87, Page 52, of the Public Records of Miami -Dade County, Florida. 3. Easement in favor of Florida Power and Light Company recorded April 1, 1976 in Official Records Book 9280, Page 491. 4. Easement for Underground Telephone Cable in favor of Southern Bell Telephone and Telegraph Company recorded January 28, 1981, in Official Records Book 10999, Page 1066. 5. Notification of an Extension to a Previously Approved Development of Regional Impact recorded on September 8, 2008 in Official Records Book 26557, Page 217 of the Public Records of Miami -Dade County, Florida. 6. Notification of an Extension to a Previously Approved Development of Regional Impact recorded on September 8, 2008 in Official Records Book 26557, Page 223 of the Public Records of Miami -Dade County, Florida. 28 EXHIBIT C PRELIMINARY PROJECT BUDGET 29 EXHIBIT D GRANT AGREEMENT THIS GRANT AGREEMENT (the "Agreement") is made of the day of , 2012, by and between , Inc., a not for profit Florida corporation (the "NON PROFIT") 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 CRA has entered into a development agreement dated as of June , 2012 (the "Development Agreement"), by and between the CRA and (the "Developer"), with respect to the development of a project consisting of not less than _ affordable rental units as more particularly described in the Development Agreement. B. Pursuant to the terms of the Development Agreement, the CRA has agreed to make a grant in an amount of up to Seven Million Five Hundred Thousand and No/100 Dollars ($7,500,000.00) (the "CRA Contribution") to the NON PROFIT which CRA Contribution will be loaned by the NON PROFIT to the Developer pursuant to the terms of the Development Agreement and this Agreement. C. The NON PROFIT and the CRA desire to enter into this Agreement to set forth the terms and provisions pursuant to which the CRA will make the CRA Contribution to the NON PROFIT and the NON PROFIT will loan the CRA Contribution to the Developer. NOW THEREFORE, for and in consideration of $10.00 and other good and valuable consideration and the covenants and agreements hereinafter set forth, the parties agree as follows: 21. RECITALS. The Recitals to this Agreement are true and correct and are incorporated herein by reference and made a part hereof. 22. DEFINED TERMS. All defined terms utilized in this Agreement but not defined in this Agreement shall have the meaning ascribed to said terms in the Development Agreement. 23. GRANT. Subject to the satisfaction of the Conditions Precedent, as hereinafter defined, the CRA agrees to make the CRA Contribution to the NON PROFIT, subject to adjustment in accordance with the terms of Section 7 of the Development Agreement. 24. USE OF CRA CONTRIBUTION. NON PROFIT covenants and agrees to use the CRA Contribution solely for the purpose of loaning the CRA Contribution to the Developer in accordance with the terms and provisions of the Loan Documents, as hereinafter defined and the Development Agreement. The NON PROFIT covenants and agrees to enter into the Funding Agreement contemplated by the Development Agreement. The NON PROFIT acknowledges 30 and agrees that the CRA will fund the CRA Contribution to the NON PROFIT in accordance with the terms of the Funding Agreement. The NON PROFIT covenants and agrees to not unreasonably withhold its consent to the terms and provisions of the Funding Agreement. 25. TERMS OF LOAN TO THE DEVELOPER. The NON PROFIT covenants and agrees to loan to the Developer the CRA Contribution (the "Loan") in accordance with the terms and provisions of the loan documents substantially in the form of Exhibit "A" attached hereto and made a part hereof (the "Loan Documents"). 26. REPAYMENT OF THE LOAN. In the event the Developer repays all or any portion of the Loan to the NON PROFIT, the NON PROFIT covenants and agrees to reinvest all such payments within sixty (60) days of the receipt of the funds from the Developer in other affordable housing projects located in the Redevelopment Area to be used for capital expenditures having a useful life extending beyond January 1, 2033 that are "community redevelopment" undertakings as defined in Section 163.340(9), Florida Statutes and as shall otherwise be approved in writing by the CRA. 27. CONDITIONS PRECEDENT. The obligations of the CRA to make the CRA Contribution to the NON PROFIT is subject to the satisfaction or waiver of the following conditions precedent (the "Conditions Precedent"): 27.1 All of the CRA Conditions Precedent set forth in Section of the Development Agreement have either been satisfied or waived by the CRA. 27.2 The closing of the transaction contemplated by the Development Agreement shall be consummated simultaneously with the funding of the CRA Contribution. 27.3 The NON PROFIT has executed the Funding Agreement. 27.4 The Developer and the NON PROFIT have executed the Loan Documents in substantially the form attached hereto. In the event the Conditions Precedent are not satisfied or waived by the CRA on or before the Closing Date, the CRA may either (i) terminate this Agreement, in which event the parties shall be released from all further obligations under this Agreement, or (ii) waive the conditions and proceed in accordance with this Agreement. 28. FUNDING OF THE CRA CONTRIBUTION. The CRA covenants and agrees to fund the CRA Contribution to the NON PROFIT simultaneously with the closing of the transaction contemplated by the Development Agreement providing all the Conditions Precedent have been satisfied. 29. REPRESENTATIONS OF THE CRA. The CRA makes the following representations: 29.1.1 The CRA is duly organized and validly existing under the laws of the State of Florida and has full power and capacity to own its properties, to carry out its business as presently conducted by the CRA and perform its obligations under this Agreement. 31 29.1.2 The CRA's execution, delivery and performance of this Agreement have been duly authorized by all necessary legal actions and does not and shall not conflict with or constitute a default under any indenture, agreement or instrument to which the CRA is a party or by which the CRA or the CRA's properties may be bound or affected. 29.1.3 This Agreement constitutes the valid and binding obligation of the CRA enforceable against the CRA in accordance with its terms, subject to bankruptcy, insolvency and other similar laws affecting the rights of creditors generally. 30. REPRESENTATIONS OF THE NON PROFIT. The NON PROFIT makes the following representations: 30.1.1 The NON PROFIT is a corporation duly organized and validly existing under the laws of the State of Florida and has full power and capacity to carry out its businesses as currently conducted and to enter into the transactions contemplated by this Agreement and the Funding Agreement. 30.1.2 The execution, delivery and performance of this Agreement have been duly authorized by all necessary corporate 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. 30.1.3 The NON PROFIT (i) is an organization described in Section 501(c)(3) of the Code, (ii) has received a letter or other notification from the Internal Revenue Service to that effect and such letter or other notification has not been modified, limited or revoked, (iii) is in compliance with all terms, conditions and limitations, if any, contained in such letter or other notification, it being expressly represented that the facts and circumstances which form the basis of such letter or other notification as represented to the Internal Revenue Service continue to exist, (iv) is exempt from federal income taxes under Section 501(a) of the Code and (v) is not. controlled in any way by the Developer, the CRA, the City of Miami, Florida or Miami -Dade County, Florida, or the State of Florida within the meaning of Treasury Regulation § 1.150-1(b). 30.1.4 The NON PROFIT has all requisite power and authority necessary to own, lease and operate its properties, to carry on its activities as now conducted and as presently proposed to be conducted and is, or will be, duly authorized to operate the loan the proceeds, under the laws, rulings, regulations and ordinances of the State of Florida and the departments, agencies and political subdivisions thereof. 30.1.5 Neither the execution and delivery of this Agreement or the Funding Agreement and the other documents contemplated thereby to which the NON PROFIT is a party or the consummation of the transactions contemplated thereby nor the fulfillment of or compliance with the provisions of any of the other documents contemplated thereby, will conflict with or result in a breach of or constitute a default by the NON PROFIT under any applicable law or ordinance of the State of Florida or any applicable political subdivision thereof or of the NON PROFIT's articles of incorporation or bylaws, or any corporate restriction or any agreement or instrument to which the NON PROFIT is a party or by which it is bound, or result in the creation or imposition of any lien of any nature upon any of the property of the NON 32 PROFIT under the terms of any such law, ordinance, articles of incorporation or bylaws, restriction, agreement or instrument except as permitted by this Agreement and the Funding Agreement. 30.1.6 The NON PROFIT covenants that it (i) shall not perform any act or enter into any agreement which would adversely affect its federal income tax status and shall conduct its operations in the manner which conforms to the standards necessary to qualify the NON PROFIT as a charitable organization within the meaning of Section 501(c)(3) of the Code or any successor provisions of federal income tax law. 30.1.7 The NON PROFIT does not anticipate or have any intention or obligation to make any repayments to the CRA for repayment of the CRA Contribution except as provided in this Agreement. 30.1.8 Proceeds of the CRA Contribution will not be used to pay fees and expenses of the NON PROFIT. 30.1.9 This Agreement constitutes the valid and binding obligation of the NON PROFIT enforceable against the NON PROFIT in accordance with its terms, subject to bankruptcy, insolvency and other similar laws affecting the rights of creditors generally. 31. SURVIVAL OF REPRESENTATIONS. All the representations of the CRA and the NON PROFIT contained in this Agreement shall be trued and correct on the execution of this Agreement and shall be deemed to be repeated on the Closing Date and shall be true and correct on the Closing Date. All the representations and warranties contained in this Agreement shall survive the Closing. 32. ASSIGNABILITY. The rights and obligations under this Agreement may not be assigned by the NON PROFIT without prior written approval of the CRA, which may be granted or withheld in the sole discretion of the CRA. 33. 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 NON PROFIT: 33 With a copy to: If to CRA: SOUTHEAST OVERTOWN / PARK WEST COMMUNITY REDEVELOPMENT AGENCY Attention: Clarence E. Woods, III, Executive Director 49 N.W. 5th Street, Suite 100 Miami, FL 33128 Fax: 305-679-6836 With a copy to: William R. Bloom, Esq. Holland & Knight, LLP Suite 3000 701 Brickell Avenue Miami, FL 33131 Fax: 305-789-7799 And with a copy to: Carmen R. Cabarga, Esq. Southeast Overtown/Park West Community Redevelopment Agency 49 N.W. 5th Street, Suite 100 Miami, FL 33128 Fax: 305-679-6836 Notices personally delivered or sent by fax shall be deemed given on the date of delivery and notices mailed in accordance with the foregoing shall be deemed given upon receipt or the date delivery is refused. 34. MISCELLAENOUS. 34.1 This Agreement shall be construed and governed in accordance with the laws of the State of Florida. Venue shall be in Miami -Dade County, Florida. All of the parties to this Agreement have participated fully in the negotiation and preparation hereof, and, accordingly, this Agreement shall not be more strictly construed against any one of the parties hereto. 34 34.2 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. 34.3 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. 34.4 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. 34.5 All of the exhibits attached to this Agreement are incorporated in, and made a part of, this Agreement. 34.6 Time shall be of the essence for each and every provision of this Agreement. 34.7 This Agreement may not be recorded in the Public Records of Miami - Dade County. 34.8 The "Effective Date" shall mean the date this Agreement is last executed by NON PROFIT and the CRA. [Signatures on following page] 35 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written. 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 NON PROFIT: , Inc., a not for profit Florida corporation By: Name: Title: 36 #11374551 v2 EXHIBIT E INSURANCE REQUIREMENTS I. Commercial General Liability (Primary & Non Contributory) A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $1,000,000 General Aggregate Limit $2,000,000 Products/Completed Operations $1,000,000 Personal and Advertising Injury $1,000,000 B. Endorsements Required City of Miami and Southeast Overtown/Park West Community Redevelopment Agency as an Additional Insured (CG 2010 11/85 or its equivalent) Contingent Liability & Contractual Liability Premises & Operations Liability Explosion, Collapse and Underground Hazard II. Business Automobile Liability A. Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Any Auto/Owned Autos/Scheduled Including Hired, Borrowed or Non -Owned Autos Any One Accident $1,000,000 B. Endorsements Required City of Miami and Southeast Overtown/Park West Community Redevelopment Agency as Additional Insured III. Workers' Compensation Limits of Liability Statutory -State of Florida 37 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 and Southeast Overtown/Park West Community Redevelopment Agency as Additional Insured V. Owner's & Contractor's Protective Limits of Liability Each Occurrence Policy Aggregate $1,000,000 $1,000,000 City of Miami and Southeast Overtown/Park West Community Redevelopment Agency as Named Insured VI. Builders' Risk Causes of Loss: All Risk -Specific Coverage Project Location Valuation: Replacement Cost Deductible: $25,000 All other Perils 5% maximum on Wind City of Miami and Southeast Overtown/Park West Community Redevelopment 38 Agency as Additional Insured A. Limit/Value at Location or Site - Full Replacement B. Coverage Extensions as provided by insurer The above policies shall provide the City of Miami and Southeast Overtown/Park West Community Redevelopment Agency with written notice of cancellation or material change from the insurer not less than (30) days prior to any such cancellation or material change, or in accordance to policy provisions. Companies authorized to do business in the State of Florida, with the following qualifications, shall issue all insurance policies required above: The company must be rated no less than "A" as to management, and no less than "Class V" as to Financial Strength, by the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent. All policies and /or certificates of insurance are subject to review and verification by Risk Management prior to insurance approval. 39 EXHIBIT F GUARANTY OF COMPLETION GUARANTY OF COMPLETION THIS GUARANTY OF COMPLETION (the "Guaranty") is executed and delivered, jointly and severally, as of the day of , 2012 by Randy Rieger, an individual, and Balogh Family Partnership, LLC, a Florida limited liability company (each a "Guarantor", and collectively, the "Guarantors") in favor of SOUTHEAST OVERTOWN/PARK WEST COMMUNITY REDEVELOPMENT AGENCY, a public agency and body corporate created pursuant to Section 163.356, Florida Statutes (the "CRA"). WITNES SETH: A. AMC HTG 1, Ltd., a Florida limited partnership (the "Developer") has requested that the CRA make a grant to (the "Non -Profit") in the amount of Seven Million and Five Hundred Thousand and No/100 Dollars ($7,500,000.00) (the "Grant") pursuant to the terms and conditions of that Development Agreement dated as of , 2012, by and between Developer and the CRA as same may be amended from time to time, (the "Development Agreement") which Grant shall be loaned by the Non -Profit to the Developer in accordance with the terms of the Development Agreement and the Non -Profit Loan Documents. All terms not otherwise defined herein shall have the meanings set forth in the Development Agreement. B. Guarantors will benefit from the Grant and the transaction contemplated by the Development Agreement. C. The CRA would not make the Grant and enter into the Development Agreement with Developer unless Guarantors agreed to unconditionally guaranty completion of the Project in accordance with the Plans. NOW, THEREFORE, in consideration of the CRA's making the Grant and executing the Development Agreement, which it is acknowledged and agreed that CRA is doing in full reliance hereon, and as an inducement to •CRA to do so and to make advances pursuant thereto, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, each Guarantor hereby irrevocably covenants, warrants and agrees as follows: 1. That notwithstanding any provision in the Development Agreement, the Funding Agreement, the Non -Profit Loan Documents or in any other agreement or document executed in connection therewith, each Guarantor hereby unconditionally and irrevocably guarantees to CRA the following: a. One hundred percent (100%) lien free completion of the Project in accordance with the Development Agreement, the Non -Profit Loan Documents and the Funding Agreement and substantially in accordance with the Plans, as evidenced by (i) the issuance of a final certificate of occupancy and use (or the equivalent) by the proper governmental authority as 40 to the Project to be constructed on the Property; (ii) the delivery by the design/supervising architect of a certificate of completion of the Project substantially in accordance with the Plans approved by CRA; (iii) the issuance by CRA and CRA's supervising architect/engineer of certificates of completion of the Project (completion of the Project shall include, but not be limited to completion of grading, landscaping, all necessary and appropriate utilities, streets, sidewalks, drainage and all on -site and off -site improvements as reflected on the Plans); and (iv) the delivery to CRA of a final as -built survey for the completed Project; and b. Full and punctual payment and discharge of all costs and expenses, in excess of the Grant amount, of any nature relating to the construction and the completion of the Project as the same become due and payable, and payment and discharge of all claims and demands for labor and/or materials used in the construction and the completion of the Improvements substantially in accordance with the Plans which are or, if unpaid, may become liens, claims or encumbrances on the Project. 2. Without limiting the generality of the preceding paragraph 1, each Guarantor hereby agrees: a. To perform, complete and pay for the construction required by the Development Agreement and Funding Agreement within the time period allotted therefor and to pay all costs and expenses of said construction and completion of the Project and all costs associated therewith, including any sum in excess of the Grant amount, and each Guarantor hereby indemnifies and agrees to save harmless CRA from all costs and expenses which CRA suffers as a result of the Project not being completed and paid for in the manner required and within the time period allotted therefor as set forth in the Development Agreement and the Funding Agreement. b. To indemnify and save CRA harmless from any and all costs, expenses and losses it may incur in connection with the Project (arising from any default by Developer under the Development Agreement or the Funding Agreement including, but not limited to losses, costs or expenses resulting from changes, alterations, modifications or deviations from the Plans previously approved by CRA; but excluding any costs, expenses and losses that may occur in connection with the Project as a result of the gross negligence or intentional misconduct of CRA, and to pay any and all such amounts to CRA within fifteen (15) days of written demand, which demand CRA may make upon any Guarantor without first having made demand upon Developer or any other party and without having exhausted any other remedy against Developer or any other party. c. In the event any mechanic's or materialman's liens should be filed, or should attach, with respect to the Property, to cause the removal of such liens or the posting of security against the consequences of their possible foreclosure within thirty (30) days of the filing of such liens; d. To pay the costs and fees of all architects and engineers employed by Developer in connection with the Project; 41 e. To pay within fifteen (15) days of written demand all of CRA's costs and expenses, including reasonable attorneys' fees and costs, incurred in the enforcement of this Guaranty. f. That it may be impossible to accurately measure the damages to CRA resulting from a breach of Guarantors' covenant to complete or to cause the completion of the construction and equipping of the Project, and that such a breach will cause irreparable injury to CRA, and that CRA may not have an adequate remedy at law in respect of such breach and, as a consequence, each Guarantor agrees that such covenant shall be specifically enforceable against it and each Guarantor hereby waives and agrees not to assert any defense against an action for specific performance of such covenant other than the defense that completion has been achieved with respect to the Project. The preceding sentence shall not prejudice CRA's rights to assert any and all claims for damages incurred as a result of Guarantors' default hereunder (beyond any applicable notice and cure periods), and CRA may, hold any Guarantor liable for all losses and damages sustained and expenses incurred by reason of the Developer or any Guarantor failing to construct, complete and equip the Project in accordance with the Plans, the Development Agreement and the Funding Agreement, including, without limitation, the cost of such completion and the payment of real estate taxes and insurance. 3. Each Guarantor hereby acknowledges and consents to the Plans, the disbursement schedule and the other terms and conditions of the Development Agreement and related documents governing the construction of the Project. 4. Each Guarantor hereby waives any and all requirements that CRA institute any action or proceeding, at law or in equity, against the Developer or against any other party or parties with respect to the Development Agreement, the Funding Agreement or any related document as a condition precedent to bringing any action against any Guarantor upon this Guaranty. All remedies afforded to CRA by reason of this Guaranty are separate and cumulative remedies and no one of such remedies, whether waived by CRA or not, shall be deemed to be an exclusion of any one of the other remedies available to CRA and shall not in any way limit or prejudice any other legal or equitable remedy which CRA may have. 5. Each Guarantor further agrees that Guarantors shall not be released from any obligations hereunder by reason of any amendment to or alteration of the terms and conditions of the Development Agreement, the Funding Agreement or of any related document, nor shall Guarantors' obligations hereunder be altered or impaired by any delay by CRA in enforcing the terms and obligations of the Development Agreement or the Funding Agreement by any waiver of any default by CRA under the Development Agreement, the Funding Agreement or any related document, it being the intention that each Guarantor shall remain fully liable hereunder, notwithstanding any such event. 6. No extension of the time of payment or performance of any obligation hereunder guaranteed, or the renewal thereof, nor delay in the enforcement thereof or of this Guaranty, or the taking, exchanging, surrender or release of other security therefor or the release or compromise of any liability of any party shall affect the liability of or in any manner release the Guarantors, and this Guaranty shall be a continuing one and remain in full force and effect until each and every obligation hereby guaranteed shall have been fully paid and performed. 42 7. That until the Project is fully erected, equipped and completed as aforesaid, and until each and all of the terms, covenants and conditions of this Guaranty are fully performed, Guarantors shall not be released by any act or thing which might, but for this provision of this Guaranty, be deemed a legal or equitable discharge of any Guarantor, or by reason of any waiver, extension, modification, forbearance or delay by CRA and Guarantors hereby expressly waive and surrender any defense to Guarantors' liability hereunder based upon any of the foregoing acts, things, agreements or waivers. Guarantors shall be released from this Guaranty upon the earlier to occur of completion of the Project, lien -free and otherwise in accordance with the requirements of the Development Agreement, the Funding Agreement and substantially in accordance with the Plans. 8. Except as otherwise set forth herein, CRA shall not be required to give any notice to any Guarantor hereunder in order to preserve or enforce CRA's rights hereunder (including, without limitation, notice of any default under or amendment to the Development Agreement or the Funding Agreement), any such notice being expressly waived by Guarantors. 9. Guarantors agree that Guarantors shall make no claim or set-off, defense, recoupment or counterclaim of any sort whatsoever, nor shall Guarantors seek to impair, limit or defeat in any way their obligations hereunder. Guarantors hereby waive any right to such a claim in limitation of their obligations hereunder. 10. This Guaranty is assignable by CRA and shall bind the heirs, devisees, personal representatives, successors and assigns of the parties hereto and shall inure to the benefit of any successor or assign of CRA. 11. This Guaranty shall, in all respects, be governed by and construed in accordance with the laws of the State of Florida, including all matters of construction, validity and performance. 12. In the event that any provision of this Guaranty is held to be void or unenforceable, all other provisions shall remain unaffected and be enforceable. 13. Except as otherwise set forth herein, each Guarantor hereby waives notice of acceptance of this Guaranty by CRA and of presentment, demand, protest, notice of protest and of dishonor, notice of default and all other notices relative to this Guaranty of every kind and description now or hereafter provided by any agreement between Developer and CRA or any statute or rule of law, except only any notices expressly required hereunder. 14. Any notice, demand or request by CRA to any Guarantor or from any Guarantor to CRA shall be in writing and shall be deemed to have been duly given or made if either delivered personally or if mailed by certified or registered mail, addressed to the address set forth below (or at the correct address of any assignee of CRA), except that mailed written notices shall not be deemed given or served until three days after the date of mailing thereof: 43 a. If to CRA: SOUTHEAST OVERTOWN / PARK WEST COMMUNITY REDEVELOPMENT AGENCY Attention: Clarence E. Woods, III, Executive Director 49 N.W. 5th Street Suite 100 Miami, FL 33128 Fax: 305-679-6836 b. If to Guarantors: and EACH GUARANTOR HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHTS EACH MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THE NOTE, THIS GUARANTY AND ANY DOCUMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTION OF ANY GUARANTOR, DEVELOPER OR CRA. [Signature Pages to Follow] 44 IN WITNESS WHEREOF, Guarantors have executed this Guaranty as of the day and year first above written. WITNESSES: Print Name: Print Name: Print Name: Print Name: Balogh Family Partnership, LLC, a Florida limited liability company By: Name: Title: Randy Rieger, individually 45 STATE OF FLORIDA ): ss. COUNTY OF MIAMI-DADE The foregoing instrument was acknowledged before me this day of , 201_, by Randy Rieger, as Manager of Balogh Family Partnership, LLC, a Florida limited liability company, on behalf of the limited liability company. He is personally known to me or has produced as identification. Notary Public Name of Notary Printed: My commission expires: (NOTARY SEAL) My commission number is: STATE OF FLORIDA ): ss. COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me this day of , 201_, by Randy Rieger. He is personally known to me or has produced as identification. My commission expires: My commission number is: Notary Public Name of Notary Printed: (NOTARY SEAL) 46 EXHIBIT H OWNERSHIP INTEREST ORGANIZATIONAL CHART FOR AMC HTG 1, LTD. Lr3usevoider _ AMC'HTa4 iL.T1 EIortdaPfirt itod partnership e 39 3Yn Umited Rrtner Ptaceholde • Fkwslrl TrustGraup LLC iprld iunited k biIi{y company prtr for L.ri c Mourning' Director P,13CR Furst. 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