HomeMy WebLinkAboutCRA-R-12-0055 07-30-2012 Legislation with attachmentsCity of Miami
Legislation
CRA Resolution
City Hall
3500 Pan American
Drive
Miami, FL 33133
www.miamigov.com
File Number: 12-00822
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 ST. JOHN COMMUNITY DEVELOPMENT CORPORATION, INC., A
FLORIDA COMPANY, FOR THE DEVELOPMENT OF A MIXED -USE
DEVELOPMENT, ON NORTHWEST 3RD AVENUE AND 13TH STREET, MIAMI,
FLORIDA, CONSISTING OF BETWEEN 90 AND 120 AFFORDABLE RENTAL
UNITS WITH GROUND FLOOR COMMERCIAL SPACE OF APPROXIMATELY
15,000 SQUARE FEET, WHICH DEVELOPMENT AGREEMENT INCLUDES THE
MAKING OF A GRANT IN AN AMOUNT NOT TO EXCEED $10,000,000.00 FOR
THE RESIDENTIAL PORTION OF THE PROJECT; 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, St. John Community Development Corporation, Inc. submitted their proposed
project on April 17th, 2012; and
WHEREAS, the CRA staff evaluated the responses and St. John Community Development
Corporation, Inc. was selected by the CRA staff; and
WHEREAS, the proposal submitted by St. John Community Development Corporation, Inc.,
consisted of affordable rental units and commercial/retail space; and
WHEREAS, the Board of Commissioners wishes to authorize the Executive Director to enter into
City of Miami Page 1 of 2 File Id: 12-00822 (Version: 1) Printed On: 7/20/2012
File Number: 12-00822
the development agreement, in substantially the attached form (the "Development Agreement"), with
St. John Community Development Corporation, Inc., a Florida company, for the development of a
mixed -use development, on Northwest 3rd Avenue and 13th Street, Miami, Florida, consisting of
between 90 and 120 affordable rental units with ground floor commercial space of approximately
15,000 square feet, which development agreement includes the making of a grant in an amount not to
exceed $10,000,000.00 for the residential portion of the Project; 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 St. John Community Development Corporation,
Inc., a Florida company, for the development of a mixed -use development, on Northwest 3rd Avenue
and 13th Street, Miami, Florida, consisting of between 90 and 120 affordable rental units with ground
floor commercial space of approximately 15,000 square feet, which development agreement includes
the making of a grant in an amount not to exceed $10,000,000.00 for the residential portion of the
Project.
Section 3. The Executive Director is authorized to execute and amend all documents
necessary for said purpose, in a form acceptable to Special Counsel.
Section 4. This resolution 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: 12-00822 (Version: 1) Printed On: 7/20/2012
MICHELLE SPENCE-JONES
SEOPW Board Chair
Request Date:
Requester:
Purpose:
REQUEST FOR INFORMATION
RFI No. 12-04
April 2, 2012
Pieter A. Bockweg, Executive Director
CRA Mixed -Use Development Projects
PIETER A. BOCKWEG
Executive Director
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 nix -use project; site plan and renderings, project budget
(bard 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 rector
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
1311) ITEM: CRA Mixed -Use Development Projects
MI) NUMBER: RFI No. 12-04
DATE 131D OPENED: Tuesday, April 17, 2012
TIME:
2:00 PM
BIDDER
BASE BID
BID BOND (ER)
AMOUNT
CASHIER'S
CHECK
AMC' 1'1TG 1, Ltd. - c/o: 1-lousing Trust Group
See Attached
Sec Attached —
Urban League of Greater Miami, Inc. - New Urban
Development, LLC.
See Attached
See Attached
Biscayne
Housing Group
See Attached
See Attached
Pecs
011
ivin1g Bid(s)
/S7, •t_
Receiv
id(s) on behalf _ Community Redevelopment Agency
Den<trtmlent
PREPARED BY:
1 oday's Date
Deputy City Clerk
MICHELCE SPENCE- JONES
SEOPW Board CHair
PIETER A BOCKWEO
Executive Director
PUBLIC NOTICE
SOUTHEAST OVERTOWN/PARK WEST
COMMUNITY REDEVELOPMENT AGENCY
REQUEST FOR INFORMATION
CRA MIXED -USE DEVELOPMENT PROJECTS
RFI NO.12.04
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. The submitter must be able to
perform every element outlined In the Request for Information, RFI No. 12-04 ("RFI'.').
Submisslons should Include all required documents under the RFI and should be clearly marked on the
outside to read, "CRA— RFI Np. 12-04," Respondents must submit two (2) coples.to the City of Miami Clerk's
Office, 3'61J0 Pan American Drive, Miami, Florida 33133, by 2:00 p.m„ on Tuesday, Aprll' 17, 2012, Any re-
sponses received after the•above-date andtime, or delivered. to a different address, will not be considered.
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 Conirnunity 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 Executive Director
COMMUNITY REDEVELOPMENT AOENCY OF THE CITY OF MIAMI
49 Northwest 0th Street, Salle 1001 Mlamt, FL 33120•4811
' Tel: (30G) 879-0000' Fax (306) 079-08351 httplllwww,mlaml-ora.br9
i, • ' ' i ,l'•,it�
j' �,' •.. il:,.
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (the "Agreement") is made as of the day of
, 2012, by and between ST JOHN COMMUNITY DEVELOPMENT CORPORATION,
INC., a non profit Florida corporation (the "Developer" or the "CDC") 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, a proposal (the "Proposal") was submitted on behalf of
Developer 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").
D. Based upon the evaluations of all responses submitted to the CRA in response to
the RFI, the Proposal submitted by the CDC 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 Proposal.
E. Based upon such negotiations the CRA has agreed to make a grant to the
Developer, to be funded through a Non -Profit, as hereinafter defined, and the Developer has
agreed to develop the Project, as hereinafter defined, on the Property, subject to the tertiis and
conditions of this Agreement.
NOW THEREFORE, for and in consideration of the $10.00 and other good and valuable
consideration and of the covenants and agreements hereafter set forth, the parties agree as
follows:
1. RECITALS. The Recitals to this Agreement are true and correct and are
incorporated herein by reference and made a part hereof.
2. PROPERTY ISSUES.
2.1 Developer shall obtain a title insurance commitment (the "Commitment)
and a survey (the "Surve7) of the Property, at the Developer's sole cost and expense. The
Commitment and the Survey shall show the Developer to be vested in fee simple title to the
Property, free and clear of all liens and encumbrances except for the following (the `Permitted
Exceptiong'):
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 the Property 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.
3. PROJECT.
3.1 Description of the Project. The project (the "Project") shall consist of
between 90 and 120 affordable rental units, all with balconies and upgraded finishes to improve
longevity and durability with ground floor commercial space constructed in one or more
buildings not exceeding eight (8) 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 approximately 15,000
square feet of commercial space including approximately 8,000 square feet of space for a child
learning center and a sufficient number of parking spaces to comply with the applicable zoning.
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. Within sixty (60) days of the Effective Date, the
Developer shall present schematic design documents for the proposed Project to the Historic
Overtown Folk Life District Improvement Association ("HOFLDIA") and the Overtown
Community Oversight Board ("OCOB") for their review and comment. The schematic design
documents (the "Schematic Design Documents") shall consist, at a minimum, of the proposed
site plan for the Project, proposed building massing and elevations for the Project, an
architectural rendering of the Project of sufficient detail to allow the HOFLDIA and the OCOB
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to evaluate the proposed Project and its design and confirm that the proposed Project is
consistent with the Design Standards. The Developer shall revise the Schematic Design
Documents to address the comments and concerns of the HOFLDIA and the OCOB.
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 reasonable 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
3
reason for such disapproval. In the event of disapproval, Developer shall modify the Plans and
Specifications, as appropriate, to address the comments and concerns of the Executive Director
to cause the Plans and Specifications to be consistent with the Schematic Documents. Any
resubmission shall be subject to the approval of the Executive Director in accordance with the
procedure outlined above for the original submission until same is approved or deemed approved
by the Executive Director. The Executive Director and the Developer shall in good faith,
attempt to resolve any disputes regarding the Plans and Specifications. If the Executive Director
has rejected the Plans and Specifications two (2) times, the Developer 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 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
hereinafter defined, 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, hurricanes, floods, earthquakes, casualties, acts of the public enemy,
epidemics, quarantines, restrictions, embargos and area wide governmental restrictions. If the
Developer fails to achieve Completion within ninety (90) days of the Completion Date,
Developer shall pay to the CRA One Thousand and No/100 Dollars ($1,000.00) per day
thereafter until Completion. The term "Completion" shall mean the Project has been completed
substantially in accordance with the Plans and a temporary certificate of occupancy has been
issued by the City of Miami for all residential units comprising the Project and a certificate of
completion, or its equivalent, has been issued for all of the commercial space included in the
Project. This provision shall survive the closing.
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
4
Developer shall provide to the Executive Director such additional back-up information as the
Executive Director may reasonably request to enable the Executive Director to analyze all
aspects of the Project Budget. The Executive Director shall have fifteen (15) days after receipt
of the Project Budget to approve same. If the Executive Director fails to timely respond to the
Project Budget submitted by the Developer, same shall be deemed approved. In the event of
disapproval, the Executive Director shall identify the reasons for such disapproval. In the event
of disapproval, the Developer shall modify the Project Budget as appropriate, to address the
comments and concerns of the Executive Director. Any resubmission shall be subject to the
approval of the Executive Director in accordance with the procedure outlined above for the
original submission until same is approved or deemed approved by the Executive Director. The
Executive Director and the Developer shall, in good faith, attempt to resolve any disputes
regarding the Project Budget. If the Executive Director has rejected the Project Budget two (2)
times, the Developer may elect to submit such dispute regarding the approval of the Project
Budget to the CRA Board for resolution. The Project Budget, as approved or deemed approved
by the Executive Director, shall be deemed the "Budget". The Budget shall establish the amount
of the CRA Contribution.
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.
3.9 Guarantor. Developer shall submit to the Executive Director for approval
the individuals and/or entities (the "Guarantors") which will provide the Guaranty, as hereinafter
defined. The Developer shall provide the Executive Director such background information that
the Executive Director shall reasonably request regarding the Guarantors to enable the Executive
Director to evaluate the Guarantors ability to stand behind the Guaranty.
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 financial
institution evidencing that Developer has obtained a construction loan commitment for the
development of the Project (the`toan 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
5
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.
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"), and the Tax Credit Investor, as hereinafter defined, shall agree to
the terms of an agreement (the "Funding Agreement") in form and substance reasonably
acceptable to the Executive Director, which will provide for, without limitation, the following:
4.1.4.1 The deposit of the CRA Contribution, as hereinafter
defined, by the Non -Profit with the Lender, a title company or a trustee 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 by the Lender that 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.
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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 Ten Million and No/100 Dollars
($10,000,000.00) 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 waived by
the CRA. The CRA Contribution to the Non -Profit shall be loaned by the Non -Profit to the
Developer 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
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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").
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 CRA Bond Issue must be
approved by the CRA Board of Commissioners ("Bond Issue Approval"). If the CRA has not
obtained the CRA Bond 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
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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 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 definitive action in retaining employees regardless
of race, color, place of birth, religion, national origin, sex, age,
marital status, veterans and disability status;
iv) Maintain equitable principles in the recruitment, advertising,
hiring, upgrading, transfer, layoff, termination, compensation and
all other terms, conditions and privileges of employment;
v) Monitor and review all personnel practices to guarantee that equal
opportunities are being provided to all employees regardless of
race, color, place of birth, religion, national origin, sex, age,
marital status, veterans and disability status;
vi) Post in conspicuous places, availability to employees and
applicants for employment, notices in a form to be provided to the
Executive Director, setting forth the non-discrimination clauses of
this Section 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:
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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
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.
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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
(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 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
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(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.
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
Restrictive Covenant shall be prior to the rights of the Lender.
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.
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9.1.4 The Executive Director shall have approved the Project
Schedule.
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 the CDC; and (ii) that there has been no other change in the
ownership interest in the Developer other than the transfer of the up to 99.9% of the limited
partnership interest in Developer to tax credit investors (the "Tax Credit Investors").
9.1.10 The Executive Director has approved the proposed
development agreement between the Developer and qualified affordable housing developer (the
"Developer Entity") to oversee the construction of the Project subject to the limitations contained
in Section 5.2.
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 Entity to
be paid para passu with the amounts paid to the Developer Entity and that CDC has one hundred
percent (100%) interest in the Developer other than the interests transferred to the Tax Credit
Investors and the interest which may be transferred to the Developer Entity as permitted in
Section
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.
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9.1.16 Developer has provided the Executive Director evidence that
the Developer owns good marketable and insurable title to the Property subject only to the
Permitted Exceptions.
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 CRA has approved the Guarantors who shall execute the
Guaranty, as hereinafter defined.
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 A quit claim deed releasing the right of reverter
contained in that special warranty deed recorded August 8, 2009 in Official Records Book
21506, at Page 2004, of the Public Records of Miami -Dade County, Florida (the "Deed").
10.1.1.2 Certified copy of the resolution authorizing the
conveyance by the CRA and the execution and delivery of the documents contemplated by this
Agreement.
10.1.1.3 The Funding Agreement executed by the CRA.
10.1.1.4 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.
10.2.3 The Funding Agreement executed by the Developer, the Non -
Profit, the GP, the Tax Credit Investor and Lender.
10.2.4 A guaranty of the lien free completion of the Project executed by
the Guarantors in the form of Exhibit"F'attached hereto (the"GuarantD.
10.2.5 The Restrictive Covenant executed by the Developer, to be
recorded prior to any mortgages encumbering the Property.
10.3 The documentary stamp tax and surtax to be affixed to the Deed and the
cost for recording the Deed and 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:
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12.1.1 Developer is a non profit corporation 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.
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 99.9% of the
limited partnership interest in the Developer to tax credit investors.
12.1.5 The Developer owns good marketable and insurable fee simple
title to the Property, 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 se ., 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 Na., 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.
12.2 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.
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13.1 Developer Failure to Perform.
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 finder(s) involved in this transaction. If a claim for
commissions in connection with this transaction is made by any broker, salesman or finder
claiming to have dealt through or on behalf of one of the parties hereto (Indemnitof), Indemnitor
shall indemnify, defend and hold harmless the other party hereunder (Indemnited'), 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:
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(i)
the change in control of Developer which is currently controlled by
CDC;
(ii) transfer of more than 20% of the shares in the CDC;
15.2 Developer may form a new entity to be the "Developer" under this
Agreement provided that the CDC controls the general partner or managing member of such
entity and owns not less than 20% of such entity with the balance of the interest in the general
partner or managing member of such entity being owned by the Developer Entity and the Tax
Credit Investors owning the balance of the entity.
15.3 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:
St John Community Development Corp., Inc.
1324 NW 3rd Avenue
Miami, Florida 33136
Attention: Ola O. Aluko
Fax: 305-372-0682
With a copy to:
If to CRA:
Legal Services of Greater Miami
3000 Biscayne Blvd., Suite 500
Miami, Florida 33137
Attention: Shahrzad Emani
Fax: 305-576-5112
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
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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. 5 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.
16. 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.
17. REAL ESTATE TAXES.
17.1 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.
17.2 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.
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18. MISCELLANEOUS.
18.1 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.
18.2 In the event any team 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.
18.3 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.
18.4 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.
18.5 All of the exhibits attached to this Agreement are incorporated in, and
made a part of, this Agreement.
18.6 Time shall be of the essence for each and every provision of this
Agreement.
18.7 This Agreement may not be recorded in the Public Records of Miami -
Dade County.
18.8 The "Effective Date" shall mean the date this Agreement is last executed
by Developer and the CRA.
18.9 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 Project.
18.10 The Developer acknowledges and agrees that the Developer has no
obligation to repay the CRA Bond Issue.
19. 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]
20
IN WITNESS hereof the parties have executed this Agreement as of the date first above
written.
DEVELOPER:
ST JOHN COMMUNITY DEVELOPMENT CORPORATION,
a non profit Florida corporation
By:
Name:
Title:
CRA:
SOUTHEAST OVERTOWN / PARK WEST
COMMUNITY REDEVELOPMENT AGENCY
By:
Clarence E. Woods, III, Executive Director
ATTEST:
Priscilla A. Thompson,
Clerk of the Board
Approved for legal sufficiency
By:
William R. Bloom, Esq.
Holland & Knight LLP,
Special Counsel to CRA
APPROVED AS TO INSURANCE REQUIREMENTS:
Francisco Gomez, Jr., Risk Management Administrator
21
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
22
EXHIBIT A
LEGAL DESCRIPTION
PARCEL 1: (Official Records Book 13210, Page 176)
Beginning at the Southwest Comer of Block of Parry's Resubdivision of Lots 3 to 12 of Jape's
or Sost's Addition to the City of Miami, Then North 58.6 feet, East 70 feet, South 58.6 feet,
West 70 feet to the point of beginning, according to the plat of said subdivision recorded in Plat
Book "8", Page 163 of the Public Records of Dade County, Florida.
PARCEL 2: (Official Records Book 11615, Page 2245)
Lots 3 through 16, and the North 57.66 feet of Lots 17, 18 and 19, Block 1, of PARRY'S
DIVISION of Lots 3.4, 5, 6, 7, 8, 9, 10, 11 and 12 of Block 1 in JAPES ADDITION TO THE
CITY OF MIAMI according to the Plat as recorded in Plat Book B at Page 163 of the Public
Records of Dade County, Florida, less the following described parcel:
Begin at the Northeast corner of said Lot 19; thence run South 00" 16'1 0" East along the East
line of said Lot 19 for 25.66 feet; thence run North 61 "43'25" West, for 18.82 feet to the point of
curvature of a circular curve to the left having a radius of 1802.87 feet; thence run Northwesterly
along the arc of said curve3 through a central angle of 01 "08'29" for an arc distance of 35.91
feet; thence run North 89°56'40" East along the North line of said Lots 18 and 19 for 48.25 feet
to the Point of Beginning.
PARCEL 3: (Official Records Book 21506, Page 2004)
Parts of Lots 20 thru 22, BEGINNING 41.87 feet South of the northwest comer of Lot 20; thence
South 52.07 feet, thence East 79.74 feet, thence North 8.90 feet, thence northwest 90.6 feet to the
Point of Beginning; AND all of Lots 23 thru 26 and the East 50 feet of Lots 29 thru 38 and all of
Lots 39 thru 48, Block 1 of PARRY'S RESUBDIVISION OF SOST'S SUBDIVISION as
recorded in Plat Book B, Page 163, of the Public Records of Dade County, Florida.
PARCEL 4: (Official Records Book 24092, Page 3290)
Lots 26, 27 and 28 PARRY'S RESUB according to Plat Book B, Page 163 of the Public
Records of Miami -Dade County, Florida.
23
EXHIBIT B
PERMITTED EXCEPTIONS
NONE
24
EXHIBIT C
PRELIMINARY PROJECT BUDGET
St. John Plaza - Miami, FL
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181
25
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 Ten Million Dollars ($10,000,000.00) (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:
20. RECITALS. The Recitals to this Agreement are true and correct and are
incorporated herein by reference and made a part hereof.
21. 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.
22. 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.
23. 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
26
Agreement contemplated by the Development Agreement. The NON PROFIT acknowledges
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.
24. 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").
25. 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.
26. 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"):
26.1 All of the CRA Conditions Precedent set forth in Section of the
Development Agreement have either been satisfied or waived by the CRA.
26.2 The closing of the transaction contemplated by the Development
Agreement shall be consummated simultaneously with the funding of the CRA Contribution.
26.3 The NON PROFIT has executed the Funding Agreement.
26.4 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.
27. 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.
28. REPRESENTATIONS OF THE CRA. The CRA makes the following
representations:
27
28.1.1 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.
28.1.2 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.
28.1.3 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.
29. REPRESENTATIONS OF THE NON PROFIT. The NON PROFIT makes the
following representations:
29.1.1 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.
29.1.2 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.
29.1.3 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).
29.1.4 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.
29.1.5 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
28
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
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.
29.1.6 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.
29.1.7 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.
29.1.8 Proceeds of the CRA Contribution will not be used to pay fees and
expenses of the NON PROFIT.
29.1.9 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.
30. 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.
31. 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.
32. 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:
29
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.
33. MIS CELLAENOUS.
33.1 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.
30
33.2 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.
33.3 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.
33.4 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.
33.5 All of the exhibits attached to this Agreement are incorporated in, and
made a part of, this Agreement.
33.6 Time shall be of the essence for each and every provision of this
33.7 This Agreement may not be recorded in the Public Records of Miami-
33.8 The "Effective Date" shall mean the date this Agreement is last executed
by NON PROFIT and the CRA.
Agreement.
Dade County.
[Signatures on following page]
31
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:
a not for profit Florida corporation
By:
Name:
Title:
, Inc.,
32
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 & Southeast Overtown/Park West Community
Redevelopment Agency listed as an additional insured
III. Worker's Compensation
Limits of Liability
Statutory -State of Florida
Waiver of subrogation
Employer's Liability
33
A. Limits of Liability
$1,000,000 for bodily injury caused by an accident, each accident.
$1,000,000 for bodily injury caused by disease, each employee
$1,000,000 for bodily injury caused by disease, policy limit
IV. Umbrella Policy/Excess Liability (Excess Follow Form)
A. Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence $3,000,000
Aggregate $3,000,000
B. Endorsements Required
City of Miami & Southeast Overtown/Park West Community Redevelopment
Agency listed as an additional insured
V. Owner's & Contractor's Protective
Limits of Liability
Each Occurrence $1,000,000
Policy Aggregate $1,000,000
City of Miami and Southeast Overtown/Park West Community Redevelopment
Agency as Named Insured
VI. Builders' Risk
Causes of Loss: All Risk -Specific Coverage Project Location
Valuation: Replacement Cost
Deductible: $25,000 All other Perils
5% maximum on Wind
City of Miami and Southeast Overtown/Park West Community Redevelopment
Agency listed as an Additional Insured
A. Limit/Value at Location or Site - Full Replacement
B. Coverage Extensions as provided by insurer
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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 Besfs Insurance Guide, published by A.M. Best
Company, Oldwick, New Jersey, or its equivalent. All policies and /or certificates of
insurance are subject to review and verification by Risk Management prior to insurance
approval.
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EXHIBIT F
GUARANTY OF COMPLETION
GUARANTY OF COMPLETION
THIS GUARANTY OF COMPLETION (the"Guarant3) is executed and delivered, jointly
and severally, as of the day of , 2012 by , an individual, and
, 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").
WITNESSETH:
A. , Ltd., a Florida limited partnership (the "Developer") has requested
that the CRA make a grant to (the "Non -Profit") in the amount of Ten Million and
No/100 Dollars ($10,000,000.00) (the "Grant") pursuant to the terms and conditions of that
Development Agreement dated as of , 2012, by and between Developer and the
CRA as same may be amended from time to time, (the "Development Agreement") 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. [MUST AMEND TO
CONFORM TO DEAL]
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:
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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 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;
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d. To pay the costs and fees of all architects and engineers employed by
Developer in connection with the Project;
e. To pay within fifteen (15) days of written demand all of CRA's costs and
expenses, including reasonable attorneys' fees and costs, incurred in the enforcement of this
Guaranty.
f. That it may be impossible to accurately measure the damages to CRA
resulting from a breach of Guarantors' covenant to complete or to cause the completion of the
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
38
compromise of any liability of any party shall affect the liability of or in any manner release the
Guarantors, and this Guaranty shall be a continuing one and remain in full force and effect until
each and every obligation hereby guaranteed shall have been fully paid and performed.
7. That until the Project is fully erected, equipped and completed as aforesaid, and
until each and all of the terms, covenants and conditions of this Guaranty are fully performed,
Guarantors shall not be released by any act or thing which might, but for this provision of this
Guaranty, be deemed a legal or equitable discharge of any Guarantor, or by reason of any
waiver, extension, modification, forbearance or delay by CRA and Guarantors hereby expressly
waive and surrender any defense to Guarantors' liability hereunder based upon any of the
foregoing acts, things, agreements or waivers. Guarantors shall be released from this Guaranty
upon the earlier to occur of (i) completion of the Project, lien -free and otherwise in accordance
with the requirements of the Development Agreement, the Funding Agreement and substantially
in accordance with the Plans.
8. Except as otherwise set forth herein, CRA shall not be required to give any notice
to any Guarantor hereunder in order to preserve or enforce CRA's rights hereunder (including,
without limitation, notice of any default under or amendment to the Development Agreement or
the Funding Agreement), any such notice being expressly waived by Guarantors.
9. Guarantors agree that Guarantors shall make no claim or set-off, defense,
recoupment or counterclaim of any sort whatsoever, nor shall Guarantors seek to impair, limit or
defeat in any way their obligations hereunder. Guarantors hereby waive any right to such a
claim in limitation of their obligations hereunder.
10. This Guaranty is assignable by CRA and shall bind the heirs, devisees, personal
representatives, successors and assigns of the parties hereto and shall inure to the benefit of any
successor or assign of CRA.
11. This Guaranty shall, in all respects, be governed by and construed in accordance
with the laws of the State of Florida, including all matters of construction, validity and
performance.
12. In the event that any provision of this Guaranty is held to be void or
unenforceable, all other provisions shall remain unaffected and be enforceable.
13. Except as otherwise set forth herein, each Guarantor hereby waives notice of
acceptance of this Guaranty by CRA and of presentment, demand, protest, notice of protest and
of dishonor, notice of default and all other notices relative to this Guaranty of every kind and
description now or hereafter provided by any agreement between Developer and CRA or any
statute or rule of law, except only any notices expressly required hereunder.
14. Any notice, demand or request by CRA to any Guarantor or from any Guarantor
to CRA shall be in writing and shall be deemed to have been duly given or made if either
delivered personally or if mailed by certified or registered mail, addressed to the address set forth
below (or at the correct address of any assignee of CRA), except that mailed written notices shall
not be deemed given or served until three days after the date of mailing thereof:
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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]
40
IN WITNESS WHEREOF, Guarantors have executed this Guaranty as of the day and year
first above written.
WITNESSES:
Print Name: a
Print Name:
By:
Name:
Title:
Print Name: , individually
Print Name:
41
STATE OF FLORIDA )
): ss.
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this day of , 201_, by
Matthew S. Greer, as of , a , on behalf of the
limited liability companies. He is personally known to me or has produced as
identification.
Notary Public
Name of Notary Printed:
My commission expires: (NOTARY SEAL)
My commission number is:
STATE OF FLORIDA )
): ss.
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this day of , 201_, by
. 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)
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EXHIBIT G
OWNERSHIP INTEREST
St John Community Development Corporation, a non profit Florida corporation, owns 100% of
Developer as of the date of the Agreement.
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