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HomeMy WebLinkAboutCRA-R-13-0008 Legislation w attachment 1 of 6 -1-28-2013City of Miami Legislation CRA Resolution City Hall 3500 Pan American Drive Miami, FL 33133 www.miamigov.com File Number: 13-00098 Final Action Date: RESOLUTION OF THE BOARD OF COMMISSIONERS OF THE SOUTHEAST OVERTOWN/PARK WEST COMMUNITY REDEVELOPMENT AGENCY AUTHORIZING (i) THE EXECUTIVE DIRECTOR TO ENTER INTO A GRANT AGREEMENT WITH TOWN PARK PLAZA SOUTH, INC. IN SUBSTANTIALLY THE FORM ATTACHED HERETO WITH RESPECT TO THE TOWN PARK PLAZA SOUTH COOPERATIVE APARTMENT PROJECT; AND (ii) A GRANT AGREEMENT WITH TOWN PARK VILLAGE NO. 1, INC., IN SUBSTANTIALLY THE FORM ATTACHED HERETO WITH RESPECT TO THE TOWN PARK VILLAGE COOPERATIVE APARTMENT PROJECT AND RATIFICATION OF THE DEVELOPMENT AGREEMENTS PREVIOUSLY ENTERED INTO BY THE CRA WITH (i) ISLAND LIVING APARTMENTS, LTD. WITH RESPECT TO THE ISLAND LIVING APARTMENTS; (ii) LYRIC HOUSING, LTD. WITH RESPECT TO THE PLAZA AT THE LYRIC; (iii) ST JOHN PLAZAAPARTMENTS, LLC WITH RESPECT TO THE ST JOHN PLAZA APARTMENTS; AND (iv) AMC HTG I, LTD. WITH RESPECT TO THE CULMER CENTER PROJECT. WHEREAS, the Southeast Overtown/Park West Community Redevelopment Agency (the "CRA") is responsible for carrying out community redevelopment activities and projects within its Redevelopment Area; WHEREAS, the Board of Commissioners determined that in order to facilitate the redevelopment of the Redevelopment Area, it is in the best interests of the CRA to issue bonds to finance such redevelopment activities; WHEREAS, in anticipation of such debt financing, the Board of Commissioners, pursuant to CRA Resolution CRA-R-12-0028 passed on April 30, 2012 approved a list of projects (the "Projects") to be financed utilizing the proceeds from the bond issue; WHEREAS, the Board of Commissioners desires to authorize the Executive Director to enter into a grant agreement (the "Town Park Plaza Grant Agreement") with Town Park Plaza South, Inc. in the amount of $3,333,333.33 for the rehabilitation of the Town Park Plaza South cooperative apartment project (the "Town Park Plaza Project") which was one of the Projects to be financed utilizing proceeds from the bond issue; WHEREAS, the Board of Commissioners desires to authorize the Executive Director to enter into a grant agreement (the "Town Park Village Grant Agreement") with Town Park Village No. 1, Inc. in the amount of $3,333,333.33 for the rehabilitation of the Town Park Village cooperative apartment project (the "Town Park Village Project") which was one of the Projects to be financed utilizing proceeds from the bond issue; WHEREAS, the Board of Commissioners desires to ratify the Development Agreement by and between the CRA and Island Living Apartments, Ltd. with respect to the Island Living Project, which is City of Miami Page 1 of 3 File Id: 13-00098 (Version: 11 Printed On: 1/22/2013 File Number: 13-00098 one of the Projects to be financed utilizing proceeds from the bond issue which Development Agreement was previously authorized by the Board of Commissioners by CRA Resolution CRA-R-12-0039 passed on 5/29/2012; WHEREAS, the Board of Commissioners desires to ratify the Development Agreement by and between the CRA and Lyric Housing, Ltd. with respect to the Plaza at the Lyric Project, which is one of the Projects to be financed utilizing proceeds from the bond issue which Development Agreement was previously authorized by the Board of Commissioners by CRA Resolution CRA-R-12-0043 passed on 6/25/2012. WHEREAS, the Board of Commissioners desires to ratify the Development Agreement by and between the CRA and St John Plaza Apartments, LLC with respect to St John Plaza Apartments, which is one of the Projects to be financed utilizing proceeds from the bond issue which Development Agreement was previously authorized by the Board of Commissioners by CRA Resolution CRA-R-12-0055 passed on 7/30/2012. WHEREAS, the Board of Commissioners desires to ratify the Development Agreement between the CRA and AMC HTG 1, Ltd. with respect to the Culmer Center project, which is one of the Projects to be financed utilizing proceeds from the bond issue which Development Agreement was previously authorized by the Board of Commissioners by CRA Resolution CRA-R-12-0054 passed on 7/30/2012. 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 hereby incorporated by reference and made a part hereof. Section 2. The Board of Commissioners hereby authorizes the Executive Director to enter into the Town Park Plaza Grant Agreement with Town Park Plaza South, Inc. in the amount of $3,333,333.00 in substantially the form of Exhibit "A" attached hereto and made a part hereof. Section 3. The Board of Commissioners hereby authorizes the Executive Director to enter into the Town Park Village Grant Agreement with Town Park Village No. 1, Inc. in the amount of $3,333,333.00 in substantially the form of Exhibit "B" attached hereto and made a part hereof. Section 4. The Board of Commissioners hereby ratifies and reaffirms the Development Agreement by and between the CRA and Island Living Apartments, Ltd. in the form of Exhibit "C" attached hereto and made a part hereof (the "Island Living Development Agreement"). Section 5. The Board of Commissioners hereby ratifies and reaffirms the Development Agreement by and between the CRA and Lyric Housing, Ltd. in the form of Exhibit "D" attached hereto and made a part hereof (the "Lyric Development Agreement"). Section 6. The Board of Commissioners hereby ratifies and reaffirms the Development Agreement by and between the CRA and St John Plaza Apartments, LLC in the form of Exhibit "E" attached hereto and made a part hereof (the "St John Development Agreement"). Section 7. The Board of Commissioners hereby ratifies and reaffirms the Development City of Miami Page 2 of 3 File Id: 13-00098 (Version: 1) Printed On: 1/22/2013 File Number: 13-00098 Agreement by and between the CRA and AMC HTG I, Ltd., in the form of Exhibit "F" attached hereto and made a part hereof (the AMC Development Agreement; together with the Island Living Development Agreement, the Lyric Development Agreement and the St John Development Agreement, collectively, the "Development Agreements"). Section 8. The Board of Commissioners hereby authorizes the Executive Director, subject to approval by Special Counsel for form and legal sufficiency, to amend the Development Agreements, the Town Park Plaza Grant Agreement and the Town Park Village Grant Agreement as the Executive Director deems appropriate to facilitate the financing of the various projects utilizing the proceeds from the bond issue. Section 9. Funding of the Town Park Plaza Grant Agreement, Town Park Village Grant Agreement and the Development Agreements is subject to availability of the proceeds from the proposed bond issue by the CRA. Section 10. This resolution shall be effective immediately upon its adoption. APPROVED AS TO FORM AND CORRECTNESS: William R. Bloom Special Counsel City of Miami Page 3 of 3 File Id: 13-00098 (Version: I) Printed On: I/22/2013 GRANT AGREEMENT THIS GRANT AGREEMENT (the "Agreement") is made as of the _ day of January, 2013, by and between TOWN PARK PLAZA SOUTH, INC., a Florida corporation (the "Association"), and the SOUTHEAST OVERTOWNIPARK WEST COMMUNITY REDEVELOPMENT AGENCY, a public agency and body corporate created pursuant to Section 163.356, Florida Statutes (the "CRA"). RECITALS A. The Town Park Plaza South consists of 116 cooperative apartment units in a 17 building complex (the "Project") constructed in 1971 on that certain real property more particularly described on Exhibit "A" attached hereto and made a part hereof (the "Property"). B. The Project was subsidized through the U.S. Department of Housing and Urban Development Federal Housing Administration ("HUD") and made subject to a Regulatory Agreement dated June 23, 1970, recorded in Official Records Book 6895, at Page 988 of the Public Records of Miami -Dade County, Florida, as amended (the "Regulatory Agreement"). The Project is owned and operated by the Association as a cooperative housing development and shareholders of the Association have the right to use and occupy units within the Project in accordance with the terms of the standard operating occupant agreement for Town Park Plaza South, Inc. which is attached hereto as Exhibit "B" (the "Occupancy Agreement"). C. The Association is currently receiving Project Based Section 8 Housing Assistance Payments pursuant to a contract between the Association and HUD. D. The Project is suffering from long-standing deferred maintenance, structural., plumbing, and electrical problems and life safety issues and is contributing to slum and blight in the Redevelopment Area, as hereinafter defined. A gut rehabilitation of the Project is required in order to bring the Project into compliance with all applicable laws, make the Project habitable and prevent slum and blight in the Redevelopment Area. E. The Southeast Overtown/Park West area was designated as a community redevelopment area (the "Redevelopment Area") by the Board of County Commissioners of Miami -Dade County, a political subdivision of the State of Florida (the "County"). The finding of necessity dated (the "Finding of Necessity") and the redevelopment plan dated (the "Redevelopment Plan") were approved by the Commissioners of the City of Miami, a municipal corporation (the "City") and the Board of County Commissioners of Miami -Dade County. F. The Finding of Necessity and the Redevelopment PIan specifically contemplated the rehabilitation of the Project to improve the housing stock and elimination of slum and blight within the Redevelopment Area as reflected in the excerpts from the Finding of Necessity and Redevelopment Plan set forth on Exhibit "C" attached hereto and made a part hereof. G. The CRA desires to make a grant to the Association to assist the Association in renovating the Project, as hereinafter provided. 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. SELECTION OF DEVELOPER. 2.1 Selection Committee. Within thirty (30) days of the Effective Date of this Agreement the Association shall appoint two representatives to a selection committee (the "Selection Committee") and the executive director of the CRA (the "Executive Director") shall appoint three (3) members to the Selection Committee. One of the representatives appointed by the Executive Director shall serve as the chairperson of the Selection Committee (the "Chairperson"). The Selection Committee shall meet at the time and place designated by the Chairperson within fifteen (15) days of the appointment of all members to the Selection Committee and formulate the criteria for the selection of a developer (the "Developer") who shall be responsible for the formulation of a strategy for the implementation of the renovations to the Project, which shall include, without limitation, the following: (a) the development of a budget for the renovations to the Project; (b) preparing a scope of work to be performed in connection with the renovations to the Project; (c) securing funding sources in addition to the CRA Contribution, as hereinafter defined, to pay the cost for completing the renovations to the Project; (d) development of a strategy for retaining a contractor to perform the renovations to the Project; (e) overseeing the renovations performed by the contractor; and (t) developing a strategy for relocation of residents during the renovation process. 2.2 Request for Proposals. Within sixty (60) days from the Effective Date of this Agreement, the Selection Committee shall issue a request for proposals (the "RFP") seeking qualified individuals and/or entities to serve as the Developer. The RFP shall be issued consistent with the procedures customarily followed by the CRA in issuing requests for proposals, including, without limitation, advertising the RFP in community newspapers, on the City and CRA websites and through community outreach. The RFP shall require all respondents to respond to the RFP within thirty (30) days of the issuance of the RFP. 2.3 Information. The Association will provide to the Selection Committee all information in the Association's possession and control which the Selection Committee may reasonably request with respect to the Project and the Property to facilitate the ability of potential Developers to respond to the RFP. 2.4 Selection of Developer. The Selection Committee will select a Developer from the qualified respondents within thirty (30) days from the end of the RFP process. The Developer selected by the Selection Committee shall be obligated to comply with the terms and provisions of this Agreement and execute a joinder to this Agreement agreeing to be bound by all of the terms and provisions of this Agreement applicable to the Developer. 2 and subsequent years. 3. TITLE AND SURVEY. 3.1 Title and Survey. Within sixty (60) days from the date the Developer is selected in accordance with Section 2, the Developer shall obtain a title insurance commitment (the "Title Commitment") and a survey (the "Survey") with respect to the Property. The Title Commitment and the Survey shall show the Association to be vested in good and marketable fee simple title to the Project, subject only to the following (the "Permitted Exceptions"): 3.1.1 Ad valorem real estate taxes and assessments for the current year 3.1.2 All applicable Iaws, ordinances and governmental regulations, including, but not limited to, all applicable building, zoning, land use, environmental ordinances and regulations. 3.1.3 Those matters listed on Exhibit "D" attached hereto and made a part hereof. 3.2 Review of CRA. The Developer shall provide a copy of the Title Commitment and the Survey to the Executive Director as soon as same are available for review by the Executive Director to confirm that the Property is owned by the Association subject only to the Permitted Exceptions. 4. PROJECT REHABILITATION. 4.1 Preliminary Approval. Within one hundred fifty (150) days from the selection of the Developer by the Selection Committee, the Developer shall submit to the Executive Director and the Association for review and approval (a) the proposed scope of work for the Project (the "Scope of Work"); (b) the preliminary relocation plan for residents during construction (the "Relocation Plan"); and (c) the preliminary budget reflecting all anticipated costs and expenses in connection with the Project and all anticipated funding sources (the "Preliminary Budget"). The Developer shall provide the Executive Director and the Association such additional back-up information as the Executive Director and the Association may reasonably request to enable the Executive Director and the Association to analyze all aspects of the Scope of Work, the Relocation Plan and the Preliminary Budget. The Executive Director and the Association shall have thirty (30) days from the receipt of the Scope of Work, the Relocation Plan and the Preliminary Budget to approve same. In the event of disapproval, the Executive Director and the Association shall specify the reasons for such disapproval. In the event of disapproval, the Developer shall modify the Scope of Work, the Relocation Plan and the Preliminary Budget, as appropriate, to address the comments and concerns of the Executive Director and the Association. Any resubmission shall be subject to approval by the Executive Director and the Association in accordance with the procedure outlined above for the original submission until same is approved by the Executive Director and the Association. The Executive Director, the Association and the Developer shall proceed in good faith to attempt to resolve any disputes regarding the Scope of Work, the Relocation Plan and the Preliminary Budget. 3 4.2 Construction Documents. Within one hundred fifty (150) days of the later to occur of (a) approval of the Scope of Work, Relocation Plan and Preliminary Budget by the Executive Director and the Association; or (b) Bond Issue Approval, as hereinafter defined, the Developer shall submit to the Executive Director and the Association for their review and approval the plans and specifications for performance of the Scope of Work for the Project, which shall be of sufficient detail to allow the Developer to apply for permits for the Project Rehabilitation (the "Plans and Specifications"). The Plans and Specifications shall be subject to the approval of the Executive Director and the Association, which approval shall not be unreasonably withheld. 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 and the Association. The Developer shall provide to the Executive Director and the Association such additional back-up information as the Executive Director and the Association may reasonably request to enable the Executive Director and the Association to analyze the Plans and Specifications. The Executive Director and the Association shall have thirty (30) days from the receipt of the Plans and Specifications to approve same. In the event of disapproval, the Executive Director and the Association shall specify the reason for such disapproval. In the event of disapproval, Developer shall modify the Plans and Specifications, as appropriate, to address the comments and concerns of the Executive Director and the Association. Any resubmission shall be subject to the approval of the Executive Director and the Association in accordance with the procedure outlined above for the original submission until same is approved by the Executive Director and the Association. The Executive Director, the Association and the Developer shall in good faith, attempt to resolve any disputes regarding the Plans and Specifications. The Association, the Developer and the CRA agree that the Scope of Work may be adjusted, as necessary, to keep the Project Rehabilitation within the Budget, as hereinafter defined. The Plans and Specifications as approved by the Executive Director and the Association shall mean the "Plans". The term "Project Rehabilitation" shall mean the renovations to the Project in accordance with the Plans. 4.3 Development Requirements. Developer shall be required to complete the Project Rehabilitation substantially in accordance with the Plans. Any material variation to the Plans shall require approval of the Executive Director and the Association, which approval shall not be unreasonably withheld or delayed provided that same is in accordance the spirit and intent of Plans and this Agreement. 4.4 PROJECT SCHEDULE. Within thirty (30) days of approval of the Plans and Specifications by the Executive Director and the Association, the Developer shall submit to the Executive Director and the Association a project schedule (the "Project Schedule") which will include, without limitation, the Relocation Plan for each building to enable the Developer to complete the Project Rehabilitation in accordance with the Plans. The Project Schedule shall be subject to the approval of the Executive Director and the Association, which approval shall not be unreasonably withheld. The Developer agrees to utilize its good faith efforts to make modifications to the Project Schedule to satisfy the requirements of the Executive Director and the Association. The Developer shall provide to the Executive Director and the Association such additional backup information as the Executive Director and the Association may reasonably request to enable the Executive Director and the Association to analyze the Project Schedule. 4 The Executive Director and the Association shall have thirty (30) days from receipt of the Project Schedule to approve same. In the event of disapproval, the Executive Director and the Association shall specify the reasons for such disapproval. In the event of disapproval, the Developer shall modify the Project Schedule, as appropriate, to address the comments and concerns of the Executive Director and the Association. Any re -submission shall be subject to the approval of the Executive Director and the Association in accordance with the procedure outlined above for original submission until it is approved by the Executive Director and the Association. Once approved by the Executive Director and the Association, the Developer shall utilize its good faith efforts to complete the Project Rehabilitation in accordance with Plans and Project Schedule. 4.5 PROJECT BUDGET. A. As soon as available but in no event later than sixty (60) days after the approval of the ?lans and Specifications, the Developer shall submit to the Executive Director and the Association 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 Rehabilitation (the "Project Budget") including all anticipated costs and expenses to implement the Relocation PIan and including a ten percent (10%) contingency line item (the "Contingency Fund"). The Project Budget must reflect that there are sufficient funds available from all sources to complete the Project Rehabilitation in accordance with the Plans. If sufficient funds are not available the Scope of Work and Plans shall be adjusted with approval of the Executive Director and the Association to bring the Project Rehabilitation in line with the available funds. 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 and the Association. The Developer shall provide to the Executive Director and the Association such additional back-up information as the Executive Director and the Association may reasonably request to enable the Executive Director and the Association to analyze all aspects of the Project Budget. The Executive Director and the Association shall have thirty (30) days after receipt of the Project Budget to approve same. In the event of disapproval, the Executive Director and the Association 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 and the Association. Any resubmission shall be subject to the approval of the Executive Director and the Association in accordance with the procedure outlined above for the original submission until same is approved by the Executive Director and the Association. The Executive Director, the Association and the Developer shall, in good faith, attempt to resolve any disputes regarding the Project Budget. The Project Budget, as approved by the Executive Director and the Association, shall be deemed the "Budget". 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 Rehabilitation on behalf of the CRA. 5. DEVELOPMENT AND FINANCIAL APPROVALS. 5 5.1 Development of Project. As soon as available after the Effective Date, Developer shall submit to the Executive Director and the Association for review and approval, which approval shall not be unreasonably withheld, conditioned or delayed the following: 5.1.1 Construction Contract. The construction contract for the Project Rehabilitation (the "Construction Contract"), together with the "schedule of values", which shall include the obligation of the general contractor to comply with the participation requirements set forth in Section 8.2.1 and 8.2.2 of this Agreement. 5.1.2 Funding Sources. Evidence reasonably satisfactory to the Executive Director and the Association that Developer has sufficient funding sources available to meet the financial requirement of the Project Rehabilitation (the "Developer Funds") in the form of grants and loans from third parties. The Developer Funds together with the CRA Contribution must be sufficient to complete the Project Rehabilitation in accordance with the Plans, the Relocation Plan and the Budget. 5.2 The Executive Director and the Association shall have fifteen (15) days after receipt of each of the items required by Section 5.1 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. 6. CRA CONTRIBUTION. 6.1 The CRA covenants and agrees to make cash contribution to the Association in an amount of Three Million Three Hundred Thirty -Three Thousand Three Hundred Thirty -Three and 33/100 Dollars ($3,333,333.33) for the administration, design and development of the Project Rehabilitation (the "CRA Contribution"), provided all of the CRA Conditions Precedent are satisfied or waived by the Executive Director. Under no circumstances shall the CRA Contribution be increased notwithstanding any increases in. the Project Budget. 6.2 The CRA has advised the Association 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. 6.3 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 which shall include the CRA Contribution. The terms and conditions of the CRA Bond Issue must be approved by the CRA Board ("Bond Issue Approval"). If the CRA has not obtained the CRA Bond Issue on terms and conditions acceptable to the CRA, in its sole discretion, which CRA Bond Issue includes the CRA Contribution, 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. 6 7. DISBURSEMENT OF CRA CONTRIBUTION AND DEVELOPER FUNDS. 7.1 Budget. Disbursement of the CRA Contribution and the Developer Funds (collectively, the "Funds") shall be on a para pasu basis and be disbursed by the CRA in accordance with the Budget. The Developer Funds shall either be deposited with the CRA or held in a manner approved by the Executive Director, for disbursement in accordance with this Agreement. The Budget shall specify all costs and expenses of every kind and nature whatever to be incurred by Developer in connection with the Project Rehabilitation including the costs for implementation. The Budget shall include, in addition to the line items described in Section 7.2 below, the Contingency Fund described in Section 7.3 below. All changes to the Budget shall in all respects be subject to the prior written approval of the Executive Director, which approval shall not be unreasonably withheld or delayed. 7.2 Line Items. (a) The Budget shall include as line items ("Line Items"), to the extent determined to be applicable by the Executive Director in its reasonable discretion, all hard costs and soft costs for the completion of the Project Rehabilitation and implementation of the Relocation Plan. Developer agrees that all Funds disbursed by the CRA shall be used only for the Line Items for which such proceeds were designated and that there shall be no reallocation between Line Items except in connection with Savings, and in such case, only to the extent provided in Subsection (b) below. (b) If (i) expenses actually incurred in connection with any Line Item are less than the amount allocated to such item in the Budget ("Savings"), and (ii) the Developer provides evidence of the Savings that is reasonably satisfactory to the Executive Director, such Savings shall be allocated to the Contingency Fund to cover contingencies or cost overruns in other particular Line Items in the Budget. (c) The CRA shall not be obligated to disburse any amount for any (i) amount not set forth in the Budget or (ii) cost in connection with any Line Item which would cause the aggregate disbursements for such Line Item to exceed the lesser of (x) the actual cost incurred by the Developer with respect to such Line Item or (y) the amount set forth for such applicable Line Item in the Budget. 7.3 Contingency Fund. (d) The Budget shall contain a Line Item designated for the Contingency Fund. Borrower may from time to time request that the Contingency Fund be reallocated to pay needed costs of the Project Rehabilitation. All requests for allocations from the Contingency Fund shall be subject to the Executive Director's written approval, in its reasonable discretion. (e) Developer a grees that the decision with respect to utilizing portions of the Contingency Fund in order to keep the Funds In Balance, as hereinafter defined, shall be made by the Executive Director, and that the Executive Director may require the Developer to make a Deficiency Deposit, as hereinafter defined, even if funds remain in the Contingency Fund. 7 Without limiting the foregoing, Developer shall not request any Advance of Funds, as hereinafter defined, which may entail a reduction in the Contingency Fund to an amount (the "Minimum Contingency Fund Balance") which is less than the product of (x) the ratio of the total remaining unpaid Hard Costs to the total Hard Costs under the Budget, times (y) the original amount of the Contingency Fund. 7.4 Loan In Balance. Anything contained in this Agreement to the contrary notwithstanding, it is expressly understood and agreed that the Funds shall at all times be "In Balance" on a Line Item and an aggregate basis. A Line Item shall be deemed to be "In Balance" only if the Executive Director in its reasonable discretion determines that the amount of such Line Item is sufficient for its intended purpose. The Funds shall be deemed to be "In Balance" in the aggregate only when the total of the undisbursed portion of the Funds (less the Minimum Contingency Fund Balance), equals or exceeds the sum of (a) the costs required to complete the Project Rehabilitation in accordance with the Plans and the Budget, including, without limitation, all costs in connection with the Relocation Plan. Developer agrees that if for any reason, in the Executive Director's reasonable discretion, the amount of such undistributed Funds shall at any time be or become insufficient for such purpose regardless of how such condition may be caused, unless the Executive Director has otherwise agreed to Advance proceeds from the Contingency Fund to cover such insufficiency, the Developer will, within ten (10) days after written request by the Executive Director, deposit the deficiency with the CRA ("Deficiency Deposit"). Upon written request by Developer therefor, the Executive Director shall furnish to Developer an explanation in writing for any such determination by the Executive Director that any Line Item in the Budget is not "In Balance." The Deficiency Deposit shall first be exhausted before any further Advance of Funds shall be made. The CRA shall not be obligated to make any Advances of Funds if and for as long as the Funds are not In Balance. 7.5 Monthly Advances. (a) On the initial advance date, the Developer may request funding for actual soft costs and permitted hard costs expended to date, less a Retainage Allowance for the hard costs drawn. (b) Advances shall be made from time to time during construction as the construction progresses in accordance with the disbursement schedule (the "Construction Loan Disbursement Schedule") to be prepared by the Developer and approved by the Executive Director and Association, which approval shall not be unreasonably withheld, and in no event more often than once in any calendar month. In no event shall the CRA be required to make any Advance (i) for payment of any Line Item in excess of the amount budgeted for such Line Item in the Budget, (ii) for payment of any item not included in the Budget, (iii) for payment of any Line Item in excess of the amounts necessary to complete construction of the Project Rehabilitation, or (iv) for payment of any amount not approved by the CRA's consultant (the CRA's Consultant"). 7.6 Documents to be Furnished for Each Disbursement. 8 (a) As a condition precedent to each Advance of the Funds (including the initial Advance), Developer shall furnish or cause to be furnished to the Executive Director the following documents covering each Advance, in form and substance reasonably satisfactory to the Executive Director: (i) a completed Developer's Certificate in the form of Exhibit "E" attached hereto and made a part hereof; a completed Soft and Hard Cost Requisition Form in the form of Exhibit "F" attached hereto and made a part hereof (a "Request for Advance"), each executed by the Developer; and a completed and executed Architect's Certificate in the form of Exhibit "G" attached hereto and made a part hereof, certifying the progress of construction and otherwise in form and substance acceptable to the Executive Director; (ii) a duly executed Request for Advance; (iii) a completed standard AJA Form G702 and Form G703 signed by the general contractor and all subcontractors, together with general contractor's sworn statements and unconditional waivers of lien, and all subcontractors', material suppliers' and laborers' sworn statement, and conditional waivers of lien, covering all work, paid with the proceeds of the prior draw requests, together with such invoices, contracts or other supporting data as the Executive Director may require to evidence that all costs for which Advance is sought have been incurred; (iv) paid invoices or other evidence satisfactory to the Executive Director that fixtures and equipment, if any, have been paid for and are free of any lien or security interest therein; (v) copies of any Change Orders executed by Developer, Architect and general contractor, which have not been previously furnished to and approved the CRA, on a standard AlA G701 form (or on general contractor's alternative form, to the extent same is approved by the Executive Director and the CRA's Consultant); and copies of all contemplated and proposed Change Orders; (vi) copies of all contracts (including subcontracts) which have been executed since the last Advance; (vii) with respect to each subcontractor who will be paid with a portion of the proceeds of the requested Advance (A) the identification of each such contractor, by name and trade, the total amount of each such contract, the amount theretofore paid to such contractor as of the date of such Request for Advance in the amount to be paid and the proceeds of the Request for Advance, (B) a copy of the contractor's requisition, and (C) duly executed waiver of lien ("Construction Lien Waiver") from the general contractor and all subcontractors who have performed work for the work so performed for the period prior to the date on which the Construction Lien Waiver is delivered and/or who have supplied labor and/or materials for the labor and/or materials so supplied (including, without limitation, from all parties sending statutory notices to contractor, notices to owners, or notices of nonpayment), including, without limitation, such work or such labor and/or materials for which payment thereof is requested in the Request for Advance. Such Construction Lien Waiver may be conditioned only upon the 9 payment of the amount set forth in the then -current Request for Advance; provided, however, that Developer shall obtain and deliver to the Executive Director a final unqualified Construction Lien Waiver with respect to each such subcontractor within thirty (30) days after the Advance is made that includes the final payment to such contractor; (viii) each Request for Advance with respect to Soft Costs shall include a detailed breakdown for each Line Item and shall state the amount and nature of such costs along with copies of invoices and may be verified by Executive Director from time to time; (ix) all required permits and all other governmental approvals then needed in connection with the Property; and (x) such other instruments, documents and information as the Executive Director may reasonably request, including, but not limited, a geotechnical/soils, structural report, foundation survey and independent architect's plan and cost Review. (b) Deliveries to CRA's Consultant and Association. Prior to any Advance, CRA's Consultant shall have received the following and the same shall be in form and substance satisfactory to it: (i) a duly executed Developer's Certificate in the form of Exhibit"E"; (ii) a duly executed Request for Advance in the form of Exhibit "F"; (iii) an Architect's Certificate in the form of Exhibit "G"; (iv) copies of all subcontracts not previously delivered to the CRA.'s Consultant; and (v) copies of any Change Orders executed since the date of the last Advance not theretofore delivered to the CRA's Consultant. (c) Florida Statutes, Chapter 713. (i) Pursuant to Florida Statutes, Section 713.3471(1), the CRA hereby notifies Developer as follows: WARNING! THE CRA IS MAKING DISBURSEMENTS DIRECTLY TO YOU AS THE DEVELOPER, OR JOINTLY TO YOU AND ANOTHER PARTY TO PROTECT YOURSELF FROM HAVING TO PAY TWICE FOR THE SAME LABOR, SERVICES, OR MATERIALS USED IN MAKING THE IMPROVEMENTS TO YOUR PROPERTY, BE SURE THAT YOU REQUIRE YOUR CONTRACTOR TO GIVE YOU LIEN RELEASES FROM EACH LIENOR WHO HAS SENT YOU A NOTICE TO OWNER EACH TIME YOU MAKE A PAYMENT TO YOUR CONTRACTOR. 10 (ii) To the fullest extent permitted by applicable law, Developer and the Association hereby waives the right to receive any further notices under Section 713.3471(1), and hereby acknowledges that the notice provided in Section 6.7(a) above is adequate notice for all Funds Advances hereafter made pursuant to this Agreement. (iii) The CRA, the Association and Developer stipulate and agree that for purposes of Section 713.3471(3) of the Florida Statutes, none of the Funds have been designated as "designated construction loan proceeds" as defined by such statute. In the event that the stipulation contained in this paragraph is deemed invalid or unenforceable, in whole or in part, then to the extent of such invalidity or unenforceability Developer shall be deemed to have not requested the disbursement of any reallocated proceeds, except where the CRA, prior to any disbursement not in accordance with the original allocation of proceeds, affirmatively notifies Developer in writing that it will avail itself of a provision in this Agreement permitting such reallocated disbursement ("CRA's Reallocated Disbursement"). In the event that the CRA determines to make a CRA's Reallocated Disbursement, Developer shall within three (3) business days of a request by the CRA authorize the CRA to provide certificates on behalf of Developer and provide to the CRA a written list, certified by Developer, containing the name and address of all contractors (including all parties who may be deemed a contractor as a multiple prime contractor, or by virtue of the relationship between Developer and any other party or entity furnishing labor, material or services to the Project Rehabilitation), including, without limitation, subcontractors and all other actual and potential lienors, including, without limitation, those who have served a statutory notice to owner upon Developer and the Association. (iv) In the event that Developer requests or makes a reallocation of any portion of the Funds in accordance with the provisions of this Agreement which would require compliance with the provisions of Section 713.3471 of the Florida Statutes, Developer and the Association shall fully and timely comply with all of Developer's and the Association's obligations under Section 713.3471(3)(a) of the Florida Statutes, including, without limitation, providing all notices required thereby, and Developer shall provide to the Executive Director a written sworn statement executed by each contractor, including, without limitation, any subcontractor and other actual or potential lienor confirming that such person has received the written notice requirements of Section 713.3471 of the Florida Statutes. The Executive Director shall not approve a reallocation requested by Developer or disburse funds pursuant to an approved reallocation request made by Developer unless and until Developer has complied with all of its obligations relating to such disbursement under the terms and provisions of this Agreement and Section 713.3471 of the Florida Statutes, Nothing contained herein shall be deemed to constitute a waiver by the CRA of any of its rights relating to the approval of disbursement requests or construction budget or allocations provided elsewhere in this Agreement. (v) Without limiting the provisions of this Section 7.5, in consideration of the making of the CRA Grant, Developer and the Association agree to indemnify and hold the CRA harmless from any and all losses, claims, and damages, including interest, and attorneys fees, which the CRA may suffer by virtue of having failed to comply with any of the provisions of Section 713.3471 of the Florida Statutes or any other applicable provisions of Section 713 of the Florida Construction Lien Law. 11 (vi) Developer and the CRA stipulate and agree that for purposes of Section 713.3471(2)(a) of the Florida Statutes, the CRA shall not be deemed to have made a "final determination that the CRA will cease further Advances pursuant to this Agreement," unless and until the CRA notifies Developer in writing that any cessation, delay or withholding of any Advance is a "final determination" under the statute. The parties specifically acknowledge and agree that a denial or delay of a request for an Advance which is denied or delayed pursuant to the terms of this Agreement shall not constitute a "final determination" under the statute unless and until the CRA provides the written notice described herein. (d) Each Advance shall be made approximately ten (10) business days after receipt of all information required by the Executive Director and the CRA's Consultant to approve the requested Advance. 7.7 Retainages. At the time of each Advance of Funds, a ten percent (10%) retainage (the "Retainage Allowance") will be retained by the CRA. The retainage for the construction costs will be disbursed only at the time of the final disbursement of Funds under Section 7.10 below; provided, however, upon the satisfactory completion of one hundred percent (100%) of the work furnished by any subcontractor under any contract (excluding any trade performed by the general contractor) or the delivery of all materials pursuant to a purchase order in accordance with the Plans as certified by the Architect and the CRA's Consultant, the CRA shall permit Retainage Allowances with respect to such contract to be disbursed upon the CRA's Consultant's approval of all work and materials and the CRA's receipt of a final Construction Lien Waiver with respect to such completed work or delivered materials. 7.8 Advances for Materials Stored On -Site. Any requests for disbursements which in whole or in part relate to materials, equipment or furnishings which Developer owns and which are not incorporated into the Project as of the date of the request for disbursement, but are to be temporarily stored at the Property, shall be made in writing and shall not exceed Fifty Thousand and No/100 Dollars ($50,000.00) in the aggregate. Any such request must be accompanied by evidence satisfactory to the Executive Director that (i) such stored materials are included within the coverages of insurance policies carried by the Developer, (ii) the ownership of such materials is vested in the Developer free of any liens and claims of third parties, (iii) such materials are properly insured and protected against theft or damage, (iv) the materials used in the construction are not commodity items but are uniquely fabricated for the construction, (v) the CRA's Consultant has viewed and inspected the stored materials, and (vi) in the opinion of the CRA's Consultant the stored materials are physically secured and can be incorporated into the Property within sixty (60) days. 7.9 Advances for Offsite Materials. The Executive Director may in its sole discretion, but shall not be obligated to, approve Advances for materials stored of site, in which event all of the requirements of Section 7.7 shall be applicable to such Advance. 7.10 Advances for Deposits. Developer shall not submit any Request for Advance which includes the cost of deposits (other than the costs of deposits in connection with windows, or such other items as the Executive Director may approve, in the Executive Director's sole and absolute discretion) required by manufacturers or fabricators of building materials, 12 furnishings, fixtures, equipment or other property to be incorporated into the Project Rehabilitation and the CRA shall make no Advance therefor. 7.11 Final Disbursement for Construction. The CRA will advance to Developer the final Advance for the Costs of the Construction (including Retainage Allowances) and shall repay to Developer the amounts of any remaining undisbursed Deficiency Deposits required by the CRA in connection with the costs of the construction, when the following conditions have been complied with, and Developer shall have provided to the CRA a sworn statement so certifying, provided that all other conditions in this Agreement for Advances have been complied with, which compliance shall constitute "Completion" of the Project Rehabilitation: (a) evidence of the approval by all governmental authorities of (i) the completion of the Project Rehabilitation in its entirety for occupancy and the issuance of a certificate or equivalent permission for the permanent occupancy thereof, and (ii) the contemplated uses thereof; (b) Developer shall have furnished to the CRA "all risk" casualty insurance, and all other required insurance coverages, in form and amount and with companies satisfactory to the CRA in accordance with the CRA's insurance requirements; (c) Developer shall have furnished to the CRA copies of all licenses and required permits required by any governmental authority having jurisdiction for the occupancy of the Project and the operation thereof, including permanent certificates of occupancy for the entirety of the Project from the applicable authorities of the jurisdiction; (d) all fixtures, furnishings, furniture, equipment and other property required for the operation of the Project shall have been installed free and clear of all liens and security interests, and Developer shall provide the CRA evidence thereof; (e) Developer shall have furnished to the CRA copies of all final waivers of lien and sworn statements from the general contractor, and all other contractors, subcontractors and material suppliers under all subcontracts and other contracts, and an affidavit from the general contractor in accordance with the mechanic's lien law; (f) Developer shall have furnished to the CRA a certificate from the Architect in the form of AIA Document G704, additionally executed by the general contractor and Developer, stating (i) that the Project Rehabilitation has been completed in substantial accordance with the Plans, (ii) the date on which completion occurred, (iii) that direct connection has been made to all utilities, (iv) that the Project as so completed complies with all applicable laws, and (v) that the Project is ready for full occupancy; (g) a certification by the surety issuing the Payment and Performance Bond on behalf of the general contractor that it has approved the final Advance to the Construction Contractor (on an AIA Document G707 or similar form acceptable to the CRA); 13 (h) a final contractor's affidavit in the form prescribed in Florida Statutes § 713.06(3)(d). (i) the CRA shall have received a certificate from the CRA's Consultant for the sole benefit of the CRA that the Project Rehabilitation has been satisfactorily completed in substantial accordance with the Plans and all applicable laws; (j) Developer shall have furnished the CRA and the Association with a complete set of "as -built" Plans and Specifications for the Project, certified as accurate by the general contractor; (k) Developer shall have furnished the CRA a certificate from the Architect that the entirety of the Project Rehabilitation has been completed in accordance with the Plans and final certificates of occupancy for the entirety of the Project has been issued by the appropriate governmental authority. 8. MINORITY AND WOMEN'S PARTICIPATION AND EQUAL EMPLOYMENT OPPORTUNITY. 8.1 Minority and Women Participation and Equal Opportunity. In connection with the Project Rehabilitation, 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 8. 14 vii) In all solicitations and advertisements for employment placed by or on behalf of Developer, state that all applicants will receive consideration for employment without regard to race, creed, color or national origin. 8.2 Participation Requirements. Developer agrees to comply with the following subcontractor participation requirements and laborer participation requirements (the "Participation Requirements") with respect to the Project Rehabilitation: 8.2.1 Subcontractor Participation. The Developer shall cause its general contractor to hire not less than twenty percent (20%) of the subcontractors for the partial demolition of the existing improvements and construction of the Project Rehabilitation utilizing companies that have their principal place of business either within the Redevelopment Area or within the City. For purpose of calculating the twenty percent (20%) subcontractor participation, the twenty percent (20%) participation shall be calculated based upon the dollar value of each subcontract given to subcontractors whose principal place of business is in either the Redevelopment Area or the City and the total dollar value of all subcontracts entered into by the general contract for the Project ("Subcontractor Participation Requirement"). 8.2.2 Laborer Participation. Developer agrees to cause its general contractor and all subcontractors to hire forty percent (40%) of the unskilled labor for the partial demolition of the existing improvements and the construction of the Project Rehabilitation ("Laborer Participation Requirement") from workers residing in either the Redevelopment Area or the City. Within sixty (60) 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 partial demolition of the existing improvements and the construction of the Project Rehabilitation (the "Labor Estimate"). The Executive Director shall have thirty (30) 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 thirty (30) 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. 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 partial demolition of the existing improvements and construction of the Project Rehabilitation. 8.2.3 In the event of any disputes between the Executive Director and the Developer as to whether any subcontractor has its principal place of business in either the 15 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 of Commissioners of the CRA (the "CRA Board") for resolution which shall be binding on the parties. 8.3 Report Requirements. The Developer shall be required to submit to the Executive Director on a monthly basis commencing thirty (30) days after commencement of the partial demolition of the existing improvements, detailed reports evidencing compliance with the Subcontractor Participation Requirements and the Laborer Participation Requirements during the prior thirty (30) day period ("Participation Reports"). The Participation Reports shall contain such information as the Executive Director may reasonably require to enable the Executive Director to determine whether the Developer is in compliance with the Subcontractor Participation Requirements and the Laborer Participation Requirements. 8.3.1 Penalties for Non -Compliance with Subcontractor Participation Requirements. To the extent Developer fails to comply with the Subcontractor Participation Requirements, with respect to the Project Rehabilitation, 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 Rehabilitation 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. 8.3.2 Penalties for Non Compliance with Laborer Participation Requirements. To the extent Developer fails to comply with the applicable Laborer Participation Requirements, with respect to the Project Rehabilitation, 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 Rehabilitation and shall be due within thirty (30) from Developer's receipt of written statement from the Executive Director stating the amount of Laborer Non - Compliance Funds due. To the extent of any dispute between the Executive Director and the Developer with respect to the compliance with the Laborer Participation Requirements, such dispute shall be submitted to the CRA Board for resolution, which arbitration shall be binding upon the parties. 9. CRA CONDITIONS PRECEDENT. 9.1 The obligations of the CRA to fund the CRA Contribution pursuant to this Agreement is subject to the satisfaction or waiver of the following conditions precedent (the "CRA Conditions Precedent"): 16 Survey. and Specifications. Contract. 9.1.1 The Executive Director has approved the Title Commitment and 9.1.2 The Executive Director shall have approved the Budget. 9.1.3 The Executive Director shall have approved the Plans Project 9.1.4 The Executive Director shall have approved the Construction 9.1.5 The Executive Director has approved the Relocation Plan. 9.1.6 The CRA Board has approved the CRA Bond Issue which includes the CRA Contribution. 9.1.7 All parties providing Equity for the Project Rehabilitation have agreed to the Disbursement Procedures. 9.1.8 The Executive Director shall have approved the Project Schedule. 9.1.9 The Executive Director shall have approved the Equity. 9.1.10 The Executive Director shall have confirmed that the Developer and Association have obtained the insurance coverage required by Exhibit "H" attached hereto and made a part hereof. 9.1.11 Developer shall have provided to the Executive Director a payment and performance bond in form and substance satisfactory to the Executive Director in amount equal to one hundred percent (100%) of the constructions costs for the Project Rehabilitation, 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"). 9.1.12 The CRA Bond Issue has been validated by a court of competent jurisdiction validated the expenditure of the CRA Contribution as contemplated by this Agreement. 9.1.13 The Executive Director is satisfied that sufficient funds required to complete the Project Rehabilitation and carry out the Relocation Plan are available. 9.2 In the event the CRA Conditions Precedent are not satisfied or waived by the CRA on or before December 31, 2014 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. REPRESENTATIONS OF CRA. 17 10.1 The CRA makes the following representations: 10.1.1 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. 10.1.2 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. 10.1.3 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. 10.1.4 There are no lawsuits against CRA or affecting any portion of the Property, including, but not limited to, condemnation actions. 11. ASSOCIATION'S REPRESENTATIONS. follows: 11.1 The Association makes the following representations to the CRA as 11.1.1 Association is a 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. 11.1.2 Association's execution, delivery and performance of this Agreement has 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. 11.1.3 This Agreement constitutes the valid and binding obligation of Association, enforceable against Association 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. DEFAULT. 12.1 Developer Failure to Perform. 12.1.1 If the Conditions Precedent are not satisfied or waived by the CRA on or before December 31, 2014, this Agreement shall terminate and the parties shall be 18 released from all obligations under this Agreement except for the obligations that expressly survive the termination of this Agreement. 12.1.2 In the event the Developer defaults with respect to its obligations under Section 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. 12.1.3 In the event this Agreement contains any material misrepresentations by the Association, the CRA, as its sole and exclusive remedy may terminate this Agreement, in which event the parties shall be released from all further obligations under this Agreement except for the obligations that expressly survive the CIosing, 12.2 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 and/or Association, without any default on the part of Developer or the Association, as their 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 and the Association waive 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. 13. AUTHORIZED REPRESENTATIVES. The Association has appointed to act as the Association's Authorized Representative pursuant to this Agreement (the "Authorized Representative"). Whenever the approval of the Association is required under this Agreement, the approval or disapproval by the Authorized Representative shall be binding upon the Association. The Association may change the Authorized Representative at any time upon written notice to the Executive Director which notice shall include a copy of the board of directors resolution of the Association appointing a new Authorized Representative. 14. 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 Association: I9 With a copy to: If to CRA: SOUTHEAST OVERTOWN I PARK WEST COMMUNITY REDEVELOPMENT AGENCY Attention: Clarence E. Woods, III., Executive Director 1490 NW Third Avenue Suite 105 Miami, FL 33136 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: Staff Counsel Southeast Overtown/Park West Community Redevelopment Agency 1490 NW Third Avenue Suite 105 Miami, FL 33136 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. 15. CONFLICT OF INTEREST. The Association has received copies of, and is familiar with, the following provisions regarding conflict of interest in the performance of this Agreement by the Association covenants, represents and warrants that it will comply with all such conflict of interest provisions: (a) Code of the City of Miami, Florida, Chapter 2, Article V 20 (b) Miami -Dade County Code, Section 2-11.1. 16. MARKETING 16.1 Signage. The Association shall prominently display signage acknowledging the CRA's contribution to the Project at the Association's primary place of business during the term of this Agreement and at the Project. Said signage shall remain on display at the Project for a period of two (2) years following this Agreement's termination. 16.2 Publication. The Association shall produce, publish, advertise, disclose, or exhibit the CRA's name and/or logo, in acknowledgement of the CRA's contribution to the Project, in all forms of media and communications created by the Association for the purpose of publication, promotion, illustration, advertising, trade or any other lawful purpose, including but not limited to stationary, newspapers, periodicals, billboards, posters, email, direct mail, flyers, telephone, public events, and television, radio, or Internet advertisements or interviews. 16.3 Approval. The CRA shall have the right to approve the form and placement of all acknowledgements, which approval shall not be unreasonably withheld. 16.4 Limited Use. The Association agrees that the CRA's name and Iogo may not be otherwise used, copied, reproduced, altered in any manner, or sold to others for purposes other than those specified in this Agreement. Nothing in this Agreement, or in the Association's use of the CRA's name and logo, confers or may be construed as conferring upon the Association any right, title or interest whatsoever in the CRA's name and logo beyond the right granted in this Agreement_ 16.5 CRA Construction Sign. The Association shall display, and cause to be displayed, at the Project, in a prominent, most visible area to the public, a sign displaying the CRA logo, and the CRA's monetary contribution to the Project ("Construction Sign"). The Association shall display, and cause to be displayed, the Construction Sign until the Project is completed. The Construction Sign shall be paid for by the Association and the Construction Sign Specifications will be provided by the CRA. The CRA shall approve the location of the Construction Sign prior to its installation. 17. LIABILITY OF THE CRA. No officer, employee, agent, or principal, whether disclosed or undisclosed, of the CRA shall have any personal liability with respect to any of the provisions of this Agreement. Any liability of the CRA under this Agreement shall be subject to the limitations imposed by Section 768.28, Florida Statutes. 18. The Developer and the Association shall indemnify, defend and hold the CRA and its commissioners and employees (collectively, the "CRA Parties") harmless from and against any and all claims, demands, liabilities, costs and expenses, including reasonable attorney fees and costs arising out of, directly or indirectly: (i) the performance of this Agreement by the Developer and the Association; and (ii) claims made against the CRA Parties relating directly or indirectly to this Agreement and the performance of this Agreement by the CRA Parties, except as a result of the gross negligence or intentional misconduct of the CRA Parties. This provision shall survive the termination of the Agreement. 21 19. MISCELLANEOUS. 19.1 This Agreement shall be construed and governed in accordance with the laws of the State of Florida. Venue shall be in Miami -Dade County, Florida. All of the parties to this Agreement have participated fully in the negotiation and preparation hereof, and, accordingly, this Agreement shall not be more strictly construed against any one of the parties hereto. 19.2 In the event any term or provision of this Agreement is determined by appropriate judicial authority to be illegal or otherwise invalid, such provision shall be given its nearest legal meaning or be construed as deleted as such authority determines, and the remainder of this Agreement shall be construed to be in full force and effect. 19.3 In the event of any litigation between the parties under this Agreement, the prevailing party shall be entitled to reasonable attorney's fees and court costs at all trial and appellate levels. 19.4 In construing this Agreement, the singular shall be held to include the plural, the plural shall be held to include the singular, the use of any gender shall be held to include every other and all genders, and captions and Paragraph headings shall be disregarded. 19.5 All of the exhibits attached to this Agreement are incorporated in, and made a part of, this Agreement. 19.6 Time shall be of the essence for each and every provision of this 19.7 This Agreement may not be recorded in the Public Records of Miami- 19.8 The "Effective Date" shall mean the date this Agreement is last executed by Association and the CRA. Agreement. Dade County. 19.9 No provision of this Agreement shall, in any way, inure to the benefit of any third party so as to make such third party a beneficiary of this Agreement, or of any one or more of the terms hereof, or otherwise give rise to any cause of action in any party not a party hereto. 19.10 The Association agrees that all documents maintained and generated pursuant to this Agreement shall be subject to all provisions of the Public Records Law, Chapter 119, Florida Statutes. 19.11 The Association warrants that it has not employed or retained any person employed by the CRA to solicit or secure this Agreement, and that it has not offered to pay, paid, or agreed to pay any person employed by the CRA any fee, commission percentage, brokerage fee, or gift of any kind contingent upon or resulting from the award of the CRA Contribution. 22 19.12 The Association, the Developer and their contractors, subcontractors, employees and agents shall be deemed to be independent contractors, and not agents or employees of the CRA, and shall not attain any rights or benefits under the civil service or pension programs of the CRA, or any rights generally afforded its employees; further, they shall not be deemed entitled to Florida Workers` Compensation benefits as employees of the CRA. 20, ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and there are no other agreements, representations or warranties other than as set forth herein. This Agreement may not be changed, altered or modified except by an instrument in writing signed by the party against whom enforcement of such change would be sought. This Agreement shall be binding upon the parties hereto and their respective successors and permitted assigns. [SIGNATURE PAGES TO FOLLOW] 23 IN WITNESS hereof the parties have executed this Agreement as of the date first above written. ASSOCIATION: TOWN PARK PLAZA SOUTH, INC., a not -for -profit Florida corporation By: Marti �, Name Title: it e S.Z Date Executed] 4.. al 96 LS CRA: SOUTHEAST OVERTOWN / PARK WEST COMMUNITY REDEVELOPMENT AGENCY By: Clarence E. Woods, Ill., Executive Director Date Executed:j,..4Z l Sf 2 1 ATTEST: Clerk of Board Approved for legal sufficiency By: William R. Bloom, Esq. Holland & Knight LLP, Special Counsel to CRA 24 APPROVED AS TO INSURANCE REQUIREMENTS: Francisco Gomez, Jr., Risk Management Administrator 25 JOINDER OF DEVELOPER The undersigned joins in the execution of this Agreement for the purpose of agreeing to be bound by the terms and conditions of the Agreement applicable to the Developer, including, without limitation, the terms and provisions of Sections 4, 5, 7, 8, and 12 of the Agreement. By: 26 Schedule of Exhibits Exhibit A Legal Description Exhibit B Occupancy Agreement Exhibit C Provisions from Findings of Necessity and Redevelopment Plan Exhibit D Title Matters Exhibit E Developer's Certificate Exhibit F Request for Advance Exhibit G Architect's Certification Exhibit H Insurance Requirements 27 EXHIBIT A Legal Description 28 EXHIBIT E DEVELOPER'S CERTIFICATE STATE OF FLORIDA ) ss: COUNTY OF MIAMI-DADE The undersigned, in his/her capacity as is the of (the "Developer"), has made due investigation as to matters hereinafter set forth and does hereby certify the following to induce the SOUTHEAST OVERTOWN/PARK WEST COMMUNITY REDEVELOPMENT AGENCY, a public agency and body corporate created pursuant to Section 163.356, Florida Statutes (the "CRA"), to make and advance the sum of Dollars ($ ) to Developer pursuant to the terms of a Agreement (the " Agreement"), dated , 2012, between CRA and Town Park Plaza South, Inc. (the "Association"), and Request for Advance number , dated , 200_, being submitted to CRA herewith: 1. All funds received from the CRA previously as Advances under the Agreement have been expended or are being held in trust for the sole purpose of paying costs of improvements; and no part of said funds has been used, and the funds to be received pursuant to the Request for Advance submitted herewith shall not be used, for any other purpose. No item of costs previously certified to the CRA in a Request for Advance remains unpaid as of the date of this Certificate (other than Retainage). 2. All of the statements and information set forth in the Request for Advance being submitted to the CRA herewith are true and correct in every material respect at the date hereof to the extent of the undersigned's knowledge and all costs certified to the CRA in said Request for Advance accurately reflect the precise amounts due. All the funds to be received pursuant to said Request for Advance shall be used solely for the purposes of paying the items of cost specified therein or for reimbursing Developer for such items previously paid by Developer. 3. None of the labor, materials, overhead or other items of expense specified in the Request for Advance submitted herewith have previously been made the basis of any Request for Advance by Developer or of any payment by the CRA except for amounts previously rejected which are now being resubmitted. 4. The status of construction of the Project Rehabilitation is as follows: 5. The estimated aggregate cost of completing the Project Rehabilitation, including, but not limited to, labor, materials, architectural and engineering fees, management, financial and other overhead costs and expenses, does not exceed in the undersigned's reasonable opinion 29 6. All conditions precedent to the Advance referred to above and to be made in accordance with the Request for Advance submitted herewith in addition to those to which reference is made in this Certificate have been met in accordance with the terms of the Agreement. Without limiting the foregoing, Developer has submitted to the CRA copies of all executed Change Orders, and copies of all contemplated and proposed Change Orders. The capitalized terms used herein have the respective meanings given thereto in the Agreement. DEVELOPER: By: Name: Its: 30 EXHIBIT "F" REQUEST FOR ADVANCE [DEVELOPER'S LETTERHEAD] DRAW REQUEST NO. TO: Southeast Overtown/Park West Community Redevelopment Agency ("CRA") DATE: PROJECT: Town Park Plaza LOCATION: DEVELOPER: FOR PERIOD ENDING: In accordance with the Agreement dated , 2012, among the Association and the CRA with the joinder of the Developer, Developer requests the funds be disbursed as follows: 1. CURRENT DRAW REQUEST FOR HARD COSTS $ 2. CURRENT DRAW REQUEST FOR SOFT COSTS $ 3. TOTAL DRAW REQUEST $ The proceeds should be credited to the account of Account No. AUTHORIZED SIGNER: EXHIBIT H 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 32 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 33 The above policies shall provide the City of Miami and Southeast OvertownlPark West Community Redevelopment Agency with written notice of cancellation or material change from the insurer not less than (30) days prior to any such cancellation or material change, or in accordance to policy provisions. Companies authorized to do business in the State of Florida, with the following qualifications, shall issue all insurance policies required above: The company must be rated no less than "A" as to management, and no less than "Class V" as to Financial Strength, by the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent. All policies and /or certificates of insurance are subject to review and verification by Risk Management prior to insurance approval. 34 #11855017_v2