HomeMy WebLinkAboutCRA-R-13-0008 Legislation w attachment 3 of 6 - 1-28-2013DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (the "Agreement") is made as of the I lth day of
October, 2012, by and between ISLAND LIVING APARTMENTS, LTD., a Florida limited
partnership (the "Developer"), and the SOUTHEAST OVERTOWN/PARK WEST
COMMUNITY REDEVELOPMENT AGENCY, a public agency and body corporate created
pursuant to Section 163.356, Florida Statutes (the "CRA");
RECITALS
A. The Southeast Overtown/Park West Project area was designated as a community
redevelopment area (the "Redevelopment Area") by Miami -Dade County, a political subdivision
of the State of Florida (the "County"). A redevelopment plan was approved by the
Commissioners of the City of Miami and the Commissioners of Miami -Dade County with
certain redevelopment authority granted by the County to the City for project implementation.
The City assigned to the CRA the redevelopment authority granted by the County to the City.
B. The CRA issued a request for proposals (the "RFP") for the development of that
certain real property located within the Redevelopment Area which is more particularly
described on Exhibit "A" (the "Property").
C. In response to the RFP, Carlisle Development Group, LLC, a Florida limited
liability company ("Carlisle") submitted a proposal for the development of the Property, as more
particularly described in the proposal submitted by the Developer (the "Proposal").
D. Based upon the evaluations of all responses submitted to the CRA in response to
the RFP, the Proposal submitted by Carlisle was given the highest rating and pursuant to
Resolution Number CRA-R-11-0038, the Board of Commissioners of the CRA authorized the
executive director of the CRA (the "Executive Director") to negotiate the definitive terms of the
transaction contemplated by the RFP and the Proposal.
E. Based upon such negotiations the CRA has agreed to convey the Property to the
Developer, which is an affiliate of Carlisle, and the Developer has agreed to acquire the Property
from the CRA for the development of the Project, as hereinafter defined, subject to the terms and
conditions of this Agreement.
NOW THEREFORE, for and in consideration of the $10.00 and other good and valuable
consideration and of the covenants and agreements hereafter set forth, the parties agree as
follows:
1. RECITALS. The Recitals to this Agreement are true and correct and are
incorporated herein by reference and made a part hereof.
2. PROPERTY. The property to be conveyed by the CRA to Developer pursuant to
the terms of this Agreement consists of the Property and all appurtenances belonging thereto,
including any and all rights, privileges and easements in any way pertaining thereto, all right,
title and interest of the CRA in and to any adjoining sidewalk and in and to any adjoining street
or alley.
3. INSPECTION PERIOD.
3.1 Inspections. Developer shall have until 5 p.m. on the forty-fifth (45th) day
after the Effective Date, as hereinafter defined, (the "Inspection Period") to perform, at
DeveIoper's sole cost and expense, such investigations and inspections of the Property the
Developer, in Developer's sole and absolute discretion deems appropriate, including, without
limitation, soil tests, zoning investigations, utility availability and environmental matters
(collectively the "Inspections") to determine whether the Property is acceptable to Developer, in
its sole discretion. Prior to performing any on -site Inspections, Developer shall provide at least
one (1) business day's prior written notice to the Executive Director (which may be delivered by
email) at 1490 NW Third Avenue, Suite 105, Miami, Florida 33136, Phone: 305-679-6800;
Facsimile: 305-679-6835; email: cwoods@miamigov.com (or such other CRA representatives
as designated by the Executive Director), which written notice shall provide reasonable detail
regarding the type and scope of Inspections) to be performed and the scheduled date and time
for such Inspection(s) and provide the Executive Director the opportunity to have a
representative from the CRA present at any such Inspection(s). Developer shall conduct such
Inspection in a manner so as to not unreasonably interfere with the current use of the Property.
3.2 Restoration. Following any such Inspections, Developer shall promptly
restore the Property to the condition existing immediately prior to such Inspections. The
Inspections shall be conducted in accordance with all applicable laws and by licensed and
insured professionals, and Developer shall cause its inspectors to obtain, at Developer's sole cost
and expense, any and all licenses and permits required to conduct the Inspections, as applicable.
3.3 Environmental Audit. Should Developer conduct a Phase I environmental
audit ("Phase I Report") and such audit reflects a recommendation for further environmental
audits (a "Phase II Report"), the CRA acknowledges that Developer shall be authorized, at
Developer's sole cost and expense, to obtain the Phase II Report during the Inspection Period.
3.4 Disclosure. Developer agrees that in the event the need arises to notify,
under applicable laws, any federal, state or local public agencies of any conditions at the
Property as a result of the Inspections performed by Developer, its agents, employees,
contractors and/or representatives, Developer shall provide the Executive Director with any
pertinent reports, written material or other evidence of the condition requiring such disclosure, if
any. Any required disclosures shall be made directly by the CRA, and not Developer, to any
such public agencies, unless the Developer is required to make such disclosures by applicable
law, and the CRA fails to timely make such disclosures.
3.5 Indemnification. Developer shall assume all risks associated with the
Inspections and agrees to indemnify and hold harmless the CRA of, from and against any and all
costs, losses, claims, damages, liabilities, expenses and other obligations (including, without
limitation reasonable attomey's fees and court costs) arising from, out of or in connection with or
otherwise relating to the Inspections, including, without limitation, the entry by any one or more
of Developer's agents, employees, contractors and other representatives in or upon the Property
for the purpose of the Inspections. The foregoing indemnification obligations of Developer shall
survive the expiration or termination of this Agreement.
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3.6 Insurance. Developer shall, prior to entering the Property and performing
any Inspections, provide to the CRA evidence of insurance by Developer and its contractors, as
applicable, as specified on Exhibit "B" attached hereto, insuring against any liability by any one
or more of Developer, its agents, employees, contractors or other representatives arising from,
out of or in connection with or otherwise relating to the entry by any one or more of Developer,
its agents, employees, contractors or other representatives in or upon the Property for the purpose
of the Inspections. Developer shall provide the CRA with a certificate of insurance evidencing
such insurance coverage, naming the CRA as an additional insured thereon and which insurance
coverage shall be kept in force until the expiration or early termination of this Agreement.
3.7 Acceptance of Property. If for any reason whatsoever Developer, in its
sole discretion, determines during the Inspection Period that it does not wish to proceed with the
transaction contemplated by this Agreement, Developer shall have the absolute right to terminate
this Agreement by giving written notice of such termination to the CRA in the manner
hereinafter provided to give notices prior to the expiration of the Inspection Period. Upon the
CRA's receipt of such notice prior to the end of the Inspection Period, this Agreement shall be
deemed terminated and of no further force and effect and the parties shall be released and
relieved from any liability or obligations hereunder, except for those obligations which expressly
survive the termination. If Developer does not terminate this Agreement prior to the expiration
of the Inspection Period, then it shall be presumed conclusively that Developer has had adequate
opportunity to review and inspect all portions of the Property, including, without Iimitation, the
environmental condition of the Property and, Developer has determined that the condition of all
portions of the Property are satisfactory to Developer and Developer has accepted every portion
of the Property in its "AS IS, WHERE IS, WITH ALL FAULTS" condition.
3.8 No Lien. Developer shall not create or permit to be created any
mechanic's liens upon the Property, or any part thereof, as a result of the Inspections. If any lien
shall at any time be filed against the Property, or any part thereof in connection with the
Inspections, Developer shall cause same to be discharged or transferred to bond in accordance
with applicable laws within thirty (30) days after Developer first becomes aware that such lien
has been recorded against the Property. This provision shall survive the expiration or
termination of this Agreement.
3.9 CRA Deliveries. Prior to the date of this Agreement, the CRA has
provided to Developer copies of all surveys, title policies and environmental studies which the
CRA has been able to locate with respect to the Property (collectively the "CRA Deliveries").
Any reliance upon the CRA Deliveries is at the sole risk of Developer and the CRA makes no
representations or warranties, express or implied, with respect to the accuracy or completeness of
the CRA Deliveries, and any reliance upon same is at the sole risk of Developer.
3.10 Disclaimer of Representations by Developer. Developer hereby expressly
acknowledges and agrees that, except as specifically provided in this Agreement:
3.10.1 The CRA makes and has made no warranty or representation
whatsoever as to the condition or suitability of the Property for the Project, as hereinafter
defined.
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3.10.2 The CRA makes and has made no warranty, express or implied,
with regard to the accuracy or completeness of any information furnished to Developer, and the
CRA shall not be bound by any statement of any broker, employee, agent or other representative
of the CRA.
3.10.3 The CRA has made no representations, warranties or promises to
Developer not explicitly set forth in this Agreement.
3.10.4 The CRA has made no representations or warranties, express or
implied, with regard to the neighborhood, that the Redevelopment Area will be developed, or as
to the precise type or quality of improvements that will be constructed within the Redevelopment
Area or the timing thereof.
3.10.5 The CRA makes and has made no representation or warranty,
express or implied, concerning any portion of the Property, its condition or other things or
matters directly or indirectly relating thereto or hereto, including, without limitation, no warranty
as to merchantability or fitness for any particular purpose or relating to the absence of latent or
other defects.
3.11 Developer specifically acknowledges that the transaction contemplated by
this Agreement and the time frame for performance by Developer under this Agreement is not
contingent upon the redevelopment of the Redevelopment Area, the removal of slum or blight
from the Redevelopment Area, the reduction of crime in the Redevelopment Area or the status of
any other projects in the Redevelopment Area.
3.12 Copies of Reports. Developer shall provide the CRA with copies of any
third party reports prepared for Developer regarding the physical condition of the Property
within ten (10) days of termination of this Agreement. This provision shall survive termination.
4. TITLE AND SURVEY.
4.1 Developer shall obtain a title insurance commitment (the "Commitment")
and a survey (the "Survey") of the Property, at the Developer's sole cost and expense. The
Commitment and the Survey shall show the CRA to be vested in fee simple title to the Property,
subject to each of the following (the "Permitted Exceptions"):
4.1.1 Ad valorem real estate taxes and assessments for the year of
closing and subsequent years.
4.1.2 All applicable laws, ordinances and governmental regulations,
including, but not limited to, all applicable building, zoning, land use, environmental ordinances
and regulations.
part hereof.
4.1.3 Any matters arising by, through, or under Developer.
4.1.4 Those matters listed on Exhibit "C" attached hereto and made a
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4.2 Developer shall have until 5:00 p.m. on the forty-fifth (45th) day following
the Effective Date (the "Title Review Period") to obtain and examine the Commitment and the
Survey. Developer shall promptly provide the CRA with a copy of the Commitment and the
Survey upon Developer's receipt of same. The survey shall be certified to Developer and the
CRA. If the Commitment and Survey reflect defects in the title to the Property, Developer shall,
no later than the expiration of the Title Review Period, notify the CRA in writing of the
defect(s). If Developer fails to give the CRA written notice of the defect(s) prior to the end of
the Title Review Period, the defect(s) shown in the Commitment and the Survey shall be deemed
to be waived as title objections and same shall be deemed to constitute Permitted Exceptions for
all purposes under this Agreement. If Developer has given CRA written notice of defect(s)
rendering title unmarketable prior to the end of the Title Review Period, the CRA shall elect
within ten (10) days after receipt of written notice of the title defect(s) whether the CRA will
elect to attempt to cure the title defect(s). If the CRA does not elect to cure the title defect(s),
Developer shall have the option, to be exercised within ten (10) days after Developer receives
written notice from the CRA that the CRA has elected not to cure the title defect(s), of either (i)
waiving the defect(s), in which event the defect(s) shall be deemed to constitute a Permitted
Exception under this Agreement, or (ii) canceling this Agreement, in which event the parties
shall be released from any further obligations under this Agreement, except for those obligations
that expressly survive the termination of this Agreement. If the CRA elects to attempt to cure the
title defect(s), the CRA shall have sixty (60) days from receipt of the written notice of defect(s)
to use commercially reasonable efforts to cure same (the "Cure Period"). If the CRA elects to
cure the title defect(s), the CRA shall discharge any lien(s), judgment(s) or other matters
affecting title to the Property in a liquidated amount. The CRA shall not be required to
commence litigation to resolve any matters. In the event the CRA attempts to cure the title
defects and the CRA is not able to cure the defect(s) prior to the end of the Cure Period,
Developer shall have the option, to be exercised within ten (10) days after the end of the Cure
Period, of either (i) waiving the defect(s), in which event the defect(s) shall be deemed to
constitute a Permitted Exception under this Agreement, or (ii) canceling this Agreement,
whereupon the parties shall be released from any further obligations under this Agreement,
except for those obligations that expressly survive the termination of this Agreement.
4.3 In the event of any new title defect(s) arising from and after the effective
date of the Commitment and prior to the Closing Date, the CRA shall use commercially
reasonable efforts to cure such title defect(s) prior to the Closing Date. The CRA shall discharge
any lien(s), judgment(s) or other matters affecting title to the Property that are in a liquidated
amount. The CRA shall not be required to bring any lawsuit(s) to cure any title defect(s) or
expend any funds to cure any title defect(s) not in a liquidated amount. In the event that the
CRA is unable to cure the title defect(s) prior to the Closing Date after using commercially
reasonable efforts, Developer shall have the option on the Closing Date of: (i) waiving the title
defect(s) and accepting title "as is" whereupon the title defect(s) will be deemed to constitute a
Permitted Exception under this Agreement; or (ii) canceling this Agreement, whereupon the
parties shall be released from all further obligations under this Agreement, except for those
obligations that expressly survive the termination of this Agreement.
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5. PROJECT.
5.1 Description of the Project. The project (the "Project") shall consist of not
less than 70 affordable rental units, all with balconies and upgraded finishes to improve
longevity and durability with an average size of between 950 and 1,000 square feet with ground
floor commercial space constructed in a building not exceeding eleven (11) stories, will include
one -bedroom units, two -bedroom units, and three -bedroom units, the mix of which and the size
of which shall be established based upon the community input received in accordance with
Section 5.3 below and as approved by the Executive Director in accordance with Section 5.4
below together with approximately 5,000 square feet of commercial space and a sufficient
number of parking spaces to comply with the applicable zoning. In addition, the Project shall
include a playground and outside recreational area for residents of the Project to be constructed
over the parking deck.
5.2 Design of the Project. The Project shall be designed so it is consistent
with the Southeast Overtown/Park West Community Redevelopment Plan dated November 2004
prepared by Dover Kohl & Partners as updated by the Final Update of May 2009 by the City of
Miami Planning Department (ver 2.0) (collectively, the "Design Standards").
5.3 Community Input. Within sixty (60) days of the Effective Date, the
Developer shall present schematic design documents for the proposed Project to the Historic
Overtown Folk Life District Improvement Association ("HOFLDIA") and the Overtown
Community Oversight Board ("OCOB") for their review and comment. The schematic design
documents (the "Schematic Design Documents") shall consist, at a minimum, of the proposed
site plan for the Project, proposed building massing and elevations for the Project, an
architectural rendering of the Project of sufficient detail to allow the HOFLDIA and the OCOB
to evaluate the proposed Project and its design and confirm that the proposed Project is
consistent with the Design Standards. The Developer shall revise the Schematic Design
Documents to address the comments and concerns of the HOFLDIA and the OCOB.
5.4 Approval of Schematic Design Documents by CRA. Within ninety (90)
days from the Effective Date, the Developer shall submit to the Executive Director for review
and approval the Schematic Design Documents which shall have been revised by the Developer
to incorporate the comments received from the HOFLDIA and the OCOB, which must also be
consistent with the Design Guidelines. The Developer agrees to use its good faith efforts to
modify the Schematic Design Documents as necessary to satisfy the requirements of the
Executive Director. The Developer shall provide the Executive Director such additional back-up
information as the Executive Director may reasonably request to enable the Executive Director
to analyze all aspects of the Project as reflected in the Schematic Design Documents. The
Executive Director shall have fifteen (15) days from the receipt of the Schematic Design
Documents to approve or disapprove same. If the Executive Director fails to timely respond, the
submitted Schematic Design Documents shall be deemed approved. In the event of disapproval,
the Executive Director shall specify the reasons for such disapproval. In the event of
disapproval, the Developer shall modify the Schematic Design Documents, as appropriate, to
address the comments and concerns of the Executive Director to ensure that the Schematic
Design Documents comply with the Design Standards and the input from HOFLDIA and OCOB,
as deemed appropriate by the Executive Director, acting reasonably. Any resubmission shall be
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subject to approval by the Executive Director in accordance with the procedure outlined above
for the original submission until same is approved or deemed approved by the Executive
Director. The Executive Director and the Developer shall proceed in good faith to attempt to
resolve any disputes regarding the Schematic Design Documents, If the Executive Director has
rejected the Schematic Design Documents two (2) times, Developer may elect to submit such
dispute regarding the approval of the Schematic Design Documents to the CRA Board for
resolution. The Schematic Design Documents, as approved or deemed approved by the
Executive Director shall mean the "Schematic Documents". The Developer shall cause the
Project to be designed in accordance with the Schematic Documents.
5.5 Construction Documents. Within one hundred twenty (120) days of the
later to occur of (a) approval or deemed approval of the Schematic Documents by the Executive
Director or (b) Bond Issue Approval, as hereinafter defined, the Developer shall submit to the
Executive Director for its review and approval the plans and specifications for the construction
of the Project, which shall be of sufficient detail to allow the Developer to apply for a building
permit for the Project ("Plans and Specifications"). The Plans and Specifications shall be subject
to the approval of the Executive Director, which approval shall not be unreasonably withheld and
which approval shall be given if the Plans and Specifications are consistent with the Schematic
Documents. The Developer agrees to utilize its good faith efforts to make modifications to the
Plans and Specifications to satisfy the requirements of the Executive Director if the Plans and
Specifications are inconsistent with Schematic Documents. The Developer shall provide to the
Executive Director such additional back-up information as the Executive Director may
reasonably request to enable the Executive Director to analyze the Plans and Specifications. The
Executive Director shall have fifteen (15) days from the receipt of the Plans and Specifications to
approve or disapprove same. If the Executive Director fails to timely respond, the Plans and
Specifications shall be deemed approved. In the event of disapproval, the Executive Director
shall specify the reason for such disapproval. In the event of disapproval, Developer shall
modify the Plans and Specifications, as appropriate, to address the comments and concerns of the
Executive Director to cause the Plans and Specifications to be consistent with the Schematic
Documents. Any resubmission shall be subject to the approval of the Executive Director in
accordance with the procedure outlined above for the original submission until same is approved
or deemed approved by the Executive Director. The Executive Director and the Developer shall
in good faith, attempt to resolve any disputes regarding the Plans and Specifications. If the
Executive Director has rejected the Plans and Specifications two (2) times, the Developer 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".
5.6 Development Requirements. Developer shall be required to develop the
Project substantially in accordance with the Plans. Any material variation to the Plans shall
require approval of the Executive Director, which approval shall not be unreasonably withheld or
delayed provided that same is in accordance the spirit and intent of Plans and this Agreement.
5.7 Development Timeframe.
5.7.1 "Project Schedule". DeveIoper shall achieve Completion of the
Project in accordance with the Plans within sixteen (16) months from the Closing Date, as same
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may be extended as a result of Unavoidable Delays (the "Completion Date"), time being of the
essence. The term "Unavoidable Delays" shall mean delays beyond the control of the Developer
(other than delays in connection with obtaining licenses, permits and approvals from any
governmental authority relating to the Project) including, without limitation, civil commotion,
war, invasion, rebellion, hostility, military or usurped power, sabotage, insurrection, strikes or
lockouts on an area wide basis and not specific to the Project, riots, hurricanes, floods,
earthquakes, casualties, acts of the public enemy, epidemics, quarantines, restrictions, embargos
and area wide governmental restrictions. If the Developer fails to achieve Completion within
ninety (90) days of the Completion Date, Developer shall pay to the CRA One Thousand and
No/100 Dollars ($1,000.00) per day thereafter until Completion. The term "Completion" shall
mean the Project has been completed substantially in accordance with the Plans and a temporary
certificate of occupancy has been issued by the City of Miami for all residential units comprising
the Project and a certificate of completion, or its equivalent, has been issued for all of the
commercial space included in the Project. This provision shall survive the closing.
5.8 Project Budget.
A. The preliminary budget for the Project prepared by the Developer
is attached hereto as Exhibit "D" and made a part hereof (the "Preliminary Budget"). As soon as
available but in no event later than sixty (60) days after the approval of the Schematic
Documents, the Developer shall submit to the Executive Director for review and approval, which
approval shall not be unreasonably withheld, a detailed line item budget reflecting all hard and
soft costs anticipated to be incurred by the Developer in connection with the Project (the "Project
Budget"). The Developer agrees to use its good faith efforts to make all reasonable
modifications to the Project Budget to satisfy the requirements of the Executive Director. The
Developer shall provide to the Executive Director such additional back-up information as the
Executive Director may reasonably request to enable the Executive Director to analyze all
aspects of the Project Budget. The Executive Director shall have fifteen (15) days after receipt
of the Project Budget to approve or disapprove 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 submit draw requests
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to the Lender, as hereinafter defined, to draw funds from this line item to pay third party costs
and expenses incurred by the CRA. In no event shall more than Seventy Five Thousand and
No/100 Dollars ($75,000.00) be payable by the Developer for CRA third party expenses.
6. DEVELOPMENT AND FINANCIAL APPROVALS.
6.1 Development of Project. As soon as available after the Effective Date,
Developer shall submit to the Executive Director for review and approval, which approval shall
not be unreasonably withheld, conditioned or delayed the following:
6.1.1 Construction Contract. The construction contract for the Project
(the "Construction Contract"), together with the "schedule of values" for the Project, which shall
include the obligation of the general contractor to comply with the participation requirements set
forth in Section 8.2.1 and 8.2.2 of this Agreement.
6.1.2 Loan Commitment. A loan commitment from a financial
institution evidencing that Developer has obtained a construction loan commitment for the
development of the Project (the "Loan Commitment") which shall be reasonably acceptable to
the Executive Director. The Executive Director will not have approval rights over the loan terms
or equity investment terms. The approval of the Executive Director shall be limited to the issue
of whether the Loan Commitment reflects that funds will be available for construction of the
Project and the amount of funds that will be made available for construction.
6.1.3 Equiy. Evidence reasonably satisfactory to the Executive Director
that Developer has sufficient equity available to meet the equity requirement of the Loan
Commitment with respect to the Project (the "Equity") taking into consideration the CRA
Contribution.
6.1.4 Funding Agreement. The CRA, the Developer, the Non -Profit, as
hereinafter defined, the Developer's lender providing financing in accordance with the Loan
Commitment (the "Lender") the institutional investor(s) providing equity to the Developer with
respect to the purchase of the tax credits (the "Institutional Investor") CDG Island Living, LLC, a
Florida limited liability company (the "General Partner") or an entity controlled by Matthew S.
Greer (the "Controlled Entity") which makes the GP Loan, as hereinafter defined, shall agree to
the terms of an agreement (the "Funding Agreement") in form and substance reasonably
acceptable to the Executive Director. The Funding Agreement shall contain such provisions that
are customarily included in construction loan agreements utilized by national banking
associations doing business in Miami -Dade County, Florida to ensure the proper use and
disbursement of the funds and completion of the Project, including, without limitation,
provisions dealing with the following:
6.1.4.1 The disbursement of the CRA Contribution, the funding
and disbursement of the proceeds of the loan contemplated by the Loan Commitment (the
"Loan") the funding and disbursement of the equity to be provided by the Developer and the
Institutional Investor, the disbursement of the Non -Profit Loan, as hereinafter defined, and the
disbursement of the GP Loan, as hereinafter defined. The CRA Contribution, the Non -Profit
Loan and the GP Loan shall be disbursed on a pari passu basis with the proceeds of the Loan or
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on such other basis as mutually agreed by the Executive Director and the Lender. The CRA
Contribution, the proceeds of the Non -Profit Loan and the proceeds of the GP Loan shall be
deposited into a segregated account with the Lender pursuant to the Funding Agreement. The
Developer shall deposit the Equity in an account with the Lender, pursuant to the Funding
Agreement.
6.1.4.2 The procedure for submission of monthly draw requests
and partial lien waivers to the Lender, for review and approval.
6.1.4.3 The procedure for the inspection of the Project during
construction for the benefit of the CRA, the Non -Profit, the General Partner (or Controlled
Entity), the Institutional Investor and the Lender, and approval by the Lender of the percentage
of work completed.
6.1.4.4 The approval of the Budget and any amendments to the
Budget by the Lender.
6.1.4.5 The approval of the re -allocation of funds to different line
items in the Budget by the Lender.
6.1.4.6 The requirement that the CRA Contribution, the Non -Profit
Loan and the GP Loan only be utilized for the design and construction of the residential portion
of the Project.
6.1.4.7 The procedure for the determination of whether there are
adequate funds included in the Budget to complete the Project and whether the Budget is "in
balance" by the Lender. If it is determined that due to cost overruns or change orders 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, the Non -Profit Loan, and the GP Loan.
6.1.4.8 The procedure for approving change orders by the Lender.
6.1.4.9 The procedure for approving changes to the Plans by the
Lender.
6.1.4.10 The procedure for the CRA to submit draw requests
to the Lender pursuant to Section 5.8(B), not to exceed Seventy Five Thousand and No/I 00
Dollars ($75,000.00) in the aggregate
6.2 The Executive Director shall have fifteen (15) days after receipt of each of
the items required by Section 6.1 to review and approve or disapprove same, which approval
shall not be unreasonably withheld. In the event of disapproval of any such item, the Executive
Director shall specify the reasons for such disapproval. In such event the Developer shall utilize
its good faith efforts to address the comments and concerns of the Executive Director.
7. CRA CONTRIBUTION.
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7.1 The CRA covenants and agrees to contribute the Property having an
agreed value of Eight Hundred Thousand and No/100 Dollars ($800,000.00) (the "Land
Contribution") and to make a cash contribution to a Non -Profit in an amount of up to Nine
Million and No/I00 Dollars ($9,000,000.00) for the administration, design and development of
the residential portion of the Project (the "CRA Contribution"; together with the Land
Contribution, the "Total CRA Contribution"), provided all of the CRA Conditions Precedent are
satisfied or waived by the CRA. The CRA Contribution to the Non -Profit shall be made in
accordance with the terms of the Non -Profit Grant Agreement, as hereinafter defined, and the
Non -Profit shall loan one hundred percent (100%) of the proceeds of the CRA Contribution to
the General Partner (or the Controlled Entity) (the "Non -Profit Loan"). The General Partner (or
the Controlled Entity) shall Ioan one hundred percent of the Non -Profit Loan proceeds to the
Developer (the "GP Loan") to be 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 7.2 and 7.3 below.
Under no circumstances shall the CRA Contribution be increased notwithstanding any increases
in the Project Budget.
7.2 The exact amount of the CRA Contribution will depend upon the Project
Budget approved by the Executive Director and other funding sources for the Project obtained by
the Developer. The CRA Contribution shall be reduced if the committed sources of funding
upon achieving Completion exceed all uses, including a fully -funded developer fee including
developer overhead and profit in an amount not exceeding the lesser of (i) eighteen percent
(18%); or (ii) the maximum developer fee, including developer overhead and profit permitted by
the Florida Housing Finance Corporation ("FHFC") guidelines for multi -family revenue bond -
financed projects pursuant to Rule 67-21, Fla. Admin. Code.
7.3 Upon Completion, the Developer, at its sole cost and expense, shall retain
Reznick Group, PC, or a similarly qualified accounting firm, to prepare a cost certificate (the
"Cost Certification"), based upon an audit of all costs and expenses incurred in connection with
achieving Completion, which Cost Certificate shall be in compliance with all FHFC guidelines
for cost certifications. Upon receipt of the Cost Certificate, the Developer shall promptly
provide a copy of same to the CRA 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 7.2), then the CRA Contribution, the Non -Profit Loan and the GP Loan shall be
reduced by the amount of such excess. If the CRA Contribution, the Non -Profit Loan and the
GP Loan have been fully disbursed the Developer shall repay such amount within thirty (30)
days after written demand from the Executive Director to the General Partner (or the Controlled
Entity) which will, in turn, repay such portion of the Non -Profit Loan to the Non -Profit which
will, in turn, repay such portion of the CRA Contribution to the CRA. If the Executive Director
disputes the Cost Certificate the Developer and the Executive Director shall utilize their good
faith efforts to resolve the dispute within fifteen (15) days of the CRA's receipt of a copy of the
Cost Certificate. If the Developer and the Executive Director cannot resolve the dispute
regarding the Cost Certificate within the fifteen (15) day period, either party may submit the
dispute to the CRA Board for resolution, which shall be binding on the parties. This provision
shall survive the closing.
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7.4 The CRA has advised the Developer that the CRA Contribution shall be
derived from the proceeds of bonds (the "CRA, Bond Issue") to be issued by the CRA which
shall be secured by tax increment revenues. The CRA Contribution shall not be security for the
CRA Bond Issue or any other indebtedness of the CRA. The Developer acknowledges that
restrictions associated with the CRA Bond Issue will require that the Loan, as hereinafter
defined, be utilized only with respect to the design and construction of the residential portion of
the Project and that the CRA Contribution be paid to a non-profit corporation which must be a
501(c)(3) not -for -profit corporation which is not affiliated in any way with the CRA, the County,
the State of Florida or the Developer (the "Non -Profit") and otherwise comply with the terms of
the Non -Profit Grant Agreement in substantially the form of Exhibit "E" attached hereto and
made a part hereof (the "Non -Profit Grant Agreement").
7.5 The CRA is currently in the process of obtaining the CRA Bond Issue on
terms and conditions acceptable to the CRA, in its sole discretion. The 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 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.
7.6 Developer and the CRA agree that the CRA shall make the CRA
Contribution to a Non -Profit acceptable to the CRA. Within thirty (30) days from the Effective
Date, the Developer shall identify the Non -Profit and submit ail proposed structure documents,
including, without limitation, the loan documents (the "Non -Profit Loan Documents") in
connection with the Non -Profit Loan and the loan documents in connection with the GP Loan
(the "GP Loan Documents"), to the CRA for its approval, which approval shall not be
unreasonably withheld, provided the CRA has the same protections currently afforded to the
CRA under this Agreement, the Non -Profit and the Non -Profit Loan Documents comply with the
requirements of the CRA Bond Issue and the Non -Profit Grant Agreement and the GP 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 Non -Profit Loan
proceeds and the GP Loan proceeds with the Lender to be disbursed in accordance with the
Funding Agreement. The Non -Profit, the General Partner (or Controlled Entity) shall become a
party to the Funding Agreement, however, the CRA shall retain control over the disbursement of
the Non -Profit Loan to the General Partner or the Controlled Entity and the CRA shall retain
control over the disbursement of the GP Loan to the and Developer in accordance with the
Funding Agreement.
7.7 The CRA and the Non -Profit will enter into the Non -Profit Grant
Agreement which shall govern the use of the CRA Contribution. In the event that any portion of
the Non -Profit Loan is repaid to the Non -Profit, the Non -Profit shall utilize same as provided in
the Non -Profit Grant Agreement. 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. The CRA acknowledges that the Non -Profit Loan may be non-
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interest bearing, require no principal payments unless there is an event of default, and be
forgivable after fifteen (15) years.
7.8 The General Partner (or the Controlled Entity) shall not be permitted to
retain any portion of the Non -Profit Loan and any fees and costs of the General Partner (or the
Controlled Entity) must be paid from sources other than the Non -Profit Loan. One hundred
percent (100%) of the Non -Profit Loan must be loaned to the Developer pursuant to the GP Loan
Documents. The General Partner (or the Controlled Entity, as appropriate) may retain any
payments made with respect to the GP Loan after the Non -Profit Loan is forgiven.
7.9 The Executive Director shall have fifteen (15) days after receipt of
information regarding the Non -Profit, the proposed Non -Profit Loan Documents and the GP
Loan Documents to approve or disapprove same, which approval shall not be unreasonably
withheld provided the Non -Profit, the Non -Profit Loan Documents and the GP Loan Documents
comply with the requirements of the CRA Bond Issue and this Agreement. In the event of
disapproval, the Executive Director shall specify the reasons for such disapproval. If the
Executive Director has not approved the Non -Profit, the Non -Profit Loan Documents and the GP
Loan Documents prior to November 30, 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.
8. MINORITY AND WOMEN'S PARTICIPATION AND EQUAL
EMPLOYMENT OPPORTUNITY.
8.1 Minority and Women Participation and Equal Opportunity. In connection
with the Project, the Developer agrees that it will:
i) Take definitive action in the recruitment, advertising and to attract
and retain minority and female contractors and subcontractors;
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;
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vi) Post in conspicuous places, availability to employees and
applicants for employment, notices in a form to be provided to the
Executive Director, setting forth the non-discrimination clauses of
this Section 8.
vii) In all solicitations and advertisements for employment placed by or
on behalf of Developer, state that all applicants will receive
consideration for employment without regard to race, creed, color
or national origin.
8.2 Participation Requirements. Developer agrees to comply with the
following subcontractor participation requirements and laborer participation requirements (the
"Participation Requirements") with respect to the Project:
8.2.1 Subcontractor Participation. The Developer shall cause its general
contractor to hire not less than twenty percent (20%) of the subcontractors for the demolition of
the existing improvements and construction of the Project utilizing companies that have their
principal place of business either within the Redevelopment Area or within the City. For
purpose of calculating the twenty percent (20%) subcontractor participation, the twenty percent
(20%) participation shall be calculated based upon the dollar value of each subcontract given to
subcontractors whose principal place of business is in either the Redevelopment Area or the City
and the total dollar value of all subcontracts entered into by the general contract for the Project
("Subcontractor Participation Requirement").
8.2.2 Laborer Participation. Developer agrees to cause its general
contractor and all subcontractors to hire forty percent (40%) of the unskilled labor for the
demolition of the existing improvements and the construction of the Project ("Laborer
Participation Requirement") from workers residing in either the Redevelopment Area or the City.
Within thirty (30) days of approval of the Plans, Developer shall submit to the Executive
Director for review and approval Developer's estimate for the number of unskilled laborers
which will be required for the demolition of the existing improvements and the construction of
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
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Executive Director shall be utilized by the Executive Director to determine compliance with the
Laborer Participation Requirement unless Developer is able to establish manifest error in the
Labor Estimate based upon the actual number of laborers required for demolition of the existing
improvements and construction of the Project.
8.2.3 In the event of any disputes between the Executive Director and
the Developer as to whether any subcontractor has its principal place of business in either the
Redevelopment Area or the City or whether any laborer resides in either the Redevelopment
Area or the City, the Developer and the Executive Director shall proceed in good faith to resolve
the dispute. In the event the dispute is not resolved within ten (10) days either party may submit
the dispute to the Board for resolution which shall be binding on the parties.
8.3 Report Requirements. The Developer shall be required to submit to the
Executive Director on a monthly basis commencing thirty (30) days after commencement of
demolition of the existing improvements, detailed reports evidencing compliance with the
Subcontractor Participation Requirements and the Laborer Participation Requirements during the
prior thirty (30) day period ("Participation Reports"). The Participation Reports shall contain
such information as the Executive Director may reasonably require to enable the Executive
Director to determine whether the Developer is in compliance with the Subcontractor
Participation Requirements and the Laborer Participation Requirements.
8.3.1 Penalties for Non -Compliance with Subcontractor Participation
Requirements. To the extent Developer fails to comply with the Subcontractor Participation
Requirements, with respect to the Project, Developer shall pay to the CRA as a penalty for such
non-compliance Two Thousand Five Hundred and No/100 Dollars ($2,500.00) for each
percentage point below the Subcontractor Participation Requirement (the "Subcontractor Non -
Compliance Funds"). The Subcontractor Non -Compliance Funds shall be calculated by the
Executive Director after completion of the Project and shall be due and payable within thirty (30)
days from the date of Developer's receipt of written statement from the Executive Director
stating the amount of Subcontractor Non -Compliance Funds due. To the extent of any dispute
between the Executive Director and the Developer with respect to the compliance with the
Subcontractor Participation Requirements, such dispute shall be submitted to the CRA Board for
resolution. The decision of the CRA Board shall be binding on the parties.
8.3.2 Penalties for Non Compliance with Laborer Participation
Requirements. To the extent Developer fails to comply with the applicable Laborer Participation
Requirements, with respect to the Project, Developer shall pay to the CRA as a penalty for such
non compliance One Thousand and No/100 Dollars ($1,000.00) for each percentage point below
the Laborer Participation Requirements (the "Laborer Non -Compliance Fund"). The Laborer
Non -Compliance Funds shall be calculated by the Executive Director after completion of the
Project and shall be due within thirty (30) from Developer's receipt of written statement from the
Executive Director stating the amount of Laborer Non -Compliance Funds due. To the extent of
any dispute between the Executive Director and the Developer with respect to the compliance
with the Laborer Participation Requirements, such dispute shall be submitted to the CRA Board
for resolution, which arbitration shall be binding upon the parties.
9. EMPLOYMENT 1 RAINING PROGRAM.
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9.1 Developer shall cause its affiliate, Carlisle Development Group, LLC
("Carlisle") to develop a training program for Arturo Lundy of Palmetto Homes of Miami, Inc.,
designed to train Mr. Lundy to become a self-sufficient developer to ensure additional sources of
local job creation, economic empowerment and community enhancement. The program will be a
one on one mentoring program for Mr. Lundy. Developer shall provide quarterly reports to the
Executive Director regarding the training program.
10. AFFORDABLE RENTAL HOUSING.
10.1 Affordable Rental Requirement. Developer shall rent (i) not less than fifty
percent (50%) of the residential units to qualified renters whose gross income is 60% or below
the Miami -Dade County median income, and (ii) the balance of the residential units to qualified
renters whose gross income is 120% or below of the Miami -Dade County median income
(collectively the "Affordable Rental Requirement") for a period of thirty (30) years from the date
of the issuance of a certificate of occupancy or certificates of occupancy for all of the residential
units in the Project.
10.2 Restrictive Covenant. At Closing the Developer and the CRA shall
execute a restrictive covenant in substantially the form of Exhibit "F" attached hereto and made
a part hereof (the "Restrictive Covenant") which will run with the land for a period of thirty (30)
years from Completion as more particularly provided in the Restrictive Covenant.
10.3 Condominium. To the extent permitted under applicable sections of the
Internal Revenue Code, Developer may convert the Project to a condominium project providing
affordable home ownership at any time after thirty (30) years from the issuance of the final
certificate of occupancy for the Project.
11. CRA CONDITIONS PRECEDENT.
11.1 The obligations of the CRA to close the transaction contemplated by this
Agreement is subject to the satisfaction or waiver of the following conditions precedent (the
"CRA Conditions Precedent"):
11.1.1 The Executive Director shall have approved the Budget.
11.1.2 The Executive Director shall have approved the Plans.
11.1.3 The Executive Director shall have approved the Construction
Contract.
11.1.4 The Executive Director shall have approved the Project
Schedule.
11.1.5 The Executive Director shall have approved the Loan
Commitment for the Project.
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11.1.6 The Executive Director shall have confirmed that Developer
has sufficient equity to meet the requirements under the Loan Commitment for the construction
of the Project taking into consideration the CRA Contribution.
11.1.7 The Executive Director, the Non -Profit, the General Partner (or
Controlled Entity), the Institutional Investor and the Lender have approved the Funding
Agreement.
11.1.8 The Lender under the Loan Commitment is prepared to close
the construction loan with respect to the Project in accordance with terms of the Loan
Commitment.
11.1.9 The Executive Director shall have confirmed that (i) the
Developer is controlled by CDG, as hereinafter defined; (ii) CDG is controlled by Matthew S.
Greer; and (iii) that there has been no other change in the ownership interest in the Developer
other than the transfer of the up to 99.9% of the limited partnership interest in Developer to tax
credit investors.
11.1.10 The Executive Director has confirmed that Palmetto Homes of
Miami, Inc., a Florida corporation ("PHM") has a ten percent (10%) interest in the developer fee
and profit earned by the Developer or an entity owned or controlled by Carlisle and/or Matthew
S. Greer (collectively, the "Developer Entity") to be paid para passu with the amounts paid to the
Developer Entity and that PHM has a twenty percent (20%) ownership interest in the Developer
as reflected on Exhibit H.
11.1.11 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").
11.1.12 The Developer has obtained a building permit to enable the
Developer to construct the Project in accordance with the Plans, or provided the Executive
Director with evidence that a building permit for the construction of the Project in accordance
with the Plans is ready to be issued subject only to the payment of the building permit fees and
impact fees.
11.1.13 The CRA has approved the Non -Profit and the Non -Profit
Loan Documents and the GP Loan Documents.
11.1.14 The Non -Profit has executed the Non -Profit Grant Agreement
and the Funding Agreement.
11.1.15 The General Partner (or Controlled Entity) and the Institutional
Investor have executed the Funding Agreement.
11.1.16 The Non -Profit and the General Partner (or Controlled Entity)
have executed the Non -Profit Loan Documents.
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11.1.17 The General Partner (or Controlled Entity) and the Developer
have executed the GP Loan Documents.
11.2 In the event the CRA Conditions Precedent are not satisfied or waived by
the CRA on or before the Closing Date then the CRA may either (i) terminate this Agreement in
which event the parties shall be released from all further obligations under this Agreement except
for the obligations under this Agreement which expressly survive the termination of this
Agreement, or (ii) waive the condition and proceed in accordance with this Agreement.
12. CLOSING DATE.
12.1 Closing. The closing of the transaction contemplated by this Agreement
(the "Closing Date") shall occur on the earlier of (a) ten (10) days after all the CRA Conditions
Precedent to closing have been either satisfied or waived by the CRA or (b) three hundred sixty
(360) days after the CRA has obtained Bond Issue Approval, time being of the essence. On the
Closing Date the following shall occur provided all of the CRA Conditions Precedent have been
satisfied or waived:
attached hereto and
conveyance by the
Agreement.
reasonably request.
closing:
12.1.1 The CRA shall deliver to Developer at closing:
12.1.1.1 A special warranty deed in the form of Exhibit "G"
made a part hereof (the "Deed") with respect to the Property.
12.1.1.2 A certified copy of the resolution authorizing the
CRA and the execution and delivery of the documents contemplated by this
12.1.1.3 The Funding Agreement executed by the CRA.
12.1.1.4 A no lien and possession affidavit.
12.1.1.5 A FIRPTA affidavit.
12.1.1.6 The Restrictive Covenant executed by the CRA.
12.1.1.7 Such other documents as the title company may
12.2 Developer shall deliver to the CRA or cause to be delivered to the CRA at
12.2.1 Evidence of authority to close the transaction and execute and
deliver the appropriate closing documents.
12.2.2 Payment and Performance Bond.
12.2.3 The Funding Agreement executed by the Developer, the Non -
Profit, the Institutional Investor, the General Partner (or Controlled Entity) and Lender.
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request.
12.2.4 A guaranty of the lien free completion of the Project executed by
Carlisle and Matthew S. Greer in the form of Exhibit "H" attached hereto (the "Guaranty").
12.2.5 The Restrictive Covenant executed by the Developer.
12.2.6 Such other documents as the title company may reasonably
12.3 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.
13. ZONING APPROVALS. In the event Developer does not terminate this
Agreement during the Inspection Period, from and after the approval of the Schematic Design
Documents by the Executive Director, the CRA shall execute any documents and/or applications
reasonably required by the Developer which are required to be executed by the record owner of
the Property in connection with any zoning or land use approvals or permit applications required
to be obtained by the Developer for the Project to enable the Project to be developed in
accordance with the Schematic Design Documents provided such documents and applications do
not impose any financial obligations or liability upon the CRA.
14. REPRESENTATIONS OF CRA.
14.1 The CRA makes the following representations:
14.1.1 The CRA is duly organized and validly existing under the laws of
the State of Florida and has full power and capacity to own its properties, to carry on its business
as presently conducted by the CRA, and to perform its obligations under this Agreement.
14.1.2 The CRA's execution, delivery and performance of this Agreement
have been duly authorized by all necessary legal actions and does not and shall not conflict with
or constitute a default under any indenture, agreement or instrument to which the CRA is a party
or by which the CRA or CRA's property may be bound or affected, except for such approvals
required by this Agreement.
14.1.3 This Agreement constitutes the valid and binding obligation of the
CRA, enforceable against the CRA, and its successors and assigns, in accordance with their
respective terms, subject to bankruptcy, insolvency and other similar laws affecting the rights of
creditors generally.
14.1.4 There are no lawsuits against CRA or affecting any portion of the
Property, including, but not limited to, condemnation actions.
14.1.5 As of the Closing Date the CRA will be in exclusive possession of
the Property, free and clear of all leases.
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14.2 Survival of Representations. All of the representations of the CRA set
forth in this Agreement shall be true upon the execution of this Agreement, shall be deemed to be
repeated and as of the Closing Date, and shall be true as of the Closing Date. All of the
representations, warranties and agreements of the CRA set forth in this Agreement shall not
survive the Closing.
15. DEVELOPER'S REPRESENTATIONS.
15.1 Developer makes the following representations to the CRA as follows:
15.1.1 Developer is a limited partnership duly organized and validly
existing under the laws of the State of Florida, and have full power and capacity to own the
Property, to carry on its business as presently conducted, and to enter into the transactions
contemplated by this Agreement.
15.1.2 Developer's execution, delivery and performance of this
Agreement has been duly authorized by all necessary partnership actions and does not and shall
not conflict with or constitute a default under any indenture, agreement or instrument to which it
is a party or by which it may be bound or affected.
15.1.3 This Agreement constitutes the valid and binding obligation of
Developer, enforceable against Developer and its successors and assigns, in accordance with its
respective terms, subject to bankruptcy, insolvency and other similar laws affecting the rights of
creditors generally.
15.1.4 Exhibit "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.
15.2 Survival of Representations. All of the representations of the Developer
set forth in this Agreement shall be true upon the execution of this Agreement, shall be deemed
to be repeated and as of the Closing Date, and shall be true as of the Closing Date. All of the
representations, warranties and agreements of the Developer set forth in this Agreement shall not
survive the Closing.
16. DEFAULT.
16.1 Developer Failure to Perform.
16.1.1 If the Conditions Precedent are not satisfied or waived by the CRA
on or before the Closing Date, this Agreement shall terminate and the parties shall be released
from all obligations under this Agreement except for the obligations that expressly survive the
termination of this Agreement.
16.1.2 In the event the Developer defaults with respect to its obligations
under Sections 8, 9 or 10, which default is not cured within thirty (30) days of written notice
from the CRA or such longer period, if the default by its nature cannot be cured within the thirty
(30) day period provided Developer commences the curative action within the thirty (30) day
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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.
16.1.3 In the event this Agreement contains any material
misrepresentations by the Developer, the CRA, as its sole and exclusive remedy may terminate
this Agreement, in which event the parties shall be released from all further obligations under
this Agreement except for the obligations that expressly survive the Closing.
16.2 In the event of a default by the CRA under this Agreement which is not
cured within ten (10) days of written notice from Developer, without any default on the part of
Developer, Developer, as its sole and exclusive remedy, shall be entitled to (i) terminate this
Agreement in which event the parties shall be released from all further obligations under this
Agreement except for the obligations that expressly survive the termination, or (ii) sue for
specific performance to enforce the terms of this Agreement. Developer waives any other
remedies it may have against the CRA at law or in equity as a result of a breach of this
Agreement. In the event of a termination of this Agreement, in which event the parties shall be
released from all further obligations under this Agreement except for the obligations that
expressly survive the termination.
17. BROKERS. The parties each represent and warrant to the other that there are no
real estate broker(s), salesman (salesmen) or finder(s) involved in this transaction. If a claim for
commissions in connection with this transaction is made by any broker, salesman or finder
claiming to have dealt through or on behalf of one of the parties hereto ("Indemnitor"),
Indemnitor shall indemnify, defend and hold harmless the other party hereunder ("Indemnitee"),
and Indemnitee's officers, directors, agents and representatives, from and against all liabilities,
damages, claims, costs, fees and expenses whatsoever (including reasonable attorney's fees and
court costs at trial and all appellate levels) with respect to said claim for commissions.
Notwithstanding anything to the contrary contained in this Agreement, the provisions of this
Paragraph shall survive the delivery of the special warranty deed.
18. ASSIGNABILITY.
18.1 This Agreement may not be assigned without the approval of the CRA,
which approval may be granted or withheld by the CRA, in its sole discretion. For the purpose
of this Section 19.1, each of the following events shall be deemed an assignment requiring the
approval of the CRA, which approval may be granted or withheld by the CRA, in its sole
discretion:
(i)
the change in control of Developer which is currently controlled by
CDG Island Living, LLC, a Florida limited liability company
("CDG").
(ii) transfer of more than 20% of the membership interests in CDG.
(iii) changes in control of CDG which is controlled by Matthew S.
Greer.
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19. NOTICES. Any notices required or permitted to be given under this Agreement
shall be in writing and shall be deemed to have been given if delivered by hand, sent by
recognized overnight courier (such as Federal Express), sent by fax and another method provided
herein or mailed by certified or registered mail, return receipt requested, in a postage prepaid
envelope, and addressed as follows:
If to Developer:
Island Living Apartments, Ltd.
c/o Carlisle Development Group, LLC
2950 SW 29th Avenue, Suite 200
Miami, FL 33133
Attention: Matthew S. Greer
Fax: 305-476-1557
With a copy to:
Ryan D. Bailin, Esq.
Stearns Weaver Miller Weissler, Aldeff and Sitterson, P.A.
150 West Flagler Street, Suite 2200
Miami, FL 33130
Fax: 305-789-2635
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And with a copy to:
If to CRA:
Patricia K. Green, Esq.
Stearns Weaver Miller Weissler, Aldeff and Sitterson, P.A.
150 West Flagler Street, Suite 2200
Miami, FL 33130
Fax: 305-789-3395
SOUTHEAST OVERTOWN / PARK WEST
COMMUNITY REDEVELOPMENT AGENCY
Attention: Clarence E. Woods, III., Executive Director
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.
20. CHALLENGES. Developer acknowledges and agrees that the CRA shall have no
liability whatsoever to Developer in connection with any challenge to this Agreement and the
transaction contemplated by this Agreement and Developer hereby forever waives and releases
the CRA from any liability whatsoever, now or hereafter arising in connection with any
challenge and covenant and agree not to initiate any legal proceedings against the CRA in
connection with any challenges to this Agreement by any third parties.
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21, REAL ESTATE TAXES.
21.1 It is the intention of the CRA and the Developer that upon conveyance of
the Property to the Developer that the Project shall be fully taxable for the purposes of ad
valorem 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 valorem real estate taxes with respect to the Project. In the event for any
reason the Project is not subject to ad valorem 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 valorem 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 valorem real estate taxes.
21.2 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.
22. MISCELLANEOUS.
22.1 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.
22.2 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.
22.3 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.
22.4 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.
22.5 All of the exhibits attached to this Agreement are incorporated in, and
made a part of, this Agreement.
Agreement.
Dade County
22.6 Time shall be of the essence for each and every provision of this
22.7 This Agreement may not be recorded in the Public Records of Miami-
24
22.8 The "Effective Date" shall mean the date this Agreement is last executed
by Developer and the CRA.
22.9 In the event Developer does not terminate this Agreement during the
Inspection Period from and after the approval of the Schematic Documents by the Executive
Director, the CRA shall execute any documents and/or applications reasonably requested by the
Developer which are required to be executed by the record owner of the Property in connection
with any zoning or land use approval or permit applications required to be obtained by the
Developer to enable to the Project to be developed in accordance with the terms of the Schematic
Documents, provided such documents and applications do not impose any financial obligations
or liability upon the CRA.
22.10 Developer acknowledges and agrees that other than the CRA Contribution,
the Developer shall not be entitled to any tax increment funds generated by the Project.
Developer waives any claims regarding the tax increment funds generated by the Project.
23.Certification. In connection with the CRA Bond Issue the Developer agrees to
execute a certificate in substantially the form of Exhibit "J" attached hereto.
24. Amendments. The CRA and the Developer agree to execute any amendments to this
Agreement reasonably necessary to facilitate the closing of the CRA Bond Issue provided any
such amendment does not materially change the terms of the transaction contemplated by this
Agreement.
25. 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]
25
above written.
DEVELOPER:
IN WITNESS hereof the parties have executed this Agreement as of the date first
ISLAND LIVING APARTMENTS, LTD.
a Florida limited partnership
By: CDG Island Living, LLC, a Florida limited liability company
Its managing general partner
CRA:
By:
Name: M&thew S. Greer
Title: Manager
SOUTHEAST OVERTOWN / PARK WEST
COMM Y REDEVELOPMENT AGENCY
By
ATT T:
Clerk of e : oard
Approved for legal sufficiency
By:
William R. Bloom, Esq.
Holland & Knight LLP,
Special Counsel to CRA
ence E. Woods, III., Executive Director
a/ 1//
JOINDER
The undersigned join in this Agreement for the purpose of agreeing to comply with the
provisions of Section 6.1.4 and Section 7 of the Agreement.
GENERAL PARTNER:
CDG Island Living, LLC, a Florida limited liability
company
By:
MaS. Greer
Title: Manager
C ROL NTI
By: ,f'¢774 -ad eLL
Name:
Title: /2,/4,>��.
Schedule of Exhibits
A. Legal Description
B. Insurance Requirements
C. Permitted Exceptions
D. Preliminary Project Budget
E. Non -Profit Grant Agreement
F. Restrictive Covenant
G. Deed
H. Guaranty of Completion
I. Ownership Interests
J. Certificate
29
EXHIBIT A
Legal Description
Lots 8, 9, 10, 11, Block 9, SOST'S Subdivision, according to the
Plat thereof, as recorded in Plat Book B, at Page 27, Public
Records of Miami -Dade County, Florida.
30
EXHIBIT B
INSURANCE REQUIREMENTS
I. Commercial General Liability (Primary & Non Contributory)
A. Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence $1,000,000
General Aggregate Limit $ 2,000,000
Products/Completed Operations $ 1,000,000
Personal and Advertising Injury $1,000,000
B. Endorsements Required
City of Miami and Southeast OvertownlPark 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
Ill. Worker's Compensation
Limits of Liability
Statutory -State of Florida
Waiver of subrogation
Employer's Liability
31
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
Policy Aggregate
$1,000,000
$1,000,000
City of Miami and Southeast Overtown/Park West Community Redevelopment
Agency as Named Insured
VI. Builders' Risk
Causes of Loss: All Risk -Specific Coverage Project Location
Valuation: Replacement Cost
Deductible: $25,000 All other Perils
5% maximum on Wind
City of Miami and Southeast Overtown/Park West Community Redevelopment
Agency listed as an Additional Insured
A. Limit/Value at Location or Site - Full Replacement
B. Coverage Extensions as provided by insurer
32
The above policies shall provide the City of Miami and Southeast Overtown/Park West
Community Redevelopment Agency with written notice of cancellation or material change
from the insurer not less than (30) days prior to any such cancellation or material change,
or in accordance to policy provisions.
Companies authorized to do business in the State of Florida, with the following qualifications,
shall issue all insurance policies required above:
The company must be rated no less than "A" as to management, and no less than "Class V"
as to Financial Strength, by the latest edition of Best's Insurance Guide, published by A.M.
Best Company, Oldwick, New Jersey, or its equivalent. All policies and /or certificates of
insurance are subject to review and verification by Risk Management prior to insurance
approval.
33
EXHIBIT C
PERMITTED EXCEPTIONS
1. Taxes and assessments for the year of the Closing and subsequent years.
2. Covenant running with the land in favor of the City of Miami recorded in Official
Records Book 16456, at Page 1064, Public Records of Miami -Dade County, Florida.
3. Stipulation of Settlement recorded in Official Records Book 13752, at Page 1036,
Public Records of Miami -Dade County, Florida.
4. Agreement for Water Facilities between Miami -Dade County and Southeast
Overtown/Parkwest Community Redevelopment Agency recorded on March 13, 2008 in Official
Records Book 26265, at Page 1476 of the Public Records of Miami -Dade County, Florida.
5. Notification of an Extension to a Previously Approved Development of Regional
Impact recorded September 8, 2008 in Official Records Book 26557, at Page 217, Public
Records of Miami -Dade County, Florida.
6. Notification of an Extension to a Previously Approved Development of Regional
Impact recorded September 8, 2008 in Official Records Book 26557, at Page 223, Public
Records of Miami -Dade County, Florida.
34
EXHIBIT D
Preliminary Project Budget
Island Living - Miami, FL - Southeast
Sources & Uses
P4rmanen1Passe
Sources Rif 10 Per Liar
Pennalent Ritz Mortgage
.000
t345%
3 7
Ce'4611:I01 LNa
0 004
CRA Fining
9y130.000
44 53%
1213,571
J11te6 PartnerEqurty
7851.800
3900%
112,5E6
.2 64Rtl Dev00per Fee
604244
2.594,
6,012
TOM: Salrros
20.;205,244 1a 0056 44,64
~Tenant has 3
USES No/ 14 Pa 070
Matt cons to Cods
12,340,655
6105%
126,756
AecreatOnalCvner S'mts
350.080
17 %
6.000
rtatd cost C(rAlgency
5a%
617.034
3175%
3,615
044181654
100.000
0495.
1,429
CaralIGtm 616retr Expense
633 174
3.26%
9.4e2
PensD90 Loan 00git0➢6n Fee
37,200
0.13^2
369
PC1734441.0311 00610g C06%
6.160
054%
117
C4ns1s.510, L03r 011gloacri Fea
96.300
0 471'.
1,357
CLr5111JM01 L03n a0109 Cats
19960
009%
x1
0661s a 166I7314e
335400
1 66%
4 791
00362 Lear 0486119 C0616
99.000
OA%
1.414
4opoaSng Feat
40,0013
&20%
571
AppG01100 Fee6
36 000
1117%
500
Appraisal
16000
1 082
HGete6 Fes
5400
30
1%
5,214
A148150 F60 - 519.008511n
45000
a 224
643
8tdbers Rl5 emsance
210000
1 04%
30E0
Bulring P6m9i
105500
034%
1,650
CreStt Ulderarle9 Fee
ID7s9
0055.
153
1yrxe0rg fe6
20000
0.25%
714
53'5me105 R5908
16000
0094.
267
RISC 441'1 0 0 01R Fees
26399
0 334
946
FNFC ApplGtbn F6cs
3ACfl
05116
43
RIK 036l21a3071.100. Fea
67 137
033%
959
ITpatr Fees
106,387
052%
1,506
Stspact= Fe6s
1001300
0e3%
2,571
115uaece- Prupeir4t37182y
25000
012%
357
Legal Fe95 - Pallner50p
17513C0
0SW%
2550
1595 Fees -07rer
55.000
0 2716
766
1144,-SS1Oj
45,+170
0074.
211
14a0.04n.a 36.805635
75800
0.379.
1.071
5tealtl76pn C5or70'/3 £45'4es
TC0.000
049%
1,s29
Property T34es
508E0
0 55%
714
4001410 466905
10000
0 05%
143
449rx781%043n0 As-316A0
45300
0 22%
543
71842 !nuance a Reccesrr2
199,352
0 99%
2 545
1111111y Car6311011 Fee
106.65
0525.
1,568
331t OW C403490949
41246
106752
0545.
1,561
591970931
16993450
%seam Peg11''o0oy Lela&
223.151.
119%
3.766
462717D beA991,499•
0eA9altrs AI ( 5 Oaemead
453
677.335
32350
9.676
0Total
14.07t
2371,305
11
70
33,676
PropscrPro
20,205,244
10C 0%
243,646
35
cm151142on Phase
Taal 71 Pir4AP
-
0003..
-
5.500.COO
40224.
135,714
9 340,000
35 10%
1211,571
5 122000
21 651.
73,171
000%
-
28,922,000 100.003. 337,457
construeilan tams
05741 % Pie41M
12,, 4QWFa
66 344.
776,95
152000
1534.
5.003
617.634
3.325,
6,116
103,000
554%
1.429
056.174
3 354.
9,402
27,20
016%
383
8.150
004%
117
95000
051%
136'.
19,200
010%
171
335A00
161%
A 791
69,000
053%
1414
40,000
0A51�-gggc:g/E.54:5gg
A b O P P p p 4 P p o P 4 a o 0 o p o 0 Op
571
35,000
600
16 00O
229
365000
5114
45003
643
2113000
3.003
1[18509
1.650
10,719
153
saga
714
15000
257
65 369
946
3.000
43
67,437
969
105.367
1 606
1130003
2 571
25009
357
176.103
2.600
65000
756
15,009
214
7500.3
1,071
107,750
1429
50.000
71a
10,008
143
45 COO
543
199352
2643
105,560
1 609
10,9 752
1 `Se
16,533, 50
-
•
17 90.6
C0$1¢.
D
kJ
677,335
3-66.4
992,250
5 110, 13.634
11,563,046 100 M 2C5.15
EXHIBIT E
NON-PROFIT GRANT AGREEMENT
THIS NON-PROFIT GRANT AGREEMENT (the "Agreement") is made of the
day of , 2012, by and between The Miami Foundation, 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 October 11, 2012
(the "Development Agreement"), by and between the CRA and Island Living Apartments, Ltd., a
Florida limited partnership (the "Developer"), with respect to the development of a project
consisting of not less than 70 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 Nine Million and No/100 Dollars ($9,000,000.00) (the "CRA
Contribution") to the NON-PROFIT, which CRA Contribution will be loaned by the NON-
PROFIT to the General Partner or the Controlled Entity (the "Borrower"), which will loan the
funds to the Developer.
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 make a loan of the CRA Contribution to the
Borrower, which will loan the funds to the Developer.
D. The CRA has determined that the making of the CRA Contribution (and thereby
providing funds to be loaned and available for the development of the Project) is in furtherance
of its purpose of providing decent, safe, affordable and sanitary housing for persons or families
of low or moderate income within the Redevelopment Area.
NOW THEREFORE, for and in consideration of the covenants and agreements
hereinafter 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. 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.
3. GRANT. Subject to the satisfaction of the Conditions Precedent, as hereinafter
defined, the CRA agrees to make the CRA Contribution to the NON-PROFIT, in the amount
determined in accordance with the terms of Section 7 of the Development Agreement.
36
4. USE OF CRA CONTRIBUTION. The NON-PROFIT covenants and agrees to
use the CRA Contribution solely for the purpose of loaning the CRA Contribution to the
Borrower in accordance with the terms and provisions of the Non -Profit Loan Documents and
the Development Agreement. Proceeds of the CRA Contribution will not be used to pay fees
and expenses of the NON-PROFIT. The NON-PROFIT covenants and agrees to enter into the
Funding Agreement contemplated by the Development Agreement, and not to unreasonably
withhold its consent to the terms and provisions of the Funding Agreement.
5. TERMS OF LOAN TO THE DEVELOPER. The NON-PROFIT covenants and
agrees to loan to the Borrower an amount equal to the CRA Contribution (the "Non -Profit
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 "Non -Profit Loan Documents").
The Non -Profit Loan Documents will require the Borrower to loan the proceeds of the Non -
Profit Loan to the Developer (the "GP Loan") in accordance with the terms and provisions of the
loan documents substantially in the form of Exhibit "B" attached hereto and made a part hereof
(the "GP Loan Documents").
6. REPAYMENT OF THE NON-PROFIT LOAN. In the event the Borrower repays
all or any portion of the Non -Profit Loan to the NON-PROFIT, the NON-PROFIT covenants and
agrees to utilize any such money to establish a micro lending program to support businesses
located in the Redevelopment Area. Notwithstanding the foregoing, if the Borrower returns a
portion of the Non -Profit Loan pursuant to Section 7.3 of the Development Agreement, or the
Non -Profit Loan is not fully disbursed and is reduced pursuant to such section, the NON-
PROFIT shall promptly pay to the CRA the amount of such repayment, or the CRA Contribution
shall be concomitantly reduced, as the case may be.
7. CONDITIONS PRECEDENT. The obligation 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"):
a. All of the CRA Conditions Precedent set forth in Section [111 of the
Development Agreement have either been satisfied or waived by the CRA.
b. The closing of the transaction contemplated by the Development
Agreement shall be consummated simultaneously with the funding of the
CRA Contribution.
c. The NON-PROFIT has executed the Funding Agreement.
d. The General Partner (or the Controlled Entity) and the NON-PROFIT
have executed the Non -Profit Loan Documents in substantially the form
attached hereto.
e. The General Partner (or the Controlled Entity) and the Developer have
executed the GP Loan Documents in substantially the form attached
hereto.
37
The representations and warranties of the NON-PROFIT contained in
Section 10 hereof shall be true and correct on the date of such funding.
In the event the Conditions Precedent are not satisfied or waived by the CRA on or before
the CIosing 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.
8. FUNDING OF THE CRA CONTRIBUTION. The CRA shall fund the CRA
Contribution to [or for the account of] the NON-PROFIT as provided in the Funding Agreement,
simultaneously with the closing of the transaction contemplated by the Development Agreement,
provided that all the Conditions Precedent have been satisfied.
9. REPRESENTATIONS OF THE CRA. The CRA makes the following
representations:
a. 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.
b. The CRA's execution, delivery and performance of this Agreement have
been duly authorized by all necessary legal actions and do 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.
c. 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 or the rights of creditors of governmental or municipal
entities.
10. REPRESENTATIONS OF THE NON-PROFIT. The NON-PROFIT makes the
following representations:
d. 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, the Non -Profit Loan
Documents and the Funding Agreement.
e. The execution, delivery and performance of this Agreement, the Non -
Profit Loan Documents and the Funding Agreement have been duly
authorized by all necessary corporate actions and do 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.
38
f. 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, Miami -
Dade County, Florida, or the State of Florida within the meaning of
Treasury Regulation § 1.150-1(b). The receipt of the CRA Contribution
and the making of the Non -Profit Loan in accordance with the terms of the
Non -Profit Loan Documents are in furtherance of the charitable purpose of
the NON-PROFIT, and do not constitute an unrelated trade or business
within the meaning of Section 513 of the Code or a prohibited transaction
within the meaning of Section 503 of the Code.
g.
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.
h. Neither the execution and delivery of this Agreement or the Funding
Agreement and the other documents contemplated thereby to which the
NON-PROFIT is a party or the consummation of the transactions
contemplated thereby nor the fulfillment of or compliance with the
provisions of any of the other documents contemplated thereby, will
conflict with or result in a breach of or constitute a default by the NON-
PROFIT under any applicable law or ordinance of the State of Florida or
any applicable political subdivision thereof or of the NON-PROFIT's
articles of incorporation or bylaws, or any corporate restriction or any
agreement or instrument to which the NON-PROFIT is a party or by
which it is bound, or result in the creation or imposition of any lien of any
nature upon any of the property of the NON-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.
i. 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.
J•
This Agreement constitutes, and when executed and delivered as
contemplated hereby the Non -Profit Loan Documents and the Funding
39
Agreement will constitute, the valid and binding obligation of the NON-
PROFIT enforceable against the NON-PROFIT in accordance with their
respective terms, subject to bankruptcy, insolvency and other similar laws
affecting the rights of creditors generally.
11. SURVIVAL OF REPRESENTATIONS. All the representations of the CRA and
the NON-PROFIT contained in this Agreement shall be true 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.
12. 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.
13. 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:
The Miami Foundation, Inc.
200 South Biscayne Blvd, Suite 505
Miami, FL 33131
Attention:
With a copy to:
If to CRA:
SOUTHEAST OVERTOWN / 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
40
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.
14. MISCELLAENOUS.
a. 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 (ii) 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.
b. 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. Both parties to this Agreement have participated fully in the
negotiation and preparation hereof, and, accordingly, this Agreement shall
not be more strictly construed against either of the parties hereto.
c. 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.
d. 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.
41
e. 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.
f. All of the exhibits attached to this Agreement are incorporated in, and
made a part of, this Agreement.
g•
Time shall be of the essence for each and every provision of this
Agreement.
h. This Agreement may not be recorded in the Public Records of Miami -
Dade County.
i. The "Effective Date" shall mean the date this Agreement is last executed
by NON-PROFIT and the CRA.
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:
Clerk of the Board
Approved for legal sufficiency
By:
William R. Bloom, Esq.
Holland & Knight LLP,
Special Counsel to CRA
42
NON-PROFIT:
The Miami Foundation, Inc.,
a not for profit Florida corporation
By:
Name:
Title:
43
EXHIBIT F
RESTRICTIVE COVENANT AGREEMENT
The Executive Director and the Developer shall agree on the terms and provisions of the
Restrictive Covenant on or before November 9, 2012. If the Executive Director and the
Developer cannot agree on the terms of the Restrictive Covenant by November 9, 2012, the
Development Agreement shall terminate and be of no further force and effect except for the
provisions that expressly survive termination. For reference only, the initial draft of the
Restrictive Covenant proposed by the CRA is as follows:
This document prepared by
and return to:
RESTRICTIVE COVENANT AGREEMENT
Owner's
Narne and Address:
Location of Property: See Exhibit "A" attached hereto
Narne of Project:
1
Issuer's Southeast Overtown/Park West
Name and Address: Community Redevelopment Agency
1490 NW Third Avenue, Suite 105
Miami, Florida 33136
Lender's [
Name and Address:
1
THIS RESTRICTIVE COVENANT AGREEMENT (this "Agreement") is rnade and
entered into as of f 1 1, 20I2, by and among Southeast Overtown/Park West
Community Redevelopment (the "Issuer"), a public body corporate and politic created pursuant
to the laws of the State of Florida (the "State"); [ 1 a
1 formed under the laws of the State of f 1, (together with its
successors and assigns, the "Owner"), and f
44
a nonprofit [
"Lender").
] formed under the laws of the State of [ ] (the
WITNESSETH:
WHEREAS, the Owner intends to [acquire and] construct a multifamily residential
rental project located within Miami -Dade County, Florida (the "County"), to be occupied by
Lower -Income Tenants [and Moderate Income Tenants], all for the public purpose of providing
decent, safe, affordable and sanitary housing for persons or families of low or moderate income
within the County; and
WHEREAS, pursuant to a resolution of the Issuer's Board of Commissioners, adopted
September 17, 2012[, as supplemented by a resolution of the Issuer's Board of Commissioners,
adopted , 2012 (collectively, the "Bond Resolution"), the Issuer has [authorized
the issuance and delivery of] [issued and delivered] its Revenue Bonds, Series 2012[- ]
{ Apartments) (the "Bonds"), to fund, among other things, a grant (the "Grant") to the
Lender, which in turn has agreed to make a loan (the "Loan") to the Owner, pursuant to a Loan
Agreement dated as of [ 1 1, 2012 (the "Loan Agreement"), by and between the Lender
and the Owner, to finance the acquisition and construction of the Project (as hereinafter defined),
all under and in accordance with the Constitution and laws of the State; and
WHEREAS, [the Bond Resolution and] the Loan Agreement require, as a condition of
making [the Grant and] the Loan, the execution and delivery of this Agreement; and
WHEREAS, in order to satisfy such requirement[s], the Issuer, the Lender and the
Owner have determined to enter into this Agreement to set forth certain terms and conditions
relating to the operation of the Project, which is located on the land described in Exhibit "A"
hereto; and
WHEREAS, this Agreement shall be properly filed and recorded by the Owner within
the official records of the County and shall constitute a restriction upon the use of the property
subject to and in accordance with the terms contained herein;
NOW THEREFORE, in consideration of providing the financing by the Issuer and the
Lender to the Owner, acknowledging that compliance with this Agreement is necessary to the
accomplishment of the public purpose of the issuance of the Bonds and the making of the Grant,
[and to the accomplishment of the Lender's exempt purpose through the making of the Loan,]
the Owner covenants and agrees with the other parties hereto as follows:
15.Definitions and Interpretation.
15.1 The following terms shall have the respective meanings set forth below:
"Applicable Income Limit" means, with respect to Lower -Income Tenants, the applicable
income limit set forth in the definition of "Lower -Income Tenants" herein, and with respect to
Eligible Persons, the applicable income limit set forth in the definition of `Eligible Persons"
herein.
45
"Available Units" means residential units in the Project that are actually occupied and
residential units in the Project that are unoccupied and have been leased at least once after
becoming available for occupancy, provided that a residential unit that is not available for
occupancy due to renovations is not an available unit and does not become an available unit until
it has been leased for the first time after the renovations are completed.
"Certificate of Continuing Program Compliance" means the certificate required to be
delivered by the Owner to the Issuer and Lender pursuant to Section 4(d) of this Agreement.
"County" means Miami -Dade County, Florida.
"Current Annual Family Income" is determined in accordance with Section 8 of the
Housing Act of 1937, as amended (or, if such program is terminated, under such program as in
effect immediately before such termination), and includes salary, commissions, and other forms
of compensation from employment, earnings from assets and investments, income from
government programs such as social security, unemployment compensation and welfare, alimony
and child support, and the other forms of income described in the Income Certification but does
not include earnings of children under age 18, lump sum insurance or capital gains, scholarships,
the value of food stamps or the other forms of income that the Income Certification specifies
may be excluded.
"Development Agreement" means the Development Agreement dated as of October [II],
2012 between the Issuer and [the Owner] relating to the Project.
"Eligible Person" means a person(s) or family (i) who has reached the age of 65 or older,
or (ii) whose total adjusted gross income, as set forth in Section 2 of the Income Certification,
does not exceed 120% of the then current median family income for Miami -Dade County,
Florida, Standard Metropolitan Statistical Area, including adjustments for family size,
established by income statistics reported from time to time by the U. S. Department of Housing
and Urban Development or such other entity which may succeed to perform the duties of the U.
S. Department of Housing and Urban Development and who otherwise meets the requirements of
this Agreement.
"Grant Agreement" means the dated as of , 2012
between the Issuer and the Lender, providing for the Grant.
"HUD" means the United States Department of Housing and Urban Development or any
successor agency.
"Income Certification" means the certificate required to be obtained by the Owner from
each tenant pursuant to Section 4(a) of this Agreement.
"Land" means the real property located in the County, described in Exhibit "A" attached
hereto.
"Loan" means the loan originated by the Lender with respect to the Project, made to the
Owner in accordance with [the Issuer's program guidelines, the Development Agreement,) the
46
Grant Agreement and the Loan Agreement, as evidenced by the Note, for the purpose of
financing a portion of the cost of the acquisition and construction of the Project.
"Loan Agreement" means the Loan Agreement dated as of { 1 1, 2012,
[between the Lender and the Owner] relating to the Loan, as amended or supplemented from
time to time.
"Loan Documents" means the Loan Agreement, the Note, [the Development Agreement,]
this Agreement, and all other instruments, documents and certificates evidencing and securing
the Loan.
"Lower -Income Tenants" means one or more natural persons or a family, irrespective of
race, creed, religion, color, national origin, marital status, handicap or sex, whose Current
Annual Family Income does not exceed [sixty percent (60%)] [eighty percent (80%)] of the then
current median family income for Miami -Dade County, Florida, Standard Metropolitan
Statistical Area, including adjustments for family size, established by income statistics reported
from time to time by the U. S. Department of Housing and Urban Development or such other
entity which may succeed to perform the duties of the U. S. Department of Housing and Urban
Development.
"Manager" means the Owner or any agent hired by or on behalf of the Owner to operate
and manage the Project.
"Note" shall mean the Note of the Owner in the principal amount of
$[ ,000,000], dated , 2012, issued and delivered to the Lender as
consideration for the Loan, and any amendment or supplement thereto or substitution therefor.
"Project" means the multifamily residential rental housing development known as
located on the Land and financed with proceeds of the Loan.
"Qualified Project Period" means the period beginning on the later of (i) the first day on
which at least 10% of the units in the Project were first occupied (which date shall be certified in
writing by the Owner to the Issuer and the Lender immediately following such date) and (ii) the
date the Bonds were issued, and ending on the date that is thirty years after the date on which at
least 50% of the units in the Project were first occupied (which date shall be certified in writing
by the Owner to the Issuer and the Lender immediately following such date). The Owner is
authorized to use Exhibit "C" attached hereto to evidence the foregoing.
"State" means the State of Florida.
15.2 Unless the context clearly requires otherwise, as used in this Agreement, words of
the masculine, feminine or neuter gender shall be construed to include any other gender when
appropriate and words of the singular number shall be construed to include the plural number,
and vice versa, when appropriate. This Agreement and all the terms and provisions hereof shall
be construed to effectuate the purposes set forth herein and to sustain the validity hereof.
15.3 The titles and headings of the sections of this Agreement have been inserted for
convenience of reference only, and are not to be considered a part hereof and shall not in any
47
way modify or restrict any of the terms or provisions hereof or be considered or given any effect
in construing this Agreement or any provisions hereof or in ascertaining intent, if any question of
intent shall arise.
1 6.Residential Rental Property. The Owner hereby represents, covenants, warrants and
agrees that, during the term of this Agreement:
16.1 The Owner will acquire, construct, own and operate the Project for the purpose of
providing a multifamily residential rental project, and the Project shall be continually owned,
managed and operated as multifamily residential rental properties.
16.2 Each residential unit in the Project shall be contained in one or more buildings or
structures located on the Land and shall be similarly designed, furnished and constructed (except
as to number of bedrooms and bathrooms), each of which will contain separate and complete
facilities for living, sleeping, eating, cooking and sanitation for an individual or a family,
including a living area, a sleeping area, bathing and sanitation facilities and cooking facilities
equipped with a cooking range, refrigerator and sink, all of which are separate and distinct from
the other units.
16.3 None of the units in the Project will at any time be (1) utilized on a transient basis,
(2) used as a hotel, motel, dormitory, fraternity or sorority house, rooming house, nursing home,
hospital, sanitarium, rest home, trailer court or park, or (3) rented for initial lease periods of less
than six months. No part of the Project will, at any time, be owned or used by a cooperative
housing corporation or converted to condominiums.
16.4 All of the units will be rented or available for rent on a continuous basis to
members of the general public [who are Eligible Persons] (other than units for a resident
manager or maintenance personnel), and the Owner will not give preference to any particular
class or group of [persons] [Eligible Persons] in renting the units in the Project, except to the
extent that units are required to be leased or rented to Lower -Income Tenants. Lower -Income
Tenants will have equal access to and enjoyment of all common facilities of the Project. The
Owner will not discriminate against children of any age when renting the units in the Project.
16.5 No more than [two] units in the Project shall be occupied by resident managers or
maintenance or security personnel.
16.6 The Owner shall not (i) demolish any part of the Project necessary for the
operation thereof for its intended purposes or substantially subtract from any real or personal
property of the Project; or (ii) permit the use of the dwelling accommodations of the Project for
any purpose except rental residences.
16.7 The Owner shall maintain insurance with respect to the Project of the type and in
the amount of coverage set forth in Exhibit "E" hereto.
17.Lower-Income Tenants and Eligible Persons. The Owner hereby represents, warrants
and covenants as follows:
48
17.1 At all times during the term of this Agreement, [all] [not less than fifty percent
(50%) of] Available Units shall be occupied by Low -Income Tenants. The Available Units
occupied or held for occupancy by Lower -Income Tenants shall be distributed throughout the
Project.
17.2 [At all times during the term of this Agreement, those residential units that are not
occupied by Lower -Income Tenants, and are available for rental to tenants other than Lower -
Income Tenants in accordance with Section 3(a) hereof, shall be occupied by Eligible Persons.]
17.3 During the term of this Agreement, the monthly rent of the units occupied by
Lower -Income Tenants in the Project shall not exceed one -twelfth (1/12th) of thirty percent
(30%) of eighty percent (80%) (i.e., 2%) of area median gross income for the Miami -Dade
County, Florida, Standard Metropolitan Statistical Area, for a family of four, without adjustment
for family size.
For purposes of paragraph (a) [and (b)] of this Section 3 and Section 2(d), a unit occupied
by an individual or family who at the commencement of the occupancy of such unit is a Lower -
Income Tenant (or Eligible Person) shall be counted as occupied by a Lower -Income Tenant (or
Eligible Person) during such individual's or family's tenancy in such unit, even though such
individual or family ceases to be a Lower -Income Tenant (or Eligible Person); however, such
unit shall cease to be treated as occupied by a Lower -Income Tenant (or Eligible Person) upon a
determination that the tenant's most recently reported income exceeds 140% of the Applicable
Income Limit if after such determination, but before the next annual determination, any
residential rental unit of comparable or smaller size in the Project is occupied by a new tenant
whose income exceeds the Applicable Income Limit. In addition, a vacant unit that was occupied
by a Lower -Income Tenant shall be counted as occupied by a Lower -Income Tenant until it is
reoccupied other than for a temporary period of not more than thirty-one days, at which time the
unit shall be considered to be occupied by a Lower -Income Tenant only if the individual or
family then occupying the unit satisfies the definition of a Lower -Income Tenant.
If the Owner fails to comply with the requirements of paragraphs (a) [through (c)] [and
(b)] above, then in such event, the Owner shall pay to the Issuer, as a penalty for non-
compliance with such requirements, the sum of $5,000 for each unit which is not in compliance,
determined on an annual basis. Any amounts, if any, due from the Owner in accordance with
this Section 3 shall be calculated annually as of each January 1 and paid by the Owner within
thirty business days of notice by the Issuer of the amount due.
18.Reporting Requirements. During the term of this Agreement:
18.1 Income Certifications in the form attached hereto as Exhibit "D" shall be obtained
from each occupant (i) no less than five days prior to the time of initial occupancy for all tenants,
and (ii) upon the vacancy and re -occupancy of any residential rental unit in the Project, and with
respect to each Lower -Income Tenant [and each Eligible Person], such Income Certifications
shall be obtained no less frequently than once each year.
18.2 The Owner shall file with the Issuer and the Lender, on or before the tenth day of
each month (and if the tenth of the month falls on a weekend or holiday, submission must be
49
made the day before), copies of the Income Certifications specified in Section 4(a) hereof
obtained by the Owner during the previous month.
18.3 The Owner shall maintain complete and accurate records pertaining to the
incomes of (as of the date of initial occupancy of each tenant) and rentals charged to Lower -
Income Tenants and Eligible Persons residing in the Project, and shall permit during normal
business hours and upon five business days' notice to the Owner, any duly authorized
representative of the Issuer or the Lender to inspect the books and records of the Owner
pertaining to the incomes of and rentals charged to all tenants residing in the Project.
18.4 The Owner shall prepare and submit to the Issuer and the Lender at the beginning
of the Qualified Project Period, and on or before the tenth day of each month (and if the tenth of
the month falls on a weekend or holiday, submission must be made the day before) thereafter,
rent rolls and a Certificate of Continuing Program Compliance in the form attached hereto as
Exhibit "B," executed by the Owner stating (i) the percentage of residential rental units that were
occupied by Lower -Income Tenants; (ii) the percentage of residential rental units that were
occupied by Eligible Persons; (iii) the percentage of residential rental units that were vacant and
(iv) that at all times during the previous month [at least %] [all] of the residential rental
units were occupied (or deemed occupied) by Eligible Persons, including Lower -Income Tenants
(as determined in accordance with Section 3 of this Agreement) and no default has occurred
under this Agreement or, if the units failed to be so occupied, or such a default has occurred, the
nature of such failure or default and the steps, if any, the Owner has taken or proposes to take to
correct such failure or default. If any such report indicates that the vacancy rate at the Project is
10% or higher, the Issuer or the Lender shall be permitted during normal business hours and
upon five business days' notice to the Owner, to inspect all or some of the vacant units to
determine to its reasonable satisfaction that such vacant units are ready and available for rental.
18.5 No later than of each year, the Owner shall submit to the Issuer and
the Lender a certification by an independent compliance agency which is selected by the Owner
and reasonably acceptable to the Issuer and the Lender, evidencing compliance with Section 3
hereof.
In the event of that the Owner fails to submit to the Issuer and the Lender the items which
the Owner is required to submit under paragraphs (b), (d) and (e) above on or before the date
required, the Owner shall be liable for the payment to the Issuer of a late fee of $100.00 per day
which shall be payable within ten business days of written notification from the Issuer of the
amount of such late fee. The failure of the Owner to timely pay a late fee shall be an event of
default by the Owner under this Agreement.
19.Indemnification. The Owner hereby covenants and agrees that it shall indemnify and
hold harmless the Issuer, the Lender, the City of Miami, the County and their respective past,
present and future officers, members, governing body members, employees, agents and
representatives (any or all of the foregoing being hereinafter referred to as the "Indemnified
Persons") from and against any and all losses, costs, damages, expenses and liabilities of
whatsoever nature or kind (including but not limited to, reasonable attorneys' fees, litigation and
court costs related to trial and appellate proceedings, amounts paid in settlement and amounts
paid to discharge judgments) directly or indirectly resulting from, arising out of, the design,
50
construction, installation, operation, use, occupancy, maintenance or ownership of the Project
other than for their own negligent, illegal or unlawful acts or omissions. In the event that any
action or proceeding is brought against any Indemnified Person with respect to which indemnity
may be sought hereunder, the Owner, upon timely written notice frorn the Indemnified Person,
shall assume the investigation and defense thereof, including the employment of counsel and the
payment of all expenses. The Indemnified Person shall have the right to participate in the
investigation and defense thereof and may employ separate counsel either with the approval and
consent of the Owner, which consent shall not be unreasonably withheld, or in the event the
Indemnified Person reasonably determines that a conflict of interest exists between such
Indemnified Person and the Owner in connection therewith, and in either such event the Owner
shall pay the reasonable fees and expenses of such separate counsel.
20.Fair Housing Laws. The Owner will comply with all fair applicable housing laws,
rules, regulations or orders applicable to the Project and shall not discriminate on the basis of
race, creed, color, sex, age or national origin in the lease, use or occupancy of the Project or in
connection with the employment or application for employment of persons for the operation and
management of the Project. All advertising and promotional material used in connection with
the Project shall contain the phrase "Fair Housing Opportunity."
21.Tenant Lists. All tenants lists, applications, and waiting lists relating to the Project
shall at all times be kept separate and identifiable from any other business of the Owner which is
unrelated to the Project, and shall be maintained, as required by the Issuer from time to time, in a
reasonable condition for proper audit and subject to examination during business hours by
representatives of the Issuer or the Lender. Failure to keep such lists and applications or to make
them available to the Issuer or the Lender will be a default hereunder.
22.Tenant Lease Restrictions. All tenant leases shall contain clauses, among others,
wherein each individual lessee:
22.1 Certifies the accuracy of the statements made in the Income Certification;
22.2 Agrees that the family income, family composition and other eligibility
requirements shall be deemed substantial and material obligations of such lessee's tenancy; that
such lessee will comply promptly with all requests for information with respect thereto from the
Owner, the Lender or the Issuer, and that such lessee's failure to provide accurate information in
the Income Certification or refusal to comply with a request for information with respect thereto
shall be deemed a violation of a substantial obligation of such lessee's tenancy; and
22.3 Agrees not to sublease to any person or family who does not execute, and deliver
to the Owner, the Lender or the Issuer, an Income Certification.
23.Sale, Lease or Transfer of Proiect. The Owner shall not sell, assign, convey or
transfer any material portion of the land, fixtures or improvements constituting a part of the
Project or any material portion of the personal property constituting a portion of the Project
during the term of this Agreement without the prior written consent of the Issuer, which consent
shall not be unreasonably withheld. If a material portion of the Project is sold during the term
hereof and such material portion of such Project consisted of personal property or equipment, the
51
proceeds from the sale thereof may be used by the Owner to purchase property of similar
function to be used in connection with the Project. If such material portion of such Project
consists of real property and improvements, the purchaser thereof must execute and deliver to the
Owner, the Issuer and the Lender a document in form and substance reasonably satisfactory to
the Issuer pursuant to which such purchaser shall agree to operate such property in compliance
with the terms and conditions of this Agreement.
The Owner shall not sell or otherwise transfer the Project in whole without the prior
written consent of the Issuer (which shall respond within a reasonable period of time and shall
not unreasonably withhold such consent) and unless (a) the Owner shall not be in default
hereunder, (b) the purchaser or transferee shall execute any document reasonably requested by
the Issuer with respect to (i) assuming the obligations of the Owner under this Agreement, and
(ii) compliance with the terms and conditions of this Agreement and the Loan Agreement, (c) the
Issuer shall not have any reason to believe that the purchaser or assignee is incapable, financially
or otherwise, of complying with or may be unwilling to comply with, the terms of all agreements
binding on such purchaser or assignee relating to the Project, or otherwise that continued
operation of the Project will not comply with the requirements of this Agreement, (d) the
purchaser or assignee shall have satisfied such other conditions as may be reasonable under the
circumstances, and (e) the Issuer shall receive an opinion of counsel reasonably acceptable to the
Issuer to the effect that the purchaser's or transferee's obligations under this Agreement and the
other Loan Documents are enforceable against such purchaser or transferee in accordance with
their terms. It is hereby expressly stipulated and agreed that any sale, transfer or other
disposition of the Project in violation of this Section shall be null, void and without effect, shall
cause a reversion of title to the Owner and shall be ineffective to relieve the Owner of its
obligations under this Agreement or the other Loan Documents. In the event that the purchaser
or transferee shall assume the obligations of the Owner under this Agreement, the Owner shall be
released from its obligations hereunder, other than its obligations under Section 5 hereof arising
prior to such date of assumption.
Notwithstanding anything in this Section 9 to the contrary, the restrictions set forth above
on the sale, transfer or other disposition or encumbrance of the Project or any portion thereof
shall not be applicable to any of the following: (i) leases of apartment units as contemplated by
this Agreement, (ii) grants of utility related easements and service or concession related leases or
easements, including, without limitation, coin -operated laundry service leases and/or television
cable easements on the Project, providing same are granted in connection with the operation of
the Project as contemplated by this Agreement, (iii) any sale or conveyance to a condemning
governmental authority as a direct result of the condemnation or a governmental taking or a
threat thereof, [or (iv) Permitted Encumbrances under the Development Agreement]. Any other
transfer or lien granted by the Owner or its transferees shall be and remain subject to the
restrictions contained herein.
The Project name may not be changed after the bond sale is authorized by the Issuer,
unless the owner submits a written request clearly stating the proposed new name. The Issuer
shall act promptly upon any such requests that are received at least ten days before the next
meeting of the board of the Issuer.
52
24.Covenants to Run with the Land. This Agreement and the covenants, reservations and
restrictions set forth herein shall be deemed covenants running with the Land and, during the
term of this Agreement, shall pass to and be binding upon the Owner's assigns and successors
and all subsequent owners of the Land or the Project or any interest therein; provided, however,
that upon the termination of this Agreement in accordance with the terms hereof said covenants,
reservations and restrictions shall expire. Each and every contract, deed or other instrument
hereafter executed covering or conveying the Land or the Project or any portion thereof or
interest therein shall conclusively be held to have been executed, delivered and accepted subject
to such covenants, reservations and restrictions, regardless of whether such covenants,
reservations and restrictions are set forth in such contract, deed or other instruments. If a portion
or portions of the Land or the Project are conveyed, all of such covenants, reservations and
restrictions shall run to each portion of the Land or the Project.
25.Term. This Agreement shall remain in full force and effect during the Qualified
Project Period.
26.Burden and Benefit. The Issuer, the Lender and the Owner hereby declare their
understanding and intent that the burden of the covenants set forth herein touch and concern the
Land in that the Owner's legal interest in the Land and the Project is rendered less valuable
thereby. The Lender, the Issuer and the Owner hereby further declare their understanding and
intent that the benefit of such covenants touch and concern the Land by enhancing and increasing
the enjoyment and use of the Land and the Project by [Eligible Persons and] Lower -Income
Tenants, the intended beneficiaries of such covenants, reservations and restrictions, and by
furthering the public purposes for which the Bonds were issued. The Owner hereby expressly
acknowledges that this Agreement is necessary to accomplishment of the Issuer's public purpose
of the issuance of the Bonds and the making of the Grant and to accomplishment of the Lender's
exempt purpose through the making of the Loan, and covenants and agrees that in connection
with the acquisition, construction, ownership and operation of the Project, it shall and shall
require any subsequent purchaser of the Project to fully comply with all terms and conditions of
this Agreement.
27.Application of Insurance and Condemnation Proceeds. If during the Qualified Project
Period the Project is damaged or destroyed or if all or a portion thereof is taken through eminent
domain proceedings, or under threat thereof, proceeds from insurance on the Project or any
condemnation awards pertaining to such eminent domain proceedings shall be applied to the
repair, reconstruction or replacement of the Project [as provided in Exhibit "E" hereto].
28.Remedies; Enforceability. The benefits of this Agreement shall inure to, and may be
enforced by, respectively, the Issuer, the Lender and their respective successors, and the [Eligible
Persons and] Lower -Income Tenants and their successors who shall reside or be eligible to reside
in the units set aside for their occupancy pursuant to Section 3 of this Agreement. If a material
violation of any of the provisions hereof occurs or is attempted, such parties may institute and
prosecute any proceeding at law or in equity to abate, prevent or enjoin any such violation or
attempted violation; and to compel specific performance hereunder, it being recognized that the
beneficiaries of the Owner's obligations hereunder cannot be adequately compensated by
monetary damages in the event of the Owner's default. In addition to such other remedies as
may be provided for herein, if a violation of any of the provisions hereof occurs or is attempted,
53
the Issuer [or the Lender] may appoint a receiver to operate the Project in compliance with this
Agreement. In lieu of the appointment of a receiver on the conditions provided in the preceding
sentence, the Issuer [or the Lender] shall have the right (but not the obligation) and is specifically
authorized by the Owner hereunder (but only in the event the default is caused by the Manager's
act or omission and only after the Manager is given 30 days' prior notice and right to cure), to
appoint a new Manager to operate the Project in accordance with this Agreement and take all
actions necessary, in the reasonable judgment of the Issuer [or the Lender], to cure any default by
the Owner hereunder, and such new Manager assuming such management hereunder shall be
paid by or on behalf of the Owner, from the rents, revenues, profits and income from the Project,
a management fee not to exceed the prevailing management fee paid to managers of similar
housing projects in the area of Miami -Dade County, Florida. No delay in enforcing the
provisions hereof as to any breach or violation shall impair, damage or waive the right of any
party entitled to enforce the provisions hereof or to obtain relief against or recover for the
continuation or repetition of such breach or violation or any similar breach or violation hereof at
any later time or times. The remedies of Eligible Persons or Lower -Income Tenants shall be
limited to specific performance.
The Owner hereby expressly consents to, and agrees not to contest, the appointment of a
receiver to operate the Project following a violation by the Owner of the provisions of this
Agreement and hereby waives any and all defenses and objections that might otherwise be raised
to any such appointment of receiver.
29.Filing. Upon execution and delivery by the parties hereto, the Owner shall cause this
Agreement and all amendments and supplements hereto to be recorded and filed in the official
public deed records of Miami -Dade County, Florida, and in such manner and in such other
places as the Issuer may reasonably request, and shall pay all fees and charges incurred in
connection therewith. If the Owner has failed to make any such filing, the Lender or the Issuer
may cause such document(s) to be filed.
30.Governing Law. This Agreement shall be governed by the laws of the State.
31 .Assignment. The Owner shall not assign its interest hereunder, except by writing and
in connection with an assignment of the Project in accordance with the provisions of Section 9
hereof.
32.Amendments. This Agreement shall not be amended, revised, or terminated except by
a written instrument, executed by the parties hereto (or their successors in title), and duly
recorded in the official public records for Miami -Dade County, Florida.
33.Notice. Any notice required to be given hereunder shall be given by certified or
registered mail, postage prepaid, return receipt requested, to the Issuer, the Lender and the
Owner at their respective addresses set forth in the first paragraph hereof, or at such other
addresses as may be specified in writing by the parties hereto.
Notice shall be deemed given on the third Business Day after the date of mailing.
54
34.Severability. If any provision hereof shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining portions hereof shall not in any way be
affected or impaired thereby.
35.Multiple Counterparts. This Agreement may be simultaneously executed in multiple
counterparts, all of which shall constitute one and the same instrument, and each of which shall
be deemed to be an original.
[Remainder of page intentionally left blank]
55
IN WITNESS WHEREOF, the Issuer, the Lender, and the Owner have executed this
Agreement by duly authorized representatives, all as of the closing date.
SOUTHEAST OVERTOWN/PARK WEST
COMMUNITY REDEVELOPMENT AGENCY
By:
(SEAL)
ATTEST:
By:
By:
By:
,
[And:
RESTRICTIVE COVENANT AGREEMENT
SIGNATURE PAGE
56
STATE OF FLORIDA )
)SS:
COUNTY OF MIAMI-DADE )
I, , a Notary Public in and for the said County in the State
aforesaid, do hereby certify that and
, known to me to be the same persons whose names are subscribed to the foregoing
instrument as and , respectively, of the Southeast Overtown/Park West
Community Redevelopment Agency, appeared before me this day in person and acknowledged
that they, being thereunto duly authorized, signed, sealed with the seal of said Agency, and
delivered the said instrument as the free and voluntary act of said Agency and as their own free
and voluntary act, for the uses and purposes therein set forth.
GIVEN under my hand and notarial seal this day of , 2012
NOTARY PUBLIC, STATE OF FLORIDA
(SEAL)
Personally known to me, or
Produced identification:
(Type of Identification Produced)
RESTRICTIVE COVENANT AGREEMENT
NOTARY PAGE
57
STATE OF FLORIDA
)SS:
COUNTY OF MIAMI-DADE
I, , a Notary Public in and for the said County in the
State aforesaid, do hereby certify that , known to me to be the same person
whose name is subscribed to the foregoing instrument as authorized signatory of
, appeared before me this day in person and acknowledged
that he, being thereunto duly authorized, signed, sealed with the seal of said , and
delivered the said instrument as the free and voluntary act of said and as his or her own
free and voluntary act, for the uses and purposes therein set forth.
GIVEN under my hand and notarial seal this
day of , 2012.
NOTARY PUBLIC, STATE OF FLORIDA
(SEAL)
Personally known to me, or
Produced identification:
(Type of Identification Produced)
RESTRICTIVE COVENANT AGREEMENT
NOTARY PAGE
58
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
)
)SS:
)
I, , a Notary Public in and for the said County in the State aforesaid, do
hereby certify that , known to me to be the of
,as of ,a
(the "Owner"), appeared before me this day in person and acknowledged that [s]he, being
thereunto duly authorized, signed and delivered the said instrument as the free and voluntary act
of the Owner and as his or her own free and voluntary acts, for the uses and purposes therein set
forth.
GIVEN under my hand and notarial seal this day of , 20I2.
NOTARY PUBLIC, STATE OF FLORIDA
(SEAL)
Personally known to me, or
Produced identification:
(Type of Identification Produced)
RESTRICTIVE COVENANT AGREEMENT
NOTARY PAGE
59
EXHIBIT A
LEGAL DESCRIPTION OF REAL ESTATE
[To be provided]
60
EXHIBIT B
FORM OF CERTIFICATION OF CONTINUING PROGRAM COMPLIANCE
Witnesseth that on this day of , 20, the undersigned
(the "Borrower"), having borrowed certain funds from , which in
turn obtained such funds through a grant from Southeast Overtown/Park West Community
Redevelopment Agency for the purpose of acquiring or constructing Apartments, does hereby
certify that such multi -family rental housing project is in continuing compliance with the
Restrictive Covenant Agreement executed by the undersigned and filed in the official public
records of Miami -Dade County, Florida (including the requirement that all units be and remain
rental units), that an Income Certification has been submitted for each new tenant in such multi-
family rental housing project since the filing of the last such certification and that the same are
true and correct to the best of the undersigned's knowledge and belief. [At all times during the
previous month, at least [50%] of the residential units were occupied (or deemed occupied) by
Lower -Income Tenants.] No default has occurred under the Restrictive Covenant Agreement, or,
if a default has occurred, the nature of the default and the steps, if any, Borrower has taken or
proposes to take to correct such default are outlined on the Schedule attached hereto. As of the
date of this Certificate, the following percentages of completed residential units in the Project are
occupied by Lower -Income Tenants, occupied by Eligible Tenants and vacant:
Total number of units available for
occupancy as of , 20_
Lower -Income Tenants
Eligible Persons
Vacant Units
61
Percentage Number
°ro
Total Number of 1-Bedroom Number of Occupied Units % of 1-Bedroom Units
Units by Low -Income Tenants Occupied by Low -Income
Tenants
(A) (B) (B/A)
Total Number of 2-Bedroom Number of Occupied Units % of 2-Bedroom Units
Units by Low -Income Tenants Occupied by Low -Income
Tenants
(A) (B) (B/A)
Total Number of 3-Bedroom Number of Occupied Units % of 3-Bedroom Units
Units by Low -Income Tenants Occupied by Low -Income
Tenants
(A) __ (B) (B/A)
Authorized Representative for
62
EXHIBIT C
FORM OF CERTIFICATE CONCERNING COMMENCEMENT
AND TERMINATION OF QUALIFIED PROJECT PERIOD
THIS CERTIFICATE is being executed pursuant to the provisions of the Restrictive
Covenant Agreement, dated as of 1, 2012, (the "Agreement), among Southeast
Overtown/Park West Community Redevelopment Agency (the "Issuer"),
(the "Lender") and (the "Borrower"), in connection with the financing
of Apartments (the "Project") in the County located on real property
described on Exhibit "A" hereto, through the issuance of the Issuer's [$_,000,000] Tax
Increment Revenue Bonds, Series 2012[-J ( Apartments) (the "Bonds").
The period for which the restrictions set forth in the Agreement are applicable to the
Project is referred to as the "Qualified Project Period" and is defined in the Agreement as
follows:
"Qualified Project Period" shall mean a period beginning on the fast day on which at least 10% of the
residential units are first occupied, and ending on the date which is 30 years after the date on which at least
50% of the residential units in the Project are first occupied.
To evidence the Qualified Project Period with respect to the Project, the Borrower
certified to the following:
1. The first day on which at least ten percent (10%) of the units in the Project
were first occupied was
2. The date on which at least fifty percent (50%) of the units in the Project
were first occupied was
Prior to the recording of this Certificate in the land records of the County, the Borrower
has supplied the Issuer with documentation to establish the facts relating to the Project set forth
in this Certificate, which documentation has been found satisfactory to all parties. Nothing in this
Certificate is intended to modify the requirement of the Agreement that all units in the Project be
rented as residential rental property or any other provision of the Agreement.
63
IN WITNESS WHEREOF, the Borrower has caused this Certificate to be executed by its
duly authorized representative as of this day of , 20 .
STATE OF FLORIDA
)SS:
COUNTY OF MIAMI-DADE
By:
By:
1, , a Notary Public in and for the said County in the State aforesaid, do
hereby certify that , known to me to be the of
,as of ,a
(the "Owner"), appeared before me this day in person and acknowledged that [s]he, being
thereunto duly authorized, signed and delivered the said instrument as the free and voluntary act
of the Owner and as his or her own free and voluntary acts, for the uses and purposes therein set
forth.
GIVEN under my hand and notarial seal this day of , 20_.
NOTARY PUBLIC, STATE OF FLORIDA
(SEAL)
Personally known to me, or
Produced identification:
(Type of Identification Produced)
64
EXHIBIT A
to
Certificate Concerning Commencement
and Termination of Qualified Project Period
REAL PROPERTY DESCRIPTION
65
RE:
[
[Address]
Unit #
EXHIBIT D
CERTIFICATION OF TENANT ELIGIBILITY
] Apartments
The undersigned hereby (certify) (certifies) that:
1. This Income Certification is being delivered in connection with the undersigned's
application for occupancy of apartment # [ ] Apartments in Miami -Dade
County, Florida.
2. List all occupants of the apartment, the relationship (if any) of the various
occupants, their ages, and the total anticipated income as acceptable to the Southeast
Overtown/Park West Community Redevelopment Agency for each person listed below during
the 12-month period commencing with the date occupancy will begin.
Name
(a)
(b)
(c)
(d)
(e)
(f)
Annual
Relationship Age Income
DEFINITION OF INCOME: Full amount, before payroll deductions, of wages, salaries, overtime, commissions,
fees, tips and bonuses; net income from operation of a business or profession; interest and dividends and other net
income from real or personal property; periodic payments from social security, annuities, insurance policies,
retirement funds, pensions, disability or death benefits and other similar types of periodic payments; payments in
lieu of earnings, such as unemployment and disability compensation, worker's compensation and severance pay;
public assistance income, where payments include amount specifically designated for shelter and utilities; periodic
and determinable allowances such as alimony and child support, and regular contributions or gifts from persons not
residing in the dwelling; all regular and special pay and allowances of members of the Armed Forces (whether or not
living in the dwelling) who are the head of the family or spouse; but excluding: casual, sporadic or irregular gifts;
amounts which are specifically for reimbursement of medical expenses; lump sum additions to family assets, such as
inheritances, insurance payments (including payments under health and accident insurance and worker's
compensation), capital gains and settlement for personal or property losses; amounts of educational scholarships
paid directly to the student or the educational institution, and amounts paid by the government to a veteran for use in
meeting costs of tuition, fees, books and equipment, but in either case only to the extent used for such purposes;
special pay to a servicemen head of family who is away from home and exposed to hostile fire; relocation payments
under Title II of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970; foster child
care payments; the value of coupon allotments for the purposes of food pursuant to the Food Stamp Act of 1964
which is in excess of the amount actually charged for the allotments; payments received pursuant to participation in
66
ACTION volunteer programs; and income from the employment of children (including foster children) under the
age of eighteen (18) years.
3. If any of the occupants listed in Section 2 has any savings, bonds, or equity in real
property, or other forms of capital investment (but do not include necessary items such as
furniture or automobiles) * enter the following amounts:
* Include the value over and above actual consideration received, except in foreclosure or bankruptcy, of any
asset disposed of for less than fair market value within two (2) years of the date of this Income Certification.
(a) The total value of all such assets owned by all persons: $
(b) A percentage of the value of such assets based on the current passbook savings
rate, as determined by HUD (applicable passbook savings rate %):
$ . ** If assets do not exceed $5,000 and resident is not a Lower
income Residence, do not impute assets.
(c) The amount of income expected to be derived from such assets in the 12 month
period commencing with the occupancy of the unit: $
4. RESIDENT'S STATEMENT: The information on this form is to be used to
determine maximum income for eligibility. I/We have provided, for each person set forth in
Section 2, either (a) an Employer's Verification of current anticipated annual income, if the
occupant is currently employed, or (b) if the occupant is currently unemployed, such other
evidence of current anticipated income as is consistent with income determinations under Section
8 of the United States Housing Act of 1937, as amended, or (c) copies of the occupants most
recent Federal Income Tax Return, if a return was filed for the most recent year. I/We certify
that the statements above are true and complete to the best of my/our knowledge and belief on
the date hereof and are given under penalty of perjury.
Name
(a)
(b)
(c)
(d)
(e)
(f)
Date
5. OWNER/DEVELOPER STATEMENT: The family or individual(s) named in
Section 2 of the Income Certification attached hereto is/are eligible under the provisions of the
Restrictive Covenant Agreement to live in a unit in the Project, as defined in the Loan
67
Agreement, between the undersigned and the [ ), and based upon the
aggregate anticipated annual income set forth in Section 2 and, if applicable, the greater of the
amounts in Section 3 (b), or (c), which in the aggregate will be $ , constitutes
(check one):
a. A Lower- Income Tenant (maximum income $ based on a family size of $ ); or
b. An Eligible Person other than a Lower -Income Tenant (maximum income $ ).
Date: , 20_
68
EXHIBIT E
INSURANCE REQUIREMENTS
69
EXHIBIT G
Form of Special Warranty Deed
Form of Special Warranty Deed
THIS INSTRUMENT WAS PREPARED BY:
William R. Bloom, Esquire
Holland & Knight LLP
701 Brickell Ave., Suite 3000
Miami, Florida 33131
Folio Number:
SPECIAL WARRANTY DEED
THIS DEED, made this day of , 201_, between SOUTHEAST
OVERTOWN/PARK WEST COMMUNITY REDEVELOPMENT AGENCY, a body
corporate and politic of the State of Florida ("Grantor") and ISLAND LIVING
APARTMENTS, LTD., a Florida Limited partnership ("Grantee").
Wherever used herein, the terms "Grantor" and "Grantee" shall include singular and
plural, heirs, legal representatives, assigns of individuals, and the successors and assigns of
corporations, wherever the context so admits or requires.
WITNESSETH:
THAT, for and in consideration of the sum of Ten and No/100 Dollars ($10.00), and
other good and valuable consideration, the receipt and sufficiency of which is acknowledged by
Grantor, Grantor hereby grants, bargains, and sells unto Grantee, the following described
property located in Miami -Dade County, Florida ("the Property"):
Lots 8, 9, 10, 11, Block 9, SOSTS Subdivision, according to the
Plat thereof, as recorded in Plat Book B, at Page 27, Public
Records of Miami -Dade County, Florida.
TOGETHER WITH all the tenements, hereditaments and appurtenances thereto
belonging or in any way appertaining.
TO HAVE AND TO HOLD the same unto Grantee in fee simple, forever.
THIS CONVEYANCE IS SUBJECT TO:
1. Taxes and assessments for the year 201_ and subsequent years;
70
2. Zoning and other governmental restrictions;
3. Conditions, restrictions, reservations, and easements of record; however,
reference thereto shall not serve to reimpose same.
4. Grantee shall develop improvements (the "Improvements") on the Property
substantially in accordance with the Plans and Specifications prepared by dated
under Job Number (the "Plans"). Upon completion of
Improvements substantially in accordance with the Plans the Executive Director of the Grantor
shall record a certificate confirming compliance with this provision.
S. During construction of the Improvements Grantee shall comply with the
provisions of Sections 8 and 9 of the Development Agreement dated as of October 11, 2012 by
and between Grantor and Grantee which are incorporated herein by reference and made a part
hereof. Upon completion of construction of the Improvement and satisfaction of the
requirements of Sections 8 and 9 the Executive Director of Grantor shall record a certificate
confirming Grantee's compliance with the terms and provisions of Section 8 and 9 of the
Development Agreement.
6. It is the intention of the Grantor and the Grantee that upon conveyance of the
Property to the Grantee that the Property and Improvements shall be fully taxable for the
purposes of ad valorem real estate taxes and that the Grantee and its successors or assigns not
take advantage of any tax exemptions which may allow the Grantee or its successors or assigns
not to be required to pay ad valorem real estate taxes with respect to the Property and
Improvements. In the event for any reason the Property and Improvements are not subject to ad
valorem real estate taxes as a result of an exemption, then the Grantee, its successors and assigns,
shall pay to the Grantor a payment in lieu of taxes (a "PILOT") on or before December 31 of
each year in the amount of ad valorem real estate taxes that would have been due with respect to
the Property and Improvements if the Property and Improvements had not been exempt in whole
or in part from the payment of ad valorem real estate taxes. The obligation of the Grantee 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
Grantee and its successors and assigns through December 31, 2029.
SIGNATURES FOLLOW ON NEXT PAGE
71
IN WITNESS WHEREOF, Grantor has caused this special warranty deed to be executed
as of the day and year first above written.
Signed, sealed and delivered
in our presence:
WITNESSES: GRANTOR:
SOUTHEAST OVERTOWN/PARK WEST
Name: COMMUNITY REDEVELOPMENT
AGENCY, a body corporate and politic of the
State of Florida
Name:
By:
Approved for legal sufficiency
By.
William R. Bloom, Esq.
Holland & Knight LLP
Special Counsel to the CRA
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
Name: Clarence E. Woods III
Title: Executive Director
The foregoing instrument was acknowledged before me this day of
, 201_, by Clarence E. Woods III, as Executive Director of
SOUTHEAST OVERTOWN/PARK WEST COMMUNITY REDEVELOPMENT AGENCY, a
body corporate and politic of the State of Florida, on behalf of the Agency, who is personally
known to me or has produced as identification.
72
Notary Public, State of Florida
My Commission Expires:
# 10725743_v 16
EXHIBIT H
Guaranty of Completion
GUARANTY OF COMPLETION
THIS GUARANTY OF COMPLETION (the "Guaranty") is executed and delivered, jointly
and severally, as of the _ day of , 2012 by MATTHEW S. GREER, an individual, and
CARLISLE DEVELOPMENT GROUP, LLC, a Florida limited liability company (each a
"Guarantor", and collectively, the "Guarantors") in favor of SOUTHEAST OVERTOWN/PARK
WEST COMMUNITY REDEVELOPMENT AGENCY, a public agency and body corporate
created pursuant to Section 163.356, Florida Statutes (the "CRA").
WITNESSETH:
A. Island Living Apartments, Ltd., a Florida limited partnership (the "Developer")
has requested that the CRA make a grant to (the "Non -Profit") in the amount of Nine
Million and No/100 Dollars ($9,000,000.00) (the "Grant") pursuant to the terms and conditions
of that Development Agreement dated as of , 2012, by and between Developer and
the CRA as same may be amended from time to time, (the "Development Agreement") which
Grant shall be loaned by the Non -Profit to the Developer in accordance with the terms of the
Development Agreement and the Non -Profit Loan Documents. All terms not otherwise defined
herein shall have the meanings set forth in the Development Agreement.
B. Guarantors will benefit from the Grant and the transaction contemplated by the
Development Agreement.
C. The CRA would not make the Grant and enter into the Development Agreement
with Developer unless Guarantors agreed to unconditionally guaranty completion of the Project
in accordance with the Plans.
NOW, THEREFORE, in consideration of the CRA's making the Grant and executing the
Development Agreement, which it is acknowledged and agreed that CRA is doing in full reliance
hereon, and as an inducement to CRA to do so and to make advances pursuant thereto, and for other
good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, each
Guarantor hereby irrevocably covenants, warrants and agrees as follows:
1. That notwithstanding any provision in the Development Agreement, the Funding
Agreement, the Non -Profit Loan Documents or in any other agreement or document executed in
connection therewith, each Guarantor hereby unconditionally and irrevocably guarantees to CRA
the following:
a. One hundred percent (100%) lien free completion of the Project in
accordance with the Development Agreement, the Non -Profit Loan Documents and the Funding
Agreement and substantially in accordance with the Plans, as evidenced by (i) the issuance of a final
certificate of occupancy and use (or the equivalent) by the proper governmental authority as to the
73
Project to be constructed on the Property; (ii) the delivery by the design/supervising architect of a
certificate of completion of the Project substantially in accordance with the Plans approved by
CRA; (iii) the issuance by CRA and CRA's supervising architect/engineer of certificates of
completion of the Project (completion of the Project shall include, but not be limited to completion
of grading, landscaping, all necessary and appropriate utilities, streets, sidewalks, drainage and all
on -site and off -site improvements as reflected on the Plans); and (iv) the delivery to CRA of a final
as -built survey for the completed Project; and
b. Full and punctual payment and discharge of all costs and expenses, in excess
of the Grant amount, of any nature relating to the construction and the completion of the Project as
the same become due and payable, and payment and discharge of all claims and demands for labor
and/or materials used in the construction and the completion of the improvements substantially in
accordance with the Plans which are or, if unpaid, may become liens, claims or encumbrances on
the Project.
2. Without limiting the generality of the preceding paragraph 1, each Guarantor
hereby agrees:
a. To perform, complete and pay for the construction required by the
Development Agreement and Funding Agreement within the time period allotted therefor and to
pay all costs and expenses of said construction and completion of the Project and all costs
associated therewith, including any sum in excess of the Grant amount, and each Guarantor
hereby indemnifies and agrees to save harmless CRA from all costs and expenses which CRA
suffers as a result of the Project not being completed and paid for in the manner required and
within the time period allotted therefor as set forth in the Development Agreement and the
Funding Agreement.
b. To indemnify and save CRA harmless from any and all costs, expenses
and losses it may incur in connection with the Project (arising from any default by Developer
under the Development Agreement or the Funding Agreement including, but not limited to
losses, costs or expenses resulting from changes, alterations, modifications or deviations from
the Plans previously approved by CRA; but excluding any costs, expenses and Losses that may
occur in connection with the Project as a result of the gross negligence or intentional misconduct
of CRA, and to pay any and all such amounts to CRA within fifteen (15) days of written demand,
which demand CRA may make upon any Guarantor without first having made demand upon
Developer or any other party and without having exhausted any other remedy against Developer
or any other party.
c. In the event any mechanic's or materialman's liens should be filed, or
should attach, with respect to the Property, to cause the removal of such liens or the posting of
security against the consequences of their possible foreclosure within. thirty (30) days of the
filing of such liens;
d. To pay the costs and fees of all architects and engineers employed by
Developer in connection with the Project;
74
e. To pay within fifteen (15) days of written demand all of CRA's costs and
expenses, including reasonable attorneys' fees and costs, incurred in the enforcement of this
Guaranty.
f. That it may be impossible to accurately measure the damages to CRA
resulting from a breach of Guarantors' covenant to complete or to cause the completion of the
construction and equipping of the Project, and that such a breach will cause irreparable injury to
CRA, and that CRA may not have an adequate remedy at law in respect of such breach and, as a
consequence, each Guarantor agrees that such covenant shall be specifically enforceable against
it and each Guarantor hereby waives and agrees not to assert any defense against an action for
specific performance of such covenant other than the defense that completion has been achieved
with respect to the Project. The preceding sentence shall not prejudice CRA's rights to assert any
and all claims for damages incurred as a result of Guarantors' default hereunder (beyond any
applicable notice and cure periods), and CRA may, hold any Guarantor liable for all losses and
damages sustained and expenses incurred by reason of the Developer or any Guarantor failing to
construct, complete and equip the Project in accordance with the Plans, the Development
Agreement and the Funding Agreement, including, without limitation, the cost of such
completion and the payment of real estate taxes and insurance.
3. Each Guarantor hereby acknowledges and consents to the Plans, the disbursement
schedule and the other terms and conditions of the Development Agreement and related
documents governing the construction of the Project.
4. Each Guarantor hereby waives any and all requirements that CRA institute any
action or proceeding, at law or in equity, against the Developer or against any other party or
parties with respect to the Development Agreement, the Funding Agreement or any related
document as a condition precedent to bringing any action against any Guarantor upon this
Guaranty. All remedies afforded to CRA by reason of this Guaranty are separate and cumulative
remedies and no one of such remedies, whether waived by CRA or not, shall be deemed to be an
exclusion of any one of the other remedies available to CRA and shall not in any way limit or
prejudice any other legal or equitable remedy which CRA may have.
5. Each Guarantor further agrees that Guarantors shall not be released from any
obligations hereunder by reason of any amendment to or alteration of the terms and conditions of
the Development Agreement, the Funding Agreement or of any related document, nor shall
Guarantors' obligations hereunder be altered or impaired by any delay by CRA in enforcing the
terms and obligations of the Development Agreement or the Funding Agreement by any waiver
of any default by CRA under the Development Agreement, the Funding Agreement or any
related document, it being the intention that each Guarantor shall remain fully liable hereunder,
notwithstanding any such event.
6. No extension of the time of payment or performance of any obligation hereunder
guaranteed, or the renewal thereof, nor delay in the enforcement thereof or of this Guaranty, or
the taking, exchanging, surrender or release of other security therefor or the release or
compromise of any liability of any party shall affect the liability of or in any manner release the
Guarantors, and this Guaranty shall be a continuing one and remain in full force and effect until
each and every obligation hereby guaranteed shall have been fully paid and performed.
75
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
76
below (or at the correct address of any assignee of CRA), except that mailed written notices shall
not be deemed given or served until three days after the date of mailing thereof:
a. If to CRA:
SOUTHEAST OVERTOWN / PARK WEST
COMMUNITY REDEVELOPMENT AGENCY
Attention: Clarence E. Woods, III, Executive Director
1490 NW Third Avenue
Suite 105
Miami, FL 33136
Fax: 305-679-6836
b. If to Guarantors:
Matthew S. Greer
c/o Carlisle Development Group, LLC
2950 SW 29th Avenue, Suite 200
Miami, FL 33133
Fax: 305-476-1557
and
Carlisle Development Group, LLC
2950 SW 29th Avenue, Suite 200
Miami, FL 33133
Attention: Matthew S. Greer
Fax: 305-476-1557
EACH GUARANTOR HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WANES 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]
77
IN WITNESS WHEREOF, Guarantors have executed this Guaranty as of the day and year
first above written.
WITNESSES:
CARLISLE DEVELOPMENT GROUP, LLC,
Print Name: a Florida limited liability company
Print Name:
By:
Name:
Title:
Print Name: Matthew S. Greer, individually
Print Name:
78
STATE OF FLORIDA )
): ss.
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this day of , 201, by
Matthew S. Greer, as of Carlisle Development Group, LLC, a Florida limited liability
company, on behalf of the limited liability companies. He is personally known to me or has produced
as identification.
Notary Public
Name of Notary Printed:
My commission expires: (NOTARY SEAL)
My commission number is:
STATE OF FLORIDA
): ss.
COUNTY OF MIAMI-DADS )
The foregoing instrument was acknowledged before me this day of , 201_, by
Matthew S. Greer. He is personally known to me or has produced as
identification.
My commission expires:
My commission number is:
79
Notary Public
Name of Notary Printed:
(NOTARY SEAL)
EXHIBIT I
Ownership Interest
General Partnership Interests in Developer:
Palmetto Homes of Miami, Inc.
CDG Island Living, LLC
Limited Partnership Interests in Developer:
Matthew S. Greer*
Palmetto Homes of Miami, Inc.*
.002%
.008%
79.992%
19.998%
1754, LLC owns 99% of CDG Island Living, LLC and Matthew S. Greer is the
sole member of 1754, LLC
1754MM, Inc. owns 1% of CDG Island Living, LLC and is 100% owned by
Matthew S. Greer
*It is anticipated that Palmetto Homes of Miami, Inc. and Matthew S. Greer will
assign their limited partnership interests to the tax credit investor.
80
EXHIBIT .1
DEVELOPER CERTIFICATE
The undersigned, acting on behalf of Island Living Apartments, Ltd., a Florida limited
partnership (the "Developer"), hereby certifies to the Southeast Overtown/Park West Community
Redevelopment Agency (the "Issuer"), in connection with the issuance of the Issuer's $
Tax Increment Revenue Bonds, Series 2012[-_] (the "Bonds"), that:
1. The Developer and the Issuer have entered into a Development Agreement dated
as of October 11, 2012 (the "Development Agreement") and will be entering into a Restrictive
Covenant Agreement (the "Restrictive Covenant Agreement") pursuant to the Development
Agreement. The Developer reasonably expects that it will make no payments to the Issuer or
any related party to the Issuer, under the Development Agreement or the Restrictive Covenant
Agreement. The Developer specifically represents that it reasonably expects that it will achieve
Completion within 90 days of the Completion Date, as contemplated by Section 5.7,1 of the
Development Agreement, and will not make payments to the Issuer under that Section 5.7.1 of
the Development Agreement, that it will comply with the Subcontractor Participation
Requirements set forth in the Development Agreement, and will therefore not make payments to
the Issuer under Section 8.3.1 of the Development Agreement, that it will meet the Laborer
Participation Requirements set forth in the Development Agreement, and will not make
payments to the Issuer under Section 8.3.2 of the Development Agreement, and that it will
comply with the reporting requirements set forth in Section 4 of the Restrictive Covenant
Agreement, and will therefore not make payments to the Issuer under Section 4 of the Restrictive
Covenant Agreement and that it will comply with its obligations under Section 3 of the
Restrictive Covenant Agreement and will therefore not make payments to the Issuer under
Section 3 of the Restrictive Covenant Agreement.
The Developer acknowledges that property financed with proceeds of the Bonds will be treated
as owned, or used for the private business use of, the Developer (the "Bond -Financed Property").
The Developer reasonably expects that it will make no payments to the Issuer, or any related
party to the Issuer with respect to any Bond -Financed Property, directly or indirectly, except for
payment of property taxes of general application or the payment in lieu of property taxes
required by Section 21 of the Development Agreement.
2. The Developer understands and agreements that the representations set forth
above are being relied on by the Issuer in complying with the federal income tax requirements
that apply to the Bonds and in executing and delivering the Issuer's Tax Certificate relating to
the Bonds and by Bond Counsel in rendering its opinion regarding the exclusion of the interest
on the Bonds from gross income for federal income tax purposes.
Dated: [Date of Issuance]
81
ISLAND LIVING APARTMENTS, LTD.
a Florida limited partnership
By: CDG Island Living, LLC, a Florida limited liability company
Its managing general partner
By:
Name: Matthew S. Greer
Title: Manager
10725743v16
82
#10725743_v15
NON-PROFIT GRANT AGREEMENT
THIS NON-PROFIT GRANT AGREEMENT (the "Agreement") is made of the
day of , 2013, by and between South Florida Community Development
Coalition, 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 October 11, 2012
(the "Development Agreement"), by and between the CRA and Island Living Apartments, Ltd., a
Florida limited partnership (the "Developer"), with respect to the development of a project
consisting of not less than 70 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 Nine Million and No/100 Dollars ($9,000,000.00) (the "CRA
Contribution") to the NON-PROFIT which CRA Contribution will be loaned by the NON-
PROFIT to the General Partner (or the Controlled Entity) which will loan the funds 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 General Partner (or
the Controlled Entity) which will loan the funds 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:
1. RECITALS. The Recitals to this Agreement are true and correct and are
incorporated herein by reference and made a part hereof.
2. 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.
3. 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 5 of the Development Agreement.
4. 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 General Partner
(or the Controlled Entity) in accordance with the terms and provisions of the Non -Profit Loan
Documents and the Development Agreement. The NON-PROFIT covenants and agrees to enter
into the Funding Agreement contemplated by the Development Agreement. The NON-PROFIT
acknowledges and agrees that the CRA will fund the CRA Contribution to the NON-PROFIT in
accordance with the terns 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.
5. TERMS OF LOAN TO THE DEVELOPER. The NON-PROFIT covenants and
agrees to loan to the General Partner (or the Controlled Entity) the CRA Contribution (the "Non -
Profit 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 "Non -Profit Loan
Documents"). The General Partner (or the Controlled Entity) will loan the proceeds of the Non -
Profit Loan to the Developer (the "GP Loan") in accordance with the terms and provisions of the
loan documents substantially in the form of Exhibit "B" attached hereto and made a part hereof
(the "GP Loan Documents").
6. REPAYMENT OF THE LOAN. In the event the General Partner (or the
Controlled Entity) repays all or any portion of the Non -Profit Loan to the NON-PROFIT, the
NON-PROFIT covenants and agrees to repay said amount to the CRA within ten (10) days of the
receipt of the funds from the General Partner (or the Controlled Entity).
7. 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"):
a. All of the CRA Conditions Precedent set forth in Section 9.1 of the
Development Agreement have either been satisfied or waived by the CRA.
b. The closing of the transaction for Project contemplated by the
Development Agreement shall be consummated simultaneously with the
funding of the CRA Contribution.
c. The NON-PROFIT has executed the Funding Agreement.
d. The General Partner (or the Controlled Entity) and the NON-PROFIT
have executed the Non -Profit Loan Documents in substantially the form
attached hereto.
e. The General Partner (or the Controlled Entity) and the Developer have
executed the GP Loan Documents substantially in 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.
8. 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 for Project contemplated by the Development Agreement providing all the
Conditions Precedent have been satisfied.
2
9. REPRESENTATIONS OF THE CRA. The CRA makes the following
representations:
a. 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.
b. 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.
c. 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.
10. REPRESENTATIONS OF THE NON-PROFIT. The NON-PROFIT makes the
following representations:
a. 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.
b. 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.
c. 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).
d. 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
3
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.
e. Neither the execution and delivery of this Agreement or the Funding
Agreement and the other documents contemplated thereby to which the
NON-PROFIT is a party or the consummation of the transactions
contemplated thereby nor the fulfillment of or compliance with the
provisions of any of the other documents contemplated thereby, will
conflict with or result in a breach of or constitute a default by the NON-
PROFIT under any applicable law or ordinance of the State of Florida or
any applicable political subdivision thereof or of the NON-PROFIT's
articles of incorporation or bylaws, or any corporate restriction or any
agreement or instrument to which the NON-PROFIT is a party or by
which it is bound, or result in the creation or imposition of any lien of any
nature upon any of the property of the NON-PROFIT under the terms of
any such law, ordinance, articles of incorporation or bylaws, restriction,
agreement or instrument except as pennitted by this Agreement and the
Funding Agreement.
f. 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.
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.
h. Proceeds of the CRA Contribution will not be used to pay fees and
expenses of the NON-PROFIT.
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.
11. 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.
g.
4
12. 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.
13. 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:
South Florida Community Development Coalition, Inc.
300 NW 12th Avenue
Miami, FL 33128
Attention: Arden Shank
Fax: 305- -
With a copy to:
John Little, Esq.
Legal Services of Greater Miami, Inc.
3000 Biscayne Blvd., Suite 500
Miami, FL 33137
Fax: 305-576-5112
If to CRA:
SOUTHEAST OVERTOWN / 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:
5
Staff Counsel
Southeast OvertownlPark 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.
14. MISCELLAENOUS.
a. 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.
b. 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.
c. In the event of any litigation between the parties under this Agreement, the
prevailing party shall be entitled to reasonable attomey's fees and court
costs at all trial and appellate levels.
d. 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.
e. All of the exhibits attached to this Agreement are incorporated in, and
made a part of, this Agreement.
f. Time shall be of the essence for each and every provision of this
Agreement.
g. This Agreement may not be recorded in the Public Records of Miami -
Dade County.
h. The "Effective Date" shall mean the date this Agreement is last executed
by NON-PROFIT and the CRA.
6
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:
Clerk of the Board
Approved for legal sufficiency
By:
William R. Bloom, Esq.
Holland & Knight LLP,
Special Counsel to CRA
NON-PROFIT:
South Florida Community Development Coalition, Inc.,
By:
Name:
Title:
7
EXHIBIT "A"
Non -Profit Loan Documents
8
PROMISSORY NOTE
2013
$9,000,000.00 Miami, Florida
FOR VALUE RECEIVED, the undersigned, , , a
("Maker"), promises to pay to the order of
, INC., a Florida non-profit corporation, together with any
other holder hereof ("Holder"), at , Florida 33_, or
such other place as Holder may from time to time designate in writing, the principal sum of Nine
Million and No/100 (U.S. $9,000,000.00) (the "Principal"), plus interest, if any, on the
outstanding principal balance at the rate set forth in the next paragraph ("Interest or Interest
Rate"), to be paid in lawful money of the United States of America in accordance with the terms
of this Promissory Note (the "Note").
The term of this Note is fifteen (15) years and shall end on 20_ (the
"Maturity Date"). Before the Maturity Date no payments of principal or interest will be made.
Interest shall not accrue or be payable under this Note. In the event that on the Maturity Date,
there is not then a current, uncured and properly issued and outstanding notice of default against
Lyric Housing, Ltd., a Florida limited partnership (the "Owner") under that certain Restrictive
Covenant Agreement dated of even date herewith between the Owner and Southeast
Overtown/Park West Community Redevelopment Agency, the Principal, any outstanding
Interest and any other amounts outstanding under this Note shall be deemed to be forgiven on the
Maturity Date and the Holder shall execute any documents necessary to evidence such
forgiveness.
The proceeds of this Note shall be disbursed pursuant to the terms of that certain funding
agreement (the "Funding Agreement") dated of even date herewith by and between the Southeast
Overtown/Park West Community Redevelopment Agency (the "CRA"), Holder,
(the "Institutional Investor"), the Senior Lender, as hereinafter defined, Maker and Island Living
Apartments, Ltd., a Florida limited partnership (the "Owner"). The terms of the Funding
Agreement are incorporated herein by reference and made a part hereof.
To the extent required by Section 7.3 of the Development Agreement dated October 11,
2012 (the "Development Agreement") by and the Owner and the CRA, Maker shall within ten
(10) days of demand by Holder repay to Holder the amount determined to be due pursuant to
Section 7.3 of the Development Agreement, the terms of which are incorporated herein by
reference and made a part hereof.
This Note and all other agreements, instruments and documents, delivered in connection
with this Note are collectively referred to as the "Loan Documents."
This Note has been executed and delivered in, and is to be governed by and construed
under the laws of, the State of Florida, as amended, except as modified by the laws and
regulations of the United States of America.
9
Maker shall have no obligation to pay interest or payments in the nature of interest in
excess of the maximum rate of interest allowed to be contracted for by law, as changed from
time to time, applicable to this Note (the "Maximum Rate"). Any interest in excess of the
Maximum Rate paid by Maker ("Excess Sum") shall be credited as a payment of principal, or, if
Maker so requests in writing, returned to Maker, or, if the indebtedness and other obligations
evidenced by this Note have been paid in full, returned to Maker together with interest at the
same rate as was paid by Maker during such period. Any Excess Sum credited to Principal shall
be credited as of the date paid to Holder. The Maximum Rate varies from time to time and from
time to time there may be no specific maximum rate. Holder may, without such action
constituting a breach of any obligations to Maker, seek judicial determination of the Maximum
Rate of interest, and its obligation to pay or credit any proposed excess sum to Maker.
Time is of the essence. In the event that this Note is collected by law or through
attorneys at law, or under their advice, Maker agrees, to pay all reasonable costs of collection,
including reasonable attorneys' fees, whether or not suit is brought, and whether incurred in
connection with collection, trial, appeal, bankruptcy or other creditors proceedings or otherwise.
This Note may be paid in whole or in part at any time by Maker without penalty.
Acceptance of partial payments or payments marked `payment in full" or "in satisfaction" or
words to similar effect shall not affect the duty of Maker to pay all obligations due, and shall not
affect the right of Holder to pursue all remedies available to it under the Loan Documents.
Any of the following shall be deemed to be an Event of Default hereunder: (a) failure to
make any payment when due in accordance with the terms of this Note; and (b) failure to keep or
perform any of the other material terms, covenants and conditions in this Note provided that such
failure shall have continued for a period of ninety (90) days after written notice of such failure
from the Holder.
Upon an Event of Default hereunder, the Holder shall have all of the remedies set forth in
this Note. The remedies of Holder shall be cumulative and concurrent, and may be pursued
singularly, successively or together, at the sole discretion of Holder, and may be exercised as
often as occasion therefor shall arise. No action or omission of Holder, including specifically
any failure to exercise or forbearance in the exercise of any remedy, shall be deemed to be a
waiver or release of the same, such waiver or release to be effected only through a written
document executed by Holder and then only to the extent specifically recited therein. A waiver
or release with reference to any one event shall not be construed as continuing or as constituting
a course of dealing, nor shall it be construed as a bar to, or as a waiver or release of, any
subsequent remedy as to a subsequent event.
Any notice to be given or to be served upon any party in connection with this Note,
whether required or otherwise, may be given in any manner permitted under the Loan
Documents.
The term "other person liable for payment of this Note" shall include any endorser,
guarantor, surety or other person now or subsequently primarily or secondarily liable for the
payment of this Note, whether by signing this Note or any other instrument.
10
This Note shall be a non -recourse promissory note and neither the Maker, nor any of its
partners shall have any personal liability for the payment of any portion of the indebtedness
evidenced by this Note, and in the event of a default by the Maker under this Note, the Holder's
sole remedy shall be limited to exercising its rights under the Loan Documents, including
foreclosure and the exercise of the power of sale or other rights granted under such Loan
Documents, but shall not include a right to proceed directly against the Maker, or any of its
partners, or the right to obtain a deficiency judgment after foreclosure against the Maker or any
of its partners.
Whenever the context so requires, the neutral gender includes the feminine and/or
masculine, as the case may be, and the singular number includes the plural, and the plural
number includes the singular.
Maker and any other person liable for the payment of this Note respectively, hereby (a)
expressly waive any valuation and appraisal, presentment, demand for payment, notice of
dishonor, protest, notice of nonpayment or protest, all other forms of notice whatsoever, and
diligence in collection; (b) consent that Holder may, from time to time and without notice to any
of them or demand, (i) extend, rearrange, renew or postpone any or all payments, (ii) release,
exchange, add to or substitute all or any part of the collateral for this Note, and/or (iii) release
Maker (or any co -maker) or any other person liable for payment of this Note, without in any way
modifying, altering, releasing, affecting or limiting their respective liability or the lien of any
security instrument; and (c) agree that Holder, in order to enforce payment of this Note against
any of them, shall not be required first to institute any suit or to exhaust any of its remedies
against Maker (or any co -maker) or against any other person liable for payment of this Note or to
attempt to realize on any collateral for this Note.
BY EXECUTING THIS NOTE, MAKER KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES ITS RIGHTS OR THE RIGHTS OF ITS HEIRS, ASSIGNS,
SUCCESSORS OR PERSONAL REPRESENTATIVES TO A TRIAL BY JURY, IF ANY,
IN ANY ACTION, PROCEEDING OR SUIT, WHETHER ARISING IN CONTRACT,
TORT OR OTHERWISE, AND WHETHER ASSERTED BY WAY OF COMPLAINT,
ANSWER, CROSSCLAIM, COUNTERCLAIM, AFFIRMATIVE DEFENSE OR
OTHERWISE, BASED ON, ARISING OUT OF, UNDER OR IN CONNECTION WITH,
THIS NOTE OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT TO BE
EXECUTED IN CONNECTION HEREWITH OR WITH THE INDEBTEDNESS OR
THE RENEWAL, MODIFICATION OR EXTENSION OF ANY OF THE FOREGOING
OR ANY FUTURE ADVANCE THEREUNDER. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR HOLDER'S EXTENDING CREDIT TO MAKER AND NO
WAIVER OR LIMITATION OF HOLDER'S RIGHTS HEREUNDER SHALL BE
EFFECTIVE UNLESS IN WRITING AND MANUALLY SIGNED ON HOLDER'S
BEHALF.
Maker acknowledges that the above paragraph has been expressly bargained for by
Holder as part of the transaction with Maker and that, but for Maker's agreement, Holder would
not have agreed to lend the Maker the Principal on the terms and at the Interest Rate.
11
This Note arises out of or is given to secure the financing of housing under Part V of
Chapter 420 of the Florida Statutes and is exempt from taxation pursuant to Section 420.513
Florida Statutes. Maker shall pay any and all present and future documentary stamp taxes,
intangible taxes, and other similar charges, including interest and penalties thereon, if any
(collectively referred to as the "Documentary Taxes") which arise in connection with this Note,
or any other Loan Document. Maker shall and hereby agrees to indemnify the Holder for the full
amount of all Documentary Taxes paid by the Holder or any liability (including penalties and
interest, if any and Holder's reasonable costs and reasonable attorneys fees related thereto)
arising therefrom or with respect thereto. Without prejudice to the survival of any other
agreement of Maker hereunder or under any other Loan Document, the agreements and
obligations of Maker contained in this section shall survive the payment in full of this Note.
[Signature on Following Page]
12
WHEREFORE, Maker has executed this Note as of the first date mentioned above.
MAKER:
,a
By:
Name:
Title:
13
#12157661 v2
EXHIBIT "B"
GP Loan Documents in substantially the form attached hereto
CDC Must have at least a 20% interest in the GP Loan.
PROMISSORY NOTE
$9,000,000.00
FOR VALUE RECEIVED, the undersigned, ISLAND
LTD., a Florida limited partnership ("Maker"), promises
, _, a
other holder hereof ("Holder"), at
2013
Miami, Florida
LIVING APARTMENTS,
to pay to the order of
, together with any
, Florida -, or
such other place as Holder may from time to time designate in writing, the principal sum of Nine
Million and NO/100 (U.S. $9,000,000.00) (the "Principal"), plus interest on the outstanding
principal balance at the rate set forth in the next paragraph ("Interest or Interest Rate"), to be paid
in lawful money of the United States of America in accordance with the terms of this Promissory
Note (the "Note").
The term of this Note is fifteen (15) years and shall end on —, 20 (the
"Maturity Date"). Before the Maturity Date no payments of principal or interest will be made.
Interest shall accrue and compound annually at the greater of (i) the annual interest rate of
percent ( %) which rate is the Long Term Applicable Federal Rate; or (ii) the
annual interest rate of five percent (5%). The Principal, any outstanding Interest and any other
amounts outstanding under this Note shall be due and payable on the Maturity Date.
The proceeds of this Note shall be disbursed pursuant to the terms of that certain funding
agreement (the "Funding Agreement") dated of even date herewith by and between the Southeast
Overtown/Park West Community Redevelopment Agency (the "CRA"), (the
`Non -Profit"), (the "Institutional Investor"), the Senior Lender, as hereinafter
defined, Maker and Holder. The terms of the Funding Agreement are incorporated herein by
reference and made a part hereof.
To the extent required by Section 7.3 of the Development Agreement dated October 11,
2012 (the "Development Agreement") by and between Maker and the CRA, Maker shall within
ten (10) days of demand by Holder repay to Holder the amount determined to be due pursuant to
Section 7.3 of the Development Agreement, the terms of which are incorporated herein by
reference and made a part hereof.
This Note is secured by a Mortgage and Security Agreement and Assignment of Leases
(the "Mortgage") encumbering certain real property located in Miami -Dade County, Florida (the
"Premises"). The Mortgage and all other agreements, instruments and documents, delivered in
connection with this Note are collectively referred to as the "Loan Documents."
This Note has been executed and delivered in, and is to be governed by and construed
under the laws of, the State of Florida, as amended, except as modified by the laws and
regulations of the United States of America.
Maker shall have no obligation to pay interest or payments in the nature of interest in
excess of the maximum rate of interest allowed to be contracted for by law, as changed from
time to time, applicable to this Note (the "Maximum Rate"). Any interest in excess of the
15
Maximum Rate paid by Maker ("Excess Sum") shall be credited as a payment of principal, or, if
Maker so requests in writing, returned to Maker, or, if the indebtedness and other obligations
evidenced by this Note have been paid in full, returned to Maker together with interest at the
same rate as was paid by Maker during such period. Any Excess Sum credited to Principal shall
be credited as of the date paid to Holder. The Maximum Rate varies from time to time and from
time to time there may be no specific maximum rate. Holder may, without such action
constituting a breach of any obligations to Maker, seek judicial determination of the Maximum
Rate of interest, and its obligation to pay or credit any proposed excess sum to Maker.
The "Default Interest Rate" and, in the event no specific maximum rate is applicable, the
Maximum Rate shall be eighteen percent (18%) per annum. Any payment under this Note or the
Loan Documents not paid when due (at maturity, upon acceleration or otherwise) taking into
account applicable grace periods shall bear interest at the Default Interest Rate from the due date
until paid. Time is of the essence. In the event that this Note is collected by law or through
attorneys at law, or under their advice, Maker agrees, to pay all reasonable costs of collection,
including reasonable attorneys' fees, whether or not suit is brought, and whether incurred in
connection with collection, trial, appeal, bankruptcy or other creditors proceedings or otherwise.
Holder shall have the right to declare the total unpaid balance of this Note to be immediately due
and payable in advance of the Maturity Date upon the failure of Maker to pay when due, taking
into account applicable grace periods, any payment of Principal or Interest or other amount due
under the Loan Documents; or upon the occurrence of an event of default, which is not cured
prior to the expiration of any applicable cure periods, pursuant to any other Loan Documents
now or hereafter evidencing, securing or guarantying payment of this Note. Exercise of this
right shall be without notice to Maker or to any other person liable for payment hereof, notice of
such exercise being hereby expressly waived.
This Note may be paid in whole or in part at any time by Maker without penalty.
Acceptance of partial payments or payments marked "payment in full" or "in satisfaction" or
words to similar effect shall not affect the duty of Maker to pay all obligations due, and shall not
affect the right of Holder to pursue all remedies available to it under the Loan Documents.
Any of the following shall be deemed to be an Event of Default hereunder: (a) failure to
make any payment when due in accordance with the terms of this Note; and (b) failure to keep or
perform any of the other material terms, covenants and conditions in this Note provided that such
failure shall have continued for a period of ninety (90) days after written notice of such failure
from the Holder.
Upon an Event of Default hereunder, the Holder shall have all of the remedies set forth in
the Mortgage. The remedies of Holder shall be cumulative and concurrent, and may be pursued
singularly, successively or together, at the sole discretion of Holder, and may be exercised as
often as occasion therefor shall arise. No action or omission of Holder, including specifically
any failure to exercise or forbearance in the exercise of any remedy, shall be deemed to be a
waiver or release of the same, such waiver or release to be effected only through a written
document executed by Holder and then only to the extent specifically recited therein. A waiver
or release with reference to any one event shall not be construed as continuing or as constituting
a course of dealing, nor shall it be construed as a bar to, or as a waiver or release of, any
subsequent remedy as to a subsequent event.
16
Any notice to be given or to be served upon any party in connection with this Note,
whether required or otherwise, may be given in any manner permitted under the Loan
Documents.
The term "other person liable for payment of this Note" shall include any endorser,
guarantor, surety or other person now or subsequently primarily or secondarily liable for the
payment of this Note, whether by signing this Note or any other instrument.
This Note shall be a non -recourse promissory note and neither the Maker, nor any of its
partners shall have any personal liability for the payment of any portion of the indebtedness
evidenced by this Note, and in the event of a default by the Maker under this Note, the Holder's
sole remedy shall be limited to exercising its rights under the Loan Documents, including
foreclosure and the exercise of the power of sale or other rights granted under such Loan
Documents, but shall not include a right to proceed directly against the Maker, or any of its
partners, or the right to obtain a deficiency judgment after foreclosure against the Maker or any
of its partners.
The indebtedness evidenced by this Note is and shall be subordinate in right of payment
to the prior payment in full of all amounts then due and payable (including, but not limited to, all
amounts due and payable by virtue of any default or acceleration or upon maturity) with respect
to the indebtedness evidenced by the Note (as defined by that certain [Multifamily Mortgage,
Assignment of Rents, Security Agreement and Fixture Fihng] by the Maker in favor of
, a national banking association), in the original maximum principal amount of
$ , executed by Maker and payable to , as assigned to
("Senior Lender") to the extent and in the manner provided in that certain
[Subordination and Inteicreditor Agreement], dated as of even date herewith, between Senior
Lender and the holder of this Note (the "Senior Subordination Agreement"). The rights and
remedies of the payee and each subsequent holder of this Note shall be deemed, by virtue of such
holder's acquisition of this Note, to have agreed to perform and observe all of the terms,
covenants and conditions to be performed or observed by the ["Junior Lender"] under the Senior
Subordination Agreement.
Whenever the context so requires, the neutral gender includes the feminine and/or
masculine, as the case may be, and the singular number includes the plural, and the plural
number includes the singular.
Maker and any other person liable for the payment of this Note respectively, hereby (a)
expressly waive any valuation and appraisal, presentment, demand for payment, notice of
dishonor, protest, notice of nonpayment or protest, all other forms of notice whatsoever, and
diligence in collection; (b) consent that Holder may, from time to time and without notice to any
of them or demand, (i) extend, rearrange, renew or postpone any or all payments, (ii) release,
exchange, add to or substitute all or any part of the collateral for this Note, and/or (iii) release
Maker (or any co -maker) or any other person liable for payment of this Note, without in any way
modifying, altering, releasing, affecting or limiting their respective liability or the lien of any
security instrument; and (c) agree that Holder, in order to enforce payment of this Note against
any of them, shall not be required first to institute any suit or to exhaust any of its remedies
17
against Maker (or any co -maker) or against any other person liable for payment of this Note or to
attempt to realize on any collateral for this Note.
BY EXECUTING THIS NOTE, MAKER KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES ITS RIGHTS OR THE RIGHTS OF ITS HEIRS, ASSIGNS,
SUCCESSORS OR PERSONAL REPRESENTATIVES TO A TRIAL BY JURY, IF ANY,
IN ANY ACTION, PROCEEDING OR SUIT, WHETHER ARISING IN CONTRACT,
TORT OR OTHERWISE, AND WHETHER ASSERTED BY WAY OF COMPLAINT,
ANSWER, CROSSCLAIM, COUNTERCLAIM, AFFIRMATIVE DEFENSE OR
OTHERWISE, BASED ON, ARISING OUT OF, UNDER OR IN CONNECTION WITH,
THIS NOTE OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT TO BE
EXECUTED IN CONNECTION HEREWITH OR WITH THE INDEBTEDNESS OR
THE RENEWAL, MODIFICATION OR EXTENSION OF ANY OF THE FOREGOING
OR ANY FUTURE ADVANCE THEREUNDER. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR HOLDER'S EXTENDING CREDIT TO MAKER AND NO
WAIVER OR LIMITATION OF HOLDER'S RIGHTS HEREUNDER SHALL BE
EFFECTIVE UNLESS IN WRITING AND MANUALLY SIGNED ON HOLDER'S
BEHALF.
Maker acknowledges that the above paragraph has been expressly bargained for by
Holder as part of the transaction with Maker and that, but for Maker's agreement, Holder would
not have agreed to lend the Maker the Principal on the terms and at the Interest Rate.
The Mortgage and this Note secured thereby arise out of or are given to secure the financing of
housing under Part V of Chapter 420 of the Florida Statutes and is exempt from taxation
pursuant to Section 420.513 Florida Statutes. Maker shall pay any and all present and future
documentary stamp taxes, intangible taxes, and other similar charges, including interest and
penalties thereon, if any (collectively referred to as the "Documentary Taxes") which arise in
connection with the Mortgage, this Note, or any other Loan Document. Maker shall and hereby
agrees to indemnify the Holder for the full amount of all Documentary Taxes paid by the Holder
or any liability (including penalties and interest, if any and Holder's reasonable costs and
reasonable attorneys fees related thereto) arising therefrom or with respect thereto. Without
prejudice to the survival of any other agreement of Maker hereunder or under any other Loan
Document, the agreements and obligations of Maker contained in this section shall survive the
payment in full of this Note.
[Signature on Following Page]
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WHEREFORE, Maker has executed this Note as of the first date mentioned above.
MAKER:
ISLAND LIVING APARTMENTS, LTD.,
a Florida limited partnership
By: CDG Island Living, LLC, a Florida limited
liability company, as its general partner
By:
Name: Matthew S. Greer
Title: Manager
19
#12157669 v2
THIS INSTRUMENT WAS PREPARED BY,
RECORD AND RETURN TO:
Terry M. Lovell, Esq.
Stearns Weaver Miller, et al.
150 West Flagler Street, Suite 2200
Miami, Florida 33130
NOTE TO RECORDER: This Mortgage and the Note secured hereby are given to secure
the financing of housing under Part V of Chapter 420 of the Florida Statutes and are
exempt from taxation pursuant to Section 420.513 Florida Statutes.
MORTGAGE AND SECURITY AGREEMENT
AND ASSIGNMENT OF LEASES
THIS MORTGAGE AND SECURITY AGREEMENT AND ASSIGNMENT OF LEASES
(the "Mortgage"), dated as of the th day of , 2013, by ISLAND LIVING
APARTMENTS, LTD., a Florida limited partnership, with an address of
("Mortgagor"), in favor of
a , with an address of ("Mortgagee").
WITNESSETH
That for good and valuable consideration, and to secure the payment of the Promissory
Note executed by the Mortgagor in favor of the Mortgagee in the original principal amount of
Nine Million and No/100 (U.S. $9,000,000.00), as the same may be renewed, extended or
amended, from time to time, (referred to as the "Note" or the "Promissory Note"), the final
payment of which is due on or before the due date provided in the Promissory Note and to
secure any other indebtedness owed by Mortgagor to Mortgagee, now or hereafter arising
under the terms of this Mortgage or in any other instrument constituting additional security for
the Note, and all other sums of money secured as provided under this Mortgage, the Mortgagor
does grant, bargain, sell, remise, release, and convey unto the Mortgagee, its successors and
assigns, the real estate described in Exhibit A, which is attached and made a part of this
Mortgage, which, together with the property hereinafter described, is referred to herein as the
"Property";
TOGETHER WITH:
(a) All buildings and improvements, now or hereafter located on the Property, all
privileges and other rights now or hereafter made appurtenant thereto, including, without
limitation, all right, title and interest of Mortgagor in and to all streets, roads and public places,
opened or proposed, and all easements and rights -of -way, public or private, now or hereafter
used in connection with the Property; and
(b) All fixtures, fittings, furnishings, appliances, apparatus, goods, equipment, and
machinery, and all building material, supplies and equipment now or hereafter delivered to the
Property and installed or used in the Property, all other fixtures and personal property of
whatever kind and nature owned by the Mortgagor on the date of this Mortgage contained in or
hereafter placed in any building standing on the Property; such other goods, equipment, chattels
and personal property as are usually furnished by landlords in letting premises of the character
hereby conveyed, and all renewals or replacements thereof or articles in substitution thereof, all
20
of the estate, right, title and interest of the Mortgagor in and to all property of any nature
whatsoever, now or hereafter situated on the Premises or intended to be used in connection
with the operation thereof, all of which shall be deemed to be fixtures and accessions to the
freehold and a part of the realty as between the parties hereto, and all persons claiming by,
through or under them, and shall be deemed to be a portion of the security for the indebtedness
herein mentioned and secured by the Mortgage. If the lien of this Mortgage on any fixtures or
personal property is or becomes subject to a lease agreement, conditional sale agreement or
chattel mortgage of the Mortgagor, any and all deposits made thereof or therefor are hereby
assigned to the Mortgagee, together with the benefit of any payments now or hereafter made
thereon. There is also transferred, set over, and assigned hereby Mortgage to Mortgagee, its
successors and assigns, all leases and use agreements of machinery, equipment and other
personal property of Mortgagor in the categories hereinabove set forth, under which Mortgagor
is the lessee of, or entitled to use, such items, and Mortgagor agrees to execute and deliver to
Mortgagee specific separate assignments to Mortgagee of such leases and agreements when
requested by Mortgagee, but nothing herein constitutes Mortgagee's consent to any financing of
any fixture or personal property, and nothing herein shall obligate Mortgagee to perform any
obligations of Mortgagor under any such leases or agreements unless it so chooses, which
obligations Mortgagor hereby covenants and agrees to well and punctually perform. The items
set forth in this paragraph (b) are sometimes hereinafter separately referred to as "Collateral";
and
(c) All rents, royalties, issues, profits, revenue, income and other benefits from the
property described in paragraph (a) and (b) hereof to be applied against the indebtedness and
other sums secured hereby, provided, however, that permission is hereby given to Mortgagor so
long as no default has occurred hereunder, to collect, receive, take, use and enjoy such rents,
royalties, issues, profits, revenue, income and other benefits as they become due and payable,
but not in advance thereof. The foregoing assignment shall be fully operative without any
further action on the part of either party and specifically Mortgagee shall be entitled, at its option
upon the occurrence of a default hereunder, to all rents, royalties, issues, profits, revenue,
income and other benefits from the property described in paragraphs (a) and (b) hereof whether
or not Mortgagee takes possession of such property. Upon any such default hereunder, the
permission hereby given to Mortgagor to collect such rents, royalties, issues, profits, revenue,
income and other benefits from the property described in paragraphs (a) and (b) hereof shall
terminate and such permission shall be reinstated upon a cure of the default upon Mortgagee's
specific consent. Neither the exercise of any rights under this paragraph by Mortgagee nor the
application of any such rents, royalties, issues, profits, revenue, income or other benefits to the
indebtedness and other sums secured hereby, shall cure or waive any default or notice of
default hereunder or invalidate any act done pursuant hereto or to any such notice, but shall be
cumulative of all other rights and remedies.
(d) All right, title and interest of Mortgagor in and to all leases now or hereafter on or
affecting the property described in paragraphs (a) and (b) hereof, together with all security
therefor and all monies payable thereunder, subject, however, to the conditional permission
hereinabove given to Mortgagor to collect the rentals under any such lease. The foregoing
assignment of any lease shall not be deemed to impose upon Mortgagee any of the obligations
or duties of Mortgagor provided in any such lease, and, Mortgagor agrees to fully perform all
obligations of the lessor under all such leases. Upon Mortgagee's request, Mortgagor agrees to
send to Mortgagee a list of all leases covered by the foregoing assignment and as any such
lease shall expire or terminate or as any new lease shall be made, Mortgagor shall so notify
Mortgagee in order that at all times Mortgagee shall have a current list of all leases affecting the
property described in paragraphs (a) and (b) hereof. Mortgagee shall have the right, at any time
21
and from time to time, to notify any lessee of the rights of Mortgagee as provided by this
paragraph. From time to time, upon request of Mortgagee, Mortgagor shall specifically assign
to Mortgagee as additional security hereunder, by an instrument in writing in such form as may
be approved by Mortgagee, all right, title and interest of Mortgagor in and to any and all leases
now or hereafter on or affecting the Premises, together with all security therefor and all monies
payable hereunder, subject to the conditional permission hereinabove given to Mortgagor to
collect the rentals under any such lease. Mortgagor shall execute and deliver to Mortgagee any
notification, financing statement or other document reasonably required by Mortgagee to perfect
the foregoing assignment as to any such lease.
(e) To the extent of the indebtedness secured herein, all judgments, awards of
damages and settlements hereafter made as a result of or in lieu of any taking of the Property or
any part thereof or interest therein under the power of eminent domain, or for any damage
(whether caused by such taking or otherwise) to the Property or the improvements thereon or
any part thereof or interest therein, including any award for change of grade of streets.
(f) To the extent of the indebtedness secured herein, all insurance policies covering
all or any portion of the Property and all blueprints, plans, maps, documents, books and records
relating to the Property.
(g) To the extent of the indebtedness secured herein, all proceeds of the conversion,
voluntary or involuntary, of any of the foregoing into cash or liquidated claims.
TO HAVE AND TO HOLD the above granted Property, with all the privileges and
appurtenances to the same belonging to the said Mortgagee, its successors and assigns, to its
and their use and behoof forever.
PROVIDED, HOWEVER, that if the Mortgagor shall pay or cause to be paid to the
Holder of the Note the principal due under the Note, at the time and in the manner stipulated
therein, and shall pay or cause to be paid all other sums payable hereunder and all
indebtedness hereby secured, then, in such case, the estate, right, title and interest of the
Mortgagee in the Property shall cease, determine and become void and the Mortgagee shall,
cancel, release and discharge this Mortgage.
Mortgagor's Covenants
Mortgagor covenants and agrees with Mortgagee that:
Title.
The Mortgagor warrants that: it has good and marketable title to an
indefeasible fee simple estate in the Property, subject to no liens, charges or
encumbrances other than the lien of this Mortgage, any encumbrances existing and
recorded in the public record prior to or in connection with the recording of this
Mortgage (collectively, the "Permitted Encumbrances"); that it has good right and lawful
authority to mortgage the Property in the manner and form herein provided; that
Mortgagor has full power and authority to mortgage the Property in the manner and form
herein done or intended hereafter to be done; that this Mortgage is and shall remain a
valid and enforceable lien on the Property, subject only to the Permitted Encumbrances
which constitute senior mortgage liens, including but not limited to that certain
[mortgage] in favor of ( ] (the "Senior Lender") (collectively, the
22
"Prior Encumbrances"); that Mortgagor and its successors and assigns shall warrant
and defend the same and priority of this lien forever against the lawful claims and
demands of all persons whomsoever (other than the Prior Encumbrances); and, that this
covenant shall not be extinguished by any foreclosure hereof but shall run with the land.
Notwithstanding any language to the contrary contained herein, any encumbrances
approved or allowed by the Senior Lender and/or the Mortgagee shall be considered a
Permitted Encumbrance under this Mortgage.
Mortgagor shall maintain the property free of all security interests, liens
and encumbrances, other than Permitted Encumbrances, the security interest hereunder
or any lien or encumbrance disclosed to and approved by Mortgagee in writing.
The Mortgagor shall do, execute, acknowledge and deliver all and every
such further acts, deeds, conveyances, mortgages, assignments, notices of
assignments, transfers and assurances as the Mortgagee shall from time to time require,
for the better assuring, conveying, assigning, transferring and confirming unto the
Mortgagee the property and rights hereby conveyed or assigned or intended now or
hereafter so to be, or which the Mortgagor may be or may hereafter become bound to
convey or assign to the Mortgagee, or for carrying out the intention of facilitating the
performance of the terms of this Mortgage, or for filing, registering or recording this
Mortgage and, on demand, shall execute and deliver, and hereby authorizes the
Mortgagee to execute in the name of the Mortgagor to the extent it may lawfully do so,
one or more financing statements, chattel mortgages or comparable security
instruments, to evidence more effectively the lien hereof upon the Collateral.
The Mortgagor shall, upon the execution of this Mortgage and the Note (the
"Loan Documents"), cause all recordable Loan Documents, to be filed, registered or
recorded in such manner and in such places as may be required by any present or future
law in order to publish notice of and fully to protect the lien hereof upon, and the interest
of the Mortgagee in the Property.
The Mortgagor shall pay for all filing, registration or recording fees, and all
expenses incident to the preparation, execution and acknowledgment of this Mortgage,
any mortgage supplemental hereto, any security instrument with respect to the
Collateral, and any instrument of further assurance, and all present and future federal,
state, county and municipal stamp taxes, documentary stamp taxes, intangible taxes, all
other taxes, duties, imposts, assessments and other similar charges, including interest
and penalties thereon, if any (collectively referred to as the "Documentary Taxes")
arising out of or in connection with the execution and delivery of the Note, this Mortgage,
any mortgage supplemental hereto, any security instrument with respect to the Collateral
or any instrument of further assurance. Mortgagor shall and hereby agrees to indemnify
the Mortgagee for the full amount of all Documentary Taxes paid by the Mortgagee or any
liability (including penalties and interest, if any and Mortgagee's reasonable costs and
reasonable attorneys fees related thereto) arising therefrom or with respect thereto.
Without prejudice to the survival of any other agreement of Mortgagor hereunder or
under any other Loan Document, the agreements and obligations of Mortgagor contained
in this section shall survive the payment in full of the Note.
The Mortgagor, so long as all or part of the indebtedness secured hereby is
outstanding shall preserve in its present form and keep in full force and effect its
existence, as a legal entity under the laws of the state of its formation and shall comply
23
with all regulations, rules, ordinances, statutes, orders and decrees of any governmental
authority or court applicable to the Premises or any part thereof.
Payment of Note. The Mortgagor shall promptly and punctually pay principal,
and all other sums due or to become due pursuant to the terms of the Note, in the time
and manner set forth therein.
Maintenance and Repair. The Mortgagor shall keep the Property in good
condition and operating order and shall not commit or permit any waste thereof.
Mortgagor shall diligently maintain the Property and make any needed repairs,
replacements, renewals, additions and improvements, and complete and restore
promptly and in a good workmanlike manner. Mortgagor shall not remove any part of the
Collateral from the Property or demolish any part of the Property or materially alter any
part of the Property without the prior written consent of the Mortgagee which consent
shall not be unreasonably denied, conditioned or delayed. Mortgagor shall permit
Mortgagee or its agents the opportunity to inspect the Property, including the interior of
any structures, at any reasonable time.
Compliance with Laws. The Mortgagor shall comply with all laws, ordinances,
regulations, covenants, conditions and restrictions affecting the Property or the
operation thereof, and shall pay all fees or charges of any kind in connection therewith.
Insurance. The Mortgagor shall keep all buildings and improvements now or
hereafter situated on the Property insured against loss or damage by fire and other
hazards as may reasonably be required by any senior mortgagee under the Prior
Encumbrances.
Casualty. Mortgagor shall promptly notify Mortgagee of any material loss
whether covered by insurance or not. Any insurance proceeds shall be used to restore
the Property
Condemnation. The Mortgagor, immediately upon obtaining knowledge of the
institution of any proceeding for the condemnation of the Property or any portion
thereof, shall notify Mortgagee in writing of the pendency thereof. Subject to the rights
of any senior lenders under the Prior Encumbrances, the Mortgagor hereby assigns,
transfers and sets over unto the Mortgagee to the extent of the indebtedness secured
herein, all compensation, rights of action, proceeds of any award and any claim for
damages for any of the Property taken or damaged under the power of eminent domain
or by condemnation or by sale of the Property in lieu thereof. Any proceeds of a
condemnation award shall be used for the restoration or rebuilding of the Property.
Liens and Encumbrances. Except as set forth herein, the Mortgagor shall not
permit the creation of any liens or encumbrances on the Property other than the lien of
this Mortgage and of any Permitted Encumbrances, and shall pay when due all
obligations, lawful claims or demands of any person, which, if unpaid, might result in, or
permit the creation of, a lien or encumbrance on the Property or on the rents, issues,
income and profits arising therefrom, whether such lien would be senior or subordinate
hereto, including all claims of mechanics, materialmen, laborers and others for work or
labor performed, or materials or supplies furnished in connection with any work done in
and to the Property and the Mortgagor will do or cause to be done everything necessary
so that the lien of this Mortgage is fully preserved, at no cost to the Mortgagee.
24
Notwithstanding any language to the contrary contained herein or in any of the other
Loan Documents, the Mortgagor may refinance any other mortgage encumbering the
Property and the Mortgagee shall executed any requested Subordination Agreement
related to such refinancing.
Taxes and Assessments. The Mortgagor shall pay in full when due, and in any
event before any penalty or interest attaches, all general taxes and assessments, special
taxes, special assessments, water charges, sewer service charges, and all other charges
against the Property and shall furnish to Mortgagee official receipts evidencing the
payment thereof.
Sale of Property.
Without the consent of Mortgagee, Mortgagor may transfer the Property as
long as after such transfer the Property continues to be subject to the lien of this
M ortgage.
Any change in the legal or equitable title of the Property or in the beneficial
ownership of the Property, whether or not of record and whether or not for consideration,
or sale or other disposition of the partnership interests of the borrowing entity, shall not
be deemed a transfer of an ,interest in the Property.
Any deed conveying the Property, or any part thereof, shall provide that
the grantee thereunder assumes all of the grantor's obligations under this Mortgage, the
Note and all other instruments or agreements evidencing or securing the repayment of
the Mortgage indebtedness. In the event such deed shall not contain such provisions,
the grantee under such deed shall be deemed to assume, by its acquisitions of the
Property all the obligations established by the Loan Documents.
Mortgagor shall not sell, assign, transfer or otherwise dispose of any
material portion of the Collateral or any material interest therein and shall not do or
permit anything to be done that may impair the Collateral without the prior consent of the
Mortgagee, unless the Mortgagor is not in default under the terms of this Mortgage and
the Collateral which is to be disposed is fully depreciated or unnecessary for use in the
operation of the Property.
Notwithstanding any other language to the contrary contained herein,
Sections 1.10(a) and (b) above shall only be applicable until the date that is fifteen years
from the date hereof.
Advances. If Mortgagor shall fail to perform any of the covenants herein
contained or contained in any instrument constituting additional security for the Note,
the Mortgagee may, without creating an obligation to do so, make advances on its behalf.
Any and all sums so advanced shall be a lien upon the Property and shall become
secured by this Mortgage. The Mortgagor shall repay on demand all sums so advanced
in its behalf with interest at the rate of four (4%) percent per annum in excess of the rate
of the Note at the time of such advance.
Estoppel Certificates. The Mortgagor within ten (10) days from receipt of
written request, shall furnish a duly acknowledged written statement setting forth the
amount of the debt secured by this Mortgage, and stating either that no set -offs or
25
defenses exist against the Mortgage debt, or if any such setoffs or defenses are alleged
to exist, the nature thereof.
Assignment of Rents and Leases. Mortgagor agrees to execute and deliver to
Mortgagee such assignments of the leases and rents applicable to the Property as the
Mortgagee may from time to time request while this Mortgage and the Note and
indebtedness secured by this Mortgage are outstanding.
Subordination to Prior Encumbrances. Notwithstanding anything herein which
is or which may appear to be to the contrary, the lien of this Mortgage and Mortgagee's
rights hereunder are subordinate and inferior to the lien of the Prior Encumbrances
whether now existing or hereafter created. Mortgagee agrees, by its acceptance hereof,
that no action required to be taken by Mortgagor under the express terms of any Prior
Encumbrance shall constitute a default or an Event of Default hereunder.
Leases Affecting Mortgaged Property. Mortgagor shall comply with and
observe its obligations as landlord under all leases affecting the Property or any part
thereof.
Default
Events of Default. The following shall be deemed to be Events of Default
hereunder:
Failure to make any payment when due in accordance with the terms of the
Note secured by this Mortgage.
Failure to keep or perform any of the other material terms, covenants and
conditions in this Mortgage provided that such failure shall have continued for a period
of ninety (90) days after written notice of such failure from the Mortgagee.
Remedies.
Upon and after any such Event of Default, the Mortgagee, by written notice
given to the Mortgagor, may declare the entire principal of the Note then outstanding, if
not then due and payable, and all other obligations of Mortgagor hereunder, to be due
and payable immediately.
Upon and after any such Event of Default, the Mortgagee shall have all of
the remedies of a Secured Party under the Uniform Commercial Code of Florida, Sec.
671-689 et al. F.S., as amended from time to time,
Upon and after any such Event of Default, the Mortgagee, with or without
entry, or by its agents or attorneys, insofar as applicable, may:
sell the Property to the extent permitted and pursuant to the procedures
provided by law, and all estate, right, title and interest, claim and demand therein, and right of
redemption thereof, at one or more sales as an entity or in parcels, and at such time and place
upon such terms and after such terms and after such notice thereof as may be required, or
26
institute proceedings for the complete or partial foreclosure of this
Mortgage, or
apply to any court of competent jurisdiction for the appointment of a
receiver or receivers for the Property and of all the earnings, revenues, rents, issues, profits and
income thereof, or
take such steps to protect and enforce its rights whether by action, suit or
proceeding in equity or at law for the specific performance of any covenant, condition or
agreement in the Note, or in this Mortgage, or in aid of the execution of any power herein
granted, or for any foreclosure hereunder, or for the enforcement of any other appropriate legal
or equitable remedy or otherwise as the Mortgagee shall elect.
The Mortgagee may adjourn from time to time any sale by it to be made
under or by virtue of this Mortgage by announcement at the time and place appointed for
such sale or for such adjourned sale or sales; and, except as otherwise provided by any
applicable provision of law, the Mortgagee, without further notice or publication, other
than that provided in sub -paragraph 2.02(c) above may make such sale at the time and
place to which the same shall be so adjourned.
Upon the completion of any sale or sales made by the Mortgagee under or
by virtue of this section, the Mortgagor, or an officer of any court empowered to do so,
shall execute and deliver to the accepted purchaser or purchasers a good and sufficient
instrument, or good and sufficient instruments, conveying, assigning and transferring,
all estate, right, title and interest in and to the property and rights sold. The Mortgagor, if
so requested by the Mortgagee, shall ratify and confirm any such sale or sales by
executing and delivering to the Mortgagee or to such purchaser or purchasers all such
instruments as may be advisable, in the judgment of the Mortgagee, for the purpose, and
as may be designated in such request. Any such sale or sales made under or by virtue
of this section whether made under the power of sale herein granted or under or by
virtue of judicial proceedings or of a judgment or decree of foreclosure and sale, shall
operate to divest all the estate, right, title, interest, claim and demand whatsoever,
whether at law or in equity, of the Mortgagor in and to the properties and rights so sold,
and shall be a perpetual bar both at law and in equity against the Mortgagor and against
any and all persons claiming or who may claim the same, or any part thereof from,
through or under the Mortgagor.
In the event of any sale made under or by virtue of this section (whether
made under the power of sale herein granted or under or by virtue of judicial
proceedings or of a judgment or decree of foreclosure and sale), the entire principal of
the Note, if not previously due and payable, and all other sums required to be paid by the
Mortgagor pursuant to this Mortgage, immediately thereupon shall, anything in the Note
or in this Mortgage to the contrary notwithstanding, become due and payable.
The purchase money proceeds or avails of any sale made under or by
virtue of this section, together with any other sums which then may be held by the
Mortgagee under the provisions of this section or otherwise, shall be applied as follows:
First: To the payment of the costs and expenses of such sale, including
reasonable compensation to the Mortgagee, its agents and counsel, and of any judicial
27
proceedings wherein the same may be made, and of all expenses, liabilities and advances
made or incurred by the Mortgagee under this Mortgage.
Second: To the payment of any other sums required to be paid by the
Mortgagor pursuant to any provisions of this Mortgage or of the Note.
Third: To the payment of the whole amount then due, owing or unpaid
under the Note.
Fourth: To the payment of the surplus, if any, to the Mortgagor or
whomsoever is lawfully entitled to receive the same.
Upon any sale made under or by virtue of this section, whether made
under the power of sale herein granted or under or by virtue of judicial proceedings or of a
judgment or decree of foreclosure and sale, the Mortgagee may bid for and acquire the Property
or any part thereof and in lieu of paying cash therefor may make settlement for the purchase
price by crediting upon the indebtedness of the Mortgagor secured by this Mortgage the net
sales price after deducting therefrom the expenses of the sale and the cost of the action and
any other sums which the Mortgagee is authorized to deduct under this Mortgage. The
Mortgagee, upon so acquiring the Property, or any part thereof shall be entitled to hold, lease,
rent, operate, manage and sell the same in any manner provided by applicable laws.
Miscellaneous Terms and Conditions
Rules of Construction. When the identity of the parties hereto or other
circumstances make it appropriate, the masculine gender shall include the feminine
and/or neuter, plural and the singular number shall include the plural. The headings of
each paragraph are for information and convenience only and do not limit or construe
the contents of any provision hereof
Severability. If any term of this Mortgage, or the application thereof to any
person or circumstances, shall, to any extent, be invalid or unenforceable, the remainder
of this Mortgage, or the application of such term to persons or circumstances other than
those as to which it is invalid or unenforceable, shall not be affected thereby, and each
term of this Mortgage shall be valid and enforceable to the fullest extent permitted by
law.
Successors in Interest. This Mortgage applies to, inures to the benefit of, and
is binding not only on the parties hereto, but on their heirs, executors, administrators,
successors and assigns. All obligations of Mortgagor hereunder are joint and several.
The term "Mortgagee" shall mean the holder and owner, including pledges, of the Note
secured hereby, whether or not named as Mortgagee herein.
Notices. All notices to be given pursuant to this Mortgage shall be sufficient if
mailed postage prepaid, certified or registered mail, return receipt requested, to the
above described addresses of the parties hereto, or to such other address as a party may
request in writing. Any time period provided in the giving of any notice shall commence
upon the date such notice is deposited in the mail.
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Modifications. This Mortgage may not be amended, modified or changed, nor
shall any waiver of any provision be effective, except only by an instrument in writing
and signed by the party against whom enforcement of any waiver, amendment, change,
modification or discharge is sought.
Governing Law. This Mortgage shall be construed according to and governed
by the laws of the State of Florida.
Limitation of Liability. Notwithstanding any provision or obligation to the
contrary hereinbefore or hereinafter set forth, from and after the date of this Mortgage,
the indebtedness secured by this Mortgage including the Note shall be a non -recourse
obligation and the liability of the Mortgagor (including, without limitation, its partners,
members, officers, directors or employees) hereunder shall be limited to the interest in
the Premises and the Mortgagee shall look exclusively thereto, or to such other security
as may from time to time be given for payment of the obligations hereunder, and any
judgment rendered against the Mortgagor under this Mortgage shall be limited to the
Premises and any other security so given for satisfaction thereof. No deficiency or other
personal judgment nor any order or decree of specific performance shall be rendered
against the Mortgagor (including, without limitation, its partners, members, officers,
directors or employees), their heirs, personal representatives, successors, transferees or
assigns, as the case may be, in any action or proceeding arising out of this Mortgage, or
any judgment, order or decree rendered pursuant to any such action or proceeding.
Notice and Cure. Notwithstanding the foregoing, the Mortgagee hereby agrees
that any cure of any default made or tendered by the Mortgagor's investor limited partner
and/or special limited partner ( and , respectively, or
their affiliates, or their successors or assigns) shall be deemed to be a cure by the
Mortgagor and shall be accepted or rejected on the same basis as if made or tendered by
Mortgagor. Copies of all notices which are sent to Mortgagor under the terms of this
Agreement shall also be sent to:
, Attention: with a copy to
, , Attention:
[Signature on Following Page]
29
IN WITNESS WHEREOF, the said Mortgagor caused this instrument to be signed and
sealed as of the date first above written.
Signed, sealed and delivered MORTGAGOR:
in the presence of:
Name:
Name:
STATE OF FLORIDA
COUNTY OF
)
)
)
SS:
ISLAND LIVING APARTMENTS, LTD.,
a Florida limited partnership
By: CDG Island Living, LLC, a Florida limited
liability company, as its general partner
By:
Name: Matthew S. Greer
Title: Manager
The foregoing instrument was acknowledged before me this day of , 2013
by Matthew S. Greer, as Manager of CDG Island Living, LLC, a Florida limited liability company,
a general partner of Island Living Apartments, Ltd., a Florida limited partnership, on behalf of the
limited liability company and the limited partnership.
Personally Known OR Produced Identification
Type of Identification Produced
NOTARY STAMP
Print or Stamp Name:
Notary Public, State of Florida at Large
Commission No.:
My Commission Expires:
30
EXHIBIT A
LEGAL DESCRIPTION
31
#12158685_v2
This document prepared by
and return to:
Owner:
Owner's Address:
RESTRICTIVE COVENANT AGREEMENT
Island Living Apartments, Ltd.
c/o Carlisle Development Group, LLC
2950 SW 29t' Avenue, Suite 200
Miami, FL 33133
Attention: Matthew S. Greer
Legal Description of Property: See Exhibit "A" attached hereto
Name of Project: Island Living Apartments
Issuer: Southeast Overtown/Park West Community Redevelopment Agency
Issuer's Address: 1490 NW Third Avenue, Suite 105
Miami, Florida 33136
THIS RESTRICTIVE COVENANT AGREEMENT (this "Agreement") is made and
entered into as of October 11, 2012, by and between Southeast Overtown/Park West Community
Redevelopment Agency (the "Issuer"), a public body corporate and politic created pursuant to
the laws of the State of Florida (the "State"); and Island Living Apartments, Ltd., a Florida
limited partnership (together with its successors and assigns, the "Owner").
WITNESSETH:
WHEREAS, the Owner intends to acquire and construct a multifamily residential rental
project located within Miami -Dade County, Florida (the "County"), to be occupied by Lower -
Income Tenants and Moderate -Income Tenants, all for the public purpose of providing decent,
safe, affordable and sanitary housing for persons or families of low or moderate income within
the County; and
WHEREAS, pursuant to a resolution of the Issuer's Board of Commissioners, adopted
September 17, 2012, as supplemented by a resolution of the Issuer's Board of Commissioners,
adopted , 201_ (collectively, the "Bond Resolution"), the Issuer has issued and
delivered its Revenue Bonds, Series 201 [_ ] (the "Bonds"), to fund, among other things, a
grant (the "Grant") to [ ], a nonprofit
[ ] formed under the laws of the State of [Florida] (the "Non -Profit Lender"),
which in turn has agreed to make a forgivable loan (the "Non -Profit Loan") to [
a 1 (the "Lender"), which in turn has agreed to make a loan (the "Loan")
to the Owner, pursuant to a promissory note (the "Note") dated as of [ 1, 201J, by and
between the Lender and the Owner, to finance the construction of the Project (as hereinafter
defined), all under and in accordance with the Constitution and laws of the State; and
WHEREAS, the Bond Resolution require, as a condition of making the Grant, the
execution and delivery of this Agreement; and
WHEREAS, in order to satisfy such requirement, the Issuer and the Owner have
determined to enter into this Agreement to set forth certain terms and conditions relating to the
operation of the Project, which is located on the real property described in Exhibit "A" hereto
(the "Land"); and
WHEREAS, this Agreement shall be properly filed and recorded by the Owner within
the official records of the County and shall constitute a covenant running with the land and a
restriction upon the use of the Land subject to and in accordance with the terms contained herein;
NOW THEREFORE, in consideration of providing the Grant to the Non -Profit Lender
by the Issuer, the Non -Profit Loan to the Lender by the Non -Profit Lender, and the Loan to the
Owner by the Lender, and acknowledging that compliance with this Agreement is necessary to
the accomplishment of the public purpose of the issuance of the Bonds and the making of the
Grant, and to the accomplishment of the Non -Profit Lender's exempt purpose through the
making of the Non -Profit Loan, the Owner covenants and agrees with the Issuer as follows:
Section 1. Definitions and Interpretation.
(a) The following terms shall have the respective meanings set forth below:
"Applicable Income Limit" means, with respect to Lower -Income Tenants, the applicable
income limit set forth in the definition of "Lower -Income Tenants" herein, and with respect to
Moderate -Income Tenants, the applicable income limit set forth in the definition of "Moderate -
Income Tenants" herein.
"Available Units" means residential units in the Project that are actually occupied and
residential units in the Project that are unoccupied and have been leased at least once after
becoming available for occupancy, provided that a residential unit that is not available for
occupancy due to renovations is not an available unit and does not become an available unit until
it has been leased for the first time after the renovations are completed.
"Certificate of Continuing Program Compliance" means the certificate required to be
delivered by the Owner to the Issuer pursuant to Section 4(d) of this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended. Any reference to a Code
section shall include any successor provision; provided that if the Internal Revenue Code is
amended to eliminate corresponding provisions in connection with low income housing tax
credits, then reference shall be to such provision of the Code immediately prior to such
amendment.
2
"County" means Miami -Dade County, Florida.
"FHFC" means the Florida Housing Finance Corporation.
"HUD" means the United States Department of Housing and Urban Development or any
successor agency.
"Income Certification" means in a form acceptable to the Issuer (the Issuer agrees that a
tenant income certificate that is in a form acceptable to HUD or FHFC will be acceptable to the
Issuer).
"Lower -Income Tenants" means one or more natural persons or a family, whose income[,
determined in a manner consistent with Section 42(g)(1) of the Code,] does not exceed sixty
percent (60%) of the then current median family income for Miami -Dade County, Florida,
Standard Metropolitan Statistical Area, determined in a manner consistent with Section 42(g)(1)
of the Code, including adjustments for family size.
"Moderate -Income Tenants" means one or more natural persons or a family, whose
income[, determined in a manner consistent with Section 42(g)(1) of the Code,] does not exceed
one hundred twenty percent (120%) of the then current median family income for Miami -Dade
County, Florida, Standard Metropolitan Statistical Area, determined in a manner consistent with
Section 42(g)(1) of the Code, including adjustments for family size.
"Manager" means any agent hired by or on behalf of the Owner to operate and manage
the Project.
"Project" means the multifamily residential rental housing development known as Island
Living Project, located on the Land and financed, in part, with proceeds of the Grant and the
Loan, excluding approximately 5,000 square feet of ground floor commercial space.
"Qualified Project Period" means the 30-year period beginning on the first day of the
calendar year following the year in which the Project is placed in service. The Owner is
authorized to use Exhibit "C" attached hereto to evidence the foregoing.
"State" means the State of Florida.
(b) Unless the context clearly requires otherwise, as used in this Agreement, words of
the masculine, feminine or neuter gender shall be construed to include any other gender when
appropriate and words of the singular number shall be construed to include the plural number,
and vice versa, when appropriate. This Agreement and all the terms and provisions hereof shall
be construed to effectuate the purposes set forth herein and to sustain the validity hereof.
(c) The titles and headings of the sections of this Agreement have been inserted for
convenience of reference only, and are not to be considered a part hereof and shall not in any
way modify or restrict any of the terms or provisions hereof or be considered or given any effect
in construing this Agreement or any provisions hereof or in ascertaining intent, if any question of
intent shall arise.
3
Section 2. Residential Rental Property. The Owner hereby represents, covenants,
warrants and agrees that, during the term of this Agreement:
(a) The Owner will acquire, construct, own and operate the Project for the purpose of
providing a multifamily residential rental project, and the Project shall be continually owned,
managed and operated as multifamily residential rental properties.
(b) Each residential unit in the Project shall be contained in one or more buildings or
structures located on the Land and shall be similarly designed, appointed and constructed (except
as to number of bedrooms and bathrooms), each of which will contain complete facilities for
living, sleeping, eating, cooking and sanitation for an individual or a family, including a living
area, a sleeping area, bathing and sanitation facilities and cooking facilities equipped with a
cooking range, refrigerator and sink, all of which are separate and distinct from the other units.
(c) None of the units in the Project will at any time be (1) utilized on a transient basis,
(2) used as a hotel, motel, dormitory, fraternity or sorority house, rooming house, nursing home,
hospital, sanitarium, rest home, trailer court or park, or (3) rented for initial lease periods of less
than six months. No part of the Project will, at any time during the Qualified Project Period, be
owned or used by a cooperative housing corporation or converted to condominiums.
(d) All of the units (other than one unit for a resident manager or maintenance
personnel who either (i) qualifies as an eligible tenant under Section 3 hereof, or (ii) was a
resident of the Southeast Overtown/Park West Community Redevelopment
Area for at least one year immediately preceding occupancy of the unit) will be rented or
available for rent on a continuous basis to members of the general public, and the Owner will not
give preference to any particular class or group of persons in renting the units in the Project,
except to the extent that units are required to be leased or rented to Lower -Income Tenants or
Moderate -Income Tenants. Lower -Income Tenants will have equal access to and enjoyment of
all common facilities of the Project. The Owner will not discriminate against children of any age
when renting the units in the Project.
(e) The Owner shall not (i) demolish any part of the Project necessary for the
operation thereof for its intended purposes or substantially subtract from any real or personal
property of the Project; or (ii) permit the use of the dwelling accommodations of the Project for
any purpose except rental residences.
(f) The Owner shall maintain "all risk" property insurance on the Project at 100% of
replacement cost, with deductible amounts which are commercially reasonably, consistent with
other similar properties.
Section 3. Lower -Income Tenants and Moderate -Income Tenants. The Owner
hereby represents, warrants and covenants as follows:
(a) At all times during the term of this Agreement, at least fifty percent (50%) of the
Available Units shall be occupied by Lower -Income Tenants and the balance of the Available
Units shall be occupied by Moderate -Income Tenants during the Qualified Project Period. The
Available Units occupied or held for occupancy by Lower -Income Tenants shall be generally
distributed throughout the Project, and shall consist of approximately fifty percent (50%) of the
4
one -bedroom units, approximately fifty percent (50%) of the two -bedroom units, and
approximately fifty percent (50%) of the three -bedroom units.
(b) During the term of this Agreement, the monthly rent of the units occupied by
Lower -Income Tenants in the Project shall not exceed the amount permitted to qualify a unit as
"rent -restricted" under Section 42(g) of the Code.
For purposes of paragraph (a) of this Section 3 and Section 2(d), a unit occupied by an
individual or family who at the commencement of the occupancy of such unit is a Lower -Income
Tenant or a Moderate -Income Tenant shall be counted as occupied by a Lower -Income Tenant or
a Moderate -Income Tenant, as the case may be, during such individual's or family's tenancy in
such unit, even though such individual or family ceases to be a Lower -Income Tenant or a
Moderate -Income Tenant, as the case may be; however, any such unit shall cease to be treated as
occupied by a Lower -Income Tenant (but shall continue to be treated as occupied by a Moderate -
Income Tenant) upon a determination that the tenant's most recently reported income exceeds
140% of the Applicable Income Limit. In addition, a vacant unit that was occupied by a Lower -
Income Tenant or a Moderate -Income Tenant shall be counted as occupied by a Lower -Income
Tenant or a Moderate -Income Tenant, as the case may be, until it is reoccupied other than for a
temporary period of not more than thirty-one days, at which time the unit shall be considered to
be occupied by a Lower -Income Tenant or a Moderate -Income Tenant only if the individual or
family then occupying the unit satisfies the definition of a Lower -Income Tenant or a Moderate -
Income Tenant, as the case may be.
Section 4. Reporting Requirements. During the term of this Agreement:
(a) Income Certifications shall be obtained from each occupant (i) no less than one
day prior to the time of initial occupancy of the unit by such occupant, and (ii) no less frequently
than once each year thereafter.
(b) The Owner shall maintain on file at the Project copies of the Income
Certifications specified in Section 4(a) hereof for a period of time of six (6) years, and shall
provide copies thereof to the Owner promptly upon request.
(c) The Owner shall maintain at the Project complete and accurate records pertaining
to the incomes of (as of the date of initial occupancy of each tenant and not less than annually
thereafter) and rentals charged to Lower -Income Tenants and Moderate -Income Tenants residing
in the Project, and shall permit during normal business hours and upon five business days' notice
to the Owner, any duly authorized representative of the Issuer to inspect, at the Project, the books
and records of the Owner pertaining to the incomes of and rentals charged to all tenants residing
in the Project.
(d) The Owner shall prepare and submit to the Issuer at the beginning of the Qualified
Project Period, and on or before the tenth day of each January (and if the tenth of January falls on
a weekend or holiday, submission must be made the day before) thereafter, a Certificate of
Continuing Program Compliance in the form attached hereto as Exhibit "B," executed by the
Owner stating (i) the percentage of residential rental units that were occupied by Lower -Income
Tenants and the unit mix of rental units that were occupied by Lower -Income Tenants; (ii) the
5
percentage of residential rental units that were occupied by Moderate -Income Tenants and the
unit mix of rental units that were occupied by Moderate -Income Tenants; (iii) the percentage of
residential rental units that were vacant and (iv) that at all times during the previous year, all of
the residential rental units were occupied (or deemed occupied) by Lower -Income Tenants or
Moderate -Income Tenants (as determined in accordance with Section 3 of this Agreement) and
no default has occurred under this Agreement or, if the units failed to be so occupied, or such a
default has occurred, the nature of such failure or default and the steps, if any, the Owner has
taken or proposes to take to correct such failure or default. If any such report indicates that the
vacancy rate at the Project is 10% or higher, the Issuer shall be permitted during normal business
hours and upon five business days' notice to the Owner, to inspect all or some of the vacant units
to determine to its reasonable satisfaction that such vacant units are ready and available for
rental.
(e) No later than one hundred twenty (120) days after the end of each year, the Owner
shall submit to the Issuer and the Lender a certification by an independent compliance agency
which is selected by the Owner and reasonably acceptable to the Issuer (the Issuer hereby
approves any independent compliance agency selected by the Owner which is then currently
engaged by FHFC as the independent compliance agency for the Project), evidencing
compliance or non-compliance with Section 3 hereof.
(f) In the event of that the Owner fails to submit to the Issuer the items which the
Owner is required to submit under paragraphs (d) and (e) above on or before the date required,
the Owner shall be liable for the payment to the Issuer of a late fee of $100.00 per day which
shall be payable within ten business days of written notification from the Issuer of the amount of
such late fee. The failure of the Owner to timely pay a late fee shall be an event of default by the
Owner under this Agreement.
(g) If the certificate prepared by the independent compliance agency in accordance
with Section 4(e) evidences that the Owner has failed to comply with the requirements of Section
3(a), then in such event, the Owner shall pay to the Issuer, as a penalty for non-compliance with
such requirements, the sum of (i) $1,000 for the initial unit which is not in compliance, (ii)
$2,500 for a second unit which is not in compliance, and (iii) $5,000 for each additional unit
which is not in compliance, all determined on an annual basis, based upon such certificate.
Amounts, if any, due from the Owner in accordance with this Section 4(g) shall be calculated
annually as of each January 1 and paid by the Owner within thirty (30) days of issuance of the
certificate in accordance with Section 4(e). The failure of the Owner to timely pay the amount
due under this Section 4(g) shall be an event of default by Owner under this Agreement.
Section 5. Indemnification. The Owner hereby covenants and agrees that it shall
indemnify and hold harmless the Issuer and its past, present and future officers, members,
governing body members, employees, agents and representatives (any or all of the foregoing
being hereinafter referred to as the "Indemnified Persons") from and against any and all losses,
costs, damages, expenses and liabilities of whatsoever nature or kind (including but not limited
to, reasonable attorneys' fees, litigation and court costs related to trial and appellate proceedings,
amounts paid in settlement and amounts paid to discharge judgments) directly or indirectly
resulting from, arising out of, the design, construction, installation, operation, use, occupancy,
maintenance or ownership of the Project other than for their own negligent, illegal or unlawful
6
acts or omissions. In the event that any action or proceeding is brought against any Indemnified
Person with respect to which indemnity may be sought hereunder, the Owner, upon timely
written notice from the Indemnified Person, shall assume the investigation and defense thereof,
including the employment of counsel and the payment of all expenses. The Indemnified Person
shall have the right to participate in the investigation and defense thereof and may employ
separate counsel either with the approval and consent of the Owner, which consent shall not be
unreasonably withheld, or in the event the Indemnified Person reasonably determines that a
conflict of interest exists between such Indemnified Person and the Owner in connection
therewith, and in either such event the Owner shall pay the reasonable fees and expenses of such
separate counsel.
Section 6. Fair Housing Laws. The Owner will comply with all applicable fair
housing laws, rules, regulations or orders applicable to the Project and shall not discriminate on
the basis of race, color, sex, religion, familial status, handicap/disability, or national origin in the
lease, use or occupancy of the Project or in connection with the employment or application for
employment of persons for the operation and management of the Project.
Section 7. Tenant Lists. All tenants lists, applications, and waiting lists (if any)
relating to the Project shall at all times be kept separate and identifiable from any other business
of the Owner which is unrelated to the Project, and shall be maintained, as required by the Issuer
from time to time, in a reasonable condition for proper audit and subject to examination during
business hours by representatives of the Issuer. Failure to keep such lists and applications or to
make them available to the Issuer will be a default hereunder.
Section 8. Tenant Lease Restrictions. All tenant leases shall contain clauses, among
others, wherein each individual lessee:
(a) Certifies the accuracy of the statements made in the Income Certification;
(b) Agrees that the family income, family composition and other eligibility
requirements shall be deemed substantial and material obligations of such lessee's tenancy; that
such lessee will comply promptly with all requests for information with respect thereto from the
Owner or the Issuer, and that such lessee's failure to provide accurate information in the Income
Certification or refusal to comply with a request for information with respect thereto shall be
deemed a violation of a substantial obligation of such lessee's tenancy; and
(c) Agrees not to sublease to any person or family who does not execute, and deliver
to the Owner or the Issuer, an Income Certification.
Section 9. Sale, Lease or Transfer of Project. The Owner shall not sell, assign,
convey or transfer any material portion of the Land, fixtures or improvements constituting a part
of the Project or any material portion of the personal property constituting a portion of the
Project during the term of this Agreement without the prior written consent of the Issuer, which
consent shall not be unreasonably withheld. If a material portion of the Project is sold during the
term hereof and such material portion of such Project consisted of personal property or
equipment, the proceeds from the sale thereof may be used by the Owner to purchase property of
similar function to be used in connection with the Project. If such material portion of such
7
Project consists of real property and improvements, the purchaser thereof must execute and
deliver to the Owner and the Issuer a document in form and substance reasonably satisfactory to
the Issuer pursuant to which such purchaser shall agree to operate such property in compliance
with the terms and conditions of this Agreement.
The Owner shall not sell or otherwise transfer the Project in whole without the prior
written consent of the Issuer (which shall respond within a reasonable period of time not
exceeding thirty days, and shall not unreasonably withhold such consent, provided (a) the Owner
is not in default hereunder, and (b) the purchaser or transferee executes any document reasonably
requested by the Issuer with respect to (i) assumption of the obligations of the Owner under this
Agreement, and (ii) compliance with the terms and conditions of this Agreement. It is hereby
expressly stipulated and agreed that any sale, transfer or other disposition of the Project in
violation of this Section shall be null, void and without effect, shall cause a reversion of title to
the Owner and shall be ineffective to relieve the Owner of its obligations under this Agreement.
In the event that the purchaser or transferee shall assume the obligations of the Owner under this
Agreement, the Owner shall be released from its obligations hereunder, other than its obligations
under Section 5 hereof arising prior to such date of assumption.
Notwithstanding anything in this Section 9 to the contrary, the restrictions set forth above
on the sale, transfer or other disposition or encumbrance of the Project or any portion thereof
shall not be applicable to any of the following: (i) leases of apartment units as contemplated by
this Agreement, (ii) grants of utility related easements and service or concession related leases or
easements, including, without limitation, coin -operated laundry service leases and/or television
cable easements on the Project, providing same are granted in connection with the operation of
the Project as contemplated by this Agreement, (iii) any sale or conveyance to a condemning
governmental authority as a direct result of the condemnation or a governmental taking or a
threat thereof, (iv) any transfer pursuant to or in lieu of a foreclosure or any exercise of remedies
(including, without limitation, foreclosure) under any mortgage on the Project; provided, that the
transferee acquires the Project subject to the terms of this Agreement, (v) any sale, transfer,
assignment, encumbrance or addition of general or limited partnership interests in the Owner;
(vi) the placing of a mortgage lien, assignment of leases and rents or security interests on or
pertaining to the Project if made expressly subject and subordinate to this Agreement; or (vii)
any change in allocations or preferred return of capital, depreciation or losses or any final
adjustment in capital accounts (all of which may be freely transferred or adjusted by Owner
pursuant to Owner's partnership agreement); or (viii) any title encumbrance existing at the time
the Issuer conveys the Land to the Owner. Any other transfer or lien granted by the Owner or its
transferees shall be and remain subject to the restrictions contained herein.
The Project name may not be changed after the bond sale is authorized by the Issuer,
unless the owner submits a written request clearly stating the proposed new name. The Issuer
shall act promptly upon any such requests that are received at least ten days before the next
meeting of the board of the Issuer.
Section 10. Covenants to Run with the Land. This Agreement and the covenants,
reservations and restrictions set forth herein shall be deemed covenants running with the Land
and, during the term of this Agreement, shall pass to and be binding upon the Owner's assigns
and successors and all subsequent owners of the Land and the Project or any interest therein;
provided, however, that upon the termination of this Agreement in accordance with the terms
hereof said covenants, reservations and restrictions shall expire. Each and every contract, deed
or other instrument hereafter executed covering or conveying the Land and the Project or any
portion thereof or interest therein shall conclusively be held to have been executed, delivered and
accepted subject to such covenants, reservations and restrictions, regardless of whether such
covenants, reservations and restrictions are set forth in such contract, deed or other instruments.
If a portion or portions of the Land or the Project are conveyed, all of such covenants,
reservations and restrictions shall run to each portion of the Land or the Project.
Section 11. Term. This Agreement shall remain in full force and effect during the
Qualified Project Period.
Section 12. Burden and Benefit. The Issuer and the Owner hereby declare their
understanding and intent that the burden of the covenants set forth herein touch and concern the
Land in that the Owner's legal interest in the Land and the Project is rendered less valuable
thereby. The Issuer and the Owner hereby further declare their understanding and intent that the
benefit of such covenants touch and concern the Land by enhancing and increasing the
enjoyment and use of the Land and the Project by Lower -Income Tenants and Moderate -Income
Tenants, the intended beneficiaries of such covenants, reservations and restrictions, and by
furthering the public purposes for which the Bonds were issued. The Owner hereby expressly
acknowledges that this Agreement is necessary to accomplishment of the Issuer's public purpose
of the issuance of the Bonds and the making of the Grant, and covenants and agrees that in
connection with the construction, ownership and operation of the Project, it shall and shall
require any subsequent purchaser of the Project to fully comply with all terms and conditions of
this Agreement.
Section 13. Application of Insurance and Condemnation Proceeds. If during the
Qualified Project Period the Project is damaged or destroyed or if all or a portion thereof is taken
through eminent domain proceedings, or under threat thereof, proceeds from insurance on the
Project or any condemnation awards pertaining to such eminent domain proceedings shall be
applied solely to the repair, reconstruction or replacement of the Project, except that any excess
proceeds available after the Project has been restored may be utilized by the Owner for other
purposes.
Section 14. Correction for Non -Compliance.
(a) The failure of the Owner to comply with the terms of Section 2(a), 2(b), 2(c), 2(d)
and 2(e), Section 5, Section 6, Section 7, Section 8, and Section 13 shall not be deemed a default
hereunder unless such failure is not cured within thirty (30) days following the date the Owner
learns of such failure or should have learned of such failure by the exercise of reasonable
diligence.
(b) The failure of Owner to maintain the insurance required by Section 2(f) shall be
an event default by Owner under this Agreement and no cure period shall apply.
(c) The failure of the Owner to comply with the terms of Section 3 shall not be
deemed a default hereunder if Owner makes the payment required by Section 4(g) on or before
9
the date required. The failure to make such payment on or before the date due shall be deemed
an event of default by Owner under this Agreement for which not grace period shall apply.
(d) The failure of Owner to comply with the terms of Section 3(d) and Section 3(e)
shall not be deemed a default hereunder if Owner makes the payments required by Section 4(f)
on or before the date due. The failure of the Owner to make such payments on or before the date
due shall be an event of default by Owner under this Agreement for which not grace period shall
apply.
Section 15. Remedies; Enforceability. The benefits of this Agreement shall inure to,
and may be enforced by, the Issuer and its successors and, solely as to Sections 2, 3, 6 and 10
hereof, the Lower -Income Tenants and Moderate Income Tenants and their successors who shall
reside or be eligible to reside in the units set aside for their occupancy pursuant to Section 3 of
this Agreement. If a material violation of any of the provisions hereof occurs, such parties may
institute and prosecute any proceeding at law or in equity to abate, prevent or enjoin any such
violation or attempted violation; and to compel specific performance hereunder, it being
recognized that the beneficiaries of the Owner's obligations hereunder cannot be adequately .
compensated by monetary damages in the event of the Owner's default. In addition to such other
remedies as may be provided for herein, if a violation of any of the provisions hereof occurs or is
attempted, and is caused by Manager's act or omission within Manager's control and authority,
the Issuer shall have the right (but not the obligation) and is specifically authorized by the Owner
hereunder (but only in the event the default is caused by the Manager's act or omission and only
after the Manager is given 30 days' prior notice and right to cure), to appoint a new Manager to
operate the Project in accordance with this Agreement and take all actions reasonably necessary,
in the reasonable judgment of the Issuer, to cure any default by the Owner hereunder, and such
new Manager assuming such management hereunder shall be paid by or on behalf of the Owner,
from the rents, revenues, profits and income from the Project, a management fee not to exceed
the prevailing management fee paid to managers of similar housing projects in the County. No
delay in enforcing the provisions hereof as to any breach or violation shall impair, damage or
waive the right of any party entitled to enforce the provisions hereof or to obtain relief against or
recover for the continuation or repetition of such breach or violation or any similar breach or
violation hereof at any later time or times. The remedies of Lower -Income Tenants and
Moderate -Income Tenants shall be limited to specific performance.
Section 16. Filing. Upon execution and delivery by the parties hereto, the Owner shall
cause this Agreement and all amendments and supplements hereto to be recorded and filed in the
official public records of the County, and in such manner and in such other places as the Issuer
may reasonably request, and shall pay all fees and charges incurred in connection therewith. If
the Owner has failed to make any such filing, the Issuer may cause such document(s) to be filed.
Section 17. Governing Law. This Agreement shall be governed by the laws of the
State.
Section 18. Assignment. The Owner shall not assign its interest hereunder, except by
writing and in connection with an assignment of the Project in accordance with the provisions of
Section 9 hereof.
10
Section 19. Amendments. This Agreement shall not be amended, revised, or
terminated except by a written instrument, executed by the parties hereto (or their successors in
title), and duly recorded in the official public records for the County.
Section 20. Notice. Any notice required to be given hereunder shall be given by
certified or registered mail, postage prepaid, return receipt requested, to the Issuer and the Owner
at their respective addresses set forth in the first paragraph hereof, or at such other addresses as
may be specified in writing by the parties hereto.
Notice shall be deemed given on the third business day after the date of mailing.
Section 21. Severability. If any provision hereof shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining portions hereof shall not
in any way be affected or impaired thereby.
Section 22. Multiple Counterparts. This Agreement may be simultaneously executed
in multiple counterparts, all of which shall constitute one and the same instrument, and each of
which shall be deemed to be an original.
[Remainder of page intentionally left blank]
11
IN WITNESS WHEREOF, the Issuer and the Owner have executed this Agreement by
duly authorized representatives, all as of the closing date.
(SEAL)
ATTEST:
By:
SOUTHEAST OVERTOWN/PARK WEST
COMMUNITY REDEVELOPMENT AGENCY
By:
Clerk of the Board
Approved for form and legal sufficiency:
By:
Special Counsel
ISLAND LIVING APARTMENTS, LTD.,
a Florida limited partnership
By: CDG Island Living, LLC, a Florida limited
liability company, as its general partner
By:
Name: Matthew S. Greer
Title: Manager
RESTRICTIVE COVENANT AGREEMENT
SIGNATURE PAGE
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
)SS:
)
I, , a Notary Public in and for the said County in the State
aforesaid, do hereby certify that and , known
to me to be the same persons whose names are subscribed to the foregoing instrument as
and , respectively, of the Southeast Overtown/Park West Community
Redevelopment Agency, appeared before me this day in person and acknowledged that they,
being thereunto duly authorized, signed, sealed with the seal of said Agency, and delivered the
said instrument as the free and voluntary act of said Agency and as their own free and voluntary
act, for the uses and purposes therein set forth.
GIVEN under my hand and notarial seal this day of , 2012
NOTARY PUBLIC, STATE OF FLORIDA
(SEAL)
Personally known to me, or
Produced identification:
(Type of Identification Produced)
RESTRICTIVE COVENANT AGREEMENT
SIGNATURE PAGE
STATE OF FLORIDA
)SS:
COUNTY OF MIAMI-DADE
, a Notary Public in and for the said County
in the State aforesaid, do hereby certify that Matthew S. Greer, known to me to be the Manager
of CDG Island Living, LLC, general partner of Island Living Apartments, Ltd., a Florida limited
partnership (the "Owner"), appeared before me this day in person and acknowledged that [s]he,
being thereunto duly authorized, signed and delivered the said instrument as the free and
voluntary act of said corporation, said limited liability company, and the Owner and as his or her
own free and voluntary acts, for the uses and purposes therein set forth.
GIVEN under my hand and notarial seal this day of , 201
NOTARY PUBLIC, STATE OF FLORIDA
(SEAL)
Personally known to me, or
Produced identification:
(Type of Identification Produced)
RESTRICTIVE COVENANT AGREEMENT
SIGNATURE PAGE
EXHIBIT A
LEGAL DESCRIPTION OF REAL ESTATE
[To be provided]
EXHIBIT B
FORM OF CERTIFICATION OF CONTINUING PROGRAM COMPLIANCE
Witnesseth that on this day of , 20the undersigned
(the "Owner"), having borrowed certain funds from , which in turn
borrowed certain funds from , which in turn obtained such funds
through a grant from Southeast Overtown/Park West Community Redevelopment Agency for the
purpose of acquiring or constructing Apartments, does hereby certify that such multi -family
rental housing project is in continuing compliance with the Restrictive Covenant Agreement
executed by the undersigned and filed in the official public records of Miami -Dade County,
Florida (including the requirement that all units be and remain rental units), that an Income
Certification has been obtained for each new tenant in such multi -family rental housing project
and that the same are true and correct to the best of the undersigned's knowledge and belief. At
all times during the previous year, 100% of the residential units were occupied (or deemed
occupied) by either Lower -Income or Moderate -Income Tenants and at all times during the
previous year, at least 50% of the residential units were occupied (or deemed occupied) by
Lower -Income Tenants. No default has occurred under the Restrictive Covenant Agreement, or,
if a default has occurred, the nature of the default and the steps, if any, Owner has taken or
proposes to take to correct such default are outlined on the Schedule attached hereto. As of the
date of this Certificate, the following percentages of completed residential units in the Project are
occupied by Lower -Income Tenants, occupied by Moderate -Income Tenants or vacant:
Total number of units available for
occupancy as of 20_
Lower -Income Tenants
Moderate -Income Tenants
Vacant Units
Percentage Number
Total Number of 1-Bedroom Number of Occupied Units by % of 1-Bedroom Units
Units Lower -Income Tenants Occupied by Lower -Income
Tenants
(A) (B) (B/A)
Total Number of 2-Bedroom Number of Occupied Units by % of 2-Bedroom Units
Units Lower -Income Tenants Occupied by Lower -Income
Tenants
(A) (B) (B/A)
Total Number of 3-Bedroom Number of Occupied Units by % of 3-Bedroom Units
Units Lower -Income Tenants Occupied by Lower -Income
Tenants
(A) (B) (B/A)
Total Number of 1-Bedroom Number of Occupied Units by % of 1-Bedroom Units
Units Moderate -Income Tenants Occupied by Moderate -
Income Tenants
(A) (B) (B/A)
Total Number of 2-Bedroom Number of Occupied Units by % of 2-Bedroom Units
Units Moderate -Income Tenants Occupied by Moderate -
Income Tenants
(A) (B) (B/A)
Total Number of 3-Bedroom Number of Occupied Units by % of 3-Bedroom Units
Units Moderate -Income Tenants Occupied by Moderate -
Income Tenants
(A) (B) (B/A)
Authorized Representative for
EXHIBIT C
FORM OF CERTIFICATE CONCERNING COMMENCEMENT
AND TERMINATION OF QUALIFIED PROJECT PERIOD
THIS CERTIFICATE is being executed pursuant to the provisions of the Restrictive
Covenant Agreement, dated as of 1, 201, (the "Agreement), between Southeast
Overtown/Park West Community Redevelopment Agency (the "Issuer"), and Island Living
Apartments, Ltd., a Florida limited partnership (the "Owner") in connection with the financing of
Island Living Project (the "Project") in the County located on real property described on Exhibit
"A" hereto, through the issuance of the Issuer's [$^,000,000] Tax Increment Revenue Bonds,
Series 201_[-_] (the "Bonds").
The period for which the restrictions set forth in the Agreement are applicable to the
Project is referred to as the "Qualified Project Period" and is defined in the Agreement as
follows:
"Qualified Project Period" means the 30-year period beginning on the first day of the
calendar year following the year in which the Project is placed in service.
To evidence the Qualified Project Period with respect to the Project, the Owner certifies
that of the calendar year in which the Project is placed in service was
Prior to the recording of this Certificate in the official records of the County, the Owner
has supplied the Issuer with documentation to establish the facts relating to the Project set forth
in this Certificate, which documentation has been found satisfactory to all parties. Nothing in this
Certificate is intended to modify the requirement of the Agreement that all units in the Project be
rented as residential rental property or any other provision of the Agreement.
IN WITNESS WHEREOF, the Owner has caused this Certificate to be executed by its
duly authorized representative as of this day of , 20_.
ISLAND LIVING APARTMENTS, LTD.,
a Florida limited partnership
By: CDG Island Living, LLC, a Florida limited
liability company, as its general partner
By:
Name: Matthew S. Greer
Title: Manager
STATE OF FLORIDA )
)S S:
COUNTY OF MIAMI-DADE
I, , a Notary Public in and for the said County
in the State aforesaid, do hereby certify that Matthew S. Greer, known to me to be the Manager
of CDG Island Living, LLC, general partner of Island Living Apartments, Ltd., a Florida limited
partnership (the "Owner"), appeared before me this day in person and acknowledged that [s]he,
being thereunto duly authorized, signed and delivered the said instrument as the free and
voluntary act of said corporation, said limited liability company, and the Owner and as his or her
own free and voluntary acts, for the uses and purposes therein set forth.
GIVEN under my hand and notarial seal this day of , 201_.
NOTARY PUBLIC, STATE OF FLORIDA
(SEAL)
Personally known to me, or
Produced identification:
(Type of Identification Produced)
EXHIBIT A
to
Certificate Concerning Commencement
and Termination of Qualified Project Period
REAL PROPERTY DESCRIPTION
#11952499_v2
DEVELOPER CERTIFICATE
The undersigned, acting on behalf of Island Living Apartments, Ltd, a Florida limited
partnership (the "Developer"), hereby certifies to the Southeast Overtown/Park West Community
Redevelopment Agency (the "Issuer"), in connection with the issuance of the Issuer's $
Tax Increment Revenue Bonds, Series 2012[-J (the `Bonds"), that:
1. The Developer and the Issuer have entered into a Development Agreement dated
as of October 11, 2012 (the "Development Agreement") and will be entering into a Restrictive
Covenant Agreement (the "Restrictive Covenant Agreement") pursuant to the Development
Agreement. The Developer reasonably expects that it will make no payments to the Issuer or
any related party to the Issuer, under the Development Agreement or the Restrictive Covenant
Agreement. The Developer specifically represents that it reasonably expects that it will achieve
Completion within 90 clays of the Completion Date, as contemplated by Section 5.7.1 of the
Development Agreement, and will not make payments to the Issuer under that Section 5.7.1 of
the Development Agreement, that it will comply with the Subcontractor Participation
Requirements set forth in the Development Agreement, and will therefore not make payments to
the Issuer under Section 8.3.1 of the Development Agreement, that it will meet the Laborer
Participation Requirements set forth in the Development Agreement, and will not make
payments to the Issuer under Section 8.3.2 of the Development Agreement, and that it will
comply with the reporting requirements set forth in Section 4 of the Restrictive Covenant
Agreement, and will therefore not make payments to the Issuer under Section 4 of the Restrictive
Covenant Agreement and that it will comply with its obligations under Section 3 of the
Restrictive Covenant Agreement and will therefore not make payments to the Issuer under
Section 3 of the Restrictive Covenant Agreement.
The Developer acknowledges that property financed with proceeds of the Bonds will be treated
as owned, or used for the private business use of, the Developer (the "Bond -Financed Property").
The Developer reasonably expects that it will make no payments to the Issuer, or any related
party to the Issuer with respect to any Bond -Financed Property, directly or indirectly, except for
payment of property taxes of general application or the payment in lieu of property taxes
required by Section 21 of the Development Agreement.
2. The Developer understands and agreements that the representations set forth
above are being relied on by the Issuer in complying with the federal income tax requirements
that apply to the Bonds and in executing and delivering the Issuer's Tax Certificate relating to
the Bonds and by Bond Counsel in rendering its opinion regarding the exclusion of the interest
on the Bonds from gross income for federal income tax purposes.
Dated: [Date of Issuance]
ISLAND LIVING APARTMENTS, LTD.,
a Florida limited partnership
By: CDG Island Living, LLC, a Florida limited
liability company, as its general partner
By:
Name: Matthew S. Greer
Title: Manager
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