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HomeMy WebLinkAboutCRA-R-13-0008 Legislation w attachment 4 of 6 -1-28-2013DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT (the "Agreement") is made as of the 17th day of December, 2012, by and between LYRIC DEVELOPMENT LLC, a Florida limited liability company (the "Developer"), and the SOUTHEAST OVERTOWN/PARK WEST COMMUNITY REDEVELOPMENT AGENCY, a public agency and body corporate created pursuant to Section 163.356, Florida Statutes (the "CRA"); RECITALS A. The Southeast Overtown/Park West Project area was designated as a community redevelopment area (the "Redevelopment Area") by Miami -Dade County, a political subdivision of the State of Florida (the "County"). A redevelopment plan was approved by the Commissioners of the City of Miami (the "City") and the Commissioners of Miami -Dade County with certain redevelopment authority granted by the County to the City for project implementation. The City assigned to the CRA the redevelopment authority granted by the County to the City. B. The CRA issued a request for proposals (the "RFP") for the development of that certain real property located within the Redevelopment Area which is more particularly described on Exhibit "A" (the "Property"). C. In response to the RFP, Developer submitted a proposal for the development of the Property, as more particularly described in the proposal submitted by the Developer (the "Proposal"). D. Based upon the evaluations of all responses submitted to the CRA in response to the RFP, the Proposal submitted by Gatehouse Group, LLC, a Massachusetts limited liability company ("Gatehouse") was given the highest rating and pursuant to Resolution Number 07- 01508, the Board of Commissioners of the CRA authorized the executive director of the CRA (the "Executive Director") to negotiate the definitive terms of the transaction contemplated by the RFP and the Proposal. E. Based upon such negotiations the CRA has agreed to convey the Property to the Developer, which is an affiliate of Gatehouse, and the Developer has agreed to acquire the Property from the CRA for the development of the Project, as hereinafter defined, subject to the terms and conditions of this Agreement. NOW THEREFORE, for and in consideration of the $10.00 and other good and valuable consideration and of the covenants and agreements hereafter set forth, the parties agree as follows: 1. RECITALS. The Recitals to this Agreement are true and correct and are incorporated herein by reference and made a part hereof. 2. DEFINITIONS. Capitalized terms not specifically defined herein shall have the meaning ascribed to them elsewhere in the Agreement. "AMP shall have the meaning ascribed to it in Section 12.1. "Arbitration" means an arbitration be administered in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association. Any matter to be settled by arbitration shall be submitted to the American Arbitration Association in Miami - Dade County, Florida. The parties shall attempt to designate one arbitrator from the American Arbitration Association. If they are unable to do so within thirty (30) days after written demand therefor, then the American Arbitration Association shall designate an arbitrator. The arbitration shall be final and binding, and enforceable in any court of competent jurisdiction. The arbitrator shall award attorneys' fees and costs to the prevailing party and charge the cost of arbitration to the party which is not the prevailing party. "Black Archive" means The Black Archives, History and Research Foundation of South Florida, Inc., a Florida non-profit corporation. "Block 36 Notice" shall mean written notice from the Executive Director advising the Developer that the CRA has entered into the Reverter Settlement Agreement with the City and the County. "Block 36 Unavoidable Delays" means delays due to area wide strikes, acts of God, floods, hurricanes, casualties, fires, acts of the public enemy and governmental moratoriums. The term Block 36 Unavoidable Delay does not include delays caused by any other source, including, but not limited to, a governmental entity acting in its proprietary or regulatory capacity or delays caused by lack of funds. "Block 36 Restrictions" shall have the meaning ascribed to it in Section 5.4. "Bond Counsel" shall be the law firm serving as bond counsel for the CRA in connection with the CRA Bond Issue. "Bond Issue Approval" shall have the meaning ascribed to it in Section 9.9.6. "CBO" shall have the meaning ascribed to it in Section 28. "City" shall have the meaning ascribed to it in Recital "A". "Commitment" shall have the meaning ascribed to it in Section 5.1. "Controlled Entity" shall have the meaning ascribed to it in Section 7.8.5. "Cost Certification" shall have the meaning ascribed to it in Section 7.8.3. "County" shall have the meaning ascribed to it in Recital "A". "CRA" shall have the meaning ascribed to it in the introductory paragraph. "CRA Board" shall mean the Board of Commissioners of the CRA. "CRA Bond Issue" shall have the meaning ascribed to it in Section 9.9.5. 2 Section 13.1. Section 15.1. Section 17.1. Section 19.1. Section 7.8.1. Section 9.9.1. "CRA Deliveries" shall have the meaning ascribed to it in Section 4.9. "CRA Phase I Conditions Precedent" shall have the meaning ascribed to it in "CRA Phase II Conditions Precedent" shall have the meaning ascribed to it in "CRA Phase III Conditions Precedent" shall have the meaning ascribed to it in "CRA Phase IV Conditions Precedent" shall have the meaning ascribed to it in "CRA Phase I Contribution" shall have the meaning ascribed to it in "CRA Phase III Contribution" shall have the meaning ascribed to it in "Cure Period" shall have the meaning ascribed to it in Section 5.2. "Design Guidelines" shall mean the Southeast Overtown/Park West Community Redevelopment Plan dated November 2004 by Dover Kohl & Partners as updated by the Final Update of May 2009 by the City of Miami Planning Department (ver. 2.0). "Developer" shall have the meaning ascribed to it in the introductory paragraph. "DOS?" shall have the meaning ascribed to it in Section 9.10. "Effective Date" shall mean the date this Agreement is last executed by Developer and the CRA. "Executive Director" shall have the meaning ascribed to it in Recital "D"_ "FHFC" shall have the meaning ascribed to it in Section 7.8.2. "Gatehouse" shall have the meaning ascribed to it in Recital "D"_ "GGI" shall have the meaning ascribed to it in Section 27.1.1. "GP Loan" shall have the meaning ascribed to it in Section 7.8.1. "GP Loan Documents" shall have the meaning ascribed to it in Section 7.8.5. "HOFLDA" shall have the meaning ascribed to it in Section 6.2. "Incremental TIF" shall have the meaning ascribed to it in Section 29. 3 "Indemnitor" shall have the meaning ascribed to it in Section 26. "Indemnitee" shall have the meaning ascribed to it in Section 26. "Inspections" shall have the meaning ascribed to it in Section 4.1 "Inspection Period" shall have the meaning ascribed to it in Section 4.1. "Institutional Investor" shall have the meaning ascribed to it in Section 7.6.3. "Labor Estimate" shall have the meaning ascribed to it in Section 11.2.2. "Laborer Non -Compliance Fund" shall have the meaning ascribed to it in Section 11.6. "Laborer Participation Requirement" shall have the meaning ascribed to it in Section 11.2.2. "Laborer Priority" shall have the meaning ascribed to it in Section 11,2.2. "Loan" shall have the meaning ascribed to it in Section 7.8.4. "Lyric Plat" means the proposed replat of Block 36 of P.W. White's Subdivision recorded in Plat Book "B" at Page 34 of the Public Records of Miami -Dade County, Florida, a copy of which has been provided to the Developer. "Non -Profit" means an organization described in Section 501(c)(3) of the Internal Revenue 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 Internal Revenue Code and (v) is not controlled in any way by the Developer, the CRA, the City or the County, or the State of Florida within the meaning of Treasury Regulations Section 1.150-1(b). 7.8.5. 7.8.4. "Non -Profit Loan" shall have the meaning ascribed to it in Section 7.8.1. "Non -Profit Loan Documents" shall have the meaning ascribed to it in Section "Non -Profit Grant Agreement" shall have the meaning ascribed to it in Section "OCOB" shall have the meaning ascribed to it in Section 6.2. "Parking Garage" shall have the meaning ascribed to it in Section 6.1(iii). "Participation Reports" shall have the meaning ascribed to it in Section 11.3. 4 "Participation Requirements" shall have the meaning ascribed to it in Section 11.2. "Permitted Assignee" shall have the meaning ascribed to it in Section 27.2. "Permitted Exceptions" shall have the meaning ascribed to it in Section 5.1. "Phase" shall mean any of Phase I, Phase II, Phase III or Phase IV. "Phase I" shall have the meaning ascribed to it in Section 6.1(i). "Phase I Affordable Rental Requirement" shall have the meaning ascribed to it in Section 12.1. Section 12.2.1. Section 7.6.1. 7.6.4. Section 7.8.1. 7.6.2. Section 13.1.9. "Phase I Affordable Rental Reports" shall have the meaning ascribed to it in "Phase I Budget" shall have the meaning ascribed to it in Section 7.5. "Phase I Closing Date" shall have the meaning ascribed to it in Section 14.1. "Phase I Completion" shall have the meaning ascribed to it in Section 7.4. "Phase I Completion Date" shall have the meaning ascribed to it in Section 7.4. "Phase I Construction Contract" shall have the meaning ascribed to it in "Phase I Easement" shall have the meaning ascribed to it in Section 14.1.1.6. "Phase I Equity" shall have the meaning ascribed to it in Section 7.6.3. "Phase I Funding Agreement" shall have the meaning ascribed to it in Section "Phase I Land Contribution" shall have the meaning ascribed to it in "Phase I Lender" shall have the meaning ascribed to it in Section 7.6,4. "Phase I Loan" shall have the meaning ascribed to it in Section 7.6.4.1. "Phase I Loan Commitment" shall have the meaning ascribed to it in Section "Phase I Payment and Performance Bond" shall have the meaning ascribed to it in "Phase I Property" shall have the meaning ascribed to it in Section 6.1(i). 5 "Phase I Plans" shall have the meaning ascribed to it in Section 7.2. "Phase I Plans and Specifications" shall have the meaning ascribed to it in Section 7.2. "Phase I Project Schedule" shall have the meaning ascribed to it in Section 7.4. "Phase I Preliminary Budget" shall have the meaning ascribed to it in Section 7.5. "Phase I Project Budget" shall have the meaning ascribed to it in Section 7.5. "Phase I Report" shall have the meaning ascribed to it in Section 4.3. "Phase I Loan Commitment" shall have the meaning ascribed to it in Section 7.6.2. "Phase I Funding Agreement" shall have the meaning ascribed to it in Section 7.6.4. "Phase II" shall have the meaning ascribed to it in Section 6.1(ii). "Phase II Budget" shall have the meaning ascribed to it in Section 8.6. "Phase II Closing Date" shall have the meaning ascribed to it in Section 16.1. "Phase II Completion" shall have the meaning ascribed to it in Section 8.5. "Phase II Completion Date" shall have the meaning ascribed to it in Section 8.5. "Phase II Construction Contract" shall have the meaning ascribed to it in Section 8.7.1. "Phase II Equity" shall have the meaning ascribed to it in Section 8.7.3. "Phase II Lender" means the lender who issues the Phase II Loan Commitment. "Phase l i Loan Commitment" shall have the meaning ascribed to it in Section 8.7.2. "Phase II Payment and Performance Bond" shall have the meaning ascribed to it in Section 15.1.7. Section 8.3. "Phase II Plans" shall have the meaning ascribed to it in Section 8.3. "Phase II Plans and Specifications" shall have the meaning ascribed to it in "Phase II Project Budget" shall have the meaning ascribed to it in Section 8.6. 6 "Phase II Property" shall have the meaning ascribed to it in Section 6.1(ii). "Phase II Report" shall have the meaning ascribed to it in Section 4.3. "Phase II Schedule" shall have the meaning ascribed to it in Section 8. 5. "Phase III" shall have the meaning ascribed to it in Section 6.1(iii). "Phase III Budget" shall have the meaning ascribed to it in Section 9.6. "Phase III Closing Date" shall have the meaning ascribed to it in Section 18.1. "Phase III Completion" shall have the meaning ascribed to it in Section 9.5. "Phase III Completion Date" shall have the meaning ascribed to it in Section 9.5. "Phase III Conditions Precedent" shall have the meaning ascribed to it in Section 17.1. "Phase III Construction Contract" shall have the meaning ascribed to it in Section 9.7.1, "Phase III Equity" shall have the meaning ascribed to it in Section 9.7.3. "Phase III Funding Agreement" shall have the meaning ascribed to it in Section 9.7.4. "Phase III Lender" shall have the meaning ascribed to it in Section 9.7.4. "Phase III Payment and Performance Bond" shall have the meaning ascribed to it in Section 17.1.9. "Phase III Plans" shall have the meaning ascribed to it in Section 9.3. "Phase III Plans and Specifications" shall have the meaning ascribed to it in Section 9.3. Section 9.7.5. "Phase III Project Budget" shall have the meaning ascribed to it in Section 9.6. "Phase III Project Schedule" shall have the meaning ascribed to it in Section 9.5. "Phase III Property" shall have the meaning ascribed to it in Section 6.1(iii). "Phase III Schedule" shall have the meaning ascribed to it in Section 9.5. "Phase III/IV Easement Agreement" shall have the meaning ascribed to it in "Phase TV" shall have the meaning ascribed to it in Section 6.1(iv). 7 "Phase IV Budget" shall have the meaning ascribed to it in Section 10.6. "Phase IV Closing Date" shall have the meaning ascribed to it in Section 20.1. "Phase IV Completion" shall have the meaning ascribed to it in Section 10.5. "Phase IV Completion Date" shall have the meaning ascribed to it in Section 10.5. "Phase IV Construction Contract" shall have the meaning ascribed to it in Section 10.7.1. "Phase IV Equity" shall have the meaning ascribed to it in Section 10.7.3. "Phase IV Loan Commitment" shall have the meaning ascribed to it in Section 10.7.2. "Phase IV Payment and Performance Bond" shall have the meaning ascribed to it in Section 19.1.7. "Phase IV Plans" shall have the meaning ascribed to it in Section10.3. "Phase IV Plans and Specifications" shall have the meaning ascribed to it in Section 10.3, "Phase IV Project Budget" shall have the meaning ascribed to it in Section 10.6. "Phase N Project Schedule" shall have the meaning ascribed to it in Section 10.5. "Phase IV Property" shall have the meaning ascribed to it in Section 6.1(iv). "Phase IV Schedule" shall have the meaning ascribed to it in Section 10.5, "PILOT" shall have the meaning ascribed to it in Section 31. "Property" shall have the meaning ascribed to it in Recital "B". "Project" shall have the meaning ascribed to it in Section 6.1. "Proposal" shall have the meaning ascribed to it in Recital "C". "Redevelopment Area" shall have the meaning ascribed to it in Recital "A." "Restrictive Covenant" has the meaning ascribed to it in Section 12.2. "Reverter Settlement Agreement" means a settlement agreement between the CRA, the City and the County in Case Number 07-46851 CA 31 pending in the Circuit Court of the 1 1th Judicial Circuit in and for Miami -Dade County, Florida, styled City of Miami, et al., Plaintiffs, vs. Miami -Dade County, Defendant (the "Reverter Litigation") pursuant to which the County shall convey the Phase III Property and the Phase IV Property to the CRA. 8 "RFP" shall have the meaning ascribed to it in Recital "B". "Schematic Design Documents" shall mean, at a minimum, the site plan for the applicable Phase, proposed building massing and elevations for such Phase, an architectural rendering for such Phase of sufficient detail to allow for the evaluation of the proposed design by HOFLDA, OCOB and the Executive Director. "Schematic Documents for Phase I" shall have the meaning ascribed to it in Section 7.1. Section 8.2. Section 9.2. Section 10.2. Section 11.4. "Schematic Documents for Phase II" shall have the meaning ascribed to it in "Schematic Documents for Phase III" shall have the meaning ascribed to it in "Schematic Documents for Phase IV" shall have the meaning ascribed to it in "Subcontractor Non -Compliance Funds" shall have the meaning ascribed to it in "Subcontractor Participation "Requirements" shall have the meaning ascribed to it in Section 11.2.1. "Subcontractor Priority" shall have the meaning ascribed to it in Section 11.2.1. "Survey" shall have the meaning ascribed to it in Section 5.1. "Title Review Period" shall have the meaning ascribed to it in Section 5.2. "Total Phase I CRA Contribution" shall have the meaning ascribed to it in Section 7.8.1. "Total Phase III CRA Contribution" shall have the meaning ascribed to it in Section 9.9.1. "Unavoidable Delays" shall mean delays beyond the Developer's control (other than delays in connection with obtaining licenses, permits, and approvals from governmental authority relating to the Project) including, without limitation, civil commotion, war, invasion, rebellion, hostility, military or usurped power, sabotage, insurrection, strikes or lockouts on an area -wide basis and not specific to the Project, riots, hurricanes, floods, earthquakes, casualties, acts of public enemy, epidemics, quarantines, restrictions, embargos and area -wide governmental restrictions. "Vertical Construction" shall mean physical structures actually being constructed on the property pursuant to the applicable permits. 9 "Vertical Construction Deadline" shall have the meaning ascribed to it in Section 9.5. "Zoning Approval Deadline" shall have the meaning ascribed to it in Section 9.5. 3. PROPERTY. The property to be conveyed by the CRA to Developer pursuant to the terms of this Agreement consists of the Property and all appurtenances belonging thereto, including any and all rights, privileges and easements in any way pertaining thereto, all right, title and interest of the CRA in and to any adjoining sidewalk and in and to any adjoining street or alley. 4. INSPECTION PERIOD. 4.1 Inspections. Developer shall have until 5 p.m. on the sixtieth (60th) day after the Effective Date (the "Inspection Period") to perform, at Developer's sole cost and expense, such investigations and inspections of the Property the Developer, in Developer's sole and absolute discretion deems appropriate, including, without limitation, soil tests, zoning investigations, utility availability and environmental matters (collectively the "Inspections") to determine whether the Property is acceptable to Developer, in its sole discretion. Prior to the commencement of on -site Inspections, Developer shall provide advance written notice to the Executive Director at 1490 NW Third Avenue, Suite 105, Miami, Florida 33136, Phone: 305- 679-6800; Facsimile: 305-679-6835 (or such other CRA representatives as designated by the Executive Director), which written notice shall provide reasonable detail regarding the type and scope of Inspection(s) to be performed and the scheduled date and time for such Inspections) and provide the Executive Director the opportunity to have a representative from the CRA present at any such Inspection(s), Developer shall conduct such Inspection in a manner so as to not unreasonably interfere with the current use of the Property. 4.2 Restoration. Following any such Inspections, Developer shall promptly restore the Property to the condition existing immediately prior to such Inspections. The Inspections shall be conducted in accordance with all applicable laws and by licensed and insured professionals, and Developer shall cause its inspectors to obtain, at Developer's sole cost and expense, any and all licenses and permits required to conduct the Inspections, as applicable. 4.3 Environmental Audit. Should Developer conduct a Phase I environmental audit ("Phase I Report") and such audit reflects a recommendation for further environmental audits (a "Phase II Report"), the CRA acknowledges that Developer shall be authorized, at Developer's sole cost and expense, to obtain the Phase II Report during the Inspection Period. 4.4 Disclosure. Developer agrees that in the event the need arises to notify, under applicable laws, any federal, state or local public agencies of any conditions at the Property as a result of the Inspections performed by Developer, its agents, employees, contractors and/or representatives, Developer shall provide the Executive Director with any pertinent reports, written material or other evidence of the condition requiring such disclosure, if any. Any required disclosures shall be made directly by the CRA, if deemed necessary thereby, and not Developer, to any such public agencies, unless the Developer is required to make such disclosures by applicable law, and the CRA fails to timely make such disclosures. 10 4.5 Indemnification. Developer shall assume all risks associated with the Inspections and agrees to indemnify and hold harmless the CRA of, from and against any and all costs, losses, claims, damages, liabilities, expenses and other obligations (including, without limitation reasonable attorney's fees and court costs) arising from, out of or in connection with or otherwise relating to the Inspections, including, without limitation, the entry by any one or more of Developer's agents, employees, contractors and other representatives in or upon the Property for the purpose of the Inspections. The foregoing shall not apply to any diminution in the value of the Property or costs or expenses which might arise due to the uncovering of the existence of adverse conditions (e.g., environmental conditions), provided, however, the foregoing is not intended to relieve the Developer from liability if Developer, its agents, employees, contractors or other representatives causes such conditions to exist. The foregoing indemnification obligations of Developer shall survive the expiration or termination of this Agreement. 4.6 Insurance. Developer shall, prior to entering the Property and performing any Inspections, provide to the CRA evidence of insurance by Developer and its contractors, as applicable, as specified on Exhibit "B" attached hereto, insuring against any liability by any one or more of Developer, its agents, employees, contractors or other representatives arising from, out of or in connection with or otherwise relating to the entry by any one or more of Developer, its agents, employees, contractors or other representatives in or upon the Property for the purpose of the Inspections. Developer shall provide the CRA with a certificate of insurance evidencing such insurance coverage, naming the CRA as additional insured thereon and which insurance coverage shall be kept in force until (a) the expiration or early termination of this Agreement or; (b) with respect to any Phase, until completion of construction of such Phase. 4.7 Acceptance of Property. If for any reason whatsoever Developer, in its sole discretion, determines during the Inspection Period that it does not wish to proceed with the transaction contemplated by this Agreement, Developer shall have the absolute right to terminate this Agreement by giving written notice of such termination to the CRA in the manner hereinafter provided to give notices prior to the expiration of the Inspection Period. Upon the CRA's receipt of such notice prior to the end of the Inspection Period, this Agreement shall be deemed terminated and of no further force and effect and the patties shall be released and relieved from any liability or obligations hereunder, except for those obligations which expressly survive the termination. If Developer does not terminate this Agreement prior to the expiration of the Inspection Period, then it shall be presumed conclusively that Developer has had adequate opportunity to review and inspect all portions of the Property, including, without limitation, the environmental condition of the Property and, Developer has determined that the condition of all portions of the Property are satisfactory to Developer and Developer has accepted every portion of the Property in its "AS IS, WHERE IS, WITH ALL FAULTS" condition. 4.8 No Lien. Developer shall not create or permit to be created any mechanic's liens upon the Property, or any part thereof, as a result of the Inspections. If any lien shall at any time be filed against the Property, or any part thereof in connection with the Inspections, Developer shall cause same to be discharged or transferred to bond in accordance with applicable laws within thirty (30) days after Developer first becomes aware that such lien has been recorded against the Property. This provision shall survive the expiration or termination of this Agreement. it 4.9 CRA Deliveries. Prior to the date of this Agreement, the CRA has provided to Developer copies of all surveys, title policies and environmental studies which the CRA has been able to locate with respect to the Property and a copy of the Design Guidelines (collectively the "CRA Deliveries"). Any reliance upon the CRA Deliveries is at the sole risk of Developer and the CRA makes no representations or warranties, express or implied, with respect to the accuracy or completeness of the CRA Deliveries, and any reliance upon same is at the sole risk of Developer. 4.10 Disclaimer of Representations by Developer. Developer hereby expressly acknowledges and agrees that, except as specifically provided in this Agreement: 4.10.1 The CRA makes and has made no warranty or representation whatsoever as to the condition or suitability of the Property for the Project, as hereinafter defined. 4.10.2 The CRA makes and has made no warranty, express or implied, with regard to the accuracy or completeness of any information furnished to Developer, and the CRA shall not be bound by any statement of any broker, employee, agent or other representative of the CRA. 4.10.3 The CRA has made no representations, warranties or promises to Developer not explicitly set forth in this Agreement. 4.10.4 The CRA has made no representations or warranties, express or implied, with regard to the neighborhood, that the Redevelopment Area will be developed, or as to the precise type or quality of improvements that will be constructed within the Redevelopment Area or the timing thereof. 4.10.5 The CRA makes and has made no representation or warranty, express or implied, concerning any portion of the Property, its condition or other things or matters directly or indirectly relating thereto or hereto, including, without limitation, no warranty as to merchantability or fitness for any particular purpose or relating to the absence of latent or other defects. 4.11 Developer specifically acknowledges that the transaction contemplated by this Agreement and the time frame for performance by Developer under this Agreement is not contingent upon the redevelopment of the Redevelopment Area, the removal of slum or blight from the Redevelopment Area, the reduction of crime in the Redevelopment Area or the status of any other projects in the Redevelopment Area. 4.12 Copies of Reports. Developer shall provide the CRA with copies of any third party reports prepared for Developer regarding the physical condition of the Property within ten (10) days of receipt of same. 5. TITLE AND SURVEY. 5.1 Developer shall obtain a title insurance commitment (the "Commitment") and a survey (the "Survey") of the Property, at the Developer's sole cost and expense. The 12 Commitment and the Survey shall show the CRA to be vested in fee simple title to the Property, subject to each of the following (the "Permitted Exceptions"): 5.1.1 closing and subsequent years. 5.1.2 All applicable laws, ordinances and governmental regulations, including, but not limited to, all applicable building, zoning, land use, environmental ordinances and regulations. a part hereof. Ad valorem real estate taxes and assessments for the year of 5.1.3 Any matters arising by, through, or under Developer. 5.1.4 Those matters listed on Exhibit "C" attached hereto and made 5.2 Title Review. Developer shall have until 5:00 p.m. on the forty-fifth (45th) day following the Effective Date (the " Title Review Period") to obtain and examine the Commitment and the Survey. Developer shall promptly provide the CRA with a copy of the Commitment and the Survey upon Developer's receipt of same, The survey shall be certified to Developer and the CRA. If the Commitment and Survey reflect defects in the title to the Property, Developer shall, no later than the expiration of the Title Review Period, notify the CRA in writing of the defect(s). If Developer fails to give the CRA written notice of the defect(s) prior to the end of the Title Review Period, the defect(s) shown in The Commitment and the Survey shall be deemed to be waived as title objections and same shall be deemed to constitute Permitted Exceptions for all purposes under this Agreement. If Developer has given CRA written notice of defect(s), other than the Permitted Exceptions, prior to the end of the Title Review Period, the CRA shall elect within ten (10) days after receipt of written notice of the title defect(s) whether the CRA will elect to attempt to cure the title defect(s). If the CRA does not elect to cure the title defect(s), Developer shall have the option, to be exercised within ten (10) days after Developer receives written notice from the CRA that the CRA has elected not to cure the title defect(s), of either (i) waiving the defect(s), in which event the defect(s) shall be deemed to constitute a Permitted Exception under this Agreement, or (ii) canceling this Agreement, in which event the parties shall be released from any further obligations under this Agreement, except for those obligations that expressly survive the termination of this Agreement. If the CRA elects to attempt to cure the title defect(s), the CRA shall have sixty (CCU) 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 isnot ableto 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 defeats); in. which event the defect(s) shall be deemed to constitute a Permitted Exception under this Agreement, or (ii) canceling this Agreement, whereupon the parties shall be released from any further obligations under this Agreement with respect to the Phase or Phases affected by such defect, except for those obligations that expressly survive the termination of this Agreement, 13 5.3 In the event of any new title defect(s) arising from and after the effective date of the Commitment and prior to the Closing Date with respect to the applicable Phase, as hereinafter defined, the CRA shall use commercially reasonable efforts to cure such title defect(s) within ten (10) days, if practicable, and in any event prior to the Closing Date with respect to such Phase. The CRA shall discharge any lien(s), judgment(s) or other matters affecting title to the Property that are in a liquidated amount. The CRA shall not be required to bring any lawsuit(s) to cure any title defect(s) or expend any funds to cure any title defect(s) not in a liquidated amount. In the event that the CR k is unable to cure the title defect(s) prior to the Closing Date with respect to such Phase after using commercially reasonable efforts, Developer shall have the option on the Closing Date with respect to such Phase of: (i) waiving the title defect(s) and accepting title "as is" whereupon the title defect(s) will be deemed to constitute a Permitted Exception under this Agreement; or (ii) canceling this Agreement with respect to such Phase, whereupon the parties shall be released from all further obligations under this Agreement with respect to such Phase, except for those obligations that expressly survive the termination of this Agreement. 5.4 Developer acknowledges that the current draft of the Reverter Settlement Agreement requires the CRA to enter into a declaration of restrictions substantially in the form of Exhibit "D" attached hereto (the "Block 36 Restrictions") with respect to the Phase III Property and the Phase IV Property as part of the Rey erter Settlement Agreement. Simultaneously with providing the Block 36 Notice, the CRA shall provide the Developer with a copy of the Block 36 Restrictions in final form. The Developer shall within ten (10) days from receipt of the Block 36 Notice to elect by written notice to the CRA to either (a) accept the Phase III Property and Phase IV Property subject to the Block 36 Restrictions; (b) or terminate this Agreement with respect to Phase III and Phase IV, in which event this Agreement shall terminate as to Phase III and Phase IV and the parties shall be released from all obligations with respect to Phase III and Phase IV except for the obligations that expressly survive termination. If the Developer does not terminate this Agreement with respect to Phase III and Phase IV, the Block 36 Restrictions shall be deemed a Permitted Exception with respect to the Phase I1T Property and the Phase IV Property. If the Developer terminates this Agreement as to Phase III and Phase IV, such termination shall have no effect on Phase I and Phase II of this Agreement. 5.5 The CRA shall utilize its good faith efforts to cause Lyric Plat to be recorded within twelve (12) months from the Effective Date, as same may be extended by Unavoidable Delays and delays caused by the Black Archives. The Executive Director will keep the Developer advised of the status of the Lyric Plat. 6. PROJECT. 6.1 Description of the Project. The "Project" shall consist of the following: (i) Phase I of the Project ("Phase I") shall consist of between 90-100 affordable rental units with ground floor commercial space along Northwest 2nd Avenue and a commercial or residential liner which will wrap around the comer of Ninth Street Mall constructed in a building not exceeding eight (8) stories. Phase I will include not more than twenty-six percent (26%) one -bedroom units with an average size of 600 square feet, two - bedroom units with an average size of 800 square feet, and not less than thirty percent (30%) I4 three -bedroom units with an average size of 950 square feet, together with approximately five thousand (5,000) square feet of commercial space, to be made available to rent to the public and a sufficient number of parking spaces to comply with the applicable zoning. Phase I amenities may include a tot lot, fitness center, library, community space, and offices serving Phase I. Phase I shall be constructed on that portion of the Property more particularly described on Exhibit "E", attached hereto and made a part hereof ("Phase I Property"). (ii) Phase II ("Phase II") will consist of approximately 80-120 residential units in a building not to exceed twelve (12) stories consisting of one -bedroom units, two -bedroom units, and three -bedroom units, the mix of which and the size of which shall be established by the Developer based upon market conditions and with a sufficient number of parking spaces to comply with the applicable zoning requirements, to be developed on that portion of the Property, which is more particularly described on Exhibit "F" attached hereto and made a part hereof (the "Phase II Property"). (iii) Phase III of the Project ("Phase III") will consist of a public parking garage containing approximately 300 parking spaces (the "Parking Garage") to be built by the Developer for the CRA on that portion of the Property more particularly described on Exhibit "G", attached hereto made a part hereof ("Phase III Property"). Approximately fifty (50) parking spaces in the ground level of the Parking Garage shall be allocated for use exclusively in connection with Phase IV. The balance of the Parking Garage shall be operated by the CRA, or its designee, as a public parking garage. Charges for use of the balance of the Parking Garage not being utilized in connection with Phase IV shall be determined by the CRA. (iv) Phase IV of the Project ("Phase IV") will consist of approximately 25,000 - 37,000 square feet of commercial space with a sufficient number of parking spaces to comply with the applicable zoning and shall be developed in a manner consistent with the Proposal, the Design Standards, and the applicable zoning, to be constructed on that portion of the Property more particularly described on Exhibit "H" attached hereto and made a part hereof (the "Phase IV Property"). Any material increase in the size of Phase IV or change in the use of Phase IV shall be subject to the approval of the CRA Board. 6.2 Community Input in the Project Design. Within sixty (60) days of the Effective Date, the Developer shall present Schematic Design Documents for Phase I together with site plans, building massings and elevations for Phase II to the Historic Overtown Folk Life District Association ("HOFLDA") and the Overtown Community Oversight Board ("OCOB") for their review and comment. The Developer shall revise the Schematic Design Documents for Phase I to address reasonable and financially feasible comments and concerns of the HOFLDA and OCOB. As soon as available Developer shall present Schematic Design Documents for subsequent Phases of the Project to HOFLDA and OCOB for their review and comment. The Developer shall use good faith efforts to revise the Schematic Design Documents for each applicable Phase to address the reasonable and financially feasible comments and concerns of HOFLDA and OCOB. 7. PHASE I. 15 7.1 Approval of Schematic Design Documents by CRA. Within ninety (90) days from the Effective Date, the Developer shall submit to the Executive Director for review and approval the Schematic Design Documents for Phase I, which shall have been revised by the Developer to address reasonable and financially feasible comments received from the HOFLDA and the OCOB which must also be consistent with the Design Guidelines. The Developer agrees to use its good faith efforts to modify the Schematic Design Documents for Phase I as necessary to address the requirements of the Executive Director. The Developer shall provide the Executive Director such additional back-up information as the Executive Director may reasonably request to enable the Executive Director to analyze all aspects of Phase I as reflected in the Schematic Design Documents. The parties agree to use reasonable, good faith efforts to agree to on necessary modifications to comply with the terms of this Agreement. The Executive Director shall have fifteen (15) days from the receipt of the Schematic Design Documents for Phase I to approve or disapprove same. If the Executive Director fails to timely respond, the submitted Schematic Design Documents for Phase I shall be deemed approved. In the event of disapproval, the Executive Director shall specify the reasons for such disapproval. In the event of disapproval, the Developer and the Executive Director shall modify the Schematic Design Documents for Phase I, as appropriate, to address the comments and concerns of the Executive Director to ensure that the Schematic Design Documents for Phase I comply with the Design Guidelines and the input from HOFLDA and OCOB, as deemed appropriate by the Executive Director, acting reasonably. Any resubmission shall be subject to approval by the Executive Director in accordance with the procedure outlined above for the original submission until same is approved or deemed approved by the Executive Director. The Executive Director and the Developer shall proceed in good faith to attempt to resolve any disputes regarding the Schematic Design Documents for Phase I. If the Executive Director has rejected the Schematic Design Documents for Phase I and the Executive Director and the Developer are not able to resolve the rejection of the Schematic Design Documents for Phase I by the Executive Director within fifteen (15) days after the Developer's receipt of notice of such rejection, the Developer may elect to submit such dispute regarding the approval of the Schematic Design Documents for Phase I to the CRA Board for resolution. The Schematic Design Documents for Phase I, as approved or deemed approved by the Executive Director shall mean the "Schematic Documents for Phase I". The Developer shall cause Phase I of the Project to be designed in accordance with the Schematic Documents for Phase I. 7.2 Phase I Construction Documents. As soon as practicable after approval or deemed approval of the Schematic Documents for Phase I by the Executive Director, the Developer shall submit to the Executive Director for its review and approval the plans and specifications for the construction of Phase I, which shall be of sufficient detail to allow the Developer to apply for a building permit for Phase I ("Phase I Plans and Specifications"). The Phase I Plans and Specifications shall be subject to the approval of the Executive Director, which approval shall not be unreasonably withheld and such approval shall be given if the Phase I Plans and Specifications are consistent with the Schematic Documents for Phase I. The Developer agrees to utilize its good faith efforts to make modifications to the Phase I Plans and Specifications to satisfy the requirements of the Executive Director. The Developer shall provide to the Executive Director such additional back-up information as the Executive Director may reasonably request to enable the Executive Director to analyze the Phase I Plans and Specifications. The Executive Director shall have fifteen (15) days from the receipt of the Phase I Plans and Specifications to approve or disapprove same. If the Executive Director fails to 16 timely respond, the Phase I Plans and Specifications shall deemed approved. In the event of disapproval, the Executive Director shall specify the reason for such disapproval. In the event of a disapproval, Developer shall modify the Phase I Plans and Specifications, as appropriate, to address the comments and concerns of the Executive Director. Any resubmission shall be subject to the approval of the Executive Director in accordance with the procedure outlined above for the original submission until same is approved or deemed approved by the Executive Director. The Executive Director and the Developer shall in good faith, attempt to agree upon modifications to the Phase I Plans and Specifications to resolve any disputes regarding the Phase I Plans and Specifications. In the event of disapproval and failure within 15 days to resolve said dispute, the Developer may elect to submit such dispute regarding the approval of the Phase I Plans and Specifications to the CRA Board for resolution. The Phase I Plans and Specifications, as approved or deemed approved by the Executive Director shall mean the "Phase I Plans". 7.3 Phase I Development .Requirements. Developer shall be required to develop Phase I substantially in accordance with the Phase I Plans. Any material variation to the Phase I Plans shall require approval of the Executive Director, which approval shall not be unreasonably withheld provided that same is in accordance the spirit and intent of Phase 1 Plans. The Executive Director shall have ten (10) days from the receipt of any material variation in the Phase I Plans to approve same. If the Executive Director fails to timely respond, the material variation shall be deemed approved. 7.4 Phase I Project Schedule. Developer shall complete construction of Phase I substantially in accordance with the Phase I Plans ("Phase I Completion") within eighteen (18) months from the Phase I Closing Date, as same may be extended as a result of Unavoidable Delays (the "Phase I Completion Date"), time being of the essence. If Developer fails to achieve Phase I Completion within ninety (90) days of the Phase I Completion Date, Developer shall pay to the CRA One Thousand and No/100 Dollars ($1,000.00) per day for each day thereafter until Phase I Completion. The term "Phase I Completion" shall mean that Phase I has been completed substantially in accordance with the Phase I Plans and a temporary certificate of occupancy has been issued by the City for all residential units comprising Phase I and a certificate of completion or its equivalent, has been issued for the shell of the commercial space comprising a portion of Phase I. 7.5 Phase I Project Budget (A) The preliminary budget for Phase I prepared by the Developer is attached hereto as Exhibit "I" and made a part hereof (the "Phase I Preliminary Budget"). As soon as available but in no event later than thirty (30) days after the approval of the Phase I Plans, the Developer shall submit to the Executive Director for review and approval, which approvals shall not be unreasonably withheld, a detailed line item budget reflecting all hard and soft costs anticipated to be incurred by the Deg eloper in connection with Phase I (the "Phase I Project Budget"). The Developer agrees to use its good faith efforts to make all reasonable modifications to the Phase I Project Budget to satisfy the requirements of the Executive Director, provided, however, that such modifications are approved by the Developer's lenders or investors. The Developer shall provide to the Executive Director such additional back-up information as the Executive Director may reasonably request to enable the Executive Director to analyze all aspects of the Phase I Project Budget. The Executive Director shall have fifteen (15) days after receipt of the Phase I Project Budget to approve or disapprove same. If the Executive Director fails to timely respond to the Phase 1 Project Budget submitted by the 17 Developer, same shall be deemed approved. In the event of disapproval, the Developer shall modify the Phase I Project Budget, as appropriate, to address the comments and concerns of the Executive Director. Any resubmission shall be subject to the approval of the Executive Director in accordance with the procedure outlined above for the original submission until same is approved or deemed approved by the Executive Director. The Executive Director and the Developer shall, in good faith, attempt to agree upon budget modifications to resolve any disputes regarding the Phase I Project Budget. In the event of disapproval or failure within fifteen {15) days to resolve any disputes, the Developer may elect to submit such dispute regarding the approval of the Phase I Project Budget to Arbitration for resolution. The Phase I Project Budget, as approved or deemed approved by the Executive Director, shall be deemed the "Phase I Budget". The Phase I Budget shall establish the amount of the CRA Contribution. (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 Phase I on behalf of the CRA. The Phase I Funding Agreement shall include a mechanism for the Executive Director to be able to draw funds from this line item to pay third party costs and expenses incurred by the CRA. 7.6 Development of Phase I. As soon as available, Developer shall submit to the Executive Director for review and approval, which approval shall not be unreasonably withheld, the following: 7.6.1 Phase I Construction Contract. The construction contract for Phase I (the "Phase I Construction Contract"), together with the "schedule of values" for Phase I, which shall include the obligation of the general contractor to comply with the participation requirements set forth in Section 11.2 of this Agreement. 7.6.2 Loan Commitment. A loan commitment from a financial institution evidencing that Developer has obtained a construction loan commitment for the development of Phase I (the "Phase I Loan Commitment") which shall be in form and substance reasonably acceptable to the Executive Director. The Executive Director will not have approval rights over the loan terms or equity investment terms. The approval of the Executive Director shall be limited to the issue of whether the Phase I Loan Commitment reflects that funds will be available for construction of Phase I and the amount of funds which will be available for construction of Phase I. 7.6.3 Equity. Evidence reasonably satisfactory to the Executive Director that Developer has sufficient equity available to meet the equity requirement of the Phase I Loan Commitment taking into consideration the CRA Contribution (the "Phase I Equity"). A written commitment from an institutional investor providing equity to the Developer with respect to the purchase of the tax credits (the "Institutional Investor") in the amount of the equity requirement shall be deemed satisfactory. 7.6.4 Phase I Funding Agreement. The CRA, the Developer, the Non - Profit, the Developer's lender providing financing in accordance with the Phase I Loan Commitment (the "Phase I Lender") the Institutional Investor(s) providing equity to the 18 Developer with respect to the purchase of the tax credits, the GGI (or the Controlled Entity), which makes the GP Loan shall agree to the terms of an agreement (the "Phase I Funding Agreement") in form and substance reasonably acceptable to the Executive Director. The Phase I Funding Agreement shall contain such provisions that arc customarily included in construction loan agreements utilized by national banking associations doing business in Mianu-Dade County, Florida to ensure the proper use and disbursement of the funds and completion of Phase I, including, without limitation, provisions dealing with the following: 7.6.4.1 The disbursement of the CRA Phase I Contribution, the funding and disbursement of the proceeds of the loan contemplated by the Phase I Loan Commitment (the "Phase I Loan") the funding and disbursement of the Phase I Equity to be provided by the Developer and the Institutional Investor(s), the disbursement of the Non -Profit Loan and the disbursement of the GP Loan. The CRA Contribution, the Non -Profit Loan and the GP Loan shall be disbursed on a pari passu basis with the proceeds of the Phase I Loan or on such other basis as mutually agreed by the Executive Director, the Phase I Lender and the Institutional Investor(s). The CRA shall deposit the CRA. Phase i Contribution into a segregated account with the Phase I Lender pursuant to the Phase I Funding Agreement. The Non -Profit shall deposit the Non -Profit Loan in a segregated account with Phase I Lender pursuant to the Phase I Funding Agreement. GGI (or the Controlled Entity, if applicable) shall deposit the GP Loan in a segregated account with the Phase I Lender pursuant to the Phase I Funding Agreement. The Developer shall deposit the Phase I Equity into, a segregated account with the Phase I Lender pursuant to the Phase I Funding Agreement. The Institutional Investor shall deposit the funds to be provided by the Institutional Investor with the Phase 1 Lender in accordance with the funding schedule to be mutually agreed upon by the Phase I Lender, the Institutional Investor and the Executive Director as part of the Phase I Funding Agreement. 7.6.4.2 The procedure for submission of monthly draw requests and partial lien waivers to the Phase I Lender, for review and approval. 7.6.4.3 The procedure for the inspection of Phase I during construction for the benefit of the CRA, the Non -Profit, the GGI (or Controlled Entity), the Institutional Investor(s) and the Phase I Lender, and approval by the Phase I Lender of the percentage of work completed. 7.6.4.4 The approval of the Phase 1 Budget and any amendments to the Phase I Budget by the Phase I Lender. 7.6.4.5 The approval of the re -allocation of funds to different line items in the Phase I Budget by the Phase I Lender. 7.6.4.6 The requirement that the CRA Phase I Contribution, the Non -Profit Loan and the GP Loan only be utilized for the design and construction of the residential portion of Phase I. 7.6.4.7 The procedure for the determination of whether there are adequate funds included in the Phase I Budget to complete Phase I and whether the Phase I Budget is "in balance" by the Phase I Lender. If it is determined that due to cost overruns or 19 change orders the Phase I Budget is not "in balance" the Developer will be required to fund the amount determined by the Phase I Lender, to keep the Phase I Budget "in balance" prior to there being any further disbursement of the CRA Phase I Contribution, the Non -Profit Loan, and the GP Loan. Lender. 7.6.4.8 The procedure for approving change orders by the Phase I 7.6.4.9 The procedure for approving changes to the Phase I Plans by the Phase I Lender. 7.7 CRA Approval. The Executive Director shall have fifteen (15) days after receipt of each of the items required by Section 7.6 to review and approve 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 to amicably resolve any disputes. 7.8 CRA PHASE I CONTRIBUTION. 7.8.1 The CRA covenants and agrees to contribute the Phase I Property having an agreed upon value of One Million Four Hundred Fifty -Seven Thousand Two Hundred Fifty and No/100 Dollars ($1,457,250.00) (the "Phase I Land Contribution") and a cash contribution to a Non -Profit in an amount of up to Ten Million and No/100 Dollars ($10,000,000.00) for the design and construction of the residential portions of Phase I (the "CRA Phase I Contribution", and together with the Phase I Land Contribution, the "Total Phase 1 CRA Contribution"); provided all of the CRA Phase I Conditions Piecedent are satisfied or waived by the CRA. The CRA Phase I Contribution to the Non -Profit shall be made in accordance with the terms of the Non -Profit Grant Agreement and the Non -Profit shall loan one hundred percent (100%) of the proceeds of the CRA Phase I Contribution to GGI (or the Controlled Entity) (the "Non -Profit Loan"), GGI, the managing meinber of the Developer, (or the Controlled Entity) shall loan one hundred percent (100%) of the proceeds of the Non -Profit Loan (the "GP Loan") to the Developer, to be disbursed in accordance with the Phase I Funding Agreement. Under no circumstances shall the CRA Phase I Contribution be increased notwithstanding any increases in the Phase I Budget. 7.8.2 The exact amount of the CRA Phase I Contribution will depend upon the Phase I Project Budget approved by the Executive Director and other funding sources for Phase I obtained by the Developer. The CRA Phase I Contribution shall be reduced if the committed sources of funding upon achieving Phase I Completion exceed all uses, including a fully -funded developer fee including developer overhead and profit in an amount not exceeding the lesser of (i) eighteen percent (18%) or (ii) the Florida Housing Finance Corporation ("FHFC") guidelines for multi -family revenue bond -financed projects pursuant to Rule 67-21, Fla. Admin. Code. The amount of the CRA Phase I Contribution shall be established at the time the Executive Director approves the Phase I Project Budget and adjusted upon completion in accordance with Section 7.8.3. 20 7.8.3 Upon Phase I Completion, the Developer, at its sole cost and expense, shall retain Reznick Group, PC to prepare a cost certificate (the "Cost Certification"), based upon an audit of all costs and expenses incurred in connection with achieving Phase I Completion, and in compliance with all FHFC guidelines for such Cost Certifications. Upon receipt of the Cost Certificate the Developer shall promptly provide a copy of same to the Executive Director and the Non -Profit. Should such Cost Certification show an excess of sources over uses (including a fully -funded developer fee not in excess of the limits set for in Section 7.8.2), then the CRA Phase I Contribution, the Non -Profit Loan and the GP Loan shall be reduced by the amount of such excess. If the CRA Phase I Contribution, the Non -Profit Loan and the GP Loan has been fully disbursed the Developer shall repay such amount within thirty (30) days after written demand from the CRA to GGI (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 Phase I 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 Developer's receipt of a copy of the Cost Certificate. If the Developer and the Executive Director cannot resolve the dispute regarding the Cost Certificate within the fifteen (15) day period, either party may submit the dispute to Arbitration for resolution, which shall be binding on the parties. This provision shall survive the closing with respect to Phase I. 7.8.4 The CRA has advised the Developer that the CRA Phase I 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 Phase I Contribution shall not be security for the CRA Bond Issue or any other indebtedness of the CRA. The Developer shall have no obligations with respect to the repayment of the CRA Bond Issue. The Developer acknowledges that restrictions associated with the CRA Bond Issue will require that the Non -Profit Loan be utilized only with respect to the design and construction of the residential portion of Phase I and that the Non -Profit otherwise comply with the terms of the Non -Profit Grant Agreement in substantially the form of Exhibit "J" attached hereto (the "Non -Profit Grant Agreement"). The CRA Phase I Contribution is not contingent on the CRA Bond Issue being funded. 7.8.5 Developer and the CRA agreed that the CRA shall make the CRA Phase I Contribution to a Non -Profit acceptable to the CRA which Non -Profit would in turn make the Non -Profit Loan in the amount of the CRA Phase I Contribution to GGI or to an entity at least fifty-one percent (51%) owned and controlled by Marc S. Plonskier and David J. Canepari (the "Controlled Entity"), to enable GGI or the Controlled Entity, to, in turn, make the GP Loan in the amount of the CRA Phase I Contribution to the Developer. Within thirty (30) days from the Effective Date, the Developer shall identify the Non -Profit and submit all proposed structure documents, including, without limitation, the loan documents (the "Non - Profit Loan Documents") with respect to the Non -Profit Loan, to GGI (or the Controlled Entity) and the loan documents (the "GP Loan Documents") in connection with the GP Loan to the Developer, 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, including, without limitation, with respect to control of the CRA Phase I Contribution, the direct deposit of the Non -Profit Loan proceeds with 21 the Phase I Lender or a title company approved by the CRA to be disbursed in accordance with the Phase I Funding Agreement and the GP Loan Documents comply with the requirements of the CRA Bond Issue and the GP Loan proceeds are deposited directly with the Phase I Lender to be disbursed in accordance with the Phase I Funding Agreement. The Non -Profit and GGI (or the Controlled Entity) shall be parties to the Phase I Funding Agreement, however, the CRA shall retain control over the disbursement of the Non -Profit Loan to GGI (or the Controlled Entity) and retain control over disbursement of the GP Loan to the Developer in accordance with the Phase I Funding Agreement. The CRA acknowledges that the Non -Profit Loan may be non - interest bearing, require no principal payments unless there is an event of default and be forgiveable after fifteen (15) years. 7.8.6 The CRA and the Non -Profit will enter into the Non -Profit Grant Agreement which shall govern the use of the CRA Phase I Contribution. The Non -Profit Grant Agreement will require the Non -Profit to make the Non -Profit Loan of the CRA Phase I Contribution to GGI (or the Controlled Entity) as contemplated by this Agreement. In the event the Non -Profit Loan is repaid by GGI (or the Controlled Entity) to the Non -Profit, the Non -Profit shall apply same to repay the applicable portion of the CRA Phase I Contribution to the CRA within ten (10) days of receipt of such payment. The Non -Profit shall not be permitted to retain any portion of the CRA Phase I Contribution and any fees and costs of the Non -Profit must be paid from sources other than the CRA Phase I Contribution. 7.8.7 The GGI (or the Controlled Entity, as appropriate) shall loan one hundred percent (100%) of the proceeds of the Non -Profit Loan to the Developer pursuant to the GP Loan Documents. Any fees and costs of GGI (or the Controlled Entity) must be paid from sources other than the Non -Profit Loan. 7.8.8 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, the Non -Profit Grant Agreement and this Agreement and the Non -Profit shall be approved by the Executive Director if it complies with the definition set forth in Section 2 and the requirements of the Non -Profit Grant 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 January 15, 2013, this Agreement shall be of no further force and effect, at the option of the Executive Director, in which event the parties shall be released from all further obligations under this Agreement except for the obligations that expressly survive termination. 7.8.9 The CRA shall take all necessary action to set aside the CRA Phase I Contribution to the reasonable satisfaction of the Phase I Lender and Developer. 8. PHASE II. 8.1 Community Input. Developer shall comply with the provisions of Section 6.2 with respect to the Schematic Design Documents for Phase II. 22 8.2 Approval of Schematic Design Documents by CRA. The Developer shall submit to the Executive Director for review and approval the Schematic Design Documents for Phase II, which shall have been revised by the Developer to address comments received from the HOFLDA and OCOB which must also be consistent with the Design Guidelines. The Developer agrees to use its good faith efforts to modify the Schematic Design Documents for Phase II as necessary to address the requirements of the Executive Director. The Developer shall provide the Executive Director such additional back-up information as the Executive Director may reasonably request to enable the Executive Director to analyze all aspects of the Project as reflected in the Schematic Design Documents for Phase II. The parties agree to use reasonable, good faith efforts to agree to on necessary modifications to comply with the terms of this Agreement. The Executive Director shall have fifteen (15) days from the receipt of the Schematic Design Documents for Phase II to approve 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 and the Executive Director shall modify the Schematic Design Documents for Phase II, as appropriate, to address the comments and concerns of the Executive Director to ensure that the Schematic Design Documents for Phase II comply with the Design Guidelines and the input from HOFLDA and OCOB, as deemed appropriate by the Executive Director, acting reasonably. Any resubmission shall be subject to approval by the Executive Director in accordance with the procedure outlined above for the original submission until same is approved or deemed approved by the Executive Director. The Executive Director and the Developer shall proceed in good faith to attempt to resolve any disputes regarding the Schematic Design Documents for Phase II. If the Executive Director has rejected the Schematic Design Documents for Phase II and the Executive Director and the Developer are not able to resolve the rejection of the Schematic Design Documents for Phase II by the Executive Director within fifteen (15) days after the Developer's receipt of notice of such rejection, Developer may elect to submit such dispute regarding the approval of the Schematic Design Documents for Phase II to the CRA Board for resolution. The Schematic Design Documents for Phase II, as approved or deemed approved by the Executive Director shall mean the "Schematic Documents for Phase II". The Developer shall cause Phase II to be designed in accordance with the Schematic Documents for Phase II. 8.3 Phase II Construction Documents. The Developer shall submit to the Executive Director for its review and approval the plans and specifications for the construction of Phase II, which shall be of sufficient detail to allow the Developer to apply for a building permit for Phase II ("Phase II Plans and Specifications"). The Phase II Plans and Specifications shall be subject to the approval of the Executive Director, which approval shall not be unreasonably withheld, and which approval shall be given if the Phase II Plans and Specifications are consistent with the Schematic Documents for Phase II. The Developer agrees to utilize its good faith efforts to make modifications to the Phase II Plans and Specifications to satisfy the requirements of the Executive Director. The Developer shall provide to the Executive Director such additional back-up information as the Executive Director may reasonably request to enable the Executive Director to analyze the Phase II Plans and Specifications. The Executive Director shall have fifteen (15) days from the receipt of the Phase II Plans and Specifications to approve or disapprove same. If the Executive Director fails to timely respond, the Phase II Plans and Specifications shall deemed approved. In the event of disapproval, the Executive Director shall specify the reason for such disapproval. In the event of a disapproval, Developer shall 23 modify the Phase II Plans and Specifications, as appropriate, to address the comments and concerns of the Executive Director. Any resubmission shall be subject to the approval of the Executive Director in accordance with the procedure outlined above for the original submission until same is approved or deemed approved by the Executive Director. The Executive Director and the Developer shall in good faith, attempt to agree upon modifications to the Phase II Plans and Specifications to resolve any disputes regarding the Phase II Plans and Specifications. In the event of disapproval and failure within fifteen (15) days to resolve said dispute, the Developer may elect to submit such dispute regarding the approval of the Phase II Plans and Specifications to the CRA Board for resolution. The Phase II Plans and Specifications, as approved or deemed approved by the Executive Director shall mean the "Phase II Plans". 8.4 Phase II Development Requirements. Developer shall be required to develop Phase II substantially in accordance with the Phase II Plans. Any material variation to the Phase II Plans shall require approval of the Executive Director, which approval shall not be unreasonably withheld, provided that same is in accordance the spirit and intent of Phase II Plans. The Executive Director shall have ten (10) days from receipt of any material variation in the Phase II Plans to approve or disapprove same. If the Executive Director fails to timely respond, the material variation shall be deemed approved. 8.5 Phase II Project Schedule. Developer shall complete construction of Phase II substantially in accordance with the Phase II Plans within thirty-six (36) months from the Phase II Closing Date, as same may be extended as a result of Unavoidable Delays (the "Phase II Completion Date"). If Developer fails to achieve Phase II Completion within ninety (90) days of the Phase II Completion Date, Developer shall pay to the CRA One Thousand and No/100 Dollars ($1,000.00) per day for each day thereafter until Phase II Completion. The term "Phase II Completion" shall mean that Phase II has been completed substantially in accordance with the Phase II Plans and a temporary certificate of occupancy has been issued by the City for all residential units comprising Phase II and a certificate of completion or its equivalent has been issued for the shell of all commercial space included in Phase II, if any. 8.6 Phase II Project Budget. The Developer shall submit to the Executive Director for comment a detailed line item budget reflecting all hard and soft costs anticipated to be incurred by the Developer in connection with Phase II (the "Phase II Budget"). The Developer shall provide to the Executive Director such additional back-up information as the Executive Director may reasonably request to enable the Executive Director to analyze all aspects of the Phase II Budget. The Phase II Budget shall include a Fifty Thousand and No/100 Dollars ($50,000.00) line item to be utilized solely to pay third parties retained by the CRA to assist in the monitoring and compliance of the terms of this Agreement with respect to Phase II on behalf of the CRA. The Developer shall include in its arrangements with the lender providing funding for Phase II a mechanism for the Executive Director to be able to draw funds from this line item to pay third party costs and expenses incurred by the CRA up to the maximum of Fifty Thousand and No/100 Dollars ($50,000.00). 8.7 Development of Phase II. As soon as available, Developer shall submit to the Executive Director for review and approval, which approval shall not be unreasonably withheld, the following: 24 8.7.1 Phase II Construction Contract. The construction contract for Phase II (the "Phase II Construction Contract"), together with the "schedule of values" for Phase II, which shall include the obligation of the general contractor to comply with the participation requirements set forth in Section 11.2 of this Agreement. 8,7.2 Loan Commitment. A loan commitment from a financial institution evidencing that Developer has obtained a construction loan commitment for the development of Phase II (the "Phase II Loan Commitment"). The Executive Director's approval of the Phase II Loan Commitment shall be limited to confirming that the Phase II Budget is the budget utilized by the Phase II Lender in issuing the Phase II Loan Commitment and confirmation that the amount of the loan contemplated by the Phase II Loan Commitment and the amount of Phase II Equity is sufficient to complete Phase II in accordance with the Phase II Budget. 8.7,3 Equity. Evidence that Developer has sufficient equity available to meet the equity requirement of the Phase II Loan Commitment with respect to Phase II taking into consideration the equity being provided to the Developer by the Institutional Investor, if any (the "Phase II Equity"). 8.8 CRA Review. The Executive Director shall have fifteen (15) days after receipt of each of the items required by Section 8.7 to review and approve same, which approval shall not be unreasonably withheld. The Executive Director may request additional information from the Developer necessary to complete his review and approval or disapprove of the aforementioned items. In the event of disapproval of any such item, the Executive Director shall specify the reason for such disapproval. In such event, the Developer shall utilize its good faith efforts to address the comments and concerns of the Executive Director to amicably resolve any disputes. 9. PHASE III. 9.1 Community Input. Developer shall comply with the provisions of Section 6.2 with respect to the Schematic Design Documents for Phase III. 9,2 Approval of Schematic Design Documents by CRA. The Developer shall submit to the Executive Director for review and approval the Schematic Design Documents for Phase III, which shall have been revised by the Developer to address comments received from the HOFLDA and OCOB which must also be consistent with the Design Guidelines. The Developer agrees to use its good faith efforts to modify the Schematic Design Documents for Phase III as necessary to address the requirements of the Executive Director. The Developer shall provide the Executive Director such additional back-up information as the Executive Director may reasonably request to enable the Executive Director to analyze all aspects of the Project as reflected in the Schematic Design Documents for Phase III. The parties agree to use reasonable, good faith efforts to agree to on necessary modifications to comply with the terms of this Agreement. The Executive Director shall have fifteen (15) days from the receipt of the Schematic Design Documents for Phase III to approve 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 25 disapproval. In the event of disapproval, the Developer and the Executive Director shall modify the Schematic Design Documents for Phase III, as appropriate, to address the comments and concerns of the Executive Director to ensure that the Schematic Design Documents for Phase III comply with the Design Guidelines and the input from HOFLDA and OCOB, as deemed appropriate by the Executive Director. Any resubmission shall be subject to approval by the Executive Director in accordance with the procedure outlined above for the original submission until same is approved or deemed approved by the Executive Director, acting reasonably. The Executive Director and the Developer shall proceed in good faith to attempt to resolve any disputes regarding the Schematic Design Documents for Phase III. If the Executive Director has rejected the Schematic Design Documents for Phase III and the Executive Director and the Developer are not able to resolve the reason for such rejection of the Schematic Design Documents for Phase III by the Executive Director within fifteen (15) days after the Developer's receipt of notice of such rejection, Developer may elect to submit such dispute regarding the approval of the Schematic Design Documents for Phase III to the CRA Board for resolution. The Schematic Design Documents for Phase III, as approved or deemed approved by the Executive Director shall mean the "Schematic Documents for Phase III". The Developer shall cause Phase III to be designed in accordance with the Schematic Documents for Phase III. 9.3 Phase III Construction Documents. The Developer shall submit to the Executive Director for its review and approval the plans and specifications for the construction of Phase III, which shall be of sufficient detail to allow the Developer to apply for a building permit for Phase III ("Phase IB Plans and Specifications"). The Phase III Plans and Specifications shall be subject to the approval of the Executive Director, which approval shall not be unreasonably withheld, and which approval shall be given if the Phase III Plans and Specifications are consistent with the Schematic Documents for Phase Hi. fhe Developer agrees to utilize its good faith efforts to make modifications to the Phase III Plans and Specifications to satisfy the requirements of the Executive Director. The Developer shall provide to the Executive Director such additional back-up information as the Executive Director may reasonably request to enable the Executive Director to analyze the Phase II Plans and Specifications. The Executive Director shall have fifteen (15) days from the receipt of the Phase III Plans and Specifications to approve or disapprove same. If the Executive Director fails to timely respond, the Phase III Plans and Specifications shall deemed approved. In the event of disapproval, the Executive Director shall specify the reason for such disapproval. In the event of a disapproval, Developer shall modify the Phase III Plans and Specifications, as appropriate, to address the comments and concerns of the Executive Director. Any resubmission shall be subject to the approval of the Executive Director in accordance with the procedure outlined above for the original submission until same is approved or deemed approved by the Executive Director. The Executive Director and the Developer shall in good faith, attempt to agree upon modifications to the Phase III Plans and Specifications to resolve any disputes regarding the Phase III Plans and Specifications. In the event of disapproval and failure within 15 days to resolve said dispute, the Developer may elect to submit such dispute regarding the approval of the Phase III Plans and Specifications to the CRA Board for resolution. The Phase III Plans and Specifications, as approved or deemed approved by the Executive Director shall mean the "Phase III Plans". 9.4 Phase III Development Requirements: Developer shall be required to develop Phase III substantially in accordance with the Phase III Plans. Any material variation to the Phase III Plans shall require approval of the Executive Director, which approval shall not be 26 unreasonably withheld, provided that same is in accordance the spirit and intent of Phase III Plans. The Executive Director shall have ten (10) days from receipt of any material variation in the Phase III Plans to approve or disapprove same. If the Executive Director fails to timely respond, the material variation shall be deemed approved. 9.5 Phase III Project Schedule. (A) Developer shall obtain all applicable land use and zoning approvals for Phase III on or before November 1, 2013 (the "Zoning Approval Deadline"). The Developer may extend the Zoning Approval Deadline for up to six (6) months by complying with the requirements of the Block 36 Restrictions. (B) Developer shall commence Vertical Construction of Phase III on or before November 1, 2014 (the "Vertical Construction Deadline"). The Developer may extend the Vertical Construction Deadline in accordance with the terms of the Block 36 Restrictions. (C) Developer shall complete construction of Phase III substantially in accordance with the Phase III Plans within eighteen (18) months from the Phase III Closing Date, as same may be extended as a result of Block 36 Unavoidable Delays (the "Phase III Completion Date"). If Developer fails to achieve Phase III Completion within ninety (90) days of the Phase III Completion Date, Developer shall pay to the CRA One Thousand and No/100 Dollars ($1,000.00) per day for each day thereafter until Phase III Completion. The term "Phase III Completion" shall mean that Phase III has been completed substantially in accordance with the Phase III Plans and a temporary certificate of occupancy and a certificate of completion has been issued by the City for the Parking Garage. (D) If Developer has not achieved Phase III Completion on or before twenty-four (24) months from the Phase III Closing Date, as same may be extended as a result of Block 36 Unavoidable Delays, then in addition to the payments contemplated by Section 9.5(c), the Developer shall pay to each of the CRA and the County Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) in accordance with the Block 36 Restrictions. 9.6 Phase III Project Budget. (A) The Developer shall submit to the Executive Director for review a detailed line item budget reflecting all hard and soft costs anticipated to be incurred by the Developer in connection with Phase III (the "Phase III Project Budget"). The Developer shall provide to the Executive Director such additional back-up information as the Executive Director may reasonably request to enable the Executive Director to analyze all aspects of the Phase III Project Budget. The Executive Director shall have fifteen (15) days from receipt of the Phase III Project Budget to approve or disapprove same. If the Executive Director fails to timely respond to the Phase III Project Budget submitted by the Developer, same shall be deemed approved. In the event of disapproval, the Developer shall modify the Phase III Project Budget, as appropriate, to address the comments and concerns of the Executive Director. Any resubmission shall be subject to the approval of the Executive Director in accordance with the procedure outlined above for the original submission until same is approved or deemed approved by the Executive Director. The Executive Director and the Developer shall, in good faith, attempt to agree upon budget modifications to resolve any disputes regarding the Phase III Project Budget. In the event of disapproval and failure within fifteen (15) days to resolve any disputes, the Developer may elect to submit such dispute regarding the approval of the Phase III Project Budget to Arbitration for resolution. The Phase 27 III Project Budget as approved or deemed approved by the Executive Director, shall be deemed the "Phase III Budget". (B) The Phase III 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 Parking Garage on behalf of the CRA. The Phase III Funding Agreement shall include a mechanism for the Executive Director to be able to draw funds from this line item to pay third party costs and expenses incurred by the CRA. 9.7 Development of Phase III. As soon as available, Developer shall submit to the Executive Director for review and approval, which approval shall not be unreasonably withheld, the following: 9.7.1 Phase III Construction Contract. The construction contract for Phase III (the "Phase III Constt uction Contract"), together with the "schedule of values" for Phase III, which shall include the obligation of the general contractor to comply with the participation requirements set forth in Section 11.2 of this Agreement. 9.7.2 Loan Commitment. A loan commitment from a financial institution evidencing that Developer has obtained a construction loan commitment for the development of Phase III (the "Phase III Loan Commitment") which shall be in form and substance reasonably acceptable to the Executive Director. The Executive Director will not have approval rights over the loan terms or equity investment terms. The approval of the Executive Director shall be limited to the issue of whether the Phase III Loan Commitment reflects that funds will be available for construction of Phase III and the amount of funds which will be available for construction of Phase III. The Phase III Loan Commitment shall not be required if the CRA Phase III Contribution and the Phase III Equity is sufficient based upon the Phase III Budget. 9.7.3 Equity. Evidence reasonably satisfactory to the Executive Director that Developer has sufficient equity available to meet the equity requirement of the CRA Phase III Loan Commitment taking into consideration the Phase III Contribution (the "Phase III Equity"). 9.7.4 Phase III Funding Agreement. The CRA, Developer, and the Developer's lender providing financing in accordance with the Phase III Loan Commitment (the "Phase III Lender"), if any, shall agree to the terms of an agreement (the "Phase III Funding Agreement") in form and substance reasonably acceptable to the Executive Director. The Phase III 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 Parking Garage, including, without limitation, provisions dealing with the following: 9.7.4.1 The disbursement of the CRA Phase III Contribution and the Phase III Equity required based upon the Phase III Budget, and the proceeds of any loan from the Phase III Lender, if any. The Phase III Contribution shall be funded on a pari passu basis with 28 the Phase III Loan and the Phase III Equity or on such other basis as mutually agreed by the Executive Director and the Phase III Lender, if any. 9.7.4.2 The procedure for submission of monthly draw requests and partial lien waivers to the Phase III Lender or to the CRA, if there is no Phase III Lender, for review and approval. 9.7.4.3 The inspection of Phase III during construction for the benefit of the CRA and the Phase III Lender, and approval of the percentage of work completed. 9.7.4.4 The approval of the Phase III Budget and any amendments to the Phase III Budget by the Phase III Lender or the CRA, if there is no Phase III Lender. 9.7.4.5 The approval of the re -allocation of funds to different line items in the Phase III Budget by the Phase III Lender or the CRA, if there is no Phase III Lender. 9.7.4.6 The determination of whether there are adequate funds included in the Phase III Budget to complete Phase III and whether the Phase III Budget is "in balance" by the Phase III Lender or the CRA, if there is no Phase III Lender. If it is determined that due to cost overruns the Phase III Budget is not "in balance" the Developer will be required to fund the amount determined by the Phase III Lender, to keep the Phase III Budget "in balance" prior to there being any further disbursement of the CRA Phase III Contribution. 9.7.4.7 The procedure for approving change orders by the Phase III Lender or the CRA if there is no Phase III Lender. 9.7.4.8 The procedure for approving changes to the Phase III Plans by the Phase III Lender or the CRA, if there is no Phase III Lender. 9.7.4.9 The approval of the use of funds allocated to the contingency line items in the Phase III Budget by the Phase III Lender or the CRA, if there is no Phase III Lender. 9.7.5 Phase III/IV Parking Easement. The terms and provisions of the Phase III/IV parking easement agreement (the "Phase III/IV Parking Easement Agreement") in form and substance reasonably acceptable to the Executive Director, which shall include, without limitation, the following: 9.7.5.1 Easements required for the construction of Phase III and Phase IV, respectively, to the extent 9.7.5.2 Phase IV to surrounding roadways. 9.7.5.3 shifting of buildings. reasonably necessary. Easements for ingress and egress to and from Phase III and Easements for encroachments as a result of settling and 9.7.5.4 Easements for utilities. 29 9.7.5.5 Requirement that if Developer designs the Parking Garage as an integral part of Phase IV, that the owner of Phase IV pay all of the additional costs and expenses associated with the construction of the Parking Garage over and above what the Parking Garage would have cost if it were a stand alone structure. 9.7.5.6 Easements establishing the exclusive use of ground level parking spaces in the Parking Garage for use by the owner of the Phase IV Property and its invitees and guests. 9.7.5.7 Requirements that upon completion of Phase TV as evidenced by the issuance of a certificate of occupancy for any portion of Phase IV the owner of Phase IV pay its prorata share of the cost to operate and maintain the Parking Garage, including security costs and capital improvement costs, based upon the number of parking spaces the owner of Phase IV has the exclusive right to utilize and the total number of parking spaces in the Parking Garage, provided that if any parking spaces exclusively dedicated to the Phase IV owner are open and unattended, the allocable costs shall exclude the cost of attendants, but not the costs for providing security during the hours of operation of any business located within Phase N. 9.7.5.8 Requirement that the owner of the Phase III Property maintain the Parking Garage in good condition and repair. 9.7.5.9 Requirement that the public portion of the Parking Garage be operated as a public parking garage in accordance with the requirements of the CRA Bond Issue. 9.8 CRA Approval. The Executive Director shall have fifteen (15) days after receipt of each of the items required in Section 9.7 to review and approve 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 in order to amicably resolve any disputes. 9.9 CRA PHASE III CONTRIBUTION. 9.9.1 The CRA covenants and agrees to contribute an amount of up to Three Million and No/100 Dollars ($3,000,000.00) for the administration, design and development of Phase III (the "CRA Phase III Contribution), provided all of the CRA Phase III Conditions Precedent are satisfied or waived by the CRA. 9.9.2 The exact amount of the CRA Phase III Contribution will depend upon the Phase III Budget approved by the Executive Director. The final amount of the CRA Phase III Contribution shall be established at the time the Executive Director approves the Phase III Project Budget. 9.9.3 The CRA shall take all necessary action to set aside the CRA Phase III Contribution to the reasonable satisfaction of the Phase III Lender or the Developer, if there is no Phase III Lender. 30 9.9.4 The Developer and the CRA acknowledge that the estimated cost to complete the Parking Garage exceeds the amount of the CRA Phase III Contribution. The parties acknowledge that the Parking Garage may not be feasible if the CRA Phase III Contribution is not sufficient to construct the Parking Garage. 9.9.5 The CRA has advised the Developer that the CRA Phase III Contribution shall be derived from a loan (the "CRA Bond Issue") to be obtained by the CRA which shall be secured by tax increment revenues. The CRA Phase III Contribution shall not be security for the CRA Bond Issue or any other indebtedness of the CRA. 9.9.6 The CRA is currently in the process of obtaining the CRA Bond Issue on terms and conditions acceptable to the CRA, in its sole discretion. The CRA Bond Issue must be approved by the CRA Board, ("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 CRA Board on or before December 31, 2013, then in such event, this Agreement shall automatically terminate as of December 31, 2013 with respect to Phase III, in which event, the parties shall be released from any further obligations under this Agreement with respect to Phase III, except for those obligations that expressly survive termination of this Agreement with respect to Phase III. 9.10 Within ninety (90) after the Executive Director has approved the Schematic Documents for Phase III, the CRA may elect not to have the Developer construct the Parking Garage. In such event, the CRA will reimburse Developer for its out of pocket costs and expenses and preparing the Schematic Documents for Phase T1I within thirty (30) days of the provided documentation as to those expenses by the Developer. In such event, the CRA shall retain the Department of Off Street Parking of the City of Miami ("DOSP") to construct the Parking Garage, at the sole cost and expense of the CRA. 10. PHASE IV. 10.1 Community Input. Developer shall comply with the provisions of Section 6.3 with respect to the Schematic Design Documents for Phase IV. 10.2 Approval of Schematic Design Documents by CRA, The Developer shall submit to the Executive Director for review and approval the Schematic Design Documents for Phase IV, which shall have been revised by the Developer to address comments received from the HOFLDA and OCOB which must also be consistent with the Design Guidelines. The Developer agrees to use its good faith efforts to modify the Schematic Design Documents for Phase IV as necessary to address the requirements of the Executive Director. The Developer shall provide the Executive Director such additional back-up information as the Executive Director may reasonably request to enable the Executive Director to analyze all aspects of the Project as reflected in the Schematic Design Documents for Phase IV. The parties agree to use reasonable, good faith efforts to agree to on necessary modifications to comply with the terms of this Agreement. The Executive Director shall have fifteen (15) days from the receipt of the Schematic Design Documents for Phase IV to approve 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 3I disapproval. In the event of disapproval, the Developer and the Executive Director shall modify the Schematic Design Documents for Phase IV, as appropriate, to address the comments and concerns of the Executive Director to ensure that the Schematic Design Documents for Phase IV comply with . the Design Guidelines and the input from HOFLDA and OCOB, as deemed appropriate by the Executive Director. Any resubmission shall be subject to approval by the Executive Director in accordance with the procedure outlined above for the original submission until same is approved or deemed approved by the Executive Director, acting reasonably. The Executive Director and the Developer shall proceed in good faith to attempt to resolve any disputes regarding the Schematic Design Documents for Phase IV. If the Executive Director has rejected the Schematic Design Documents and the Executive Director and the Developer are not able to resolve the rejection of the Schematic Design Documents for Phase IV by the Executive Director within fifteen (15) days after the Developer's receipt of notice of such rejection, the Developer may elect to submit such dispute regarding the approval of the Schematic Design Documents for Phase IV to the CRA Board for resolution. The Schematic Design Documents for Phase IV. as appro% ed or deemed approved by the Executive Director shall mean the "Schematic Documents for Phase IV". The Developer shall cause Phase IV to be designed in accordance with the Schematic Documents for Phase IV. 10.3 Phase IV Construction Documents. The Developer shall submit to the Executive Director for its review and approval the plans and specifications for the construction of Phase IV, which shall be of sufficient detail to allow the Developer to apply for a building permit for Phase IV ("Phase IV Plans and Specifications"). The Phase IV Plans and Specifications shall be subject to the approval of the Executive Director, which approval shall not be unreasonably withheld, and which approval shall be given if the Phase IV Plans and Specifications are consistent with the Schematic Documents.for Phase IV. The Developer agrees to utilize its good faith efforts to make modifications to the Phase IV Plans and Specifications to satisfy the requirements of the Executive Director. The Developer shall provide to the Executive Director such additional back-up information as the Executive Director may reasonably request to enable the Executive Director to analyze the Phase IV Plans and Specifications. The Executive Director shall have fifteen (15) days from the receipt of the Phase IV Plans and Specifications to approve or disapprove same. If the Executive Director fails to timely respond, the Phase IV Plans and Specifications shall deemed approved. In the event of disapproval, the Executive Director shall specify the reason for such disapproval. In the event of a disapproval, Developer shall modify the Phase IV Plans and Specifications, as appropriate, to address the comments and concerns of the Executive Director. Any resubmission shall be subject to the approval of the Executive Director in accordance with the procedure outlined above for the original submission until same is approved or deemed approved by the Executive Director. The Executive Director and the Developer shall in good faith, attempt to agree upon modifications to the Phase IV Plans and Specifications to resolve any disputes regarding the Phase IV Plans and Specifications. In the event of disapproval and failure within 15 days to resolve said dispute, the Developer may elect to submit such dispute regarding the approval of the Phase IV Plans and Specifications to the CRA Board for resolution. The Phase IV Plans and Specifications, as approved or deemed approved by the Executive Director shall mean the "Phase IV Plans". 10.4 Phase IV Development Requirements. Developer shall be required to develop Phase IV substantially in accordance with the Phase IV Plans. Any material variation to the Phase IV Plans shall require approval of the Executive Director, which approval shall not be 32 unreasonably withheld, provided that same is in accordance the spirit and intent of Phase IV Plans. The Executive Director shall have ten (10) days from receipt of any material variation in the Phase IV Plans to approve or disapprove same. If the Executive Director fails to timely respond, the material variation shall be deemed approved. 10.5 Phase IV Project Schedule. (A) Developer shall obtain all applicable land use and zoning approvals for Phase IV on or before the Zoning Approval Deadline. The Developer may extend the Zoning Approval Deadline for up to six (6) months by complying with the requirements of the Block 36 Restrictions. (B) Developer shall commence Vertical Construction of Phase IV on or before the Vertical Construction Deadline, The Developer may extend the Vertical Construction Deadline in accordance with the terms of the Block 36 Restrictions. (C) Developer shall complete construction of Phase IV substantially in accordance with the Phase IV Plans within twenty-four (24) months from the Phase IV Closing Date, as same may be extended as a result of Block 36 Unavoidable Delays (the "Phase IV Completion Date"). If Developer fails to achieve Phase IV Completion within ninety (90) days of the Phase IV Completion Date, Developer shall pay to the CRA One Thousand and No/100 Dollars ($1,000.00) per day for each day thereafter until Phase IV Completion. The term "Phase IV Completion" shall mean that Phase IV has been completed substantially in accordance with the Phase IV Plans and a certificate of completion, or its equivalent, has been issued by the City for the shell of all commercial space included in Phase IV. (D) If Developer has not achieved Phase IV Completion on or before twenty-four (24) months from the Phase IV Closing Date, as same may be extended as a result of Block 36 Unavoidable Delays, then in addition to the payments contemplated by Section 10.5(C), the Developer shall pay to each of the CRA and the County Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) in accordance with the terms of the Block 36 Restrictions. 10.6 Phase IV Project Budget. The Developer shall submit to the Executive Director for comment a detailed line item budget reflecting all hard and soft costs anticipated to be incurred by the Developer in connection with Phase IV (the "Phase IV Budget"). The Developer shall provide to the Executive Director such additional back-up information as the Executive Director may reasonably request to enable the Executive Director to analyze all aspects of the Phase IV Project Budget. The Phase IV Budget shall include a Fifty Thousand and No/100 Dollars ($50,000.00) line item to be utilized solely to pay third parties retained by the CRA to assist in the monitoring and compliance of the terms of this Agreement with respect to Phase IV on behalf of the CRA. The Developer shall include in its arrangements with the lender providing funding for Phase IV a mechanism for the Executive Director to be able to draw funds from this line item to pay third party costs and expenses incurred by the CRA up to the maximum of Fifty Thousand and No/100 Dollars ($50,000.00). 10.7 Development of Phase IV. As soon as available, Developer shall submit to the Executive Director for review and approval, which approval shall not be unreasonably withheld, conditioned or delayed the following: 33 10.7.1 Phase IV Construction Contract. The construction contract for Phase IV (the "Phase IV Construction Contract"), together with the "schedule of values" for Phase IV, which shall include the obligation of the general contractor to comply with the participation requirements set forth in Section 11.2 of this Agreement, 10.7.2 Loan Commitment. A loan commitment from a financial institution evidencing that Developer has obtained a construction loan commitment for the development of Phase IV (the "Phase IV Loan Commitment") which shall be in form and substance reasonably acceptable to the Executive Director. The Executive Director shall not have approval rights over the loan terms or equity investment terms. The approval of the Executive Director shall be limited to the issue of when the Phase IV Loan Commitment reflects if funds will be available for the construction of Phase IV and the amount of funds which will be available for construction of Phase IV. 10.7.3 Equity. Evidence reasonably satisfactory to the Executive Director that Developer has sufficient equity available to meet the equity requirement of the Phase IV Loan Commitment with respect to Phase IV (the "Phase IV Equity"). 10.8 CRA Approval. The Executive Director shall have fifteen (15) days after receipt of each of the items required by Section 10.7 to review and approve 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 and Executive Director shall utilize its good faith efforts to address the comments and concerns of the Executive Director to amicably resolve any disputes. 11. MINOTUTY AND WOMEN'S PARTICIPATION AND EQUAL EMPLOYMENT OPPOR 1'C.TNTTY. 11.1 Minority arid 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 34 race, color, place of birth, religion, national origin, sex, age, marital status, veterans and disability status; (vi) Post in conspicuous places, availability to employees and applicants for employment, notices in a form to be provided to the Executive Director, setting forth the non-discrimination clauses of this Section 11.1. (vii) In all solicitations and advertisements for employment placed by or on behalf of Developer, state that all applicants will receive consideration for employment without regard to race, creed, color or national origin. 11,2 Participation Requirements. Developer agrees to comply with the following subcontractor participation requirements and laborer participation requirements (the "Participation Requirements") with respect to each Phase of the Project: 11.2.1 Subcontractor Participation. With respect to each Phase of the Project, the Developer shall cause its general contractor to hire not less than twenty percent (20%) of the subcontractors for such Phase utilizing companies that have their principal place of business within the County, giving first priority to subcontractors whose principal place of business is the Redevelopment Area, second priority to subcontractors whose principal place of business is Overtown, third priority to subcontractors whose principal place of business is within District 5 of the City, fourth priority to subcontractors whose principal place of business is the City and last priority to subcontractors whose principal place of business is Miami -Dade County (the "Subcontractor Priority"). For purpose of calculating the twenty percent (20%) subcontractor participation, the twenty percent (20%) participation shall be calculated based upon the dollar value of each subcontract given to subcontractors whose principal place of business is within the County (utilizing the Subcontractor Priority) and the total dollar value of all subcontracts entered into by the general contractor for such Phase ("Subcontractor Participation Requirements"). 11.2.2 Laborer Participation. Developer agrees to cause its General contractors and all subcontractors to hire forty percent (40%) of' the unskilled labor for construction of the applicable Phase ("Laborer Partieipatior Requirement") from workers residing in the County giving first priority to workers residing in the Redevelopment Area, second priority to workers residing in Overtown, third priority to workers residing in District 5 of the City, fourth priority to workers residing in the City and last priority to workers residing in the County (the "Laborer Priority"). Within thirty (30) days of approval of the plans for the applicable Phase, Developer shall submit to the Executive Director for review and approval Developer's estimate for the number of unskilled laborers which will be required for the construction of such Phase (the "Labor Estimate"). The Executive Director shall have fifteen (15) days from receipt of the Labor Estimate to approve or disapprove sane which approval shall not be unreasonably withheld. The Developer shall provide to the Executive Director such additional back-up information as the Executive Director may reasonably request to enable the Executive to analyze the Labor Estimate. 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 35 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 or disapproval of the Executive Director in accordance with the procedure outlined above for the original submission until it is approved or deemed approved by the Executive Director. The Executive Director and the Developer shall, in good faith, attempt to resolve any disputes regarding the Labor Estimate. If the Executive Director rejects the Labor Estimate and fails within fifteen (15) days to resolve the dispute, the Developer may elect to submit such dispute regarding the approval of the Labor Estimate to the CRA Board for resolution. The Labor Estimate approved or deemed approved by the Executive Director shall be utilized by the Executive Director to determine compliance with the Laborer Participation Requirement for such Phase unless Developer is able to establish manifest error in the Labor Estimate for such Phase based upon the actual number of laborers required for the construction of such Phase. 11.2.3 Disputes. In the event of any disputes between the Executive Director and the Developer as to where any subcontractor has its principal place of business or where any laborer resides, the determination of the Executive Director based upon documentation provided by the Developer shall be binding upon the parties. 11.3 Report Requirements. With respect to each Phase of the Project, Developer shall be required to submit to the Executive Director on a quarterly basis commencing three (3) months after commencement of construction of each Phase, detailed reports evidencing compliance with the Subcontractor Participation Requirements and the Laborer Participation Requirements during the prior three (3) month period ("Participation Reports"). The Participation Reports shall contain such information as the Executive Director may reasonably require to enable the Executive Director to determine whether the Developer is in compliance with the Subcontractor Participation Requirements and the Laborer Participation Requirements, including without limitation whether Developer has complied with the Subcontractor Priority and the Laborer Priority requirements. 11.4 Failure to Comply with Priority Requirements. In the event the Developer fails to cause its general contractor to comply with the Subcontractor Priority, no credit will be given for subcontractors whose principal place of business is located outside of the City in determining satisfaction of the Subcontractor Participation Requirement. In the event Developer fails to cause its general contractor and subcontractors to comply with the Laborer Priority, no credit will be given for Laborers residing outside of the City in determining satisfaction of the Laborer Participation Requirement. 11.5 Penalties for Non -Compliance with Subcontractor Participation Requirements. With respect to each Phase of the Project, to the extent Developer fails to comply with the :Subcontractor Partticipation Requirements, with respect to such Phase, Developer shall pay to the CRA as a penalty for such non-compliance Two Thousand Five Hundred Dollars ($2,500.00) for each percentage point below the Subcontractor Participation Requirement with respect to such Phase (the ':Subcontractor Non -Compliance Funds"). The Subcontractor Nori- Compliance Funds shall be calculated by the Executive Director after completion of each Phase, taking into account Developer's compliance with the Subcontractor Priority, and shall be due and payable within thirty (30) .days from the date of Developer's receipt of written statement from 36 the Executive Director setting forth the amount of Subcontractor Non -Compliance Funds due for such Phase. To the extent of any dispute between the Executive Director and the Developer with respect to the compliance with the Subcontractor Participation Requirements for such Phase and compliance with Subcontractor Priority, such dispute shall be submitted to Arbitration. 11.6 Penalties for Non -Compliance with Laborer Participation Requirements. With respect to each Phase of the Project, to the extent Developer fails to comply with the applicable Laborer Participation Requirements, with respect to such Phase, Developer shall pay to the CRA as a penalty for such non-compliance One Thousand Dollars ($1,000.00) for each percentage point below the Laborer Participation Requirement with respect to such Phase (the "Laborer Non -Compliance Fund"). The Laborer Non -Compliance Funds shall be calculated by the Executive Director after completion of each Phase, taking into account the Developer's compliance with the Laborer Priority, and shall be due and payable within thirty (30) days from the date of Developer's receipt of written statement from the Executive Director setting forth the amount of Laborer Non -Compliance Funds due. To the extent of any dispute between the Executive Director and the Developer with respect to the compliance with the Laborer Participation Requirements for such Phase and compliance with the Laborer Priority, such dispute shall be submitted to Arbitration, which shall be binding on the parties. 11.7 Payment. Payment by Developer of the Subcontractor Non -Compliance Funds determined to be due pursuant to this Agreement, if any, and payment by Developer of the Laborer Non -Compliance Funds, if any, determined to be due pursuant to this Agreement shall be deemed compliance with this Section 11. 12. AFFORDAIHLE RENTAL 1 LOUSING PITASE I. 12.1 Phase I Affordable Rental Requirement. Developer shall rent (i) at least fifty percent (50%) of the units in Phased to qualified households whose gross income is at or below sixty percent (60%) of the Miami -Dade County median income ("AMI'"): and (ii) rentthe balance of the units in Phase I to qualified renters whose gross income is not more than 120% of the AMI (collectively the "Phase I. Affordable Rental Requirement") in accordance with the terms of the Restrictive Covenant. The Phase I Affordable Rental Requirement shall be reduced to one hundred percent (100%) of the units in Phase I being rented to qualified households whose gross income is not more than one hundred -twenty percent (120%) of AMI after fifteen (15) years from Phase I Completion as more particularly provided in the Restrictive Covenant. 12.2 Restrictive Covenant. At Closing the Developer, the Non -Profit and the CRA shall execute a restrictive covenant in substantially the form of Exhibit "K" attached hereto and made a part hereof (the "Restrictive Covenant") which will run with Phase I for a period of thirty (30) years from Phase I Completion as more particularly provided in the Restrictive Covenant. 13. CONDITIONS PRECEDENT PI EASE I. 13.1 The obligations of the CRA to close the transaction contemplated by this Agreement with respect to Phase I is subject to the satisfaction or waiver of the following conditions precedent (the "CRA Phase I Conditions Precedent"): 37 13.1.1 The Executive Director shall have approved the Phase I Budget. 13.1.2 The Executive Director shall have approved the Phase I Plans and Specifications. 13.1.3 The Executive Director shall have approved the Phase I Construction Contract. 13.1.4 The Executive Director shall have approved the Phase I Loan Commitment. 13.1.5 The Executive Director shall have confirmed the Phase I Equity. 13.1.6 The Executive Director, the Developer, the Institutional Investor, the Non -Profit, GGI (or the Controlled Entity) and the Phase I Lender have approved the Phase I Funding Agreement. 13.1.7 The Phase I Lender is prepared to close the construction loan with respect to Phase I in accordance with terms of the Phase I Loan Commitment. 13,1.8 The Executive Director shall have confirmed that there has been no change in the ownership structure of Developer or the ownership interest in the Developer except as permitted pursuant to Section 27 and that the CBO owns not less than a ten percent (10%) ownership interest in the Developer as required by Section 28. 13.1.9 Developer shall have provided to the Executive Director a payment and performance bond in form and substance satisfactory to the Executive Director in an amount equal to one hundred percent (100%) of the construction costs for Phase I, which shall be issued by a surety having a credit rating of "A" or higher with a financial strength of X or higher (the "Phase I Payment and Performance Bond"). The Phase I Payment and Performance Bond shall insure lien -free completion of Phase I. 13.1.10 The Developer shall have obtained a building permit to enable the Developer to construct Phase I in accordance with the Phase I Plans or provided the Executive Director with evidence that the building permit for construction of Phase I, in accordance with the Phase I Plans, is ready to be issued only upon payment of the building permit fee and impact fees. 13.1.11 The Executive Director shall have approved the Non -Profit and the Non -Profit Loan Documents. 13.1.12 The Executive Director has approved the GP Loan Documents. 13.2 In the event the CRA Phase I Conditions Precedent are not satisfied or waived by the CRA on or before the Phase I 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 38 termination of this Agreement, or (ii) waive the condition and proceed in accordance with this Agreement. The CRA shall only consider waiving conditions set forth in Section 13.1 if requested to do so by Developer. The decision to waive conditions set forth in Section 13.1 shall be in the sole discretion of the CRA. 14. CLOSING DATE PHASE I. 14.1 Closing. The closing of the transaction contemplated by this Agreement with respect to Phase I (the "Phase I Closing Date") shall occur on the earlier of (a) ten (10) days after all the CRA Phase I Conditions Precedent have been either satisfied or waived by the CRA in accordance with Section 13.2, or (b) Four Hundred Fifty (450) days after the Effective Date, time being of the essence. On the Phase I Closing Date the following shall occur provided all of the CRA Phase I Conditions Precedent have been satisfied or waived: 14.1.1 The CRA shall deliver to Developer at closing: 14.1.1.1 A special warranty deed in the form of Exhibit "L" attached hereto and made a part hereof with respect to the Phase I Property. 14.1.1.2 A certified copy of the resolution authorizing the conveyance by the CRA and the execution and delivery of the documents contemplated by this Agreement. 14.1.1.3 The Phase I Funding Agreement executed by the CRA. 14.1.1.4 A no lien, gap and possession affidavit. 14.1.1.5 A FIRPTA affidavit. 14.1.1.6 An easement agreement to allow for parking on the Phase II Property in the form of Exhibit "M" (the "Phase I Easement") executed by the CRA. 14.1.1.7 The Restrictive Covenant executed by the CRA. 14.1.1.8 Such other documents as the title company may reasonably request. closing: 14.2 Developer shall deliver to the CRA or cause to be delivered to the CRA at 14.2.1 Evidence of authority to close the transaction and execute and deliver the appropriate closing documents. 14.2.2 The Phase I Payment and Performance Bond. 14,2.3 The Phase I Funding Agreement executed by the Developer, the Institutional Investor, the Phase I Lender, the Non -Profit and GGI (or the Controlled Entity). 14.2.4 The Phase I Easement executed by the Developer. 39 14.2.5 The Restrictive Covenant executed by the Developer and the Non -Profit. 14.2.6 Such other documents as the title company may reasonably request. 14.3 The documentary stamp tax and surtax to be affixed to the deed, the Phase I Easement and the cost for recording the deed, the Restrictive Covenant and the Phase I Easement shall be paid by the Developer. Each party shall bear the cost of the fees of their own respective attorneys and other professionals and the cost of their own respective performance under this Agreement. 14.4 Closing with respect to Phase I by the CRA shall constitute evidence of the Developer's compliance with its obligations herein set forth in Sections 6.2, 7.1, 7.2, 7.5, 7.6, 7.7, 27, and 28 of this Agreement with respect to Phase I. 15. CONDITIONS PRECEDENT PHASE II. 15.1 The obligations of the CRA to close the transaction contemplated by this Agreement with respect to Phase II is subject to the satisfaction or waiver of the following conditions precedent (the "CRA Phase II Conditions Precedent"); 15.1.1 The Executive Director shall have approved the Phase II Plans and Specifications. 15.1.2 The Executive Director shall have approved the Phase II Construction Contract. 15.1.3 The Executive Director shall have approved the Phase II Loan Commitment. 15.1.4 The Executive Director shall have approved the Phase II Equity. 15.1.5 The Phase II Lender is prepared to close the construction loan with respect to Phase II in accordance with the terms of the Phase II Loan Commitment. 15.1.6 The Developer has confirmed that there has been no change in the ownership structure of the Developer or the ownership interest in the Developer except as permitted pursuant to Section 27 and that the CBO owns not less than a ten percent (10%) ownership interest in the Developer as required by Section 28. 15.1.7 Developer shall have provided to the Executive Director a payment and performance bond in form and substance satisfactory to the Executive Director in an amount equal to one hundred percent (100%) of the construction costs for Phase II, which shall be issued by a surety having a credit rating of "A" or higher with a financial strength of X or higher (the "Phase II Payment and Performance Bond"). The Phase II Payment and Performance Bond shall insure lien -free completion of Phase II. 40 15.1.8 The Developer shall have obtained a building permit to enable the Developer to construct Phase II in accordance with the Phase II Plans, or provided the Executive Director with evidence that the building permit for construction of Phase II in accordance with the Phase II Plans to be issued only upon payment of the building permit fee and impact fees. 15.2 In the event the CRA Phase II Conditions Precedent are not satisfied or waived by the CRA on or before the Phase II Closing Date, then the CRA may either (i) terminate this Agreement with respect to Phase II in which event the parties shall be released from all further obligations under this Agreement with respect to Phase II except for the obligations under this Agreement which expressly survive the termination of this Agreement with respect to Phase II, or (ii) waive the condition and proceed in accordance with this Agreement. The CRA shall only consider waiving conditions set forth in Section 15.1 if requested to do so by the Developer. The decision to waive conditions set forth in Section 15.1 shall be in the sole discretion of the CRA. 16. CLOSING DATE PHASE II. 16.1 Closing. The closing of the transaction contemplated by this Agreement with respect to Phase II (the "Phase II Closing Date") shall occur on the earlier of (a) ten (10) days after all the CRA Phase IT Conditions Precedent have been either satisfied or waived by the CRA in accordance with Section 15.2, or (b) six (6) years from the Effective Date, time being of the essence. On the Phase II Closing Date the following shall occur provided all of the CRA Phase II Conditions Precedent have been satisfied or waived: 16.1.1 The CRA shall deliver to Developer at closing: 16.1.1.1 A special warranty deed in the form of Exhibit "N" attached hereto and made a part hereof with respect to the Phase II Property. 16.1.1.2 A certified copy of the resolution authorizing the conveyance by the CRA and the execution and delivery of the documents contemplated by this Agreement. 16.1.1.3 The no lien, gap and possession affidavit. request. closing: 16.1.1.4 A FIRPTA affidavit. 16.1.1.5 Such other documents as the title company may reasonably 16.2 Developer shall deliver to the CRA or cause to be delivered to the CRA at 16.2.1 Evidence of authority to close the transaction and execute and deliver the appropriate closing documents. 16.2.2 Phase II Payment and Performance Bond. 41 16.2.3 Such other documents as the title company may reasonably request. 16.3 The documentary stamp tax and surtax to be affixed to the deed and the cost for recording the deed shall be paid by the Developer. Each party shall bear the cost of the fees of their own respective attorneys and other professionals and the cost of their own respective performance under this Agreement. 16.4 Closing with respect to Phase II by the CRA shall constitute evidence of the Developer's compliance with its obligations hereunder set forth in Sections 6.2, 8.2, 8.3, 8.6 8.7, 27, and 28 of this Agreement with respect to Phase II. 17. CONDITIONS PRECEDENT PHASE III. 17.1 The obligations of the CRA to close the transaction contemplated by this Agreement with respect to Phase III is subject to the satisfaction or waiver of the following conditions precedent (the "CRA Phase III Conditions Precedent"): 17.1.1 The Executive Director shall have approved the Phase III Budget. 17.1.2 The Executive Director shall have approved the Phase III Plans and Specifications. 17.1.3 The Executive Director shall have approved the Phase III Construction Contract. 17.1.4 The Executive Director shall have approved the Phase III Loan Commitment, if any. 17.1.5 The Executive Director shall have approved the Phase III Equity, if any. 17.1.6 The Executive Director and the Phase III Lender, if any, have approved the Phase III Funding Agreement. 17.1.7 The Phase III Lender, if any, is prepared to close the construction loan with respect to Phase III in accordance with terms of the Phase III Loan Commitment. 17.1.8 The Executive Director shall have confirmed that there has been no change in the ownership structure of the Developer or the ownership interest of the Developer except as permitted pursuant to Section 27 and that the CEO owns not less than ten percent (10%) ownership interest in the Developer, as required by Section 28. 17.1.9 Developer shall have provided to the Executive Director a payment and performance bond in form and substance satisfactory to the Executive Director in an amount equal to one hundred percent (100%) of the construction costs for Phase III, which 42 shall be issued by a surety having a credit rating of "A" or higher with a financial strength of X or higher (the "Phase III Payment and Performance Bond"). The Phase III Payment and Performance Bond shall insure lien -free completion of Phase III. 17.1.10 The Developer shall have obtained a building permit to enable the Developer to construct Phase III in accordance with the Phase III Plans, or provided the Executive Director with evidence that the building permit for construction of Phase III in accordance with the Phase III Plans is ready to be issued only upon payment of the building permit fee and impact fees. 17.1.11 The Developer and the CRA have agreed to the terms of the Phase III/IV Parking Easement Agreement. 17.1.12 The Developer has obtained all applicable land use and zoning approvals for Phase III prior to the Zoning Approval Deadline, as same may be extended. 17.2 In the event the CRA Phase III Conditions Precedent are not satisfied or waived by the CRA on or before the Phase III Closing Date, then the CRA may either (i) terminate this Agreement with respect to Phase III in which event the parties shall be released from all further obligations under this Agreement with respect to Phase III except for the obligations under this Agreement which expressly survive the termination of this Agreement, or (ii) waive the condition and proceed in accordance with this Agreement. The CRA shall only consider waiving conditions set forth in Section 17.1 if requested to do so by the Developer. The decision to waive conditions set forth in Section 17.1 shall be in the sole discretion of the CRA. The termination of this Agreement as to Phase III as a result of the failure of the Developer to satisfy the Phase III Conditions Precedent on or before the Phase III Closing Date shall not be deemed a default under this Agreement and shall not have any effect on the rights and obligations of the Developer with respect to other Phases. 18. CLOSING DATE PHASE III. 18.1 Closing. The closing of the transaction contemplated by this Agreement with respect to Phase III (the "Phase III Closing Date") shall occur on the earlier of (a) ten (10) days after all the CRA Phase III Conditions Precedent have been either satisfied or waived by the CRA in accordance with Section 17.2, or (b) two (2) years after the Block 36 Notice, time being of the essence. On the Phase III Closing Date the following shall occur provided all of the CRA Phase III Conditions Precedent have been satisfied or waived: 18.1.1 The CRA shall deliver to Developer at closing: 18.1.1.1 The Phase III/IV Parking and Easement Agreement executed by the CRA.. closing: 18.1.1.2 The Phase III Funding Agreement executed by the CRA. 18.2 Developer shall deliver to the CRA or cause to be delivered to the CRA at 43 18.2.1 Evidence of authority to close the transaction and execute and deliver the appropriate closing documents. 18.2.2 The Phase III Payment and Performance Bond. 18.2.3 The Phase III Funding Agreement executed by the Developer and Phase III Lender, if any. 18.2.4 The Phase III/IV Parking Easement executed by Developer and the Phase III Lender, if any. 18.3 The documentary stamp tax and surtax to be affixed to the Phase III/IV Easement and the cost for recording the Phase III/IV Parking Easement shall be paid by the Developer. Each party shall bear the cost of the fees of their own respective attorneys and other professionals and the cost of their own respective performance under this Agreement. 18.4 Closing with respect to Phase III by the CRA shall constitute evidence of the Developer's compliance with its obligations set forth in subsections 6.2, 9.6, 9.7, 27, and 28 of this Agreement with respect to Phase III. 19. CONDITIONS PRECEDENT PHASE IV. 19.1 The obligations of the CRA to close the transaction contemplated by this Agreement with respect to Phase IV is subject to the satisfaction or waiver of the following conditions precedent (the "CRA Phase IV Conditions Precedent"): 19.1.1 The Executive Director shall have approved the Phase IV Plans and Specifications. 19.1.2 The Executive Director shall have approved the Phase IV Construction Contract. 19.1.3 The Executive Director shall have approved the Phase IV Loan Commitment. 19.1.4 The Executive Director shall have approved the Phase IV Equity. 19.1.5 The Phase IV Lender is prepared to close the construction loan with respect to Phase IV in accordance with the terms of the Phase IV Loan Commitment. 19.1.6 The Developer has confirmed that there has been no change in the ownership structure of the Developer or the ownership interest in the Developer except as permitted pursuant to Section 27 and that the CBO owns not less than ten percent (10%) ownership interest in the Developer as required by Section 28. 19.1.7 Developer shall have provided to the Executive Director a payment and performance bond in form and substance satisfactory to the Executive Director in 44 an amount equal to one hundred percent (100%) of the construction costs for Phase IV, which shall be issued by a surety having a credit rating of "A" or higher with a financial strength of X or higher (the "Phase IV Payment and Performance Bond"), The Phase IV Payment and Performance Bond shall insure lien -free completion of Phase IV. 19.1.8 The Developer shall have obtained a building permit to enable the Developer to construct Phase IV in accordance with the Phase IV Plans or provided the Executive Director with evidence that the building permit for the construction of Phase IV in accordance with the Phase IV Plans is ready to be issued only upon payment of the building permit fee and impact fees. 19.1.9 The Developer and the CRA have approved the terms of the Phase III/IV Parking Easement. 19.1.10 The Developer has obtained all applicable land use and zoning approvals for Phase IV prior to the Zoning Approval Deadline, as same may be extended. 19.2 In the event the CRA Phase IV Conditions Precedent are not satisfied or waived by the CRA on or before the Phase IV Closing Date, then the CRA may either (i) terminate this Agreement with respect to Phase IV in which event the parties shall be released from all further obligations under this Agreement with respect to Phase IV except for the obligations under this Agreement with respect to Phase IV which expressly survive the termination of this Agreement, or (ii) waive the condition and proceed in accordance with this Agreement. The CRA shall only consider waiving conditions set forth in Section 19.1 if requested to do so by the Developer. The decision to waive conditions set forth in Section 19.1 shall be in the sole discretion of the CRA. The termination of this Agreement as to Phase IV as result of the failure of the Developer to satisfy the Phase IV Conditions Precedent on or before the Phase IV Closing Date shall not be deemed a default under this Agreement and shall not have any effect on the rights and obligations of the Developer with respect to other Phases. Developer shall have no Liability under the Block 36 Restrictions unless Developer takes title to the Phase IV Property. 20. CLOSING DATE PHASE IV. 20.1 Closing. The closing of the transaction contemplated by this Agreement with respect to Phase IV (the "Phase IV Closing Date") shall occur on the earlier of (a) ten (10) days after all the CRA Phase IV Conditions Precedent to closing have been either satisfied or waived by the CRA in accordance with Section 19.2, or (b) two (2) years after the Block 36 Notice, time being of the essence. Notwithstanding the foregoing, in the event the Lyric Plat has not been recorded within twelve (12) months from the Effective Date, as same may be extended by Block 36 Unavoidable Delays and delays caused by the Black Archives, then the time frame set forth in this Section 20.1 shall automatically be extended one day for each additional day until the Lyric Plat is recorded. Notwithstanding anything herein to the contrary, if the Block 36 Notice is not issued within two (2) years of the Effective Date this Agreement shall be of no further force and effect with respect to Phase III and Phase IV in which event the parties shall be released from all further obligations under this Agreement with respect to Phase III and Phase IV except for the obligations under this Agreement which expressly survive the termination of this 45 Agreement with respect to Phases III and IV. On the Phase IV Closing Date the following shall occur provided that the CRA Phase IV Conditions Precedent have been satisfied or waived: 20.1.1 The CRA shall deliver to Developer at closing: 20.1.1.1 A special warranty deed in the form of Exhibit "0" attached hereto and made a part hereof with respect to the Phase IV Property. 20,1.1.2 A no lien, gap and possession affidavit. 20.1.1.3 A FIRPTA affidavit. 20.1.1.4 The Phase III/IV Parking Easement Agreement, executed by the CRA, if not previously recorded. 20.1.1.5 Such other documents as the title company may reasonably request. 20.2 Developer shall deliver to the CRA or cause to be delivered to the CRA at closing: 20.2.1 Evidence of authority to close the transaction and execute and deliver the appropriate closing documents. 20.2.2 The Phase IV Payment and Performance Bond. 20.2.3 The Phase III/IV Parking Easement Agreement, executed by Developer if not previously recorded. 20.2,4 Such other documents as the title company may reasonably request. 20.3 The documentary stamp tax and surtax to be affixed to the deed and the Phase III/IV Parking Easement Agreement, if necessary, and the cost for recording the deed and the Phase III/IV Parking Easement Agreement, if necessary, shall be paid by the Developer. Each party shall bear the cost of the fees of their own respective attorneys and other professionals and the cost of their own respective performance under this Agreement. 20.4 Closing with respect to Phase IV by the CRA shall constitute evidence of the Developer's compliance with the obligations set forth in Sections 6.2, 10.2, 10.3, 10.6, 10.7, 27, and 28 of this Agreement with respect to Phase IV. 21. ADDITIONAL BLOCK 36 DEVELOPMENT REOUIRF,MENTS. Developer acknowledges and agrees that the following additional requirements shall apply with respect to the Phase III Property and the Phase IV Property under the terms of the proposed Reverter Settlement Agreement: 46 21.1 compliance with the terms, conditions and timeframes of' the Block 36 Restrictions. 21.2 Phase IV shall contain elements preserving history of the Overtown Area while incorporating the theme of "Live, Work and Play" contemplated by the Design Guidelines. 21.3 information regarding job opportunities for local area residents and businesses to allow them to participate in the construction of Phase III and Phase IV, including at least two (2) local job fairs prior to commencement of Phase III and Phase IV. 21.4 information as to job opportunities for local residents and local businesses post -construction including newly generated trade and service related jobs, including at least one (1) local job fair upon completion of Phase III and Phase IV, respectively. 21.5 to the extent required by the City of Miami Zoning Code, Developer shall plat Phase III and Phase IV. 22. ORGANIZATIONAL. DOCUMENTS OF DEVELOPER. As of the Effective Date, the documents attached as Exhibit "P" hereto constitute all the organizational documents with respect to Developer, including, without limitation, a copy of the operating agreement. Attached hereto as Exhibit "Q" is a list identifying all individuals and entities having an ownership interest in Developer. Attached hereto as Exhibit "R" is a copy of the organizational documents of the Managing Member of the Developer and a list of all individuals and entities having an ownership interest in the Managing Member of Developer. 23. REPRESENTATIONS OF CRA. The CRA makes the following representations: 23.1 The CRA is duly organized and validly existing under the laws of the State of Florida and has full power and capacity to own its properties, to carry on its business as presently conducted by the CRA, and to perform its obligations under this Agreement. 23.2 The CRA's execution, delivery and performance of this Agreement have been duly authorized by all necessary legal actions and 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 CRA's property may be bound or affected, except for such approvals required by this Agreement. 23.3 This Agreement constitutes the valid and binding obligation of the CRA, enforceable against the CRA, and its successors and assigns, in accordance with its respective terms, subject to bankruptcy, insolvency and other similar laws affecting the rights of creditors generally. 24. DEVELOPER'S REPRESENTATIONS. Developer makes the following representations to the CRA as follows: 24.1 Developer is a limited liability company duly organized and validly existing under the laws of Florida duly qualified to transact business in the State of Florida, and 47 has full power and capacity to own the Property, to carry on its business as presently conducted, and to enter into the transactions contemplated by this Agreement. 24.2 Developer's execution, delivery and performance of this Agreement have been duly authorized by all necessary company 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. 24.3 This Agreement constitutes the valid and binding obligation of Developer, enforceable against Developer and its successors and assigns, in accordance with its terms, subject to bankruptcy, insolvency and other similar laws affecting the rights of creditors generally. 25. DEFAULT. 25.1 Developer Failure to Perform. 25.1.1 If the Phase I Conditions Precedent are not satisfied or waived by the CRA on or before the Phase I Closing Date, this Agreement shall terminate except for the obligations that expressly survive termination of this Agreement. 25.1.2 If the Phase II Conditions Precedent are not satisfied or waived by the CRA on or before the Phase II Closing Date, this Agreement shall terminate with respect to Phase II except for the obligations that expressly survive termination of this Agreement. 25.1.3 If the Phase III Conditions Precedent and the Phase IV Conditions Precedent are not satisfied or waived by the CRA on or before the Phase III Closing Date and the Phase IV Closing Date, this Agreement shall terminate with respect to Phase III and Phase IV except for the obligations that expressly survive termination of this Agreement. Should the CRA elect to have DOS? construct Phase III pursuant to Section 9.10, the Developer's failure to satisfy the Phase III Conditions Precedent shall not constitute grounds for termination of this Agreement with respect to Phase IV. 25.1.4 In the event Developer defaults with respect to its obligations under Sections 11.2 or 12.2 of this Agreement, which default is not cured within thirty (30) days of written notice from the CRA or such longer period of time not to exceed ninety (90) days if the default by its nature cannot be cured within thirty (30) days provided Developer commences the curative action within the thirty (30) day period and diligently pursues the cure, the CRA shall be entitled to seek specific performance of Sections 11.2 or 12.2, as applicable, in addition to the penalties contained therein. 25.1.5 In the event this Agreement contains any material misrepresentations by the Developer, the CRA, as it sole and exclusive remedy, may terminate this Agreement with respect to any Phase not previously conveyed to Developer, in which event the parties shall be released from all further obligations under this Agreement with respect to such terminated Phase(s), except for the obligations that expressly survive termination. 48 25.2 CRA Failure to Perform. In the event of a default by the CRA under this Agreement which is not cured within thirty (30) days of written notice from Developer or such longer period of time reasonably required, not to exceed ninety (90) days if the default by its nature cannot be cured within thirty (30) days provided the CRA commences the curative action within thirty (30) days and diligently pursues the cure, without any default on the part of Developer, Developer, as its sole and exclusive remedy, shall be entitled to (i) terminate this Agreement, with respect to any Phase(s) that have not been conveyed to the Developer, in which event the parties shall be released from all further obligations under this Agreement with respect to such Phases, except for the obligations that expressly survive the termination, or (ii) sue for specific performance to enforce the terms of this Agreement. Developer waives any other remedies it may have against the CRA at law or in equity as a result of a breach of this Agreement including, without limitation, the right to seek damages against the CRA. 26. BROKERS. The parties each represent and warrant to the other that there are no real estate broker(s), salesman (salesmen) or finder(s) involved in this transaction. If a claim for commissions in connection with this transaction is made by any broker, salesman or finder claiming to have dealt through or on behalf of one of the parties hereto ("Indemnitor"), Indemnitor shall indemnify, defend and hold harmless the other party hereunder ("Indemnitee"), and Indemnitee's officers, directors, agents and representatives, from and against all liabilities, damages, claims, costs, fees and expenses whatsoever (including reasonable attorney's fees and court costs at trial and all appellate levels) with respect to said claim for commissions. Notwithstanding anything to the contrary contained in this Agreement, the provisions of this Paragraph shall survive the delivery of any special warranty deed. 27. ASSIGNABILITY. 27.1 This Agreement may not be assigned without the approval of the CRA, which approval may be granted or withheld by the CRA, in its sole discretion except as provided in Section 27.2 below. For the purpose of this Section 27.1, each of the following events shall be deemed an assignment requiring the approval of the CRA, which approval may be granted or withheld by the CRA, in its sole discretion: 27.1.1 the change in control of Developer which is currently controlled by The Gatehouse Group, Inc., a Massachusetts corporation ("GGI"); 27.1.2 transfer of more than 49% of the stock ownership in GGI which is currently owned by Marc S. Plonskier and David J. Canepari or change in control of GGI which is controlled by Marc S. Plonskier and David J. Canepari; and 27.1.3 the transfer of more than 51% of the membership interest in Developer. 27.2 Developer may assign its rights with respect to any Phase under this Agreement, in whole or in part, to a Permitted Assignee. The term "Permitted Assignee" means an entity which shall perform and assume Developer's obligations under this Agreement with respect to the Phase or Phases assigned and may include any corporation, limited partnership, or limited liability company, provided: 49 27.2.1 If a corporation, the corporation is not less than 20% owned by Marc S. Plonskier and/or David J. Canepari and controlled by Marc S. Plonskier and/or David J. Canepari; provided, however, with respect to Phase IV only the requirement shall be that the corporation is not less than 20% owned by Marc S. Plonskier and/or David J. Canepari or controlled by Marc S. Plonskier and/or David J. Canepari. 27.2.2 If a limited partnership, the general partner(s) is owned (20% or more) and controlled by Marc S. Plonskier and/or David J. Canepari; provided, however, with respect to Phase IV only the requirement shall be that the general partner(s) is 20% owned by Marc S. Plonskier and/or David J. Canepari and/or controlled by Marc S. Plonskier and/or David J. Canepari. 27.2.3 If a limited liability company, the managing member(s) is owned (20% or more) and controlled by Marc S. Plonskier and/or David J. Canepari; provided, however, with respect to Phase IV only the requirement shall be that the managing member(s) is owned (20% or more) or controlled by Marc S. Plonskier and/or David J. Canepari. 27.3 Prior to any proposed assignment to a Permitted Assignee, Developer shall submit to the Executive Director such documentation the Executive Director may reasonably request to confirm that the proposed assign qualifies as a Permitted Assignee. 27.4 Upon approval of the assignment of any Phase by the CRA in accordance with Section 27.1 or the assignment of a Phase to a Permitted Assignee in accordance with Section 27.2, and the assumption of all of the duties and obligations under this Agreement from and after the date of such assignment with respect to such Phase by the assignee, the Developer shall be released from any further obligations under this Agreement arising from and after the date of such assignment. 27.5 Upon the conveyance of a Phase by the CRA, the transfer restrictions contained in this Section 27 shall no longer apply with respect to that Phase. 28. COMMUNITY BASED ORCIANIZATIONS. 28.1 Developer represents and warrants to the CRA that a not -for -profit Florida corporation based in the Redevelopment Area (or the City with the approval of the Executive Director which shall not be unreasonably withheld) (the "CBO") shall own not less than a ten percent (10%) ownership interest in Developer, and if any Phase is assigned to a Permitted Assignee, the CBO shall own not less than a ten percent (10%) interest in the Permitted Assignee. The ten percent (10%) ownership interest of the CBO in the Developer and in any Permitted Assign shall be after the transfer of any interest to any Institutional Investor purchasing the tax credits, if any, or any other equity investor which is not affiliated with Marc S. Plonskier, David J. Canepari, GGI or any of them. It is the intent of the parties that the CBO own ten percent (10%) of the interest retained and economic benefits realized by GGI, Marc S. Plonskier and David J. Canepari and any of their affiliates collectively with respect to the entity owning each Phase. The Developer agrees to provide technical assistance and to help mentor and train employees of the CBO in all areas of the affordable, multi -family housing development 50 and management appropriate in scale and consistent with its mission, through the completion of the Project. 28.2 In addition to Section 28.1 above, the Developer agrees to pay to the CBO or another not -for -profit community based organization based in the Redevelopment Area approved by the Executive Director, which approval shall not be unreasonably withheld, One Hundred Fifty Thousand and No/100 Dollars ($150,000.00) on the Phase I Closing Date and to pay to the CBO or another not -for -profit community based organization based in the Redevelopment Area approved by the Executive Director, which approval shall not be unreasonably withheld, One Hundred Fifty Thousand and No/100 Dollars ($150,000.00) on or before the Phase IV Closing Date. The Developer shall not be required to share any portion of its developer fee with the CBO. 29. NOTICES. Any notices required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been given if delivered by hand, sent by recognized overnight courier (such as Federal Express), sent by fax and another method provided herein or mailed by certified or registered mail, return receipt requested, in a postage prepaid envelope, and addressed as follows: If to Developer: 120 Forbes Blvd., Suite 180 Mansfield, MA 02048-1150 Attention: Marc S. Plonskier Fax: 508-337-2543 With a copy to: Javier E. Fernandez, Esq. Akerman Senterfitt 1 SE Third Avenue, 25th Floor Miami, FL 33131 Fax: 305-374-5095 With a copy to: Stearns Weaver Miller Weisler Alhadeff & Sitterson, P.A. 150 West Flagler, Suite 2200 Miami, Florida 33130 Attention: Terry M. Lovell, Esq. Fax: 305-789-2631 51 If to Seller: 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 Notices personally delivered or sent by fax shall be deemed given on the date of delivery and notices mailed in accordance with the foregoing shall be deemed given upon receipt or the date delivery is refused. 30. CHALLENGES. Developer acknowledges and agrees that the CRA shall have no liability whatsoever to Developer in connection with any challenge to this Agreement and the transaction contemplated by this Agreement and Developer hereby forever waives and releases the CRA from any liability whatsoever, now or hereafter arising in connection with any challenge and covenants and agrees not to initiate any legal proceedings against the CRA in connection with any challenges. The Developer, at its sole cost and expense, may contest, on behalf of the CRA, any third party challenge(s) to this Agreement. 31. REAL ESTATE TAXES. 31.1 It is the intention of the CRA and the Developer that upon conveyance of the Property or any portion thereof, to the Developer that the Property or any portion thereof and improvements constructed thereon conveyed to the Developer, 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 Property or any portion thereof conveyed to the Developer. In the event for any reason the Property or any portion thereof actually conveyed to the Developer 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 Property or any portion thereof actually conveyed to the Developer if the Property or any portion thereof actually conveyed to the Developer had not been exempt in whole or in part from the payment of ad valorem real estate taxes. 52 31.2 The obligation of the Developer to make the PILOT shall constitute a covenant running with the land and shall constitute a first lien on any portion of the Property conveyed to the Developer, senior to all other liens and encumbrances and shall be binding upon the Developer and its successors and assigns through December 31, 2029. 32. MISCELLANEOUS. 32.1 This Agreement shall be construed and governed in accordance with the laws of the State of Florida. 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 either of the parties hereto. 32.2 In the event any term or provision of this Agreement is determined by appropriate judicial authority to be illegal or otherwise invalid, such provision shall be given its nearest legal meaning or be construed as deleted as such authority determines, and the remainder of this Agreement shall be construed to be in full force and effect. 32.3 In the event of any litigation between the parties under this Agreement, the prevailing party shall be entitled to reasonable attorney's fees and court costs at all trial and appellate levels. 32.4 In construing this Agreement, the singular shall be held to include the plural, the plural shall be held to include the singular, the use of any gender shall be held to include every other and all genders, and captions and Paragraph headings shall be disregarded. 32,5 All of the exhibits attached to this Agreement are incorporated in, and made a part of, this Agreement. 32.6 Time shall be of the essence for each and every provision of this Agreement. 32.7 This Agreement may not be recorded in the Public Records of Miami - Dade County. 32.8 In the event Developer does not terminate this Agreement during the Inspection Period from and after the approval of the Schematic Design Documents for a particular Phase by the Executive Director, the CRA shall execute any documents and/or applications reasonably requested by the Developer which are required to be executed by the record owner of the Property in connection with any zoning or land use approval or permit applications required to be obtained by the Developer for said Phase to enable to the Phase to be developed in accordance with the terms of the Schematic Design Documents for such Phase, provided such documents and applications do not impose any financial obligations or liability upon the CRA. 32.9 The representations and warranties contained in Section 23 and 24 shall not survive each respective closing. 53 33. Certification. In connection with the CRA Bond Issue the Developer agrees to execute a certificate in substantially the form of Exhibit "S" attached hereto. 34. 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. 35. 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] 54 IN WITNESS hereof the parties have executed this Agreement as of the date first above written. DEVELOPER: LYRIC DEVELOPMENT, LLC, a Florida limited liability comp The Gatehouse Gro a Commonwealth Its manager By: kctre. S. 'leirskrer Title: PiecedeJJ y achusetts corporation, CRA: SOUTHEAST OVERTOWN / PARK WEST COMMUNITY REDEVELOPMENT AGE : Y B arence E. Woods, III, Executive Director AT : 041/8 Clerk of the Board Approved for legal sufficiency By: William R. Bloom, Esq. Holland & Knight LLP, Special Counsel to CRA APPROVED AS TO IN ci lv}� t i, 1 MENTS: agement Administrator fC r Schedule of Exhibits A. Legal Description B. Insurance Requirements C. Permitted Exceptions D. Block 36 Restrictions E. Legal Description for Phase I F. Legal Description for Phase II G. Legal Description for Phase III H. Legal Description for Phase IV I. Phase I Preliminary Budget J. Non -Profit Grant Agreement K. Restrictive Covenenat L. Form of Special Warranty Deed - Phase I M. Phase I Easement N. Form of Special Warranty Deed - Phase II O. Form of Special Warranty Deed - Phase IV P. Organizational Documents of Developer Q. List of individuals and entities that have an ownership interest in Developer R. Organizational Documents of Manager S. Certificate 56 EXHIBIT A Legal Description Parcel 1(Block 25) Lots 5 through 17, inclusive, less the West 7.5 feet of the South 50 feet of Lot 10, all of Block 25, of NORTH, CITY OF MIAMI, according to the Plat thereof as recorded in Plat Book B, Page 41, of the Public Records of Miami - Dade County, Florida. Parcel 2 Block 36) Lots 1, 2, 3, 6, 7, 8, 9, 10, 11, 14, 15, 16, 17, 18, 19, 22, 23, 24, 25, 26, 27, 30, 31, 32, 33, 34, 35, 38, 39, 40, 41, 42, 43, 46, 47 and 48 in Block 36 of P. W. WHITE'S RE -SUBDIVISION, according to the plat thereof as recorded in Plat Book "B", Page 34, of the Public Records of Miami - Dade County, Florida; LESS that portion thereof lying within the Metropolitan Dade County Metrorail right-of-way which is described as follows: Begin at the Southeast corner of said Block 36; thence run South 87° 46' 59" West, along the South line of said Block 36, for a distance of 1.53 feet; thence run North 04° 44' 53" West for a distance of 187.90 feet to a point of intersection with the arc of a circular curve concave to the Southwest, the center of which bears South 82° 00' 08" West from said point of intersection; thence run Northwesterly along the arc of said circular curve concave to the Southwest, having a radius of 987.00 feet, through a central angle of 06° 39' 50", for an arc distance of 114.79 feet to the point of intersection with the North line of said Block 36; thence run North 87° 46' 14" East, along the North line of said Block 36, for a distance of 27.71 feet to the Northeast corner of said Block 36; thence run South 02° 16' 19" East, along the East line of said Block 36, for a distance of 301.01 feet to the Point of Beginning. AND LESS AND EXCEPT: The West 40 feet of Lots 11, 14, 19, 22, 27, 30, 35, 38, 43 and 46 of Block 36 of P. W. WHITE'S RESUBDIVISION, recorded in Plat Book "B", Page 34, of the Public Records of Miami - Dade County, Florida. AND TOGETHER WITH: All right, title and interest, if any, of the CRA in the East 5 feet of the 10 foot alley adjacent to Lots 3 and 6 of Block 36 of P. W. WHITE'S RESUBDIVISION, recorded in Plat Book "B", Page 34, of the Public Records of Miami - Dade County, Florida. AND TOGETHER WITH: 57 All right, title and interest, if any of the CRA in a portion of N.W. 1st Court (being indicated as an un-named right of way 40 feet in width) in Block 36, as shown on the Plat of P. W. WHITE'S RE -SUBDIVISION OF BLOCKS NO. 16-26 AND 36 NORTH OF THE CITY OF MIAMI, according to the plat thereof as recorded in Plat Book "B", Page 34, of the Public Records of Miami -Dade County, Florida. AND TOGETHER WITH All right, title and interest of the CRA in the ten (10) foot alley Lying easterly of the aforementioned "un-named right of way" and adjacent to Lots 1, 2, 7, 8, 9, 10, 15,16, 17, 18, 23, 24, 25, 26, 31, 32, 33, 34, 39, 40, 41, 42, 47 and 48, Block 36 of P.W. WHITE'S RE - SUBDIVISION, recorded in Plat Book "B" at Page 34 of the Public Records of Miami- Dade County, Florida. NOTE: The foregoing property is also described as Tract "D" of Lyric Subdivision on the tentative plat being processed with the City of Miami when the various roads and alleyways have been vacated and roadways dedicated for NW 9th Street and NW 8th Street. 58 EXHIBIT B INSURANCE REQUIREMENTS FOR A CERTIFICATE OF INSURANCE- LYRIC DEVELOPMENT, LLC. I. Commercial General Liability 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 listed as an additional insured Southeast Overtown Park West Community Redevelopment Agency Listed as an additional insured Primary Insurance Clause Endorsement Contingent and Contractual Liability Premises/Operations Liability Explosion, Collapse and Underground Hazard Loading and Unloading II. Business Automobile Liability A. Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Any Auto/Owned/Scheduled Including Hired, Borrowed or Non -Owned Autos Any One Accident $ 1,000,000 B. Endorsements Required City of Miami listed as an additional insured Southeast Overtown Park West Community Redevelopment Agency listed as an additional insured 59 III. Worker's Compensation Limits of Liability Statutory -State of Florida Waiver of subrogation Employer's Liability A. Limits of Liability $1,000,000 for bodily injury caused by an accident, each accident. $1,000,000 for bodily injury caused by disease, each employee $1,000,000 for bodily injury caused by disease, policy limit IV. Umbrella Policy (Excess Follow Form) A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $10,000,000 Aggregate $10,000,000 City of Miami listed as an additional insured Southeast Overtown Park West Community Redevelopment Agency listed as an additional insured V. Payment and Performance Bond $21,000,000 City of Miami and Southeast Overtown Park West Community Redevelopment Agency listed as Obligees VI. Owner's & Contractor's Protective Policy A. Limits of Liability Each Occurrence $1,000,000 Policy Aggregate $1,000,000 City of Miami and Southeast Overtown Park West Community Redevelopment Agency listed as the named insured VII. Builders' Risk Causes of Loss: All Risk -Specific Coverage Project Location Valuation: Replacement Cost Deductible: $2,500 All other Perils 5% maximum on Wind Flood Coverage included City of Miami & Southeast Overtown Park West Community Redevelopment Agency listed as loss payees A. Limit/Value at Location or Site $ 21,000,000 B. Coverage Extensions as provided by carrier The above policies shall provide the City of Miami and the Southeast Overtown park West Community Redevelopment Agency with written notice of cancellation or material change from the insurer 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. 61 EXHIBIT C PERMITTED EXCEPTIONS All Phases: 1. Taxes and assessments for the year of the Closing and subsequent years. Phase I and Phase II 1. Terms and conditions of the Stipulation of Settlement recorded July 18, 1988 in Official Records Book 13752, at Page 1036 of the Public Records of Miami -Dade County, Florida. Phase III and Phase IV 1. All matters contained on the Plat of P.W. White's Re -Subdivision of Block 16, 26 and 36 of Plat of North City of Miami, as recorded in Plat Book "B", at Page 34 of the Public Records of Miami -Dade County, Florida. 2. Unity of Title recorded August 29, 2008, in Official Records Book 21589, Page 1316. 3. Easement to Florida Power & Light Company recorded October 8, 2003, in Official Records Book 21726, Page 4761. 4. Matters shown on the tentative plat of Lyric Subdivision, a copy of which has been provided to Developer. 5. Terms and conditions of the Stipulation of Settlement recorded July 18, 1988 in Official Records Book 13752, at Page 1036 of the Public Records of Miami -Dade County, Florida. NOTE: All of the recording information contained herein refers to the Public Records of Miami - Dade County, Florida, unless otherwise indicated. 62 EXHIBIT D BLOCK 36 DECLARATION OF RESTRICTIVE COVENANT This Instrument was prepared by Debra Herman, Esq. Miami -Dade County Attorney Office Stephen P. Clark Center 111 N.W. 1st Street Suite 2800 Miami, Florida 33128 DECLARATION OF RESTRICTIONS THIS .DECLARATION OF RESTRICTIONS (the "Declaration") is made as of , 2012 by and between Miami -Dade County, Florida, a political subdivision of the State of Florida (the "County") and the Southeast Overtown/Park West Community Redevelopment Agency, a public agency and body corporate to Section 163.356, Florida Statutes (the "CRA"). RECITALS A. The County and the CRA hold or claim fee simple title interest in and to the land in Miami -Dade County, Florida, legally described in Composite Exhibit "1" attached hereto (the "Property"). B. In accordance with the terms of the settlement agreement dated as of , 2012 by and between the City of Miami, a municipal corporation (the "City"), the County and the CRA (the "Settlement Agreement"), the County has agreed to quit claim its interest in the Property to the CRA after the recordation of this Declaration. C. The City has quit claimed its interest in the Property to the CRA. NOW THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the County and the CRA, as the current owners of the Property, agree as follows: 1. Recitals. The recitals to the Declaration are true and correct and incorporated herein by reference. 2. Development Restrictions. The CRA and the County agree that the Property shall be developed as (a) a retail, office, hotel and/or permitted institutional component containing a minimum of 30,000 square feet and a sufficient number of parking spaces not less 63 than as required by the applicable building codes, (the "Retail Component") and (b) a parking garage containing a minimum of three hundred (300) parking spaces (the "Parking Component") of which up to fifty (50) parking spaces may be utilized to satisfy the parking required for the Retail Component in 2(a) (collectively the "Project"). If the Parking Component includes any office space and/or a retail liner exceeding 5,000 square feet then, up to 5,000 square feet can be deemed to reduce the minimum 30,000 square foot requirement of the Retail Component. The lot coverage of the Parking Component will not exceed (i) the maximum required by the applicable zoning code; or (ii) fifty percent (50%), whichever is less. 3. Selection of Developer. The County agrees that no approval from the County shall be required if the CRA enters into the Block 36 Development Agreement, as defined in the Settlement Agreement, with The Gatehouse Group, LLC, a Commonwealth of Massachusetts limited liability company ("Gatehouse"), or its affiliate. If the CRA finalizes the Block 36 Development Agreement with Gatehouse, or its affiliate, Gatehouse, or its affiliate, shall be deemed the Developer for the purpose of this Declaration. If the CRA and Gatehouse are not able to finalize the Block 36 Development Agreement on terms acceptable to the CRA, then with thirty (30) days from the date the CRA terminates negotiations with Gatehouse, the CRA shall conduct a solicitation, in accordance with Section 163.380, Florida Statutes, (the "Development Opportunity") to select a developer for the Project (the "Developer") in accordance with the terms of the Settlement Agreement. The CRA shall, within five days of the selection of the Developer by the Board of Commissioners of the CRA, advise the County by hand delivery or by certified mail, return receipt requested, addressed to the County Mayor or its designee (the "Notice") of the Developer selected by the CRA pursuant to the Developer Opportunity and any proposed variances to the Declaration. The Notice shall be deemed delivered to the County on the day hand delivered or the date the return receipt is executed. In such event, the Board of County Commissioners must approve or reject the Developer selected by the CRA and consider any proposed variances to the Declaration as provided in Section 15 within forty five (45) days from the date of delivery of the Notice (unless the Commission is in recess during such period in which instance an additional day will be added for each day of recess) (the "Approval Period"). If the Board of County Commissioners does not approve or reject the Developer selected by the CRA within the Approval Period, the selection by the CRA and the proposed variances to this Declaration shall be deemed approved by the Board of County Commissioners. In the event the Board of County Commissioners rejects the Developer selected by the CRA within the Approval Period, the CRA shall issue a new Developer Opportunity within thirty (30) days from the date of such rejection. The process shall continue until the Developer is approved or deemed approved by the Board of County Commissioners. The Development Opportunity will require the Developer to diligently pursue the simultaneous development of the Parking Component and the Retail Component, with a preference on completion of the Parking Component first. The Development Opportunity shall not require that any component or phase of the Project be completed before construction on another component or phase can commence. 4. Development Agreement. The CRA shall enter into a development agreement (the "Development Agreement") with the Developer, approved or deemed approved by the Board of County Commissioners within ninety (90) days from the date the Developer is approved or deemed approved by the Board of County Commissioners. If the CRA does not enter into the Development Agreement with the Developer approved or deemed approved by the 64 Board of County Commissioners within the ninety (90) day period, the CRA shall terminate negotiations with such Developer and issue a new Developer Opportunity within thirty (30) days from the end of such ninety (90) day period. 5. The Developer shall obtain all applicable land use and zoning approvals for the Project (the "Approvals") within the earlier of (i) twelve months from the recording of this Declaration if the CRA has executed a proposed Development Agreement with Gatehouse or its affiliate (which effectiveness would be contingent on this Settlement) or (ii) two years from the recordation of this Declaration. The CRA shall convey the Property (excluding solely that portion of the property to be utilized for the Parking Component) by deed to the Developer prior to the Developer commencing vertical construction of the Retail Component. 6. Construction. The Developer must commence vertical construction (defined as physical structures actually being constructed on the Property pursuant to applicable permits) of the Retail Component and the Parking Component within two years from the recordation of this Declaration if Gatehouse or its affiliate is the developer, or within three years from the recordation of this Declaration if the developer is not Gatehouse or its affiliate. The Developer must substantially complete construction of the Retail Component within twenty-four (24) months from commencement of vertical construction of the Retail Component (the "Retail Completion Date"). The Developer must substantially complete construction of the Parking Component within twenty four (24) months from commencement of vertical construction of the Parking Component (the "Parking Completion Date"). The Retail Completion Date and the Parking Completion Date shall be evidenced by one or more temporary or permanent certificates of occupancy (or their equivalent) for all buildings comprising the particular component. Both the Retail Completion Date and Parking Completion Date shall automatically be extended one day for each day of Unavoidable Delay provided the Executive Director of the CRA concurs with the Developer that an Unavoidable Delay has occurred and the County (by its Major or Mayor's designee) agree that an Unavoidable Delay has occurred, which approval by the County shall not be unreasonably withheld. The term "Unavoidable Delay" means delays due to area wide strikes, acts of God, floods, hurricanes, casualties, fires, acts of the public enemy and governmental moratoriums. The term Unavoidable Delay shall not include delays caused by any other source, including but not limited to a governmental entity acting in its proprietary or regulatory capacity or delays caused by lack of funds. 7. Developer Default. A. In the event the Developer (i) does not obtain the Approvals in the timeframe provided in Section 5 of this Declaration, (ii) fails to achieve substantial completion of the Retail Component by the Retail Completion Date, as same may be extended as a result of Unavoidable Delays, (iii) fails to achieve substantial completion of the Parking Component by the Parking Completion Date, as same may be extended as a result of Unavoidable Delays, or (iv) fails to make any Project Payment when due (as defined in Paragraph 17 herein), the CRA and the County (as applicable) may declare the Developer in default by sending a Notice of Default (the "Default Notice"). The Default Notice shall be hand delivered to the Developer or mailed to the Developer by certified mail, return receipt requested. The Default Notice shall be deemed delivered upon the date received if hand delivered, or if mailed, on the date the return receipt is executed or the date delivery is refused. Upon receipt, or deemed receipt, of the Default 65 Notice, the Developer shall have ninety (90) days to cure (the "Default Cure Period"). Extensions of the Default Cure Period for good cause shown shall be in the sole discretion of the CRA if the CRA has issued the Default Notice, or in the sole discretion of the County if the County has issued the Default Notice. B. In the event the Default Notice is issued pursuant to Section 7(A)(i), the Developer may extend the timeframe in which to obtain the Approvals for six (6) months by paying to each of the County and the CRA Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) on or before the end of the Default Cure Period, as same may have been extended in accordance with the last sentence of Section 7(A). The extension of the Approval Period pursuant to this Section 7(B) to cure a default pursuant to Section 7(A)(i) is a one time right of the Developer and may not be utilized in connection with any subsequent default pursuant to Section 7(A)(i), C. In the event the Default Notice is issued pursuant to Section 7(A)(ii), the Developer may extend the Retail Completion Date, as same may have been extended as a result of Unavoidable Delays, for an additional six (6) months by paying to each of the County and the CRA Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) on or before the end of the Default Cure Period, as same may have been extended in accordance with the last sentence of Section 7(A). The extension of the Retail Completion Date pursuant to this Section 7(C) to cure a default pursuant to Section 7(A)(ii) is a one time right of the Developer and may not be utilized in connection with any subsequent default pursuant to Section 7(A)(ii). D. In the event the Default Notice is issued pursuant to Section 7(A)(iii), the Developer may extend the Parking Completion Date, as same may have been extended as a result of Unavoidable Delays, for an additional six (6) months by paying to each of the County and the CRA Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) on or before the end of the Default Cure Period, as same may have been extended in accordance with the last sentence of Section 7(A). The extension of the Parking Completion Date pursuant to this Section 7(D) to cure a default pursuant to Section (A)(iii) is a one time right of the Developer and may not be utilized in connection with any subsequent default pursuant to Section 7(A)(iii). E. In the event the Default Notice is issued pursuant to 7(A)(i) (ii) or (iii) of this Declaration, and is not cured prior to the end of the Default Cure Period, as same may be extended, in accordance with the last sentence of Section 7(A), title to any portion(s) of the Property which have not been improved with buildings shall automatically revert back to the CRA, subject to the rights of the County set forth in the Declaration and Settlement Agreement and pending the selection of another Developer as set forth therein (the "Reverter Property"). F. If the Default Notice is issued pursuant to Section 7(A)(iv) and same is not cured within the Default Cure Period, then all remaining Project Payments together with a fifteen percent (15%) penalty shall be automatically accelerated and shall be deemed immediately due and payable to the County and the CRA. In such event, the County and the CRA shall have the right to pursue any and all remedies against the Developer for the outstanding amounts. 66 G. The Developer shall be liable to the County and the CRA for all reasonable attorneys fees and costs incurred by the County and the CRA as a result of a Developer Default. H. Any payments made to the County and the CRA pursuant to Sections 7(B), 7(C) and 7(D) shall not constitute a Project Payment and shall not be credited against any Project Payment. 8. Reverter RFP. In the event any portion of the Property reverts to the CRA, the CRA shall issue a new Developer Opportunity with respect to the Reverter Property, in accordance with Section 3 of the Declaration, within ninety (90) days from the date the CRA acquires the Reverter Property, and shall provide Notice to the County of the Developer selected for its Approval as set forth herein and in the Settlement Agreement. In the event the Board of County Commissioners rejects the Developer selected by the CRA within the new Approval Period, the CRA shall issue a new Developer Opportunity within thirty (30) days from the date of such rejection. The process shall continue until the Developer is approved or deemed approved by the Board of County Commissioners. The CRA shall enter into a Development Agreement with the Developer approved or deemed approved by the Board of County Commissioners within ninety (90) days of the date the Developer is approved or deemed approved by the Board of County Commissioners. If the CRA does not enter into the Development Agreement with the Developer approved or deemed approved by the Board of County Commissioners within the ninety (90) day period, the CRA shall terminate negotiations with such Developer and issue a New Developer Opportunity within thirty (30) days of the end of such ninety (90) day period. The new Developer shall be bound by the terms of this Declaration. To the extent that any portion of the Property reverts to the CRA after seven (7) years from the date of recordation of this Declaration, then, in such event. if such portion of the Property that reverts to the CRA same shall revert from the CRA to the County upon written notice from the County to the Executive Director of the CRA, free and clear of all claims by the CRA and any Developer and free and clear of this Declaration. If requested by the County, the CRA shall convey such portion of the Property to the County by quit claim deed. In the event of such reversion to the County, this Declaration shall then automatically terminate. Notwithstanding the foregoing, if the Parking Component has been completed, title to the Parking Component shall remain vested in the CRA 9. Notwithstanding any other provision set forth herein, in the event that vertical construction (defined as physical structures actually being constructed on the Property) has not commenced on the Property within two years from the date of the recording of this Declaration if the developer is Gatehouse or its affiliate, or three years from the date of the recording of this Declaration if the developer is any other entity, the Property shall revert to the County upon written notice by the County to the Executive Director of the CRA at any time prior to the commencement of the vertical construction. If requested by the County, the CRA shall provide the County with a special warranty deed transferring all right, title and interest in and to the Property to the County, free and clear of all claims and encumbrances and free and clear of this Declaration, which the County shall record. However, such reverter shall become effective upon receipt by the CRA of the written notice of the exercise of the reverter, regardless of the special warranty deed. In the event of such reversion, this Declaration shall then automatically terminate, and notice of same may be recorded by the County. 67 10. Modification. Provided that the Developer is not in default beyond the applicable grace periods and is current with all of its payment obligations to the CRA and the County, this Declaration may be modified, amended or released with respect to the Property, or any portion thereof, by written instrument executed and recorded by the then owner(s) of the fee simple title to the Property, the CRA and the County with the approval of the respective Boards of the CRA and the County. Notwithstanding the foregoing, the Executive Director of the CRA (the "Executive Director") may unilaterally, without the consent of the County being required, modify this Declaration with respect to the following quantifiable requirements, by an amount not to exceed 10 percent of such number or 10 percent of such percentages, as follows: (a) the number of parking spaces in Section 2; (b) the time frames set forth in Sections 5 and 6; and (c) the number of retail square feet in Section 2. Additionally, the Executive Director may modify this Declaration in any non -substantive manner without the consent of the County, provided such modifications are in writing. Any modifications, amendments, or releases shall be evidenced by a recorded amendment to this Declaration executed by all required parties thereto. 11. No Limitation of Remedies. Nothing contained herein shall be construed as limiting the rights and remedies of the County, the City or the CRA set forth in the Settlement Agreement. 12. County Inspection. Prior to completion of construction of the Project, the County and the CRA shall have the right, but not the obligation, at any time during normal business hours, to enter and inspect the Property to determine whether the requirements of this Declaration are being complied to by the Developer. 13. Covenant Running with the Land. This Declaration shall constitute a covenant running with the land and shall be binding on the CRA and its successors and assigns having an interest in the Property. This Declaration is for the benefit of, and limitation upon, all present and future owners of the Property and for the benefit of the County and the CRA. 14. Term. This Declaration is to run with the land for a period of thirty (30) years and shall be automatically extended for additional ten (10) year periods until the payment of the last Project Payment pursuant to Section 17 has been paid by the Developer. 15. Variance. In the event the Developer selected by the CRA in response to the Developer Opportunity proposed variance from the requirements of this Declaration (including but not limited to Gatehouse and its affiliates), which variances have been approved by the Board of Commissioners of the CRA in light of market conditions and information provided by the Developer, the Board of County Commissioners shall consider such variances at the time the Board of County Commissioners is requested by the CRA to approve the Developer and such variances shall be outlined to the County in the Notice to the County. To the extent that Gatehouse or its affiliates request a variance from the Declaration, such variance must be approved in the same manner and in the same timeframes, as the approval of the Developer. The County agrees to consider such variances at the time it acts on the approval of the Developer (or the approval of Gatehouse's proposed variance, if any), with no obligation on the part of the Board of County Commissioners to approve any such variances from this Declaration, which shall be in the sole discretion of the Board of County Commissioners. The variances shall be deemed considered if they are included in the documentation submitted for the Board of County 68 Commissioner's consideration by the CRA. If the Board of County Commissioners approves, or is deemed to approve, the Developer and some or all of the variances requested by the Developer, the County and the CRA shall execute an amendment to this Declaration to reflect the variances approved, or deemed approved, by the Board of County Commissioners. 16. Construction. To the extent that this Declaration requires construction, and regardless of the notation of the "preparer" contained upon same, both the CRA and the County equally participated in the drafting of this Declaration, and accordingly, such document shall not be construed in favor of, or against, either party. 17. Compensation. Beginning thirty (30) days from the issuance of a temporary certificate of occupancy or its equivalent for the Retail Component, the Developer shall separately pay to each of the County and the CRA each year for twenty-five (25) years a sum of money commencing with Thirty Eight Thousand Five Hundred and No/100 Dollars ($38,500.00) per year on an annual basis for the first five years and increasing by 3% per year for each year thereafter over the amount for the previous year, or (ii) 2.5% of the Gross Rent paid by tenants of the Property (the "Project Payment"). "Gross Rent" means all monies paid for the occupancy of space within the Retail Component, including but not limited to flat rent or rent based on a percentage of sales, but shall not include utilities, taxes, or security deposits. Within 90 days from the commencement of the first anniversary of the Project Payment, and every year thereafter for the term of this Declaration, the Developer shall submit a "full accounting" of Gross Rent, from the business or businesses located on the Property for the previous year. Full Accounting means an Annual Written Statement, signed by Owner, CEO, or Financial officer of the Developer and certified by it to be true and correct, setting forth the amount of Gross Rent during the preceding year, which statement shall also be duly certified by an independent Certified Public Accountant. The statement referred to herein shall be in such form and style and contain such details and breakdowns as County and CRA may reasonably determine or require. If this Annual Written Statement when multiplied by two and one half percent (2.5%) exceeds the amount of the previous year's Project Payment paid for the period, the difference ("Annual Adjustment") shall be paid immediately by the Developer to the County and the CRA. There shall be no adjustment if the Statement when multiplied by two and one half percent (2.5%) (excluding sales taxes) is less than the amount paid as the previous year's Project Payment. County and CRA shall have the right to cause, upon five (5) days' written notice to the Developer, a complete audit to be made by a designated external auditing firm or other certified public accounting firm selected by the County and/or CRA. If Developer fails to record, maintain, or make available sales supporting documentation as specified above, then the Developer shall be deemed to be in default of this Declaration. A. The term "Project Payment" shall mean the then current annual payment due from the Developer to the County and the CRA. All subsequent Project Payments shall be due on the anniversary of the first payment. No Project Payment shall be due with respect to the Parking Component; however, any rent derived from the retail liner and/or office space, if any, shall be included in the calculation of Gross Rent. 69 B. In the event Developer fails to make the Project Payment within ten (10) days of when due, Developer shall pay each of the County and the CRA a late fee equal to five percent (5%) of the Project Payment then due. C. In the event Developer fails to make any Project Payment within thirty (30) days of when due such Project Payment shall bear interest at 12% per annum from the date due until paid. D. Nothing contained herein shall prevent or otherwise prohibit either the CRA or the County through their Boards upon application by the Developer from waiving their rights to one or more Project Payments, including portions of Project Payments or penalties thereof. In such event, the approval of the CRA shall not be required if the County chooses to waive its rights nor shall approval of the County be required in the event the CRA elects to waive its rights. [SIGNATURE PAGES TO FOLLOW] 70 IN WITNESS THEREOF the County and the CRA have executed this Declaration as of the date first above written. Witnesses: CRA: Southeast Overtown/Park West Community Redevelopment Agency, a public agency and body corporate created pursuant to Section 163.356, Florida Statutes By: Printed Name: Clarence E. Woods, III Executive Director Printed Name: ATTEST: Clerk of the Board Approved for legal sufficiency By: William R. Bloom, Esq. Holland & Knight LLP Special Counsel Witnesses: COUNTY: Printed Name: Printed Name: MIAMI-DADE COUNTY, a political subdivision of the State of Florida By: ATTEST: Harvey Ruvin, Clerk By: Deputy Clerk Approved for legal sufficiency County Attorney By: 71 STATE OF FLORIDA ) ) ss. COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me this day of , 2012, by Clarence E. Woods, III, Executive Director of the Southeast Overtown/Park West Community Redevelopment Agency, on behalf of the Agency. He is personally known to me or has produced as identification. (SEAL) Notary Public -State of Commission Number: 72 Exhibit 1 Legal Description Block 36, Lots 1, 2, 3, 6, 7, 8, 9, 10 and 11 inclusive, less the West 40 feet of Lot 11; Lots 14 through 19 inclusive, Less the West 40 feet of Lots 11, 14, and 19; Lots 22 through 27 inclusive, less the West 40 feet of Lots 22 and 27; Lots 30 through 35 inclusive, Less the West 40 feet of Lots 30 and 35; Lots 38 through 43 inclusive, less the West 40 feet of Lots 38 and 43; Lot 46 Less the West 40 feet thereof; and Lots 47 and 48 inclusive, Less that portion of Lots 1, 8, 9, 16, 17, 24, 25, 32, 33, 40, 41 and 48 for RAPID TRANSIT RIW, All of Block 36, of "P.W. WHITES RE -SUB.", according to the Plat thereof as recorded in Plat Book "B", at Page 34, of the Public Records of Miami -Dade County, Florida. 73 EXHIBIT E LEGAL DESCRIPTION FOR PHASE 1 PROPERTY Lots 9 through 12, inclusive, less the West 7.5 feet of the South 50 feet of Lot 10, all of Block 25, of NORTH, CITY OF MIAMI, according to the Plat thereof as recorded in Plat Book B, Page 41, of the Public Records of Miami -Dade County, Florida, 74 EXHIBIT F LEGAL DESCRIPTION FOR PHASE II PROPERTY Lots 5 through 8, inclusive, and Lots 13 through 17, all of Block 25, of NORTH, CITY OF MIAMI, according to the Plat thereof as recorded in Plat Book B, Page 41, of the Public Records of Miami -Dade County, Florida. 75 EXHIBIT G Phase III Legal To be agreed upon prior to the end of the Inspection Period 76 EXHIBIT H Phase IV Legal To be agreed upon prior to the end of the Inspection Period 77 EXHIBIT I PHASE I PRELIMINARY BUDGET 78 EXHIBIT J NON-PROFIT GRANT AGREEMENT THIS NON-PROFIT GRANT AGREEMENT (the "Agreement") is made of the day of , 2012, by and between . Inc., a not for profit Florida corporation (the "NON-PROFIT") and the Southeast Overtown/Park West Community Redevelopment Agency, a public agency and body corporate created pursuant to Section 163.356, Florida Statutes (the "CRA"). RECITALS A. The CRA has entered into a development agreement dated as of December 17, 2012 (the "Development Agreement"), by and between the CRA and Lyric Development, LLC, a Florida limited liability company (the "Developer"), with respect to the development of a project consisting of between 90 and 100 affordable rental units as more particularly described in the Development Agreement. B. Pursuant to the terms of the Development Agreement, the CRA has agreed to make a grant in an amount of up to Ten Million and No/100 Dollars ($10,000,000.00) (the "CRA Contribution") to the NON-PROFIT which CRA Contribution will be loaned by the NON- PROFIT to the GGI (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 GGI (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 7.8 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 GGI (or the Controlled Entity) in accordance with the terms and provisions of the Non -Profit Loan 79 Documents and the Development Agreement. The NON-PROFIT covenants and agrees to enter into the Phase I 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 terms of the Phase I Funding Agreement. The NON-PROFIT covenants and agrees to not unreasonably withhold its consent to the terms and provisions of the Phase I Funding Agreement. 5. TERMS OF LOAN TO THE DEVELOPER. The NON-PROFIT covenants and agrees to loan to the GGI (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 GGI (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 GGI (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 GGI (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 13 of the Development Agreement have either been satisfied or waived by the CRA. b. The closing of the transaction for Phase I contemplated by the Development Agreement shall be consummated simultaneously with the funding of the CRA Contribution. c. The NON-PROFIT has executed the Phase I Funding Agreement. d. e. The GGI (or the Controlled Entity) and the NON-PROFIT have executed the Non -Profit Loan Documents in substantially the form attached hereto. The GGI (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 Phase I 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 80 transaction for Phase I contemplated by the Development Agreement providing all the Conditions Precedent have been satisfied. 9. REPRESENTATIONS OF TILE 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). 81 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 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 permitted 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• 82 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: 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 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: 83 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. 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 attorney'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. 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. g. 84 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: , Inc., a not for profit Florida corporation By: Name: Title: 85 EXHIBIT "A" To be agreed upon on or before January 15, 2013 86 EXHIBIT "B" To be agreed upon on or before January 15; 2013. CBO Must have at least a 10% interest in the GP Loan. 87 EXHIBIT K This document prepared by and return to: Owner: Owner's Address: RESTRICTIVE COVENANT AGREEMENT Lyric Housing, Ltd. c/o The Gatehouse Group 120 Forbes Boulevard, Suite 180 Mansfield, MA 02048 Legal Description of Property: See Exhibit "A" attached hereto Name of Project: The Plaza at the Lyric 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 [ 1, 201], 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 Lyric Housing, 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 201L 1 (the "Bonds"), to fund, among other things, a grant (the "Grant") to [ 1, a nonprofit 88 [ ] 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 [ I, 201], 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; 1. Definitions and Interpretation. 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 89 credits, then reference shall be to such provision of the Code immediately prior to such amendment. "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)(I) 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 The Plaza at the Lyric, located on the Land and financed 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. 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. 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 90 in construing this Agreement or any provisions hereof or in ascertaining intent, if any question of intent shall arise. 2. Residential Rental Property. The Owner hereby represents, covenants, warrants and agrees that, during the term of this Agreement: 2.1 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. 2.2 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, 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, 2.3 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 during the Qualified Project Period, be owned or used by a cooperative housing corporation or converted to condominiums. 2.4 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 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 Proj ect. 2.5 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. 2.6 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. 3, Lower -Income Tenants and Moderate -Income Tenants. The Owner hereby represents, warrants and covenants as follows: 3.1 At all times during the term of this Agreement, one hundred percent (100%) of the Available Units shall be occupied by Moderate -Income Tenants; however, notwithstanding 91 the language from the previous phrase in this section, during the first 15 years of the Qualified Project Period, at least fifty percent (50%) of the Available Units shall be occupied by Lower - Income Tenants. 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 one -bedroom units, approximately fifty percent (50%) of the two -bedroom units, and approximately fifty percent (50%) of the three -bedroom units. 3.2 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. 4. Reporting Requirements. During the term of this Agreement: 4.1 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. 4.2 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. 4.3 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. 4.4 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 92 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 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. 4.5 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 4.6 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. 4.7 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. 5. Indemnification. The Owner hereby covenants and agrees that it shall indemnify and hold harmless the Issuer and its past, present and fixture 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 93 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 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. b. 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. 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. 8. Tenant Lease Restrictions. All tenant leases shall contain clauses, among others, wherein each individual lessee: 8.1 Certifies the accuracy of the statements made in the Income Certification; 8.2 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 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 8.3 Agrees not to sublease to any person or family who does not execute, and deliver to the Owner or the Issuer, an Income Certification. 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 94 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 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. 95 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. 11. Term. This Agreement shall remain in full force and effect during the Qualified Project Period. 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. 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. 14. Correction for Non -Compliance. 14.1 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. 14.2 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. 96 14.3 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 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. 14.4 The failure of Owner to comply with the terms of Section 4(d) and Section 4(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. 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, 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. 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. 17. Governing Law. This Agreement shall be governed by the laws of the State. 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. 97 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. 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. 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. 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] 98 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 LYRIC HOUSING, LTD., a Florida limited partnership By: Lyric GP LLC, a Florida limited liability company, as its general partner By: The Gatehouse Group, Inc,, a Massachusetts corporation, its manager By: Name: Title: 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 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 The Gatehouse Group, Inc., the manager of Lyric GP LLC, general partner of Lyric Housing, 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 , 2012 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 , 20_, the 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 [[if such year was during the first fifteen (15) years of the Qualified Project Period]], 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 % 103 Total Number of 1-Bedroom Number of Occupied Units by Units Lower -Income Tenants (A) (B) Total Number of 2-Bedroom Number of Occupied Units by Units Lower -Income Tenants (A) (B) Total Number of 3-Bedroom Number of Occupied Units by Units Lower -Income Tenants (A) (B) Total Number of 1-Bedroom Number of Occupied Units by Units Moderate -Income Tenants (A) (B) Total Number of 2-Bedroom Number of Occupied Units by Moderate -Income Tenants Units (A) (B) Total Number of 3-Bedroom Number of Occupied Units by Units Moderate -Income Tenants % of 1-Bedroom Units Occupied by Lower -Income Tenants (B/A) % of 2-Bedroom Units Occupied by Lower -Income Tenants (B/A) % of 3-Bedroom Units Occupied by Lower -Income Tenants (B/A) % of 1-Bedroom Units Occupied by Moderate - Income Tenants (B/A) % of 2-Bedroom Units Occupied by Moderate - Income Tenants (B/A) % of 3-Bedroom Units Occupied by Moderate - Income Tenants (B/A) Authorized Representative for 104 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 OvertownlPark West Community Redevelopment Agency (the "Issuer"), and Lyric Housing, Ltd., a Florida limited partnership (the "Owner") in connection with the financing of The Plaza at the Lyric (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. 105 IN WITNESS WHEREOF, the Owner 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 LYRIC HOUSING, LTD., a Florida limited partnership By: Lyric GP LLC, a Florida limited liability company, as its general partner By: The Gatehouse Group, Inc., a Massachusetts corporation, its manager By: Name: Title: I, , a Notary Public in and for the said County in the State aforesaid, do hereby certify that ; known to me to be of The Gatehouse Group, Inc., the manager of Lyric GP LLC, general partner of Lyric Housing, 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 , 20 . NOTARY PUBLIC, STATE OF FLORIDA (SEAL) Personally known to me, or Produced identification: (Type of Identification Produced) 106 EXHIBIT A to Certificate Concerning Commencement and Termination of Qualified Project Period REAL PROPERTY DESCRIPTION 107 RE: [ [Address] Unit # EXHIBIT D CERTIFICATION OF TENANT ELIGIBILITY 1 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 # [ I 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 Annual Relationship Age Income (a) (b) (c) (d) (e) (f) 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, reticernent 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 108 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 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. The amount of income expected to be derived from such assets in the 12 month period commencing with the occupancy of the unit: $ (c) 4. RESIDENT'S STATEMENT: The information on this form is to be used to determine maximum income for eligibility. UWe 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. UWe 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) Date 109 (d) (e) (f) 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 Agreement, between the undersigned and the [ 1, 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_ 110 EXHIBIT E INSURANCE REQUIREMENTS 111 EXHIBIT L Form of Special Warranty Deed Phase I 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 LYRIC DEVELOPMENT, LLC , a Florida limited liability company ("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"): [INSERT LEGAL] 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; 2. Zoning and other governmental restrictions; 3. The terms and provisions of the easement agreement dated of even date herewith between Grantor and Grantee; 112 4. The terms and provisions of the Restrictive Covenant Agreement of even date herewith by and between Grantee and Grantor. 5. Conditions, restrictions, reservations, and easements of record; however, reference thereto shall not serve to reimpose same. 6. 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. Upon recording such certificate executed by the Executive Director, the provisions of this Section 5 shall be of no further force and effect. 7. During construction of the Improvements Grantee shall comply with the provisions of Section 11 of the Development Agreement dated as of November 20, 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 Section 11 (which shall include payment to the CRA of the Subcontractor Non -Compliance Funds, if any, and the payment of any Laborer Non -Compliance Funds, if any) the Executive Director of Grantor shall record a certificate confirming Grantee's compliance with the terms and provisions of Section 11 of the Development Agreement. Upon recording such certificate executed by the Executive Director the provisions of this Section 6 shall be of no further force and effect. 8. It is the intention of the Grantor and the Grantee that upon conveyance of the Property to the Grantee that the Propel iy 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 113 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. Notary Public, State of Florida My Commission Expires: 114 EXHIBIT M To be mutually agreed between Developer and the Executive Director prior to the end of the Inspection Period. 115 EXHIBIT N Form of Special Warranty Deed Phase II 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 LYRIC DEVELOPMENT, LLC , a Florida limited liability company ("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"): [INSERT LEGAL] 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; 2. Zoning and other governmental restrictions; 116 3. Terms and provisions of the easement agreement dated by and between Grantor and recorded in Official Records Book , at Page of the Public Records of Miami -Dade County, Florida. 4. Conditions, restrictions, reservations, and easements of record; however, reference thereto shall not serve to reimpose same. 5. 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. Upon recording such certificate executed by the Executive Director, the provisions of this Section 5 shall be of no further force and effect. 6. During construction of the Improvements Grantee shall comply with the provisions of Section 11 of the Development Agreement dated as of November 20, 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 Section 11 (which shall include payment to the CRA of the Subcontractor Non -Compliance Funds, if any, and the payment of any Laborer Non -Compliance Funds, if any) the Executive Director of Grantor shall record a certificate confirming Grantee's compliance with the terms and provisions of Section 11 of the Development Agreement. Upon recording such certificate executed by the Executive Director, the provisions of this Section 6 shall be of no further force and effect, 7. 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 117 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. My Commission Expires: Notary Public, State of Florida 118 EXHIBIT 0 Form of Special Warranty Deed Phase IV 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 LYRIC DEVELOPMENT, LLC , a Florida limited liability company ("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"): [INSERT LEGAL] 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; 2. Zoning and other governmental restrictions; 119 3. Terms and provisions of the Phase III/IV Parking Easement between Grantor and dated and recorded in Official Records Book , at Page of the Public Records of Miami -Dade County, Florida. 4. Conditions, restrictions, reservations, and easements of record; however, reference thereto shall not serve to reimpose same. 5. 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 ing compliance with this provision. Upon recording such certificate executed by the Executive Director, the provisions of this Section 5 shall be of no further force and effect. 6. During construction of the Improvements Grantee shall comply with the provisions of Section 11 of the Development Agreement dated as of November 20, 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 Section 11 (which shall include payment to the CRA of the Subcontractor Non -Compliance Funds, if any, and the payment of any Laborer Non -Compliance Funds, if any) the Executive Director of Grantor shall record a certificate confirming Grantee's compliance with the terms and provisions of Section 11 of the Development Agreement. Upon recording such certificate executed by the Executive Director, the provisions of this Section 6 shall be of no further force and effect. 7. It is the intention of the Grantor and the Grantee that upon conveyance of the Property to the Grantee that the Property and lmprovements 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 120 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. My Commission Expires: Notary Public, State of Florida 121 EXHIBIT P Organizational Documents of Developer 122 01%17/2012 b11 K0:30 FA1 1)iviion of Caw qg/seripts/efilcovr.exe Florida Department of State Division of Corporations Electronic Piling Cover Sheet • Note; Mean print this page and use It as a cover sheet. Typo the fax audit number (shown below) on the top and bottom of all pa es of the document. t1coo 1i0003 1-4 (((H12000014179 3))) 1—" 1111111111111111111111111111111111111111111111111111111111111111111111111111111f11111I11111111 H120o0014176JAOCZ G- Note: DO NOT hit the REFRCSWRELOAD button on your browser from this pi Doing so will gonerate anothor cover sheet, TOf From, Division of 'Corporations Pax Number t (8501617-6383 Account Name STEARNS WEAVER MILLER W!ISSLER ALKADEPP & SITTER9ON Account Number t I20060O00135 Phone o (305)789-3200 Vex Number i I3051709.3393 **Enter the email address for this bus/mime entity to be used for future annual report mailings Inter only one email address please.** Email Addreaet h .VYt J. e hot).6ti'rm • C 1 ems . Q ..Q W t/7 :J tn .i�• Ki tut x ►4JZ Q <t 'tJ - 1 N talU r• Electronic Filing Menu Corporate Filing Menu Help 1/17/2012 FLORIDA LIMITED LIABILITY CO. LYRIC DEVELOPMENT LLC 1, 44. Cation Jl+t $ ll% ". 01/17/201.2 19:3D PAS SMARM WEAVER MILLER ARTICLES OF ORGANIZATION OF LYRIC DEVELOPMENT LLC (a Florida Limited Liability Company) ILED 12JMHE1 N 820 S CF E T AIIY OV STAd E TALLAiiASSEE, FLORIDA. The undersigned, for the purpose of forming a limited liability company wider the Florida Limited Liability Company Act, Florida Statutes Chapter 608, as amended, hereby makes, acknowledges and files the following Articles of Organization. ARTICLE I NAME The name of the limited liability company is Lyric Development LLC (tile "Company"). ARTICLE II ADD&ESS The mailing address and street address of the principal office of the Company is c/c Gatehouse Group, Inc„ 120 Forbes Boulevard, Suite 180, Mansfield, Massachusetts 02048, ARTICLE III DURATION The period of duration for the Company shall be perpetual. ARTICLE IV p.4015TERLD OFFICFL8NI� l4 N'LA�U nn S The name and street address of the registered agent of the Company in the State of Florida are: Name Addres$ Terry M. Lovell 2200 Museum Tower 150 West Flagler Street Miami, Florida 33130 C 01/17/201.2 10:31 FAX STEAR1S WEAVER MILLER Tit 0003/0003 IN WITNESS WHEREOF, the undersigned has made and subscribed these Articles of Organization for the foregoing uses and purposes this f7 is duy of Januar 2012. Terry M, Lovell, Authorized Representative of Member ACCEPTANCE OF REGISTERED AGENT NavIng been named as registered agent and to accept service of process for Lyric Development LLC at the place designated in this certificate, I hereby accept the appointment as cf registered agent and agree to act in this capacity. 1 further agree to comply with the provisions of all statutes relating to the proper and complete performance of my duties, and I am familiar with and accept the obligations of my position as registered agent, Terry M. LovelI, Registered Agent f1I474t94 vl LYRIC DEVELOPMENT LLC OPERATING AGREEMENT Dated as ofJanuary 17, 2012 TABLE OF CONTENTS Preliminary Statement 1 ARTICLE I — Defined Terms ARTICLE 11 -- Formation; Name; and Purpose 3 Section 2.1 Formation 3 Section 2.2 Name, Office and Registered Agent .3 Section 2.3 Purposes 3 Section 2.4 Term and Dissolution 3 ARTICLE III -- [Intentionally omitted] •.3 ARTICLE IV -- Members; Capital 4 Section 4.1 Manager 4 Section 4.2 Members 4 Section 4.3 Capital and Capital Accounts 4 Section 4.4 Liability of Members and Managers 5 ARTICLE V Manager's Rights, Powers and Duties 5 Section 5.1 Authorized Acts 5 Section 5.2 Independent Ventures •05 Section 5.3 Business Administration and Control • "6 Section 5.4 Engagement of Brokers and Others , 7 Section 5.5 Indemnification of Manager 7 Section 5.6 Delegation of Manager Authority 7 ARTICLE VI -- Retirement of the Manager 7 ARTICLE Vli -- Member Transfer , 8 Section 7.1 Assignment 3 Section 7.2 Substitute Members 8 Section 7.3 Restrictions 9 ARTICLE VIII -- Borrowings 9 ARTICLE IX -- Profits, Losses and Distributions 9 Section 9.1 Profits, Losses and Distributions 9 Section 9,2 Distributions Upon Dissolution 9 Section 9.3 Special Provisions 10 ARTICLE X — Books and Records, Accounting and Reports . "..11 .10 Section I 0.1 Books and Records 10 Section 10.2 Bank Accounts ,,, „ • .. ,,,,, . la 10 Section 10.3 Accountants . 11 Section 10.4 Tax Elections 11 Section 10.5 Special Basis Adjustments • 11 Section 10.6 Fiscal Year 11 ARTICLE XI -- General Provisions 11 Section 1 I .1 Section 708 Restrictions •.11 Section 11,2 Intentionally Deleted . •. I 1 Section 11.3 Amendments to Schedule A and Certificate 11 Section 11.4 Notices 12 Section 11.5 Word Meanings • .... 12 Section 11.6 Binding Effect 12 Section 11,7 Applicable Law 12 Section 11.8 Counterparts 12 Section 11.9 Separability of Provisions 12 Section 11.10 Paragraph Titles 12 11 Section 1 [.1 ] Amendment Procedure 13 ni LYRIC DEVELOPMENT LLC OPERATING AGREEMENT Preliminary Statement This Operating Agreement of LYRIC DEVELOPMENT LLC is made and entered into as of the 17th day of January, 2012, by and among The house Group, Inc,, as Manager, and each of the Persons identified as Members in Schedule A attached hereto. WHEREAS, the parties desire to form a limited liability company under the laws of the State of Florida and to conduct the business of such limited liability company upon the terms and conditions hereinafter set forth. NOW, THEREFORE, it is hereby agreed as follows: ARTICLE I -- Defined Terms The defined terms used in this Agreement shall have the meanings specified below: "Accountants" means the firm of independent public accountants as may be engaged by the Manager. "Act" means the Florida Limited Liability Company Act, as amended from time to time, Chapter 608, Florida Statutes (or corresponding provisions of succeeding law). "Affiliate" means as to any named Member (or as to elfery Member if none is specifically named) (i) any such Member or member of his Immediate Family; (ii) the legal representath e, successor or assignee of, or any trustee of a trustfor the benefit of, any such l\iember or member of his Immediate Family; (iii) any Entity of which a majority of the voting interests is owned by any. one or more of the Persons referred to in the preceding clauses (i) and (ii); (iv) any partner of or holder (directly or beneficially) of 10% or more of the stock of any Person referred to in the preceding clauses (1), (ii) and (iii); and (v) any Person directly controlling, or under direct common control with, any Person referred to in any of the preceding clauses. "Agreement" means this Operating Agreement as it may be amended from time to time. "Articles of Organization" means the Articles of Organization of the Company, as amended from time to time, as filed with the Filing Office. "Capital Account" shall have the meaning prescribed in Section 4,3. "Capital Contribution" means the total value of cash and other consideration contributed to the Company by each Member as shown in Schedule A, Any reference in this Agreement to the Capita] Contribution of a then Member shall include a Capital Contribution previously made by any prior Member for such Company interest of such then Member. "Code" means the Internal Rex enue Code of 1986, as amended from time to time. "Company" means LYRIC DEVELOPMENT LLC, a Florida limited liability company. "Effective Date" means the effective date of the Articles of Organization. "Entity" means any general partnership, limited partnership, limited liability partnership, corporation, joint venture, trust, business trust, limited liability company, cooperative, association or other business entity. "Event of Bankruptcy" means the entry of an order for relief pursuant to the federal bankruptcy laws, as now or hereafter constituted, or any other applicable Federal, state bankruptcy, insolvency or other similar law, or an assignment for the benefit of creditors, insolvency as determined by court proceedings, the filing of a petition to accomplish any the foregoing (unless such petition shall have been dismissed within one year of filing) or a like event. "Filing Office" means the Office of the Secretary of State of the State of Florida. "Immediate Familk" means, with respect to any natural Person, his spouse, parents, parents -in-law, descendants, nephews, nieces, brothers, sisters, brothers-in-law, sisters-in-law, children -in-law and grandchi ldren-in-law. "Interest(s)" means the entire ownership interest of a Member in the Company at any particular time expressed as a percentage of all Interests in the Company (viz. 100%). The Interest of each Member shall be set forth on Schedule A attached hereto. "Majority -in -Interest of the Members" means more than fifty percent (50%) of the Interests in the Company owned by the Members. "Manager" or "Managers" means any or all of those Persons designated as Managers in this Agreement or any Person who becomes a Manager as provided in this Agreement, in each such Person's capacity as such, and if there is only one Manager at any such time, such term shall refer to such sole Manager alone, "Member" or "Members" means any or all of those Persons designated in Schedule A as members or any Person who becomes a substitute Member as provided herein, in each such Person's capacity as a Member of the Company. "Person(s)" means any individual or Entity. "Property" means any real property owned by the Company from time to time. "Retirement" (including the forms Retire, Retiring and Retired) means, as to a Manager, the occurrence of death, final adjudication of insanity or incompetence, Event of Bankruptcy, dissolution, liquidation, or voluntary or involuntary withdrawal or retirement from the Company as a Manager for any reason, including whenever a Manager may no longer continue as a Manager by law or pursuant to any terms of this Agreement. "State" means the State of Florida, "Substitute Member" means any Person who is admitted to the Company as a Member under the provisions of Section 7.2, 2 ARTICLE Il -- Formation; Name; and Putpose Section 2.1 Formation The Members hereby form pursuant to the Act a limited liability company to be known as LYRIC DEVELOPMENT LLC, Section 2.2 Name, Office and Registered Agent The Company shall be conducted under the name and style of LYRIC DEVELOPMENT LLC and its principal office shall be 120 Forbes Boulevard, Suite 180, Mansfield, MA 02048; provided that the Manager may at any time change the name of the Company or the location of such principal office with the approval of all of the Members, and notice thereof shall be given to each Member within a reasonable time after such change is made. The registered agent shall be Terry M. Lovell, Esq., with an address of 150 West Flagler Street, Suite 2200, Miami, Florida 33130. Section 2.3 Purpose The purpose of the Company is to acquire, own, renovate, construct, develop, hold, invest in, improve, maintain, operate, lease, sell and otherwise deal with the Property. The Company shall not engage in any other business or activity. Section 2.4 Term and Dissolution The Company shall continue in full force and effect in perpetuity, except that the Company shall be dissolved and its assets liquidated upon the happening of any of the following events: A. The sale or other disposition of all or substantially all of the assets of the Company; or B. The written consent of Members owning at least sixty-seven percent (67%) of the interests. Upon dissolution of the Company, the Manager (or, for purposes of this paragraph, its trustees, receivers or successors) shall commence 10 wind up the affairs of the Company and to liquidate the Company assets and apply and distribute the proceeds thereof in accordance with Section 9.2. Upon the completion of the liquidation of the Company and the distribution of all Company funds, the Company shall terminate and the Manager shall have the authority to execute and deliver Articles of Dissolution of the Company as well as any and all other documents required to effectuate the dissolution and termination of the Company. Notwithstanding the foregoing, if, during liquidation, the Manager shall determine that an immediate sale of part or all of the Company's assets would cause undue loss to the Members, the Manager may, with the consent of all of the Members and in order to avoid such loss, defer liquidation of, and withheld from distribution for a reasonable time, any assets of the Company except those necessary to satisfy the Company debts and obligations. ARTICLE 111-- [Intentionally omittedl 3 ARTICLE IV — Members; Capital Section 4, I Manager The Manager and its business address as of the date of this Agreement shall be as follows: The Gatehouse Group, Inc., 120 Forbes Boulevard, Suite 180, Mansfield, Massachusetts 02048. Section 4.2 Members The Members of the Company shall be those Persons identified as such and their respective Interests shall be, in each case, as set forth on Schedule A from and after the date ofthis Agreement, The Manager may admit additional Members only with the prior written consent of Members owning at least sixty-seven percent (67%) of the Interests, Section 4.3 Capital and Capital Accounts A. The Capital Contribution of each Member shall be as set forth on Schedule A. No interest shall be paid on the Capital Contribution of any Member. No Member shall have the right to withdraw his Capital Contribution or to demand and receive property of the Company in return for his Capital Contribution except as may be specifically provided in this Agreement. B. An individual Capital Account shall be established and maintained on behalf of each Member, including any additional or substituted Member who shall hereafter receive an Interest in the Company. The Capital Account of each Member shall consist of (a) the amount of cash such Member has contributed to the Company plus (b) the fair market value of any property such Member has contributed to the Company net of any liabilities assumed by the Company or to which such property is subject plus (c) the amount of profits or gain allocated to such Member less (d) the amount of losses and deductions allocated to such Member less (e) the amount dal! cash distributed to such Member less (f) the fair market value of any property distributed to such Member net of any liabilities assumed by such Member or to which such property is subject less (g) such Member's share of any other expenditures which are not deductible by the Company for Federal income tax purposes or which are not allowable as additions to the basis of Company property and shall be (h) subject to such other adjustments as may be required under the Code. The Capital Account ofa Member shall not be affected by any adjustments to basis made pursuant to Section 743 of the Code. C. The original Capital Account established for any substituted Member shall be in the same amount as, and shall replace, the Capital Account of the Member which such substituted Member succeeds, and, for the purposes of this Agreement, such substituted Member shall, be deemed to have made the Capital Contribution, to the extent actually paid in, of the Member which such substituted Member succeeds. The term "Substituted Member," as used in this paragraph, shall mean a Person who shall become entitled to receive a share of the profits, losses and distributions of the Company by reason of such Person succeeding to the Interest in the Company of a Member by assignment of all or any part ofa Member's Interest in the Company. To the extent a substituted Member receives Tess than 100% of the Interest in the Company ofa Member he succeeds, the original Capital Account of such substituted Member and his Capital Contribution shall be in proportion to the Interest he receives and the Capital Account of the Member who retains a partial Interest in the Company and his Capital Contribution shall continue, and not be replaced, in proportion to the interest he retains. Nothing in this Section 4.3 shall affect the limitations on transferability of Company Interests set forth in Article VI, Article VII, or Section 9.1 ofthis Agreement. 4 Section 4.4 Liability of Members and Mangers No Member or Manager shall be liable for any debts, liabilities, contracts, or obligations of the Company. A Member shall be liable only to make payments of his Capital Contribution as and when due hereunder. After his Capital Contribution shall be fully paid, no Member shall, except as otherwise required by the Act, be required to make any further Capital Contributions or lend any funds to the Company. The Manager shall not be liable, responsible or accountable for damages or otherwise to any Member for any act performed within the scope of the authority conferred by this Agreement, except for acts of fraud, willful misconduct or gross negligence. ARTICLE V -- Manager's Rights, Powers and Duties Section 5.1 Authorized Acts In furtherance of the purpose of the Company, and subject to the terms of this Agreement and after written approval of the Members, the Manager is authorized, on behalf of the Company: (1) To acquire any real or personal property, by purchase, lease, exchange or otherwise, and to execute and enter into any agreement, instrument or understanding on behalf of the Company for such purpose. (2) To construct, lease, operate, maintain, finance and improve any real or personal property owned by the Company, and to execute and enter into any agreement, instrument or understanding on behalf of the Company for such purpose. (3) To sell, convey, assign, mortgage or lease any real or personal property owned by the Company, and to execute and enter into any agreement, instrument or understanding on behalfofthe Company for such purpose. (4) To borrow money and to issue promissory notes and other evidences of indebtedness on behalf of the Company, and to secure the same by mortgage, deed of trust, pledge or other lien on the Property or any other asset(s) of the Company. (5) To prepay in whole or in part, refinance or modify any Company debt or any mortgage loan affecting the Property or any other asset(s) of the Company, and to execute and enter into any agreement, instrument or understanding for such purpose. (6) To employ a management agent, including but not limited to any management agent that is an Affiliate of any Member(s), for the purposes of managing, teasing, marketing, maintaining and/or operating the Property or any other asset(s) of the Company. (7) To execute and enter into any agreement, note, mortgage, deed of trust, security or pledge agreement or other instrument in order to secure a loan in connection with the acquisition, construction, development, improvement, maintenance and/or operation of the Property or any other asset(s) of the Company. (8) To lease all or any part of the Property or any other asset(s) of the Company, or to assume any such leases, and to execute and enter into on behalf ofthe Company any agreement, instrument or 5 understanding with respect to such lease(s), and any amendment or supplement thereto or renewal or replacement thereof, and to engage in any activity permitted or required under such leases. (9) To take actions of any kind and to execute, enter into, perform and carry out agreements, instruments and understandings of any kind, which are incidental or related to the business or purposes of the Company and which may be lawfully carried on or performed by a limited liability company. (10) To file all certificates and documents required by any law, regulation or ordinance. Section 5.2 Independent Ventures Except as the Members may expressly agree otherwise, any Member or Manager may engage independently or with others in other business ventures of every nature and description including the ownership, operation, management, syndication and development of real estate; neither the Company nor any Member or Manager shall have any rights in and to such independent ventures or the income or profits derived therefrom. Section 5.3 Business Administration and Control A. After prior written approval by the Members, the Manager shall have the full and exclusive right, power and authority to manage the affairs of the Company and to bind the Company, to make all decisions with respect thereto and to do or cause to be done any and all acts or things deemed to be necessary, appropriate or desirable to carry out or further the business of the Company, in each case, subject to Section 5.3B and except as otherwise set forth in this Agreement. The Manager shall perform his duties in good faith, in a manner he reasonably believes to be in the best interests of the Company and with such care as an ordinarily prudent person in a like position would use under similar circumstances. In performing his duties, the Manager shall be entitled to rely on information, opinions, reports or statements, including financial statements and other financial data, in each case, prepared and presented by one or more agents or employees of the Company whom the Manager reasonably believes to be reliable and competent in the matters presented or counsel, public accountants or other persons as to matters which the Manager reasonably believes to be within such person's professional or expert competence, B. Unless otherwise provided by law, by the Articles of Organization or by this Agreement, the Members shall act (i) at a meeting of the Members, by resolution duly adopted by.a Majority -in -Interest of the Members or (ii) without a meeting of the Members, by written consent signed by a Majority -in -Interest of the Members. Notwithstanding anything to the contrary contained in this Agreement, the Manager shall not take any actions with respect to the matters described below (each a "Major Decision") without the prior approval by the Members (i) at a meeting of the Members, by resolution duly adopted by Members owning at least sixty- seven percent (67%) of the Interests or (ii) without a meeting of the Members, by written consent signed by Members owning at least sixty -se\ en percent (67%) of the Interests: (1) the decision to take any action to initiate a bankruptcy or insole ency of the Company; (2) merge or consolidate with any other Person; (3) sell or otherwise dispose of all or substantially all of the assets of the Company; or (4) any other decision or action which by the provisions of this Agreement is required to be approved by Members owning at least sixty-seven percent (67%) of the Interests. 6 C. A Member shall respond to all written requests for consent to a Major Decision in a timely manner. For purposes of this Section 5,3, a response shall be deemed to be given in a timely manner if it is received by the Company within fifteen (15) days after the date that such written request for consent is received. If a Member fails to respond to a written request for consent within such fifteen (15) day period, then such non -responding Member shall be deemed to have given its consent upon the expiration of such fifteen (I 5) day period. D. Except as expressly authorized by this Agreement, no Member shall, directly or indirectly, (a) resign, retire or withdraw from the Company, (b) dissolve, terminate or liquidate the Company, (c) petition a court for the dissolution, termination or liquidation of the Company or (d) cause any property of the Company to be subject to the authority of any court, trustee or receiver (including suits for partition and bankruptcy, insolvency and similar proceedings). E. All Members hereby acknowledge and agree that Marc S, Plonskier shall be the "Tax Matters Partner" pursuant to the Code in connection with any audit of the Federal income tax returns of the Company. The Company may engage the Accountants to assist the Tax Matters Partner in discharging his duties hereunder. Section 5.4 Engagement of Brokers and Others After prior written approval by the Members, the Manager may act or may employ others (including Affiliates) to act as contractors, supervisory and managing agents, brokers, agents or attorneys as the Manager ma) deem necessary or advisable, in connection with the operation, management, lease or sale of all or any portion of the Property or any other asset(s) of the Company, and may cause the Companyto pay to any Person (including a Manager or his or her Affiliate) acting in such capacity commissions or other compensation in amounts not exceeding typical and customary commissions or other compensation then prevailing for such services in the vicinity of the Property. Section 5.5 Indemnification of Manager The Manager shall be indemnified by the Company against any losses, judgments, liabilities, expenses and amounts paid in settlement of any claims sustained by the Manager in connection with the Company, provided that the same were not the result of gross negligence, fraud or willful misconduct on the part of the Manager. Section 5.6 Delegation of Manager Authority If there shall be more than one Manager serving hereunder, each Manager may periodically, by an instrument in writing, delegate all or any of his powers or duties hereunder to another Manager or Managers. ARTICLE VI -- Retirement of the Manager The Manager may retire upon at least 60 days' prior written notice to the Members, Members owning at least sixty-seven percent (67%) of the Interests may remove the Manager, with or without cause, upon five (5) days' prior 'sritten notice. An additional or successor Manager may be selected as a Manager of the Comm) anly upon the prior written consent of Members owning at Ieast sixty-seven percent (67%) of the Interests. 7 ARTICLE VII -- Member Transfer Section 7.1 Assi>ynment A. Except by operation of law (including the laws of descent and distribution), each Member agrees that it will not, directly or indirectly, exchange, sell, pledge, mortgage, hypothecate, encumber, distribute, transfer, give, assign or in any other manner whatsoever dispose or attempt to dispose of (each of the forgoing, when used as a noun, being a "Disposition," and when used as a verb, to "Dispose") the hole or any part of its interest in the Company (including, but not limited to, its interest in the capital or profits of or distributions by the Company) at any time, other than a Disposition made or solicited in compliance with the procedures, and subject to the limitations, set forth in this Section 7.1. Any attempted Disposition of the whole or any part of an Interest not in compliance with this Section 7.1 shall be null and void and the intended transferee small be deemed never to have had any interest of any nature whatsoever therein. B. Upon any inter vivos assignment of a Member's Interest in the Company, there shall be filed with the Company an executed and acknowledged assignment and the written acceptance by the assignee of all the terms and provisions of this Agreement all in form, and substance satisfactory to the Manager; if such assignment and acceptance are not so filed, the Company need not recognize such assignment for any purpose. C, Upon the death or incapacity of any Member, his heirs or legal representatives, as applicable, shall have the status of an assignee of the Member's Interest, The death of a Member shall not dissolve the Company. D. Every assignee of a Member's Interest who desires to make a further assignment of his Interest shall be subject to all the provisions of this Article VII to the same extent and in the same manner as a Member. Section 7.2 Substitute Members A. Notwithstanding anything to the contrary contained in this Agreement, no transferee of an Interest in the Company (or any interest in the capital or profits of or distributions by the Company) shall be admitted as a Substitute Member of the Company without the prior written consent of the Members, which consent can be withheld in the Member's sole discretion. The recognition of an assignment of any Interest under Section 7.1 shall not, in and of itself, constitute consent to the admission of the assignee as a Substitute Member under this Section 7.2. In the event of any Disposition permitted under this Agreement, the Company shall not be dissolved or wound up. No Disposition shall relieve the assignor from any of its obligations under this Agreement arising prior to such Disposition (it being understood that, except as otherwise provided herein, the assignor may be relieved of such obligations to the extent the same arise after such Disposition and the same are assumed in writing by the transferee). Additionally, notwithstanding the foregoing, as a condition precedent to any Disposition by a Member and the transferee being admitted as a Substitute Member, the transferee must execute a counterpart to this Agreement (as amended) in form acceptable to the Members and agree to be bound by all of the terms and provisions hereof and must pay the Company's reasonable legal fees and filing costs in connection with such transferee being admitted as a Substitute Member, B. An assignee of a Member's Interest who does not become a Substitute Member as provided in this Section 7.2 shall have the right to receive the share of profits, losses and distributions of the Company to which the assigning Member would ha),e been entitled if no such assignment had been made by such Member. 8 Section 7,3 Restrictions Notwithstanding anything to the contrary contained herein: A. No sale or exchange of any Interest may be made if such sale or exchange would violate Section 1 1,1 B. In no event shall all or any part of a Member's Interest in the Company be assigned to a minor (other than to a member of a Member's Immediate Family by reason of death) or to an incompetent. C. The Manager may, in addition to any other requirement he may impose, require as a condition of sale, transfer, exchange, assignment or other Disposition of any Interest, that the transferor assume all costs incurred by the Company in connection therewith. D. Any sale, exchange, transfer or other Disposition in contravention of any of the provisions of this Section 7,3 shall be oid and ineffectual and shall not bind or be recognized by the Company. ARTICLE VIlI -- Borrowings Ail Company borrowings shall be subject to the terms of this Agreement. To the extent borrowings are permitted, they may be made from any source including Members and Affiliates. Warty Member shall lend any moneys to the Company, such loan shall bear interest and be on such other terms as may be determined by the Members, but which shall in any event be no Tess favorable to the Company than comparable loans from non -Affiliated Persons. The amount of any loan made by a Member shall not be an increase of his Capital Contribution or increase his share of the profits, losses, tax credits or distributions of the Company, except as may be required by Section 9.313, ARTICLE IX -- Profits, Losses and Distributions Section 9.1 Profits, Losses and Distributions A. All profits and losses arising from the normal course of business operations or otherwise and all cash available for distribution from whatever source, commencing with the date of this Agreement, shall be allocated or distributed to the Members according to their Interests, B. All profits and losses allocated to the Members shall be credited or charged, as the ease ma) be, to their Capital Accounts. The terms "profits" and "losses" as used in this Agreement shall mean income and losses, and each item of income, gain, lose, deduction or credit entering into the computation thereof as determined in accordance with the accounting methods followed by the Company and computed in a manner consistent with Treasury Regulation Section 1.704-1(b)(2)(iv). Profits and losses for Federal income tax purposes shall be allocated in the same manner as profits and losses for purposes of this Article IX, except as provided in Section 9.3A. Section 9,2 Distributions Upon Dissolution A. Upon dissolution and termination, after payment of or adequate provision for, the debts and obligations of' the Company, the remaining assets of the Company (or the proceeds of sales or other dispositions in liquidation of the Company assets, as may be determined by the remaining or surviving 9 Member(s)) shall be distributed to the Members in accordance with the positive balances in their Capital Accounts after taking into account all Capital Account adjustments for the Company taxable year, B. With respect to assets distributed in kind to the Members in liquidation or otherwise, (i) any unrealized appreciation or unrealized depreciation in the values of such assets shall be deemed to be profits and losses realized by the Company immediately prior to the liquidation or other distribution event; and (ii) such profits and losses shal i be allocated to the Members and credited or charged to their Capital Accounts, and any property so distributed shall be treated as a distribution of an amount in cash equal to the excess of such fair market value over the outstanding principal balance of and accrued interest on any debt by which the property is encumbered. For the purposes of this Section 9.2B "unrealized appreciation" or "unrealized depreciation" shall mean the difference between the fair market value of such assets, taking into account the fair market value of the associated financing but subject to Section 7701(g) of the Code, and the Company's basis in such assets as determined under Treasury Regulation Section 1.704-1(b). This Section 9,2B is merely intended to provide a rule for allocating unrealized gains and losses upon liquidation or other distribution event, and nothing contained in this Section 9.2B or elsewhere in this Agreement is intended to treat or cause such distributions to be treated as sales for value, The fair market value of such assets shall be determined by an appraiser to be selected by the Manager only with the prior written consent of a Majority -in -Interest of the Members. Section 9.3 Special Provisions Notwithstanding the foregoing provisions in this Article IX: A, Income, gain, loss and deduction with respect to Company property which has a variation between its basis computed in accordance with Treasury Regulation Section 1.704-(b) and its.basis computed for Federal income tax purposes shall be shared among Members so as to take account of the variation in a manner consistent with the principles of Section 704(c) of the Code and Treasury Regulation Section 1.704-3. B. Section 704 of the Code and the Regulations issued thereunder, including but not limited to the provisions of such regulations addressing qualified income offset provisions, minimum gain chargeback requirements and allocations of deductions attributable to nonrecourse debt and partner nonrecourse debt, are hereby incorporated by reference into this Agreement. ARTICLE X -- Books and Records, Accounting and Reports Section 10,1 Books and Records The books and records of the Company shall be maintained at the principal office of the Company and shall be available for examination there by any Member, or his duly authorized representatives, at any and all reasonable times. The Company may maintain such books and records and may provide such financial or other statements as the Manager in his exclusive discretion deems advisable or as instructed by the Members. Section 10.2 Bank Accounts The bank accounts of the Company shall be maintained separately from any other funds and in such financial institutions as the Members shall determine. Withdrawals shall be made only in the regular course of Company business on such signature or signatures as the Members may determine. 10 Section 10.3 Accountants The Accountants shall prepare, for execution by the Manager or the Tax Matters Partner, all tax returns of the Company. Section 10.4 Tax Elections Subject to the provisions of Section 10,5, all elections required or permitted to be made by the Company under the Code shall be made by the Tax Matters Partner in such manner as will be most advantageous to a Majority -in -Interest of the Members. Section 10,5 Special Basis Adjustments In the event of a transfer of all or any part of the Interest of any Member for consideration in excess of the adjusted basis for such Interest for Federal income tax purposes, the Members shall have the right, to be exercised in their sole discretion, to cause the Company to elect, pursuant to Section 754 of the Code (or corresponding provisions of succeeding law) to adjust the basis of the Company property , Notwithstanding anything contained in Article IX hereof, any adjustments made pursuant to said Section 754 shall affect only the successor in Interest to the transferring Member. Each Member will furnish the Company all information necessary to give effect to such election. Section 10.6 Fiscal Year The fiscal and tax year of the Company shall be the calendar year. The books of the Company shall be kept on an accrual basis, provided that the Members shall have the right to change to the cash basis if such change is, in the opinion ofthe Members, advantageous to a Majority-in-Jnterest ofthe Members and ifthe use of the cash basis is permitted under the Code. ARTICLE XI -- General Provisions Section ! ! . I Section 708 Restrictions Notwithstanding any other provisions of this Agreement, no sale or exchange of any Member's Interest in the Company may be made if the Interest sought to be sold or exchanged, when added to the total of all other Interests in the Company sold or exchanged within the period of twelve consecutive months prior to the proposed date of sale or exchange, could, in the opinion of tax counsel to the Company, result in the termination of the Company under Section 708 of the Code. Any sale, exchange or other transfer in contravention of any of the provisions of this Section 11. ! shall be void ab initio and ineffectual, and shall not bind or be recognized by the Company. Section 11.2 Intentionally Deleted Section 11.3 Amendments to Schedule A and Certificate Upon any change in the composition ofthe Company, Schedule A shall be amended by the Manager to reflect the then current composition of the Company. I Section 11.4 Notices Any notice called for under this Agreement shall be in writing and shall be deemed adequately given if and when sent by registered or certified mail, postage prepaid, to the party for whom such notice is intended at his last address of record on the Company books. Each Member shall give written notice to the Company of any change in his address. Section 1 1.5 Word Meanings The words such as "herein," "hereinafter," "hereof' and "hereunder" refer to this Agreement as a whole and not merely to a subdh ision in which such words appear unless the context otherwise requires. The singular shall include the plural and the masculine gender shall include the feminine and neuter, and vice versa, unless the context otherwise requires. Section 11.6 Binding Effect The covenants and agreements contained herein shall be binding upon and inure to the benefit of the heirs, executors, administrators, successors and assigns of the respective parties hereto. Section 1 1.7 Applicable Law This Agreement shall be construed and enforced in accordance with the laws of the State. Section 11.8 Counterparts This Agreement may be executed in several counterparts and all so executed shall constitute one agreement binding on all parties hereto, notwithstanding that all the parties have not signed the original or the same counterpart. Section 11.9 Separability of Provisions Each provision of this Agreement shall be considered separable and (a) if for any reason any provision is determined to be invalid, such invalidity shall not impair the operation of or affect those portions of this Agreement which are valid, or (b) if for any reason any provision would cause the Members to be bound by the obligations of the Company such provision or provisions shall be deemed void and of no effect. To the extent any. prop is ion of this Agreement is prohibited or ineffective under the Act, this Agreement shall be deemed to be amended to the least extent necessary in order to make this Agreement effective under the Act. In the event the Act is subsequently amended or interpreted in such a way to validate any provision ofthis Agreement that was formerly invalid, such provision shall be considered to be valid from the effective date of such amendment or interpretation. Section 11.10 Paragraph Titles Paragraph titles are for descriptive purposes only and shall not control or alter the meaning of this Agreement as set forth in the text. 12 Section 11.1 1 Amendment Procedure The • Manager shall have the right to effect amendments to this Agreement which are of an insubstantiai or inconsequential nature without consultation with an) Member and shall be the attorney -in -fact of each of the Members (as provided in Section 11.2) for the purpose of approving such amendments. This Agreement may otherwise be amended by the Manager only with the prior written consent of Members owning at least sixty-seven percent (67%) of the Interests. Notwithstanding the provisions of the immediately preceding paragraph, (a) no amendment shall be adopted without the written approval of all Members which would extend the term of the Company beyond the date set forth in Section 2.4 or would amend this Section 11.1 1, and (b) no amendment shall be adopted without the written approval of each Member affected thereby which would increase the amount of Capital Contributions payable by any Member, increase the liability of a Member or alter, in a manner disproportionate to such alteration with respect to other Members of the same class, any Member's share of the profits, losses or distributions of the Company. [Signature Page Follows] 13 Subscribed and sworn to under seal as of the date first written above. i MPERS: u as Tri. Mar. S. Pio as T ustec but not individually ndividually MANAGE: The Gatti ou c f_pup, Inc. Mar S. Pion Pre ident Signature Page to Operating Agreement SCHEDULE A LYRIC DEVELOPMENT LLC as of January 17, 2012 MEMBERS CAPITAL CONTRIBUTION David J. Canepari and $50 Marc S. Plonskier, as Trustees and Sellers under Second Amended and Restated Voting Trust Agreement dated February 1, 2006, as amended (1) INTEREST 5 0% David J. Canepari and $50 50% Marc S. Plonskier, as Trustees and Sellers under Second Amended and Restated Voting Trust Agreement dated February 1, 2006, as amended (2) (1) (2) #436188 v2 Represents the Interest issued to and immediately transferred by David J. Canepari Represents the Interest issued to and immediately transferred by Marc S. Plonskier EXHIBIT 0 PERSONS AND ENTITIES THAT HAVE AN OWNERSHIP INTEREST IN DEVELOPER David J Canepari and Mark S. Plonskier, as Trustees and Sellers under the Second Amended and Restated voting Trust Agreement dated February 1, 2006, as amended as to a 50% interest. David J. Canepari and Mark S, Plonskier, as Trustees and Sellers under the Second Amended and Restated voting Trust Agreement dated February 1, 2006, as amended as to a 50% interest, 123 EXHIBIT R Organization Documents of Manager 124 Name Approved C M R.A. ❑ A.C. It IMM/ NEMMEmmimsI I • Zip 01tnuntfneultli ofAtusourflustits OFFICE OF THE MASSACHUSETTS SECRETARY OF STATE MICHAEL J. CONNOLLY, Secretary ONE ASHBURTON PLACE, BOSTON, MASSACHUSETIS UZi06 ARTICLES OF ORGANIZATION (Under G.L Ch. 156B) ARTICLE I The name of the corporation is: The Gatehouse Group, Inc. ARTICLE II The purpose of the corporation is in cnga'r in the fonowind business activities. U To purchase or otherwise acquire, invest in, own, mortgage, pledge, sell, assign and transfer or otherwise dispose of, trade in and deal in and with real estate and personal property of every kind, class and description (including, without limitation, goods, wares and merchandise of every kind, class and description), to manufacture goods, wares, and merchandise of every kind, class and description; both on its own account and for others. To borrow or lend money, arid to make and issue notes, bonds, debentures, obligations, and evidence of indebtedness of all kinda, whether secured by mortgage, pledge, or otherwise, without limit as to amount, and to secure the same by mortgage, pledge, or contracts of every kind and description. To purchase, receive, take by grant, lease, manage,ttdevelovorcotherwise acquire, own, hold, improve, employ, use and otherwise deal in and with, real property, or any interest therein, wherever situated. To subscribe for, take, acquire, hold, sell, exchange and deal in shares, stocks, bonds, obligations and aecuritiee of any corporation, government, authority or company; to form, promote, subsidise and assist companies, syndicates or partnerships of all kinds and to finance and refinance the same; and to guaranty the obligations of other persons, firms or corporations. To carry on any business, operation or activity referred to in the foregoing paragraphs either alone or in conjunction with, or as a partnership, joint venture or other arrangement with, any corporation, association, truer firm or individual and to act as a general partner, limited partner, trustee, or joint venturer in connection therewith. To do any act necessary or incidental to the conduct of said busines es, to carry on any other buaineas, and to do any other thing permitted by all present and future laws of the Commonwealth of Massachusetts applicable to business corporations, 93237005 Note: ff the epatx provided under any snick or Item on Ms form la lantffieient, additions shall be eat fonh on separate B N n I I sheets of paper leaving aloft band entrain of se least f inch. A dditions to more than one article may be continued on a singlc'abeet so lunge/ each article retie inns each such addition Is clearly Indicated. ur...111211111.-ArnMillik4Widia, lad ARTICLE lR The type and classes of stock and the total number of shares and per value, If any, of each type and claw of stock which theeorporation 11 authorised to issue is ss follows: WITHOUT PAR VALUESTOCKS TYPE NUMBER OF SHARES COMMON: 41,1 PREFERRED: WITH PAR VALUE STOCKS TYPE NUMBER OF SHARES PAR VALUE COMMON: 200,000 .0) PREFERRED: ARTICLE 1V ' 'Imam s hen one type, chat or series Is authorized, a deectipdon of each witb, if any, the prefereuces, voting powers, qualifications, specie/ or relative rights or privileges as to each type and class thereof and icy wife Dow established, Norte ARTICLE V The restrictions, if any, Unposed by the Articles of Organization upon the transfer of shares of stock of any dns arc as follows: None ARTICLE VI Other lawful provisions, if any, for the eondunt and regulation of business and attain of the corporation, for its voluntarydissolutioa, or for limiting, defining, or regulating the powers of the corporatlon,tor of itsdinsetore or stackholden, or of any class of stockholders: (If there ate no provisions mac "Nene'.) See Rider 6A attached hereto and made a part 'hereof. Noes The priding ea (6) articles are er 6eted to be pemmican end say ONLY be dseugad by Sling spproprkte Articles of Ades COMET _TO USE OF. NAME The Gatehouse Group, Inc., a corporation organized under the laws of the State of Rhode Island and qualified to do business in the Commonwealth of Massachusetts, hereby consents to the organization of The Gatehouse Group, Inc. in the Commonwealth of Massachusetts. IN WITNESS WHEREOF, The Gatehouse Group, Inc. has caused this consent to be executed thisP*day of August, 1993. THE GATEHOUSE GROUP, INC. a Rhode Island corporation UY= Da epar , President buejd/pLonrki.r/93docr/nsm. cans RIDER SA To the extent and in the manner provided in the By -Laws, the Board of Directors may make, amend or repeal the By -Laws in whole or in part, except with respect to any provision thereof which by law or by the By --Laws requires action by the stockholders. To the extent and in the manner provided in the By -Laws, meetings of the stockholders may be held anywhere within the Commonwealth of Massachusetts or elsewhere in the United States. The Corporation may be a partner (general or limited) or joint venturer in any business enterprise which said Corporation would have power to conduct by itself. No director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director; provided, however, that this provision shall not eliminate or limit the liability of a director to the extent provided by applicable law (i) for any breach of the director's duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 61 or 62 of the Business Corporation Law, Chapter 156B, of the, Commonwealth of Massachusetts, or (iv) for any transactions from which the director derived an improper personal benefit. NO amendment to or repeal of this provision shall apply to or have effect on the liability or alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment or repeal. buaek/orp.docs/mass./p.6a.Ws aiC�3LWi+£as.ase.e - to sp--saaisenZ .�.w•—rae.reca�.aa r. ARIZQ.E YI1 The effective date of organization of thccorporatian shall be the date approved and Lied by the Suntory of the Commonwealth, If a Iatsreffeetive ddto is dcrlrrd, specify such date which stall not be more than thirty days after the date of filing. 1 th4 �• • i, The information contained la ARTICLE VI II Is NOT a PERMANENT pan of the Articles of Organisation and may be divulged ONLY by Wing the appropriate form provided therefor. ARTICLE YI a The scrod address of the corporation IN MASSACHUSET S is; (post office boats are not acceptable) 313 Congress Street, Boston, MAI. 02210 b, The name, residence and post office address (if different) of the directors and Mors of the corporation are u Tolle err. NAME RESWENCE POST OF'ilCE ADDRESS pmodm Marc S. elonakier 41 Chace Street Newton, MA 02159 Treawntr David J. Canepari 7 Fort Avenue Cranston, RI 02905 Marc S. Plonskier same se above Clark Dtrectone David J. Canepari same as above Marc S. Plonakier same as above Exec, V.P. David J. Canepari same as above c. The fiscal year (i.e., tax yeas) el the corporation shall end as the but day of the month of: July d• The name and BUSINESS address of the RESIDENT AGENT of the corporation. if any, la: N/A ARTICLED: By-laws of the corporation have been duly adopted and the president, trouurer, clerk and directors whose names are set forth above, have beeo duly elected_ IN WITNESS WHEREOF and under the pains and peneltin of perjury, l/ WE, whose signature(s) appear below as tecorperator(s) and whore names and busincst or residential addresa(es) ARE CLEARLY TYPED OR PRINTED beneath each signature do hereby associate with the Intention of forming this corporation u r the provtdons•of General Laura Chapter 1361) and do hereby:Iv) there Articles of Organisation es incorporttor(s) this . of )0' 19' David Canepari 3)se3 Con se Street n.iintnn MA f1771f1 NOM If as dready-ssisain corporation b acting es Incorporator, type In die asset mum of the ooeporatlon. the Mete or other jurisdiction rba is it was feootporeted, eke nenen r dee pram dgalog ae bobbin( ooeporsdoo and,h. el* Wan* bade or other eofLotly by whleb mach anion 10 Wye. 1993 '0,12$ Mki s;1 LQi. ellit i tQ 4 C 439137 THE COMMONWEALTH OF MASSACHUSETTS ARTICLES OF ORGANIZATION GENERAL LAWS, CHAPTER 156B, SECTION 12 hereby certify that, upon In examination of these ankles of organization, duly submitted to me, It appears that the provisions of the General Laws relative to the organization of corporations have been complied with, and 1 hereby approve said snicks: and the filing fee in the amount of 9 ,Z1$.00 having been paid, said articles are deemed to have been filed: with me this -q, day of Au v S r- Ef%crlvi date MICHAEL J. CONNOLLY '' Secretary of State 19 .3 FILING FEZ1/10 of 116 of the total amount of the authorized capital stock but not lees than 5200.00. Fir the purpose of filing, shares of stock with a par value lees than one dollar or no par stock shall be deemed to have a par value of one dollar per share. „ PHOTOCOPY OF ARTICLES OF ORGANIZATION TO BE SENT. Richard R. Loewy, Esquire "' `• " Warner & SCackpole /) state Street Hoetonr MA 02109 Telephone (617) 951-9000 .1 EXHIBIT S DEVELOPER CERTIFICATE The undersigned, acting on behalf of Lyric Development, LLC, a Florida limited liability company (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: l . The Developer and the Issuer have entered into a Development Agreement dated as of October , 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 7.4 of the Development Agreement, and will not make payments to the Issuer under that Section 7.4 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 11.5 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 11.6 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 31 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] 125 LYRIC DEVELOPMENT, LLC, a Florida limited Liability company The Gatehouse Group, Inc., a Commonwealth of Massachusetts corporation, its manager By: Name: Title: 126 #1I200228_v12