HomeMy WebLinkAboutCRA-R-13-0008 Legislation w attachment 6 of 6 -1-28-2013DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (the "Agreement") is made as of the 15th day of
January, 2013, by and between AMC HTG 1, LTD., a Florida limited partnership (the
"Developer") and the SOUTHEAST OVERTOWN/PARK WEST COMMUNITY
REDEVELOPMENT AGENCY, a public agency and body corporate created pursuant to Section
163.356, Florida Statutes (the "CRA");
RECITALS
A. The Southeast Overtown/Park West Project area was designated as a community
redevelopment area (the "Redevelopment Area") by Miami -Dade County, a political subdivision
of the State of Florida (the "County"). A redevelopment plan was approved by the
Commissioners of the City of Miami and the Commissioners of Miami -Dade County with
certain redevelopment authority granted by the County to the City for project implementation.
The City assigned to the CRA the redevelopment authority granted by the County to the City.
B. The CRA issued a request for information (the "RFI") for proposed developments
within the Redevelopment Area.
C. In response to the RFI, Developer submitted a proposal (the "Proposal") for the
development of a project to be located on that certain real property more particularly described
on Exhibit "A" attached hereto and made a part hereof (the "Property"), which Developer is
leasing pursuant to the terns of that certain Sublease Agreement dated as of April 22, 2009 (the
"Sublease") by and between Alonzo Mourning Charities, Inc., a Florida not -for -profit
corporation, now known as Mourning Family Foundation, Inc., a not -for -profit Florida
corporation ("Sublessor") and Developer.
D. Based upon the evaluations of all responses submitted to the CRA in response to
the RFI, the Proposal submitted by the Developer was given a high ranking and the Board of
Commissioners of the CRA authorized the executive director of the CRA (the "Executive
Director") to negotiate the definitive terms of the transaction contemplated by the RFI and the
Proposal.
E. Based upon such negotiations the CRA has agreed to make a grant for the benefit
of the Developer and the Developer has agreed to develop the Project, as hereinafter defined, on
the Property, subject to the terms and conditions of this Agreement.
NOW THEREFORE, for and in consideration of the $10.00 and other good and valuable
consideration and of the covenants and agreements hereafter set forth, the parties agree as
follows:
1. RECITALS. The Recitals to this Agreement are true and correct and are
incorporated herein by reference and made a part hereof.
2. PROPERTY ISSUES.
2.1 Developer shall obtain a title insurance commitment (the "Commitment")
and a survey (the "Survey") of the Property, at the Developer's sole cost and expense. The
Commitment and the Survey shall show the Developer to be vested in good marketable leasehold
interest in the Property pursuant to the Sublease, as hereinafter defined, free and clear of all liens
and encumbrances except for the following (the "Permitted Exceptions"):
2.1.1 Ad valorem real estate taxes and assessments for the year of
closing and subsequent years.
2.1.2 All applicable laws, ordinances and governmental regulations,
including, but not limited to, all applicable building, zoning, land use, environmental ordinances
and regulations.
2.1.3 Those matters listed on Exhibit "B" attached hereto and made a
part hereof.
2.2 The Developer shall provide the Executive Director with a copy of the
Commitment and the Survey as soon as available to enable the Executive Director to confirm
that the Developer owns a leasehold interest in the Property, pursuant to the Sublease, subject
only to the Permitted Exceptions.
2.3 The Developer shall provide the Executive Director with an environmental
report and a reliance letter addressed to the CRA reflecting no environmental conditions that will
adversely affect the development of the Project, as hereinafter defined, as soon as available to
enable the Executive Director to confirm that there are no environmental conditions that will
affect the development of the Project.
2.4 The Developer shall provide the Executive Director with soil assessment
reports as soon as available to enable the Executive Director to confirm that there are no soil
conditions that will adversely affect the development of the Project.
2.5 Developer shall provide to the Executive Director with evidence of the
following:
2.5.1 The County and Sublessor have entered into an amendment (the
"Ground Lease Amendment") to that certain ground lease dated December 19, 2008 (the
"Ground Lease") between the County and Sublessor incorporating the following revisions to the
Ground Lease:
2.5.1.1 Amend the Commencement Date, as defined in the
Ground Lease, to allow Developer to have a sufficient time frame to satisfy all of the CRA
Conditions Precedent.
2
2.5.1.2 Amending Section 4.1.1 of the Ground Lease to permit
the development of the Project, as hereinafter defined.
2.5.1.3 Amending Section 4.3 of the Ground Lease to provide
the Developer sufficient time to develop the Project in accordance with the requirements of this
Agreement.
2.5.1.4 Delete Section 4.7 of the Ground Lease.
2.5.1.5 Amending Article XI of the Ground Lease to require
the Project to be restored if there is any damage or destruction for a period of thirty (30) years
from Completion, as hereinafter defined, irrespective of available insurance proceeds.
2.5.1.6 Amend the affordability requirements of Section 4.1.1
of the Ground Lease to conform with Section 8.1.
2.5.2 The Developer and the Sublessor have entered into an
amendment to the Sublease (the "Sublease Amendment") incorporating the following provisions
into the Sublease:
2.5.2.1 Amend the Sublease to incorporate the provision of the
Ground Lease Amendment.
2.5.2.2 Confirm that the Sublessor will join into the Restrictive
Covenant.
2.6 If the Ground Lease Amendment and the Sublease Amendment in form
and content acceptable to the Executive Director, have not been executed on or before January
31, 2013, then in such event the Executive Director may terminate this Agreement in which
event the parties shall be released from all further obligations under this Agreement.
3. PROJECT.
3.1 Description of the Project. The project (the "Project") shall consist of not
less than 79 affordable rental units, all with balconies and upgraded finishes to improve
longevity and durability with ground floor commercial space constructed in buildings not
exceeding six (6) stories, will include one -bedroom units, two -bedroom units, and three -bedroom
units, the mix of which and the size of which shall be established based upon the community
input received in accordance with Section 3.3 below and as approved by the Executive Director
in accordance with Section 3.4 below together with a sufficient number of parking spaces to
comply with the applicable zoning and the terms of the Ground Lease and Sublease.
3.2 Design of the Project. The Project shall be designed so it is consistent
with the Southeast Overtown/Park West Community Redevelopment Plan dated November 2004
prepared by Dover Kohl & Partners as updated by the Final Update of May 2009 by the City of
Miami Planning Department (ver 2.0) (collectively, the "Design Standards").
3
3.3 Community Input. Not later than sixty (60) days of the Effective Date, the
Developer shall present schematic design documents for the proposed Project to the Historic
Overtown Folk Life District Improvement Association ("HOFLDIA") and the Overtown
Community Oversight Board ("OCOB") for their review and comment. The schematic design
documents (the "Schematic Design Documents") shall consist, at a minimum, of the proposed
site plan for the Project, proposed building massings and elevations for the Project, an
architectural rendering of the Project of sufficient detail to allow the HOFLDIA and the OCOB
to evaluate the proposed Project and its design and confirm that the proposed Project is
consistent with the Design Standards. The Developer shall revise the Schematic Design
Documents to address the comments and concerns of the HOFLDIA and the OCOB.
3.4 Approval of Schematic Design Documents by CRA. Within ninety (90)
days from the Effective Date, the Developer shall submit to the Executive Director for review
and approval the Schematic Design Documents which shall have been revised by the Developer
to incorporate the reasonable comments received from the HOFLDIA and the OCOB, which
must also be consistent with the Design Guidelines. The Developer agrees to use its good faith
efforts to modify the Schematic Design Documents as necessary to satisfy the requirements of
the Executive Director. The Developer shall provide the Executive Director such additional
back-up information as the Executive Director may reasonably request to enable the Executive
Director to analyze all aspects of the Project as reflected in the Schematic Design Documents.
The Executive Director shall have fifteen (15) days from the receipt of the Schematic Design
Documents to approve or disapprove same. If the Executive Director fails to timely respond, the
submitted Schematic Design Documents shall be deemed approved. In the event of disapproval,
the Executive Director shall specify the reasons for such disapproval. In the event of
disapproval, the Developer shall modify the Schematic Design Documents, as appropriate, to
address the comments and concerns of the Executive Director to ensure that the Schematic
Design Documents comply with the Design Standards and the input from HOFLDIA and OCOB,
as deemed appropriate by the Executive Director, acting reasonably. Any resubmission shall be
subject to approval by the Executive Director in accordance with the procedure outlined above
for the original submission until same is approved or deemed approved by the Executive
Director. The Executive Director and the Developer shall proceed in good faith to attempt to
resolve any disputes regarding the Schematic Design Documents. If the Executive Director has
rejected the Schematic Design Documents two (2) times, Developer may elect to submit such
dispute regarding the approval of the Schematic Design Documents to the CRA Board for
resolution. The Schematic Design Documents, as approved or deemed approved by the
Executive Director shall mean the "Schematic Documents". The Developer shall cause the
Project to be designed in accordance with the Schematic Documents.
3.5 Construction Documents. Within one hundred twenty (120) days of the
later to occur of (a) approval or deemed approval of the Schematic Documents by the Executive
Director or (b) Bond Issue Approval, as hereinafter defined, the Developer shall submit to the
Executive Director for its review and approval the plans and specifications for the construction
of the Project, which shall be of sufficient detail to allow the Developer to apply for a building
permit for the Project ("Plans and Specifications"). The Plans and Specifications shall be subject
to the approval of the Executive Director, which approval shall not be unreasonably withheld and
which approval shall be given if the Plans and Specifications are consistent with the Schematic
Documents. The Developer agrees to utilize its good faith efforts to make modifications to the
4
Plans and Specifications to satisfy the requirements of the Executive Director if the Plans and
Specifications are inconsistent with Schematic Documents. The Developer shall provide to the
Executive Director such additional back-up information as the Executive Director may
reasonably request to enable the Executive Director to analyze the Plans and Specifications. The
Executive Director shall have fifteen (15) days from the receipt of the Plans and Specifications to
approve or disapprove same. If the Executive Director fails to timely respond, the Plans and
Specifications shall be deemed approved. In the event of disapproval, the Executive Director
shall specify the reason for such disapproval. In the event of disapproval, Developer shall
modify the Plans and Specifications, as appropriate, to address the comments and concerns of the
Executive Director to cause the Plans and Specifications to be consistent with the Schematic
Documents. Any resubmission shall be subject to the approval of the Executive Director in
accordance with the procedure outlined above for the original submission until same is approved
or deemed approved by the Executive Director. The Executive Director and the Developer shall
in good faith, attempt to resolve any disputes regarding the Plans and Specifications. If the
Executive Director has rejected the Plans and Specifications two (2) times, the Developer may
elect to submit such dispute regarding the approval of the Plans and Specifications to the CRA
Board for resolution. The Plans and Specifications as approved or deemed approved by the
Executive Director shall mean the "Plans".
3.6 Development Requirements. Developer shall be required to develop the
Project substantially in accordance with the Plans. Any material variation to the Plans shall
require approval of the Executive Director, which approval shall not be unreasonably withheld or
delayed provided that same is in accordance the spirit and intent of the Plans and this Agreement.
3.7 Development Timeframe.
3.7.1 "Project Schedule". Developer shall achieve Completion of the
Project in accordance with the Plans within sixteen (16) months from the Closing Date (as
defined below), as same may be extended as a result of Unavoidable Delays (the "Completion
Date"), time being of the essence. The term "Unavoidable Delays" shall mean delays beyond the
control of the Developer (other than delays in connection with obtaining licenses, permits and
approvals from any governmental authority relating to the Project) including, without limitation,
civil commotion, war, invasion, rebellion, hostility, military or usurped power, sabotage,
insurrection, strikes or lockouts on an area wide basis and not specific to the Project, riots,
tropical storms, hurricanes, floods, earthquakes, casualties, acts of the public enemy, epidemics,
quarantines, restrictions, embargos and area wide governmental restrictions. If the Developer
fails to achieve Completion within ninety (90) days of the Completion Date, Developer shall pay
to the CRA One Thousand and No/100 Dollars ($1,000.00) per day thereafter until Completion.
The term "Completion" shall mean the Project has been completed substantially in accordance
with the Plans and a temporary certificate of occupancy has been issued by the City of Miami for
all residential units comprising the Project and the County has issued an Acknowledgement of
Final Completion, as defined in the Ground Lease. This provision shall survive the closing.
3.8 Project Budget.
A. The preliminary budget for the Project prepared by the Developer
is attached hereto as Exhibit "C" and made a part hereof (the "Preliminary Budget"). As soon as
5
available but in no event later than sixty (60) days after the approval of the Schematic
Documents, the Developer shall submit to the Executive Director for review and approval, which
approval shall not be unreasonably withheld, a detailed line item budget reflecting all hard and
soft costs anticipated to be incurred by the Developer in connection with the Project (the "Project
Budget"). The Developer agrees to use its good faith efforts to make all reasonable
modifications to the Project Budget to satisfy the requirements of the Executive Director. The
Developer shall provide to the Executive Director such additional back-up information as the
Executive Director may reasonably request to enable the Executive Director to analyze all
aspects of the Project Budget. The Executive Director shall have fifteen (15) days after receipt
of the Project Budget to approve or disapprove same. If the Executive Director fails to timely
respond to the Project Budget submitted by the Developer, same shall be deemed approved. In
the event of disapproval, the Executive Director shall identify the reasons for such disapproval.
In the event of disapproval, the Developer shall modify the Project Budget as appropriate, to
address the comments and concerns of the Executive Director. Any resubmission shall be
subject to the approval of the Executive Director in accordance with the procedure outlined
above for the original submission until same is approved or deemed approved by the Executive
Director. The Executive Director and the Developer shall, in good faith, attempt to resolve any
disputes regarding the Project Budget. If the Executive Director has rejected the Project Budget
two (2) times, the Developer may elect to submit such dispute regarding the approval of the
Project Budget to the CRA Board for resolution. The Project Budget, as approved or deemed
approved by the Executive Director, shall be deemed the "Budget". The Budget shall establish
the amount of the CRA Contribution.
B. The Project Budget shall include a Seventy -Five Thousand and
No/100 Dollars ($75,000.00) line item to be utilized solely to pay third parties retained by the
CRA to assist in monitoring compliance with the terms of this Agreement and oversee
construction of the Project on behalf of the CRA. The Funding Agreement, as hereinafter
defined, shall include a mechanism for the Executive Director to be able to submit draw requests
to the Developer to draw funds from this line item to pay third party costs and expenses incurred
by the CRA based upon invoices provided by the Executive Director. The Developer shall
include such requests in its next draw request under the Funding Agreement. In no event shall
more than Seventy Five Thousand and No/100 Dollars ($75,000.00) be payable by the Developer
for CRA third party expenses.
4. DEVELOPMENT AND FINANCIAL APPROVALS.
4.1 Development of Project. As soon as available after the Effective Date,
Developer shall submit to the Executive Director for review and approval, which approval shall
not be unreasonably withheld, the following:
4.1.1 Construction Contract. The construction contract for the Project
(the "Construction Contract"), together with the "schedule of values" for the Project, which shall
include the obligation of the general contractor to comply with the participation requirements set
forth in Section 6.2.1 and 6.2.2 of this Agreement.
4.1.2 Loan Commitment. A loan commitment from a financial
institution evidencing that Developer has obtained a construction loan commitment for the
6
development of the Project (the "Loan Commitment") which shall be reasonably acceptable to
the Executive Director. The Executive Director will not have approval rights over the loan terms
or equity investment terms. The approval of the Executive Director shall be limited to the issue
of whether the Loan Commitment reflects that funds will be available for construction of the
Project and the amount of funds that will be made available for construction.
4.1.3 Equity. Evidence reasonably satisfactory to the Executive
Director that Developer has sufficient equity available to meet the equity requirement of the
Loan Commitment with respect to the Project (the "Equity") taking into consideration the CRA
Contribution.
4.1.4 Funding Agreement. The CRA, the Developer, the Non -Profit,
as hereinafter defined, the Developer's lender providing financing in accordance with the Loan
Commitment (the "Lender") the institutional investor(s) providing equity to the Developer with
respect to the purchase of the tax credits (the "Institutional Investor") AMC HTG 1, LLC, a
Florida limited liability company and the CDC, as hereinafter defined, (collectively, the "General
Partner") or an entity controlled by the General Partner (the "Controlled Entity") which makes
the GP Loan, as hereinafter defined, shall agree to the terms of an agreement (the "Funding
Agreement") in form and substance reasonably acceptable to the Executive Director. The
Funding Agreement shall contain such provisions that are customarily included in construction
loan agreements utilized by national banking associations doing business in Miami -Dade
County, Florida to ensure the proper use and disbursement of the funds and completion of the
Project, including, without limitation, provisions dealing with the following:
4.1.4.1 The disbursement of the CRA Contribution, the funding
and disbursement of the proceeds of the loan contemplated by the Loan Commitment (the
"Loan") the funding and disbursement of the Equity to be provided by the Developer, the
disbursement of the Non -Profit Loan, as hereinafter defined, and the disbursement of the GP
Loan, as hereinafter defined. The CRA Contribution, the Non -Profit Loan and the GP Loan shall
be disbursed on a pari passu basis with the proceeds of the Loan or on such other basis as
mutually agreed by the Executive Director, the Lender and the Institutional Investor. The CRA
shall deposit the CRA Contribution into a segregated account with the Lender pursuant to the
Funding Agreement. The Non -Profit shall deposit the Non -Profit Loan in a segregated account
with Lender pursuant to the Funding Agreement. The General Partner (or the Controlled Entity,
if applicable), shall deposit the GP Loan in a segregated account with the Lender pursuant to the
Funding Agreement. The Developer shall deposit the Equity into an account with the Lender
pursuant to the Funding Agreement.
4.1.4.2 The procedure for submission of monthly draw requests
and partial lien waivers to the Lender, for review and approval.
4.1.4.3 The procedure for the inspection of the Project during
construction for the benefit of the CRA, the Non -Profit, the General Partner (or Controlled
Entity), the Institutional Investor and the Lender, and approval by the Lender of the percentage
of work completed.
7
4.1.4.4 The approval of the Budget and any amendments to the
Budget by the Lender.
4.1.4.5 The approval of the re -allocation of funds to different
line items in the Budget by the Lender.
4.1.4.6 The requirement that the CRA Contribution, the Non -
Profit Loan and the GP Loan only be utilized for the design and construction of the residential
portion of the Project.
4.1.4.7 The procedure for the determination of whether there
are adequate funds included in the Budget to complete the Project and whether the Budget is "in
balance" by the Lender. If it is determined that due to cost overruns or change orders the Budget
is not "in balance" the Developer will be required to fund the amount determined by the Lender,
to keep the Budget "in balance" prior to there being any further disbursement of the CRA
Contribution, the Non -Profit Loan, and the GP Loan.
4.1.4.8 The procedure for approving change orders by the
Lender.
4.1.4.9 The procedure for approving changes to the Plans by
the Lender.
4.1.4.10 The procedure for the CRA to submit draw requests to
the Developer pursuant to Section 3.8(B) not to exceed Seventy Five Thousand and No/100
Dollars ($75,000.00) in the aggregate.
4.2 The Executive Director shall have fifteen (15) days after receipt of each of
the items required by Section 4.1 to review and approve same, which approval shall not be
unreasonably withheld. In the event of disapproval of any such item, the Executive Director
shall specify the reasons for such disapproval. In such event the Developer shall utilize its good
faith efforts to address the comments and concerns of the Executive Director.
5. CRA CONTRIBUTION.
5.1 The CRA covenants and agrees to make a cash contribution to the Non -
Profit, as hereinafter defined, in an amount of up to Seven Million Five Hundred Thousand and
No/100 Dollars ($7,500,000.00) for the design and development of the residential portion of the
Project (the "CRA Contribution"), provided all of the CRA Conditions Precedent are satisfied or
waived by the CRA. The CRA Contribution to the Non -Profit which shall make the Non -Profit
Loan, as hereinafter defined, to the General Partner (or the Controlled Entity), as hereinafter
provided, and disbursed in accordance with the Funding Agreement. The General Partner (or
Controlled Entity) shall loan 100% of the proceeds of the Non -Profit Loan to the Developer (the
"GP Loan") to be disbursed in accordance with the Funding Agreement. The CDC shall have
not less than a twenty percent (20%) interest in the GP Loan. The exact amount of the CRA
Contribution will depend upon the Project Budget approved by the Executive Director and other
funding sources for the Project obtained by the Developer. The final amount of the CRA
Contribution shall be established at the time the Executive Director approves the Project Budget,
8
subject to adjustment in accordance with Section 5.2 and 5.3 below. Under no circumstances
shall the CRA Contribution be increased notwithstanding any increases in the Project Budget.
5.2 The exact amount of the CRA Contribution will depend upon the Project
Budget approved by the Executive Director and other funding sources for the Project obtained by
the Developer. The CRA Contribution shall be reduced if the committed sources of funding
upon achieving Completion exceed all uses, including a fully -funded developer fee including
developer overhead and profit in an amount not exceeding the lesser of (i) eighteen percent
(18%); or (ii) the maximum developer fee, including developer overhead and profit permitted by
the Florida Housing Finance Corporation ("FHFC") guidelines for multi -family revenue bond -
financed projects pursuant to Rule 67-21, Fla. Admin. Code.
5.3 Upon Completion, the Developer, at its sole cost and expense, shall retain
Cohen/Reznick Group, PC, or a similarly qualified accounting firm, to prepare a cost certificate
(the "Cost Certification"), based upon an audit of all costs and expenses incurred in connection
with achieving Completion, which Cost Certificate shall be in compliance with all FHFC
guidelines for cost certifications. Upon receipt of the Cost Certificate, the Developer shall
promptly provide a copy of same to the Executive Director and the Non -Profit. Should such
Cost Certification show an excess of sources over uses (including a fully -funded developer fee
not in excess of the limits set for in Section 5.2), then the CRA Contribution, the Non -Profit
Loan and the GP Loan shall be reduced by the amount of such excess. If the CRA Contribution,
the Non -Profit Loan and the GP Loan have been fully disbursed the Developer shall repay such
amount within thirty (30) days after written demand from the Executive Director to the General
Partner (or the Controlled Entity) which will, in turn, repay such portion of the Non -Profit Loan
to the Non -Profit which will, in turn, repay such portion of the CRA Contribution to the CRA. If
the Executive Director disputes the Cost Certificate the Developer and the Executive Director
shall utilize their good faith efforts to resolve the dispute within fifteen (15) days of the
Executive Director's receipt of a copy of the Cost Certificate. If the Developer and the Executive
Director cannot resolve the dispute regarding the Cost Certificate within the fifteen (15) day
period, either party may submit the dispute to the CRA Board for resolution, which shall be
binding on the parties. This provision shall survive the closing.
5.4 The CRA has advised the Developer that the CRA Contribution shall be
derived from the proceeds of bonds (the "CRA Bond Issue") to be issued by the CRA which
shall be secured by tax increment revenues. The CRA Contribution shall not be security for the
CRA Bond Issue or any other indebtedness of the CRA. The Developer acknowledges that
restrictions associated with the CRA Bond Issue will require that the Loan, as hereinafter
defined, be utilized only with respect to the design and construction of the residential portion of
the Project and that the CRA Contribution be paid to a non-profit corporation which must be a
501(c)(3) not -for -profit corporation which is not affiliated in any way with the CRA, the County,
the State of Florida or the Developer (the "Non -Profit") and otherwise comply with the terms of
the Non -Profit Grant Agreement in substantially the form of Exhibit "D" attached hereto and
made a part hereof (the "Non -Profit Grant Agreement").
5.5 The CRA is currently in the process of obtaining the CRA Bond Issue on
terms and conditions acceptable to the CRA, in its sole discretion. The exact terms and amount
of the CRA Bond Issue must be approved by the CRA Board of Commissioners ("Bond Issue
9
Approval"). If the CRA has not obtained the Bond Issue Approval on terms and conditions
acceptable to the CRA, in its sole discretion, which terms and conditions have also been
approved by the Board of Commissioners of the CRA on or before December 31, 2013, then in
such event, this Agreement shall automatically terminate as of December 31, 2013, in which
event, the parties shall be released from any further obligations under this Agreement, except for
those obligations that expressly survive termination of this Agreement.
5.6 Developer and the CRA agree that the CRA shall make the CRA
Contribution to a Non -Profit acceptable to the CRA which Non -Profit would in turn loan the
amount of the CRA Contribution (the "Non -Profit Loan") to the General Partner (or Controlled
Entity) as provided in the Non -Profit Grant Agreement. Within thirty (30) days from the
Effective Date, the Developer shall identify the Non -Profit and submit all proposed structure
documents, including, without limitation, the loan documents (the "Non -Profit Loan
Documents") in connection with the Non -Profit Loan and the loan documents in connection with
the GP Loan (the "GP Loan Documents"), to the CRA for its review and approval, which
approval shall not be unreasonably withheld, provided the CRA has the same protections
currently afforded to the CRA under this Agreement, the Non -Profit and the Non -Profit Loan
Documents comply with the requirements of the CRA Bond Issue and the Non -Profit Grant
Agreement and the GP Loan Documents comply with the requirements of the CRA Bond Issue,
including, without limitation, with respect to control of the CRA Contribution and the direct
deposit of the Non -Profit Loan proceeds and the GP Loan proceeds with the Lender to be
disbursed in accordance with the Funding Agreement. The Non -Profit, the General Partner (or
Controlled Entity) shall become a party to the Funding Agreement, however, the CRA shall
retain control over the disbursement of the Non -Profit Loan to the General Partner or the
Controlled Entity and the CRA shall retain control over the disbursement of the GP Loan to the
and Developer in accordance with the Funding Agreement.
5.7 The CRA and the Non -Profit will enter into the Non -Profit Grant
Agreement which shall govern the use of the CRA Contribution. In the event that any portion of
the Non -Profit Loan is repaid to the Non -Profit, the Non -Profit shall apply same in accordance
with the Non -Profit Grant Agreement. The Non -Profit shall not be permitted to retain any
portion of the CRA Contribution and any fees and costs of the Non -Profit must be paid from
sources other than the CRA Contribution. The CRA acknowledges that the Non -Profit Loan
may be non -interest bearing, require no principal payments unless there is an event of default,
and be forgivable after fifteen (15) years.
5.8 Any fees and costs of the General Partner (or the Controlled Entity) with
respect to the GP Loan and the Non -Profit Loan must be paid from sources other than the Non -
Profit Loan. One hundred percent (100%) of the Non -Profit Loan must be loaned to the
Developer pursuant to the GP Loan Documents.
5.9 The CRA and the Non -Profit will enter into the Non -Profit Grant
Agreement which shall govern the use of the CRA Contribution. The Non -Profit Grant
Agreement will require the Non -Profit to make the Loan of the CRA Contribution to the
Developer as contemplated by this Agreement. In the event any portion of the Non -Profit Loan
is repaid to the Non -Profit the Non -Profit shall be required to use the funds in accordance with
the Non -Profit Grant Agreement. The Non -Profit shall not be permitted to retain any portion of
10
the CRA Contribution and any fees and costs of the Non -Profit must be paid from sources other
than the CRA Contribution.
5.10 The Executive Director shall have fifteen (15) days after receipt of
information regarding the Non -Profit and the proposed Non -Profit Loan Documents to approve
or disapprove same, which approval shall not be unreasonably withheld provided the Non -Profit
and the Non -Profit Loan Documents comply with the requirements of the CRA Bond Issue, the
Non -Profit Grant Agreement and this Agreement. In the event of disapproval, the Executive
Director shall specify the reasons for such disapproval. If the Executive Director has not
approved the Non -Profit, the Non -Profit Grant Agreement and the Non -Profit Loan Documents
prior to February 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.
6. MINORITY AND WOMEN'S PARTICIPATION AND EQUAL
EMPLOYMENT OPPORTUNITY.
6.1 Minority and Women Participation and Equal Opportunity. In connection
with the Project, the Developer agrees that it will:
(i) Take defmitive action in the recruitment, advertising and to attract
and retain minority and female contractors and subcontractors;
(ii) Provide a reasonable opportunity in the recruitment, advertising
and hiring of professionals, contractors and subcontractors residing
within the Redevelopment Area and within the City of Miami;
(iii) Take reasonable definitive action in retaining employees regardless
of race, color, place of birth, religion, national origin, sex, age,
marital status, veterans and disability status;
(iv) Maintain equitable principles in the recruitment, advertising,
hiring, upgrading, transfer, Layoff, termination, compensation and
all other terms, conditions and privileges of employment;
(v) Monitor and review all personnel practices to guarantee that equal
opportunities are being provided to all employees regardless of
race, color, place of birth, religion, national origin, sex, age,
marital status, veterans and disability status;
(vi)
Post in conspicuous places, availability to employees and
applicants for employment, notices in a form to be provided to the
Executive Director, setting forth the non-discrimination clauses of
this Section 6.
(vii) In all solicitations and advertisements for employment placed by or
on behalf of Developer, state that all applicants will receive
11
consideration for employment without regard to race, creed, color
or national origin.
6.2 Participation Requirements. Developer agrees to comply with the
following subcontractor participation requirements and laborer participation requirements (the
"Participation Requirements") with respect to the Project:
6.2.1 Subcontractor Participation. The Developer shall cause its
general contractor to hire not less than twenty percent (20%) of the subcontractors for the
demolition of any existing improvements and construction of the Project utilizing companies that
have their principal place of business either within the Redevelopment Area or within the City.
First priority shall be given to subcontractors that have their principal place of business in the
Redevelopment Area. For purpose of calculating the twenty percent (20%) subcontractor
participation, the twenty percent (20%) participation shall be calculated based upon the dollar
value of each subcontract given to subcontractors whose principal place of business is in either
the Redevelopment Area or the City and the total dollar value of all subcontracts entered into by
the general contract for the Project ("Subcontractor Participation Requirement").
6.2.2 Laborer Participation. Developer agrees to cause its general
contractor and all subcontractors to hire forty percent (40%) of the unskilled labor for the
demolition of any existing improvements and the construction of the Project ("Laborer
Participation Requirement") from workers residing in either the Redevelopment Area or the City.
First priority shall be given to unskilled laborers who reside in the Redevelopment Area. Within
thirty (30) days of approval of the Plans, Developer shall submit to the Executive Director for
review and approval Developer's estimate for the number of unskilled laborers which will be
required for the demolition of any existing improvements and the construction of the Project (the
"Labor Estimate"). The Executive Director shall have fifteen (15) days from receipt of the Labor
Estimate to approve or disapprove same which approval shall not be unreasonably withheld. The
Developer shall provide to the Executive Director such additional back-up information as the
Executive Director may reasonably request to enable the Executive Director to analyze the Labor
Estimate. The Executive Director shall have fifteen (15) days after receipt of the Labor Estimate
to approve or disapprove same. If the Executive Director fails to timely respond to the Labor
Estimate submitted by the Developer, same shall be deemed approved. In the event of
disapproval, the Executive Director shall specify the reasons for such disapproval. In the event
of disapproval the Developer shall modify the Labor Estimate as appropriate, to address the
comments and concerns of the Executive Director. Any resubmission shall be subject to the
approval of the Executive Director in accordance with the procedure outlined above for the
original submission until it is approved or deemed approved by the Executive Director. The
Executive Director and the Developer shall, in good faith, attempt to resolve any disputes
regarding the Labor Estimate. If the Executive Director rejects the Labor Estimate two (2) times,
the Developer may elect to submit such dispute regarding the approval of the Labor Estimate to
the CRA Board for resolution. The Labor Estimate approved or deemed approved by the
Executive Director shall be utilized by the Executive Director to determine compliance with the
Laborer Participation Requirement unless Developer is able to establish manifest error in the
Labor Estimate based upon the actual number of laborers required for demolition of the existing
improvements and construction of the Project.
12
6.2.3 In the event of any disputes between the Executive Director and
the Developer as to whether any subcontractor has its principal place of business in either the
Redevelopment Area or the City or whether any laborer resides in either the Redevelopment
Area or the City, the Developer and the Executive Director shall proceed in good faith to resolve
the dispute. In the event the dispute is not resolved within ten (10) days either party may submit
the dispute to the Board for resolution which shall be binding on the parties.
6.3 Report Requirements. The Developer shall be required to submit to the
Executive Director on a monthly basis commencing upon the earlier to occur of (i) thirty (30)
days after commencement of demolition of the existing improvements or (ii) the commencement
of construction of the Project, detailed reports evidencing compliance with the Subcontractor
Participation Requirements and the Laborer Participation Requirements during the prior thirty
(30) day period ("Participation Reports"). The Participation Reports shall contain such
information as the Executive Director may reasonably require to enable the Executive Director to
determine whether the Developer is in compliance with the Subcontractor Participation
Requirements and the Laborer Participation Requirements, including details of the priority
procedure established for the Redevelopment Area.
6.3.1 Penalties for Non -Compliance with Subcontractor Participation
Requirements. To the extent Developer fails to comply with the Subcontractor Participation
Requirements, with respect to the Project, Developer shall pay to the CRA as a penalty for such
non-compliance Two Thousand Five Hundred and No/100 Dollars ($2,500.00) for each
percentage point below the Subcontractor Participation Requirement (the "Subcontractor Non -
Compliance Funds"). The Subcontractor Non -Compliance Funds shall be calculated by the
Executive Director after completion of the Project and shall be due and payable within thirty (30)
days from the date of Developer's receipt of written statement from the Executive Director
stating the amount of Subcontractor Non -Compliance Funds due. To the extent of any dispute
between the Executive Director and the Developer with respect to the compliance with the
Subcontractor Participation Requirements, such dispute shall be submitted to the CRA Board for
resolution. The decision of the CRA Board shall be binding on the parties.
6.3.2 Penalties for Non Compliance with Laborer Participation
Requirements. To the extent Developer fails to comply with the applicable Laborer Participation
Requirements, with respect to the Project, Developer shall pay to the CRA as a penalty for such
non compliance One Thousand and No/100 Dollars ($1,000.00) for each percentage point below
the Laborer Participation Requirements (the "Laborer Non -Compliance Fund"). The Laborer
Non -Compliance Funds shall be calculated by the Executive Director after completion of the
Project and shall be due within thirty (30) from Developer's receipt of written statement from the
Executive Director stating the amount of Laborer Non -Compliance Funds due. To the extent of
any dispute between the Executive Director and the Developer with respect to the compliance
with the Laborer Participation Requirements, such dispute shall be submitted to the CRA Board
for resolution. The decision of the CRA Board shall be binding upon the parties.
13
7. INSURANCE.
7.1 From the Closing Date until Completion of the Project, the Developer
shall maintain the insurance required by Exhibit "E" attached hereto and made a part hereof (the
"Insurance Requirements").
8. AFFORDABLE RENTAL HOUSING.
8.1 Affordable Rental Requirement. Developer shall rent one hundred percent
(100%) of the residential units, except for one unit which will be rented to a property
management employee provided such employee resided in the Redevelopment Area prior to
moving into the unit, to qualified renters whose gross income is 60% or below the Miami -Dade
County median income, (the "Affordable Rental Requirement") for a period of thirty (30) years
from the date of the issuance of a certificate of occupancy or certificates of occupancy for all of
the residential units in the Project.
8.2 Restrictive Covenant. At Closing the Developer and the CRA shall
execute a restrictive covenant in substantially the form of Exhibit "F" attached hereto and made
a part hereof (the "Restrictive Covenant") which will run with the land for a period of thirty (30)
years from Completion as more particularly provided in the Restrictive Covenant. The County,
as the fee simple owner of the Property, and the Sublessor must join in the Restrictive Covenant.
The Restrictive Covenant shall be prior the rights of the Lender.
9. CRA CONDITIONS PRECEDENT.
9.1 The obligations of the CRA to close the transaction contemplated by this
Agreement is subject to the satisfaction or waiver of the following conditions precedent (the
"CRA Conditions Precedent"):
Contract.
9.1.1 The Executive Director shall have approved the Budget.
9.1.2 The Executive Director shall have approved the Plans.
9.1.3 The Executive Director shall have approved the Construction
9.1.4 The Executive Director shall have approved the Project Schedule.
9.1.5 The Executive Director shall have approved the Loan
Commitment for the Project.
9.1.6 The Executive Director shall have confirmed that Developer has
sufficient equity to meet the requirements under the Loan Commitment for the construction of
the Project taking into consideration the CRA Contribution.
9.1.7 The Executive Director, the Non -Profit, the General Partner (or
Controlled Entity), the Institutional Investor and the Lender have approved the Funding
Agreement.
14
9.1.8 The Lender under the Loan Commitment is prepared to close the
construction loan with respect to the Project in accordance with terms of the Loan Commitment.
9.1.9 The Executive Director shall have confirmed that (i) the
Developer is controlled by AMC HTG 1 GP, LLC, the managing general partner of Developer
(the "GP"); (ii) not less than twenty percent (20%) of the general partnership interest in the
Developer is owned by the other co -general partner, AM Housing I GP, LLC, a Florida limited
liability company, whose sole member is Affordable Housing, Inc., a Florida not -for -profit
corporation ("CDC"); and (iii) that there has been no other change in the ownership interest in
the Developer other than the transfer of the up to 99.99% of the limited partnership interest in
Developer to the Institutional Investor.
9.1.10 The Executive Director has approved the estoppel letter from the
County confirming that the Ground Lessee is current and in good standing under the terms of the
Ground Lease and confirming that (i) the County has approved the Plans in accordance with
Article VIII of the Ground Lease; (ii) the County has approved the Construction Contract; (iii)
the County has approved the Payment and Performance Bond; and (iv) that Developer has
complied with the insurance requirements of the Ground Lease.
9.1.11 The Executive Director has confirmed that the CDC has a twenty
percent (20%) interest in the developer fee and profit earned by the Developer to be paid para
passu with the amounts paid to the Developer and that CDC has twenty percent (20%) interest in
the GP of Developer other than the interests transferred to the Tax Credit Investors.
9.1.12 Developer shall have provided to the Executive Director a
payment and performance bond in form and substance satisfactory to the CRA in amount equal
to one hundred percent (100%) of the constructions costs for the Project, which shall be issued
by a surety having a credit rating of "A" or higher with a financial strength of X or higher (the
"Payment and Performance Bond").
9.1.13 The Developer has obtained a building permit to enable the
Developer to construct the Project in accordance with the Plans.
9.1.14 The CRA has approved the Non -Profit and the Non -Profit Loan
Documents.
9.1.15 The Non -Profit has executed the Non -Profit Grant Agreement
and the Funding Agreement.
9.1.16 The Executive Director has approved the estoppel letter from the
Sublessor confirming that Developer is current and in good standing under the Sublease and that
all requirements relating to the construction of the Project have been satisfied or waived by
Sublessor.
9.1.17 Developer has provided the Executive Director evidence that the
Developer has obtained the insurance coverage required by the Insurance Requirements.
15
9.1.18 The Developer has provided the Executive Director an
environmental assessment report reflecting no environmental conditions that will adversely
affect the development of the Project.
9.1.19 The Developer has provided the Executive Director soil test
reports reflecting that soil conditions will not adversely affect the development of the Project.
9.1.20 The County and the Ground Lessee have agreed to join in and
consent to the Restrictive Covenant and the Declaration of Restrictions, as hereinafter defined.
9.1.21 The General Partner (or Controlled Entity) and the Institutional
Investor have executed the Funding Agreement.
9.1.22 The Non -Profit and the General Partner (or Controlled Entity)
have executed the Non -Profit Loan Documents.
9.1.23 The General Partner (or Controlled Entity) and the Developer
have executed the GP Loan Documents.
9.2 In the event the CRA Conditions Precedent are not satisfied or waived by
the CRA on or before the Closing Date then the CRA may either (i) terminate this Agreement in
which event the parties shall be released from all further obligations under this Agreement except
for the obligations under this Agreement which expressly survive the termination of this
Agreement, or (ii) waive the condition and proceed in accordance with this Agreement.
10. CLOSING DATE.
10.1 Closing. The closing of the transaction contemplated by this Agreement
(the "Closing Date") shall occur on the earlier of (a) ten (10) days after all the CRA Conditions
Precedent to closing have been either satisfied or waived by the CRA or (b) three hundred sixty
(360) days after the CRA has obtained Bond Issue Approval, time being of the essence. On the
Closing Date the following shall occur provided all of the CRA Conditions Precedent have been
satisfied or waived:
10.1.1 The CRA shall deliver to Developer at closing:
10.1.1.1 A certified copy of the resolution authorizing the
execution and delivery of the documents contemplated by this Agreement.
10.1.1.2 The Funding Agreement executed by the CRA.
10.1.1.3 The Restrictive Covenant executed by the CRA.
10.1.1.4 A declaration of restrictions requiring the Developer to
comply with its obligations with respect to Section 3.6, 6 and 18 of this Agreement (the
"Declaration of Restrictions") executed by the CRA.
16
10.2 Developer shall deliver to the CRA or cause to be delivered to the CRA at
closing:
10.2.1 Evidence of authority to close the transaction and execute and
deliver the appropriate closing documents.
10.2.2 Payment and Performance Bond.
10.2.3 The Funding Agreement executed by the Developer, the Non -
Profit, the Institutional Investor, the General Partner (or Controlled Entity) and Lender.
10.2.4 A guaranty of the lien free completion of the Project executed by
Randy Rieger and Balogh Family Partnership, LLC, in the form of Exhibit "G" attached hereto
(the "Guaranty").
10.2.5 The Restrictive Covenant executed by the Developer, the County
and the Ground Lessee to be recorded prior to any mortgages encumbering the Property.
10.2.6 The Declaration of Restrictions executed by the Developer, the
Ground Lessee and the County to be recorded prior to any mortgages encumbering the Property.
10.3 The cost for recording the Restrictive Covenant and the Declaration of
Restrictions shall be paid by Developer. Each party shall bear the cost of the fees of their own
respective attorneys and other professionals and the cost of their own respective performance
under this Agreement.
11. REPRESENTATIONS OF CRA.
11.1 The CRA makes the following representations:
11.1.1 The CRA is duly organized and validly existing under the laws of
the State of Florida and has full power and capacity to own its properties, to carry on its business
as presently conducted by the CRA, and to perform its obligations under this Agreement.
11.1.2 The CRA's execution, delivery and performance of this
Agreement have been duly authorized by all necessary legal actions and does not and shall not
conflict with or constitute a default under any indenture, agreement or instrument to which the
CRA is a party or by which the CRA or CRA's property may be bound or affected, except for
such approvals required by this Agreement.
11.1.3 This Agreement constitutes the valid and binding obligation of
the CRA, enforceable against the CRA, and its successors and assigns, in accordance with their
respective terms, subject to bankruptcy, insolvency and other similar laws affecting the rights of
creditors generally.
11.2 Survival of Representations. All of the representations of the CRA set
forth in this Agreement shall be true upon the execution of this Agreement, shall be deemed to be
repeated and as of the Closing Date, and shall be true as of the Closing Date. All of the
17
representations, warranties and agreements of the CRA set forth in this Agreement shall survive
the Closing until Completion.
12. DEVELOPER'S REPRESENTATIONS.
12.1 Developer makes the following representations to the CRA as follows:
12.1.1 Developer is a limited partnership duly organized and validly
existing under the laws of the State of Florida, and have full power and capacity to own the
Property, to carry on its business as presently conducted, and to enter into the transactions
contemplated by this Agreement.
12.1.2 Developer's execution, delivery and performance of this
Agreement has been duly authorized by all necessary partnership actions and does not and shall
not conflict with or constitute a default under any indenture, agreement or instrument to which it
is a party or by which it may be bound or affected.
12.1.3 This Agreement constitutes the valid and binding obligation of
Developer, enforceable against Developer and its successors and assigns, in accordance with its
respective terms, subject to bankruptcy, insolvency and other similar laws affecting the rights of
creditors generally.
12.1.4 Exhibit "H" lists all the entities that have an ownership interest in
the Developer as of the Effective Date of this Agreement, subject to the transfer of 99.98% of the
limited partnership interest in the Developer to Tax Credit Investors.
12.1.5 The Developer owns good marketable and insurable leasehold
interest in the Property pursuant to the Sublease, free and clear of all liens and encumbrances,
other than the Permitted Exceptions.
12.1.6 To the best of Developer's knowledge, the Property is in
compliance in all material respects with the following (herein collectively called the
"Environmental Laws"): the Resource Conservation and Recovery Act of 1976 ("RCRA"), 41
U.S.C. § 6901, et seq., as amended, the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended by the Superfund Reauthorization Act of 1986
("CERCLA"), 42 U.S.C. § 9601 et semc ., and any other federal, state or local statute, law,
ordinance, code, rule, regulation, order or decree regulating, relating to, or imposing liability or
standards of conduct concerning, any hazardous substance. Developer has not received notice of
any liens on the Property created, permitted or imposed by any Environmental Laws. Developer
has not received written notice of or is aware of any actual, asserted or threatened, liability or
obligation of the Developer, related to the Property, under any Environmental Laws.
12.1.7 No portion of the Property is being acquired by any government
authority in the exercise of its power to condemn or to acquire through eminent domain or
private purchase in lieu thereof nor, to the best of Developer's knowledge, are any of these
proceedings or actions threatened or imminent.
18
12.1.8 The Ground Lease and the Sublease are in good standing and
Developer shall comply with the terms and provisions of the Ground Lease and the Sublease.
12.2 Survival of Representations. All of the representations of the Developer
set forth in this Agreement shall be true upon the execution of this Agreement, shall be deemed
to be repeated and as of the Closing Date, and shall be true as of the Closing Date. All of the
representations, warranties and agreements of the Developer set forth in this Agreement shall
survive the Closing until Completion.
13. DEFAULT.
13.1 Developer Failure to Perform.
13.1.1 If the Conditions Precedent are not satisfied or waived by the
CRA on or before the Closing Date, this Agreement shall terminate and the parties shall be
released from all obligations under this Agreement.
13.1.2 In the event the Developer defaults with respect to its obligations
under Sections 6 or 8, which default is not cured within thirty (30) days of written notice from
the CRA or such longer period, if the default by its nature cannot be cured within the thirty (30)
day period provided Developer commences the curative action within the thirty (30) day period
and diligently pursues the cure until completion (not to exceed 90 days) the CRA shall be
entitled to seek specific performance of this Agreement in addition to the penalties provided for
in this Agreement.
13.1.3 In the event this Agreement contains any material
misrepresentations by the Developer, the CRA, as its sole and exclusive remedy may terminate
this Agreement, in which event the parties shall be released from all further obligations under
this Agreement.
13.2 In the event of a default by the CRA under this Agreement which is not
cured within ten (10) days of written notice from Developer, without any default on the part of
Developer, Developer, as its sole and exclusive remedy, shall be entitled to (i) terminate this
Agreement in which event the parties shall be released from all further obligations under this
Agreement except for the obligations that expressly survive the termination, or (ii) sue for
specific performance to enforce the terms of this Agreement. Developer waives any other
remedies it may have against the CRA at law or in equity as a result of a breach of this
Agreement. In the event of a termination of this Agreement, in which event the parties shall be
released from all further obligations under this Agreement except for the obligations that
expressly survive the termination.
14. BROKERS. The parties each represent and warrant to the other that there are no
real estate broker(s), salesman (salesmen) or finder(s) involved in this transaction. If a claim for
commissions in connection with this transaction is made by any broker, salesman or finder
claiming to have dealt through or on behalf of one of the parties hereto ("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
19
court costs at trial and all appellate levels) with respect to said claim for commissions. The
provisions of this Paragraph shall survive the Closing.
15. ASSIGNABILITY.
15.1 This Agreement may not be assigned without the approval of the CRA,
which approval may be granted or withheld by the CRA, in its sole discretion. For the purpose
of this Section 15.1, each of the following events shall be deemed an assignment requiring the
approval of the CRA, which approval may be granted or withheld by the CRA, in its sole
discretion:
(i) the change in control of Developer which is currently controlled by
the GP;
(ii) transfer of more than 20% of the membership interests in the
Developer, except to the Institutional Investor;
(iii) changes in control of the GP which is currently controlled by
Randy Rieger.
16. NOTICES. Any notices required or permitted to be given under this Agreement
shall be in writing and shall be deemed to have been given if delivered by hand, sent by
recognized overnight courier (such as Federal Express), sent by fax and another method provided
herein or mailed by certified or registered mail, return receipt requested, in a postage prepaid
envelope, and addressed as follows:
If to Developer:
AMC HTG 1, Ltd.
3225 Aviation Ave., Suite 602
Miami, FL 33133
Attention: Matthew Rieger
Email: mattr@htgf.com
With a copy to:
Albert Dotson, Jr.
Bilzin Sumberg Baena Price and Axelrod LLP
1450 Brickell Avenue, 23rd Floor
Miami, FL 33131
Email: adotson@bilzin.com
With a copy to:
Richard Deutch, Esq.
Steams Weaver Miller Weissler, Alhadeff and Sitterson, P.A.
150 West Flagler Street, Suite 2200
Miami, FL 33130
Fax: 305-789-2613 •
Email: rdeutch@stearnsweaver.com
20
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:
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.
17. CHALLENGES. Developer acknowledges and agrees that the CRA shall have no
liability whatsoever to Developer in connection with any challenge to this Agreement and the
transaction contemplated by this Agreement and Developer hereby forever waives and releases
the CRA from any liability whatsoever, now or hereafter arising in connection with any
challenge and covenant and agree not to initiate any legal proceedings against the CRA in
connection with any challenges to this Agreement by any third parties.
18. REAL ESTATE TAXES.
18.1 It is the intention of the CRA and the Developer that the Project shall be
fully taxable for the purposes of ad valorem real estate taxes and that the Developer and its
successors or assigns not take advantage of any tax exemptions which may allow the Developer
or its successors or assigns not to be required to pay ad valorem real estate taxes with respect to
the Project. In the event for any reason the Project is not subject to ad valorem real estate taxes
as a result of an exemption, then the Developer shall pay to the CRA a payment in lieu of taxes
21
(a "PILOT") on or before December 31 of each year in the amount of ad valorem real estate
taxes that would have been due with respect to the Project if the Project had not been exempt in
whole or in part from the payment of ad valorem real estate taxes.
18.2 The obligation of the Developer to make the PILOT shall constitute a
covenant running with the Property and shall constitute a first lien on the Property senior to all
other liens and encumbrances and shall be binding upon the Developer and its successors and
assigns through December 31, 2029.
19. MISCELLANEOUS.
19.1.1 This Agreement shall be construed and governed in accordance
with the laws of the State of Florida. Venue shall be in Miami -Dade County, Florida. All of the
parties to this Agreement have participated fully in the negotiation and preparation hereof, and,
accordingly, this Agreement shall not be more strictly construed against any one of the parties
hereto.
19.1.2 In the event any term or provision of this Agreement is
determined by appropriate judicial authority to be illegal or otherwise invalid, such provision
shall be given its nearest legal meaning or be construed as deleted as such authority determines,
and the remainder of this Agreement shall be construed to be in full force and effect.
19.1.3 In the event of any litigation between the parties under this
Agreement, the prevailing party shall be entitled to reasonable attorney's fees and court costs at
all trial and appellate levels.
19.1.4 In construing this Agreement, the singular shall be held to
include the plural, the plural shall be held to include the singular, the use of any gender shall be
held to include every other and all genders, and captions and Paragraph headings shall be
disregarded.
19.1.5 All of the exhibits attached to this Agreement are incorporated in,
and made a part of, this Agreement.
19.1.6 Time shall be of the essence for each and every provision of this
19.1.7 This Agreement may not be recorded in the Public Records of
Miami -Dade County.
19.1.8 The "Effective Date" shall mean the date this Agreement is last
executed by Developer and the CRA.
Agreement.
19.1.9 Developer acknowledges and agrees that other than the CRA
Contribution, the Developer shall not be entitled to any tax increment funds generated by the
Project. Developer waives any claims regarding the tax increment funds generated by the
Project.
22
19.1.10 The Developer acknowledges and agrees that the Developer has
no obligation to repay the CRA Bond Issue.
20. CERTIFICATION. In connection with the CRA Bond Issue the Developer agrees
to execute a certificate in substantially the form of Exhibit "I" attached hereto.
21. 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
such amendment does not materially change the terms of the transaction contemplated by this
Agreement.
22. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and
understanding between the parties with respect to the subject matter hereof and there are no other
agreements, representations or warranties other than as set forth herein. This Agreement may not
be changed, altered or modified except by an instrument in writing signed by the party against
whom enforcement of such change would be sought. This Agreement shall be binding upon the
parties hereto and their respective successors and permitted assigns.
[SIGNATURE PAGES TO FOLLOW]
23
IN WITNESS hereof the parties have executed this Agreement as of the date first above
written.
DEVELOPER:
AMC HTG 1, LTD.,
a Florida limited partnership
By: AMC HTG GP 1, LLC,
A Florida limited liability company,
Its general partner
By:
Name: Randy Rieger
Title: Manager
Date Executed:
CRA:
SOUTHEAST OVERTOWN / PARK WEST
COMMUNITY REDEVELOPMENT AGENCY
By:
Clarence E. Woods, III, Executive Director
Date Executed:
ATTEST:
Clerk of the Board
Approved for legal sufficiency
By:
William R. Bloom, Esq.
Holland & Knight LLP,
Special Counsel to CRA
24
APPROVED AS TO INSURANCE REQUIREMENTS:
Francisco Gomez, Jr., Risk Management Administrator
25
JOINDER
The undersigned join in this Agreement for the purpose of agreeing to comply with the
provisions of Section 4.1.4 and Section 5 of the Agreement.
GENERAL PARTNER:
By: AMC HTG GP 1, LLC,
A Florida limited liability company,
Its general partner
By:
Name: Randy Rieger
Title: Manager
CONTROLLED ENTITY:
By:
Name:
Title:
26
A. Legal Description
B. Permitted Exceptions
C. Preliminary Project Budget
D. Non -Profit Grant Agreement
E. Insurance Requirements
F. Restrictive Covenant
G. Guaranty of Completion
H. Ownership Interests
I. Certificate
Schedule of Exhibits
27
EXHIBIT A
LEGAL DESCRIPTION
_,
SITE
LOCATION
w.w. srtlt stew.!
molt •
.3111444;7,:`,
I
H.W. tette STRIVE*
RN. taw »!
LOCATION MAP
A PORTION OF SIN 986 OWN4 53 SOUTH, RANGE 41 EAST-
, FLORIDA
(4407 TO SCALE)
SURVEYOR'S NOTES
1 —1hfi is not o Boundary srvey, but ally a Cll PH(C DEPIC11Ottof ties der alpifon shown hereon.
2) —Nat wild without the styawturs and the orlgkhd raised w o of o F side Ucrneed Survsyat
and Meager. AdtCtlons or deletions to survey alp* or reports by other than the e1Qnt+g
party or wife. 1e prohit:ted without written content of the sign; party or parties.
s 3) —7hevs a y _be additions'' Restrictions not shown on this Sketch & 1. ool that may be found
th
5 in e RIM; Record* of this CaMty. Examination of ABSTRACT OF 11T1,£ w be mode to
del,.entne recorded Instruments, if any effecting this property.
- 4) —North arrow dlrectlan and bearing shown hereon we dosed aft aeantmea value of
• N01 34'19-'W along the cantor i`ne of N.W. 4st Avenue as shown on the recorded.
Plot Book 87 Pogo 52 Mic mode County, Florida.
i S) —Ms Sketch and Lid Desci.otted harr-n 1- based on the Information provided by the Client
9) —tlo this meant hey bean perfumed to detrrnine if there ors Gly conflict sodatig or arliNe out
s of the creation of the ersomr•ate. Right of Ways, Parcel Dentelptlone. or any other bee o1
tencumbrances that the heroin described iegol may be utilizes for.
SURVEYOR'SCERTIFICATE:
1 Hereby tart* to the best of my knowledge and belief that this Owing b a tore end correct
rrprer,.entotion of the SKETCH AND LEGAL DESC9tIPRON of the red property described hereon.
1 further cr, rttfy that this ketch Mir prepared in oc0ord0000 with the appllCabte provisions of
Chc?ter 61017-6. Florida Administrative Code.
i
a
Ford, Ar ,wnt61'o8 & ¥anauct/, itt0.
Dates October 8. 2008.
SStat�.1. eern or pn M
isof Floe Cigu ra ion ppNo 5678
c
6.
a•
CULMER CENTER 1600 NW 3rd AVE-PARCEL C
,mast— K i IE�3AtO€5CRSPTtON
��
N ikIIST GROUP, i2.0
FORD. ~TERM d WAUCT,
IStO XVI. Seth AVENUE, 2rd FLOOR
MOW • 14.01210A 31172
Pit 4776 72
FAX 470de05
ear La nn jcd60e sea
�+ 1
ac�,r •rrmr 0440,405 e s sap
28
1
1
I
LEGAL DESCRIPTION:
A portion of Tract '10', of 'TOWNPARK SLBDiWSION 4 U.R. PROJECT FLA. R-10'.
according to the Plot thereof, as recorded In Plat Book 87, Page 52, of the Public
Records of Mlaml--Dade County, Florida. More particularly described as follows:
Commence at the Southeast corner of sold Tract 10; thence S87deg49min21secW.
along the South line of sold Tract 10 for 170.98 feet to the POINT OF BEGINNING of
the hereinafter described parcel of land; thence NO2deg26mIn09sevW, for a disttance
of 96.17 feet; thence S88deg29m n15secW, for a distance of 18.76 feet; thence
S88deg25mIn41eecW, for a distonce of 127.00 feet thence N01deg32min10secW, for
o distance of 97.52 feet to a point on the South line of a 40.00 fret Utiiity
Easement; thence S87deg43min18eecW, olong sold South Line of a 40.00 feet Utility
Easement, for a distance of 153.71 feet; the next three(3) courses cnd distances
being along the Weet Line of said Troct 10; 1) thence S01deg34m1n19secE, for o
distance of 133.50 feet to a point of curvature of a circular curve to the left, 2)
concave to the Northeast; thence South, Southeasterly olong the arc of sold curve,
having for its elements a radius of 25.00 feet, through a central angle of
57deg46m1nO9sec for an arc distance of 25.21 feet to a point of reverse curvature
of a circular curve to the right, 3) concave to the Southwest; thence Southeasterly
along the arc of said curve, having for its elements a rodlue of 50.00 feet, through
a central angle of 55deg05min44sec for an arc distance of 48.08 feet to a point on
the South line of said Tract 10, thence N87deg49rnIn21secE, along sold South Line,
for a distance of 265.92 feet to the POINT OF BEGINNING.
Containing 42,996.51 Square Feet or 0.99 Acres more or less.
LEGEND
PAC. - r tr CI CGRDIC£
PAIL - ParT aF EMIG
P QL - PO IS Cr ifi8lfI 0/1
P8 - PUT BOOK
P6 - Ph6E
1f - 110101E11T Ili
E - CORR LIE
a
2
a-
♦-
6-
a
CULMER CENTER 1600 NW 3rd AVE-PARCEL C
ne s wec SKETCH AND LEGAL DESCRIPTION
FORD, ARMENTEROS 8 MANUCY, INC.
1950 N.W. 941i AVENUE, 2nd FLOOR
MIAdMI, FLORIDA33172
PH 905) 477-6472
FAX (NA 470-2805
Barr;
LEGAL DESCRIPTION TO ACCOMPANY SKETCH
""1"` HOUSING TRUST GROUP, LLC
man LD.
• 104000
so woo it
> ▪ AYA
WOOD a:
hirer r esea7.la00
2
29
2
ra
}
Z
Q — — —--NORTF� ut'1RAcr�
�(P.B. 87, PG. 52)
N.W. 17th STREET
Parcel A
2o atir+E
Sea.)-
1ir F.P.L EA50047
0.11.5. 5220 PG401
r-
1
t"
1
I 1
1
"I 1
1 2000' WADING IA1E i
toin. $ . Pc. 52)
L—
I
I
I
I
1
tit
I To
I 1 1 I
i1 "g L-,-
TRACT 10 ItI 1
1 a ia.
>.
1 1
l i 1 I ` !!
l `jm
I2
1-
( I
( 05244G' U1RJ1'r EASEMENT
MIL Y
40 UTILIT115EYENT
I (P-8. V. PR 52)
587fi 53-71�•
10' fr.L CA9lMT
Parcel C
A
• r.00
—
�90 fTN LINE of 40 UTILITY EASEMENT
(P.O. 87. PO. 52)
1—
1
1
1 \ • -
1
serm
is. 1
• 1
((PTH LINE OF TRACT
87. P0. 52) 10
}
P.O.C. I
5.E CORNER OF TRACT 10
(P.O. 87. PC. 52)
4'' 1 Wf 170
PORTION OF TRACT 9
(P.B. 87, PG 52)
5
P.O.B.
0
I L
i
e-
•
CULMER CENTER 1600 NW 3rd AVE-PARCEL C
."1"1"2 SKETCH AND LEIaAL DESCRIPTION
FORD, ARMENTEROS & MANUCY, INC. "1 "II• SKETCH TO ACCOMPANY EASEMENT LEGAL DESCtWTION
1950 N.W. 94th AVENUE, 2nd FLOOR 1• HOUSING TRUST GROUP, LLC
MIAMI, FLORIDA 33172 lam Ft Lp. a>e 1G 0S art
PH. (305) 477-6472 NI A 2. .so.3
FAX (305) 470-2005 0® Ile Mwa' 080474000 0 3 s
ena
30
EXHIBIT B
PERMITTED EXCEPTIONS
1. Resolution No. R478-67 recorded May 1, 1967, in Official Records Book 5467, Page 140 of
the Public Records of Miami -Dade County, Florida.
2. Plat of TOWNPARK SUBDIVISION 4, recorded April 6, 1970, in Plat Book 87, Page 52, of
the Public Records of Miami -Dade County, Florida.
3. Easement in favor of Florida Power and Light Company recorded April 1, 1976 in Official
Records Book 9280, Page 491.
4. Easement for Underground Telephone Cable in favor of Southern Bell Telephone and
Telegraph Company recorded January 28, 1981, in Official Records Book 10999, Page 1066.
5. Notification of an Extension to a Previously Approved Development of Regional Impact
recorded on September 8, 2008 in Official Records Book 26557, Page 217 of the Public
Records of Miami -Dade County, Florida.
6. Notification of an Extension to a Previously Approved Development of Regional Impact
recorded on September 8, 2008 in Official Records Book 26557, Page 223 of the Public
Records of Miami -Dade County, Florida.
31
EXHIBIT C
PRELIMINARY PROJECT BUDGET
32
EXHIBIT D
NON-PROFIT GRANT AGREEMENT
NON-PROFIT GRANT AGREEMENT
THIS NON-PROFIT GRANT AGREEMENT (the "Agreement") is made of the
day of , 2013, by and between South Florida Community Development
Coalition, Inc., a not for profit Florida corporation (the "NON-PROFIT") and the Southeast
Overtown/Park West Community Redevelopment Agency, a public agency and body corporate
created pursuant to Section 163.356, Florida Statutes (the "CRA").
RECITALS
A. The CRA has entered into a development agreement dated as of January 15, 2013
(the "Development Agreement"), by and between the CRA and AMC HTG I, Ltd., a Florida
limited partnership (the "Developer"), with respect to the development of a project consisting of
79 affordable rental units as more particularly described in the Development Agreement.
B. Pursuant to the terms of the Development Agreement, the CRA has agreed to
make a grant in an amount of up to Seven Million Five Hundred Thousand and No/100 Dollars
($7,500,000.00) (the "CRA Contribution") to the NON-PROFIT which CRA Contribution will
be loaned by the NON-PROFIT to the General Partner (or the Controlled Entity) which will loan
the funds to the Developer pursuant to the terms of the Development Agreement and this
Agreement.
C. The NON-PROFIT and the CRA desire to enter into this Agreement to set forth
the terms and provisions pursuant to which the CRA will make the CRA Contribution to the
NON-PROFIT and the NON-PROFIT will loan the CRA Contribution to the General Partner (or
the Controlled Entity) which will loan the funds to the Developer.
NOW THEREFORE, for and in consideration of $10.00 and other good and valuable
consideration and the covenants and agreements hereinafter set forth, the parties agree as
follows:
1. RECITALS. The Recitals to this Agreement are true and correct and are
incorporated herein by reference and made a part hereof.
2. DEFINED TERMS. All defined terms utilized in this Agreement but not defined
in this Agreement shall have the meaning ascribed to said terms in the Development Agreement.
3. GRANT. Subject to the satisfaction of the Conditions Precedent, as hereinafter
defined, the CRA agrees to make the CRA Contribution to the NON-PROFIT, subject to
adjustment in accordance with the terms of Section 5 of the Development Agreement.
4. USE OF CRA CONTRIBUTION. NON-PROFIT covenants and agrees to use the
CRA Contribution solely for the purpose of loaning the CRA Contribution to the General Partner
33
(or the Controlled Entity) in accordance with the terms and provisions of the Non -Profit Loan
Documents and the Development Agreement. The NON-PROFIT covenants and agrees to enter
into the Funding Agreement contemplated by the Development Agreement. The NON-PROFIT
acknowledges and agrees that the CRA will fund the CRA Contribution to the NON-PROFIT in
accordance with the terms of the Funding Agreement. The NON-PROFIT covenants and agrees
to not unreasonably withhold its consent to the terms and provisions of the Funding Agreement.
5. TERMS OF LOAN TO THE DEVELOPER. The NON-PROFIT covenants and
agrees to loan to the General Partner (or the Controlled Entity) the CRA Contribution (the "Non -
Profit Loan") in accordance with the terms and provisions of the loan documents substantially in
the form of Exhibit "A" attached hereto and made a part hereof (the "Non -Profit Loan
Documents"). The General Partner (or the Controlled Entity) will loan the proceeds of the Non -
Profit Loan to the Developer (the "GP Loan") in accordance with the terms and provisions of the
loan documents substantially in the form of Exhibit "B" attached hereto and made a part hereof
(the "GP Loan Documents").
6. REPAYMENT OF THE LOAN. In the event the General Partner (or the
Controlled Entity) repays all or any portion of the Non -Profit Loan to the NON-PROFIT, the
NON-PROFIT covenants and agrees to repay said amount to the CRA within ten (10) days of the
receipt of the funds from the General Partner (or the Controlled Entity).
7. CONDITIONS PRECEDENT. The obligations of the CRA to make the CRA
Contribution to the NON-PROFIT is subject to the satisfaction or waiver of the following
conditions precedent (the "Conditions Precedent"):
a. All of the CRA Conditions Precedent set forth in Section 9.1 of the
Development Agreement have either been satisfied or waived by the CRA.
b. The closing of the transaction for Project contemplated by the
Development Agreement shall be consummated simultaneously with the
funding of the CRA Contribution.
c. The NON-PROFIT has executed the Funding Agreement.
d. The General Partner (or the Controlled Entity) and the NON-PROFIT
have executed the Non -Profit Loan Documents in substantially the form
attached hereto.
e. The General Partner (or the Controlled Entity) and the Developer have
executed the GP Loan Documents substantially in the form attached
hereto.
In the event the Conditions Precedent are not satisfied or waived by the CRA on or before
the Closing Date, the CRA may either (i) terminate this Agreement, in which event the parties
shall be released from all further obligations under this Agreement, or (ii) waive the conditions
and proceed in accordance with this Agreement.
34
8. FUNDING OF THE CRA CONTRIBUTION. The CRA covenants and agrees to
fund the CRA Contribution to the NON-PROFIT simultaneously with the closing of the
transaction for Project contemplated by the Development Agreement providing all the
Conditions Precedent have been satisfied.
9. REPRESENTATIONS OF THE CRA. The CRA makes the following
representations:
a. The CRA is duly organised 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-
35
Dade County, Florida, or the State of Florida within the meaning of
Treasury Regulation § 1.150-1(b).
d. The NON-PROFIT has all requisite power and authority necessary to own,
lease and operate its properties, to carry on its activities as now conducted
and as presently proposed to be conducted and is, or will be, duly
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.
g•
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
36
Agreement and shall be deemed to be repeated on the Closing Date and shall be true and correct
on the Closing Date. All the representations and warranties contained in this Agreement shall
survive the Closing.
12. ASSIGNABILITY. The rights and obligations under this Agreement may not be
assigned by the NON-PROFIT without prior written approval of the CRA, which may be granted
or withheld in the sole discretion of the CRA.
13. NOTICES. Any notices required or permitted to be given under this Agreement
shall be in writing and shall be deemed to have been given if delivered by hand, sent by
recognized overnight courier (such as Federal Express), sent by fax and another method provided
herein or mailed by certified or registered mail, return receipt requested, in a postage prepaid
envelope, and addressed as follows:
If to NON-PROFIT:
South Florida Community Development Coalition, Inc.
300 NW 12th Avenue
Miami, FL 33128
Attention: Arden Shank
Fax: 305- -
With a copy to:
John Little, Esq.
Legal Services of Greater Miami, Inc.
3000 Biscayne Blvd., Suite 500
Miami, FL 33137
Fax: 305-576-5112
If to CRA:
SOUTHEAST OVERTOWN / PARK WEST
COMMUNITY REDEVELOPMENT AGENCY
Attention: Clarence E. Woods, III, Executive Director
1490 NW Third Avenue
Suite 105
Miami, FL 33136
Fax: 305-679-6836
With a copy to:
William R. Bloom, Esq.
Holland & Knight, LLP
Suite 3000
701 Brickell Avenue
37
Miami, FL 33131
Fax: 305-789-7799
And with a copy to:
Staff Counsel
Southeast Overtown/Park West
Community Redevelopment Agency
1490 NW Third Avenue
Suite 105
Miami, FL 33136
Fax: 305-679-6836
Notices personally delivered or sent by fax shall be deemed given on the date of delivery
and notices mailed in accordance with the foregoing shall be deemed given upon receipt or the
date delivery is refused.
14. MISCELLAENOUS.
a. 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.
g. This Agreement may not be recorded in the Public Records of Miami -
Dade County.
38
h. The "Effective Date" shall mean the date this Agreement is last executed
by NON-PROFIT and the CRA.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
and year first above written.
CRA:
SOUTHEAST OVERTOWN / PARK WEST
COMMUNITY REDEVELOPMENT AGENCY
By:
Clarence E. Woods, III, Executive Director
ATTEST:
Clerk of the Board
Approved for legal sufficiency
By:
William R. Bloom, Esq.
Holland & Knight LLP,
Special Counsel to CRA
NON-PROFIT:
South Florida Community Development Coalition, Inc.,
By:
Name:
Title:
39
EXHIBIT "A"
Non -Profit Loan Documents
40
PROMISSORY NOTE
2013
$7,500,000.00 Miami, Florida
FOR VALUE RECEIVED, the undersigned, , , a
("Maker"), promises to pay to the order of
, INC., a Florida non-profit corporation, together with any
other holder hereof ("Holder"), at , , Florida 33 , or
such other place as Holder may from time to time designate in writing, the principal sum of
Seven Million Five Hundred Thousand and No/100 (U.S. $7,500,000.00) (the "Principal"), plus
interest, if any, on the outstanding principal balance at the rate set forth in the next paragraph
("Interest or Interest Rate"), to be paid in lawful money of the United States of America in
accordance with the terms of this Promissory Note (the "Note").
The term of this Note is fifteen (15) years and shall end on _, 20 (the
"Maturity Date"). Before the Maturity Date no payments of principal or interest will be made.
Interest shall not accrue or be payable under this Note. In the event that on the Maturity Date,
there is not then a current, uncured and properly issued and outstanding notice of default against
Lyric Housing, Ltd., a Florida limited partnership (the "Owner") under that certain Restrictive
Covenant Agreement dated of even date herewith between the Owner and Southeast
Overtown/Park West Community Redevelopment Agency, the Principal, any outstanding
Interest and any other amounts outstanding under this Note shall be deemed to be forgiven on the
Maturity Date and the Holder shall execute any documents necessary to evidence such
forgiveness.
The proceeds of this Note shall be disbursed pursuant to the terms of that certain funding
agreement (the "Funding Agreement") dated of even date herewith by and between the Southeast
Overtown/Park West Community Redevelopment Agency (the "CRA"), Holder,
(the "Institutional Investor"), the Senior Lender, as hereinafter defined, Maker and AMC HTG I,
Ltd., a Florida limited partnership (the "Owner"). The terms of the Funding Agreement are
incorporated herein by reference and made a part hereof.
To the extent required by Section 5.3 of the Development Agreement dated January 15,
2013 (the "Development Agreement") by and the Owner and the CRA, Maker shall within ten
(10) days of demand by Holder repay to Holder the amount determined to be due pursuant to
Section 5.3 of the Development Agreement, the terms of which are incorporated herein by
reference and made a part hereof.
This Note and all other agreements, instruments and documents, delivered in connection
with this Note are collectively referred to as the "Loan Documents."
This Note has been executed and delivered in, and is to be governed by and construed
under the laws of, the State of Florida, as amended, except as modified by the laws and
regulations of the United States of America.
41
Maker shall have no obligation to pay interest or payments in the nature of interest in
excess of the maximum rate of interest allowed to be contracted for by law, as changed from
time to time, applicable to this Note (the "Maximum Rate"). Any interest in excess of the
Maximum Rate paid by Maker ("Excess Sum") shall be credited as a payment of principal, or, if
Maker so requests in writing, returned to Maker, or, if the indebtedness and other obligations
evidenced by this Note have been paid in full, returned to Maker together with interest at the
same rate as was paid by Maker during such period. Any Excess Sum credited to Principal shall
be credited as of the date paid to Holder. The Maximum Rate varies from time to time and from
time to time there may be no specific maximum rate. Holder may, without such action
constituting a breach of any obligations to Maker, seek judicial determination of the Maximum
Rate of interest, and its obligation to pay or credit any proposed excess sum to Maker.
Time is of the essence. In the event that this Note is collected by law or through
attorneys at law, or under their advice, Maker agrees, to pay all reasonable costs of collection,
including reasonable attorneys' fees, whether or not suit is brought, and whether incurred in
connection with collection, trial, appeal, bankruptcy or other creditors proceedings or otherwise.
This Note may be paid in whole or in part at any time by Maker without penalty.
Acceptance of partial payments or payments marked "payment in full" or "in satisfaction" or
words to similar effect shall not affect the duty of Maker to pay all obligations due, and shall not
affect the right of Holder to pursue all remedies available to it under the Loan Documents.
Any of the following shn11 be deemed to be an Event of Default hereunder: (a) failure to
make any payment when due in accordance with the terms of this Note; and (b) failure to keep or
perform any of the other material terms, covenants and conditions in this Note provided that such
failure shall have continued for a period of ninety (90) days after written notice of such failure
from the Holder.
Upon an Event of Default hereunder, the Holder shall have all of the remedies set forth in
this Note. The remedies of Holder shall be cumulative and concurrent, and may be pursued
singularly, successively or together, at the sole discretion of Holder, and may be exercised as
often as occasion therefor shall arise. No action or omission of Holder, including specifically
any failure to exercise or forbearance in the exercise of any remedy, shall be deemed to be a
waiver or release of the same, such waiver or release to be effected only through a written
document executed by Holder and then only to the extent specifically recited therein. A waiver
or release with reference to any one event shall not be construed as continuing or as constituting
a course of dealing, nor shall it be construed as a bar to, or as a waiver or release of, any
subsequent remedy as to a subsequent event.
Any notice to be given or to be served upon any party in connection with this Note,
whether required or otherwise, may be given in any manner permitted under the Loan
Documents.
The term "other person liable for payment of this Note" shall include any endorser,
guarantor, surety or other person now or subsequently primarily or secondarily liable for the
payment of this Note, whether by signing this Note or any other instrument.
42
This Note shall be a non -recourse promissory note and neither the Maker, nor any of its
partners shall have any personal liability for the payment of any portion of the indebtedness
evidenced by this Note, and in the event of a default by the Maker under this Note, the Holder's
sole remedy shall be limited to exercising its rights under the Loan Documents, including
foreclosure and the exercise of the power of sale or other rights granted under such Loan
Documents, but shall not include a right to proceed directly against the Maker, or any of its
partners, or the right to obtain a deficiency judgment after foreclosure against the Maker or any
of its partners.
Whenever the context so requires, the neutral gender includes the feminine and/or
masculine, as the case may be, and the singular number includes the plural, and the plural
number includes the singular.
Maker and any other person liable for the payment of this Note respectively, hereby (a)
expressly waive any valuation and appraisal, presentment, demand for payment, notice of
dishonor, protest, notice of nonpayment or protest, all other forms of notice whatsoever, and
diligence in collection; (b) consent that Holder may, from time to time and without notice to any
of them or demand, (i) extend, rearrange, renew or postpone any or all payments, (ii) release,
exchange, add to or substitute all or any part of the collateral for this Note, and/or (iii) release
Maker (or any co -maker) or any other person liable for payment of this Note, without in any way
modifying, altering, releasing, affecting or limiting their respective liability or the lien of any
security instrument; and (c) agree that Holder, in order to enforce payment of this Note against
any of them, shall not be required first to institute any suit or to exhaust any of its remedies
against Maker (or any co -maker) or against any other person liable for payment of this Note or to
attempt to realize on any collateral for this Note.
BY EXECUTING THIS NOTE, MAKER KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES ITS RIGHTS OR THE RIGHTS OF ITS HEIRS, ASSIGNS,
SUCCESSORS OR PERSONAL REPRESENTATIVES TO A TRIAL BY JURY, IF ANY,
IN ANY ACTION, PROCEEDING OR SUIT, WHETHER ARISING IN CONTRACT,
TORT OR OTHERWISE, AND WHETHER ASSERTED BY WAY OF COMPLAINT,
ANSWER, CROSSCLAIM, COUNTERCLAIM, AFFIRMATIVE DEFENSE OR
OTHERWISE, BASED ON, ARISING OUT OF, UNDER OR IN CONNECTION WITH,
THIS NOTE OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT TO BE
EXECUTED IN CONNECTION HEREWITH OR WITH THE INDEBTEDNESS OR
THE RENEWAL, MODIFICATION OR EXTENSION OF ANY OF THE FOREGOING
OR ANY FUTURE ADVANCE THEREUNDER. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR HOLDER'S EXTENDING CREDIT TO MAKER AND NO
WAIVER OR LIMITATION OF HOLDER'S RIGHTS HEREUNDER SHALL BE
EFFECTIVE UNLESS IN WRITING AND MANUALLY SIGNED ON HOLDER'S
BEHALF.
Maker acknowledges that the above paragraph has been expressly bargained for by
Holder as part of the transaction with Maker and that, but for Maker's agreement, Holder would
not have agreed to lend the Maker the Principal on the terms and at the Interest Rate.
43
This Note arises out of or is given to secure the financing of housing under Part V of
Chapter 420 of the Florida Statutes and is exempt from taxation pursuant to Section 420.513
Florida Statutes. Maker shall pay any and all present and future documentary stamp taxes,
intangible taxes, and other similar charges, including interest and penalties thereon, if any
(collectively referred to as the "Documentary Taxes") which arise in connection with this Note,
or any other Loan Document. Maker shall and hereby agrees to indemnify the Holder for the full
amount of all Documentary Taxes paid by the Holder or any liability (including penalties and
interest, if any and Holder's reasonable costs and reasonable attorneys fees related thereto)
arising therefrom or with respect thereto. Without prejudice to the survival of any other
agreement of Maker hereunder or under any other Loan Document, the agreements and
obligations of Maker contained in this section shall survive the payment in full of this Note.
[Signature on Following Page]
44
WHEREFORE, Maker has executed this Note as of the first date mentioned above.
45
MAKER:
,a
By:
Name:
Title:
#12157661 v2
EXHIBIT "B"
GP Loan Documents in substantially the form attached hereto
CDC Must have at least a 20% interest in the GP Loan.
PROMISSORY NOTE
, 2013
$7,500,000.00 Miami, Florida
FOR VALUE RECEIVED, the undersigned, AMC HTG I, LTD., a Florida limited
partnership ("Maker"), promises to pay to the order of , , a
, together with any other holder hereof ("Holder"), at
, Florida , or such other place as Holder may from
time to time designate in writing, the principal sum of Seven Million Five Hundred Thousand
and NO/100 (U.S. $7,500,000.00) (the "Principal"), plus interest on the outstanding principal
balance at the rate set forth in the next paragraph ("Interest or Interest Rate"), to be paid in
lawful money of the United States of America in accordance with the terms of this Promissory
Note (the "Note").
The term of this Note is fifteen (15) years and shall end on —, 20 (the
"Maturity Date"). Before the Maturity Date no payments of principal or interest will be made.
Interest shall accrue and compound annually at the greater of (i) the annual interest rate of
percent ( %) which rate is the Long Term Applicable Federal Rate; or (ii) the
annual interest rate of five percent (5%). The Principal, any outstanding Interest and any other
amounts outstanding under this Note shall be due and payable on the Maturity Date.
The proceeds of this Note shall be disbursed pursuant to the terms of that certain funding
agreement (the "Funding Agreement") dated of even date herewith by and between the Southeast
Overtown/Park West Community Redevelopment Agency (the "CRA"), (the
`Non -Profit"), (the "Institutional Investor"), the Senior Lender, as hereinafter
defined, Maker and Holder. The terms of the Funding Agreement are incorporated herein by
reference and made a part hereof.
To the extent required by Section 5.3 of the Development Agreement dated January 15,
2013 (the "Development Agreement") by and between Maker and the CRA, Maker shall within
ten (10) days of demand by Holder repay to Holder the amount determined to be due pursuant to
Section 7.8 of the Development Agreement, the terms of which are incorporated herein by
reference and made a part hereof.
This Note is secured by a Leasehold Mortgage and Security Agreement and Assignment
of Leases (the "Mortgage") encumbering certain real property located in Miami -Dade County,
Florida (the "Premises"). The Mortgage and all other agreements, instruments and documents,
delivered in connection with this Note are collectively referred to as the "Loan Documents."
This Note has been executed and delivered in, and is to be governed by and construed
under the laws of, the State of Florida, as amended, except as modified by the laws and
regulations of the United States of America.
Maker shall have no obligation to pay interest or payments in the nature of interest in
excess of the maximum rate of interest allowed to be contracted for by law, as changed from
time to time, applicable to this Note (the "Maximum Rate"). Any interest in excess of the
47
Maximum Rate paid by Maker ("Excess Sum") shall be credited as a payment of principal, or, if
Maker so requests in writing, returned to Maker, or, if the indebtedness and other obligations
evidenced by this Note have been paid in full, returned to Maker together with interest at the
same rate as was paid by Maker during such period. Any Excess Sum credited to Principal shall
be credited as of the date paid to Holder. The Maximum Rate varies from time to time and from
time to time there may be no specific maximum rate. Holder may, without such action
constituting a breach of any obligations to Maker, seek judicial determination of the Maximum
Rate of interest, and its obligation to pay or credit any proposed excess sum to Maker.
The "Default Interest Rate" and, in the event no specific maximum rate is applicable, the
Maximum Rate shall be eighteen percent (18%) per annum. Any payment under this Note or the
Loan Documents not paid when due (at maturity, upon acceleration or otherwise) taking into
account applicable grace periods shall bear interest at the Default Interest Rate from the due date
until paid. Time is of the essence. In the event that this Note is collected by law or through
attorneys at law, or under their advice, Maker agrees, to pay all reasonable costs of collection,
including reasonable attorneys' fees, whether or not suit is brought, and whether incurred in
connection with collection, trial, appeal, bankruptcy or other creditors proceedings or otherwise.
Holder shall have the right to declare the total unpaid balance of this Note to be immediately due
and payable in advance of the Maturity Date upon the failure of Maker to pay when due, taking
into account applicable grace periods, any payment of Principal or Interest or other amount due
under the Loan Documents; or upon the occurrence of an event of default, which is not cured
prior to the expiration of any applicable cure periods, pursuant to any other Loan Documents
now or hereafter evidencing, securing or guarantying payment of this Note. Exercise of this
right shall be without notice to Maker or to any other person liable for payment hereof, notice of
such exercise being hereby expressly waived.
This Note may be paid in whole or in part at any time by Maker without penalty.
Acceptance of partial payments or payments marked "payment in full" or "in satisfaction" or
words to similar effect shall not affect the duty of Maker to pay all obligations due, and shall not
affect the right of Holder to pursue all remedies available to it under the Loan Documents.
Any of the following shall be deemed to be an Event of Default hereunder: (a) failure to
make any payment when due in accordance with the terms of this Note; and (b) failure to keep or
perform any of the other material terms, covenants and conditions in this Note provided that such
failure shall have continued for a period of ninety (90) days after written notice of such failure
from the Holder.
Upon an Event of Default hereunder, the Holder shall have all of the remedies set forth in
the Mortgage. The remedies of Holder shall be cumulative and concurrent, and may be pursued
singularly, successively or together, at the sole discretion of Holder, and may be exercised as
often as occasion therefor shall arise. No action or omission of Holder, including specifically
any failure to exercise or forbearance in the exercise of any remedy, shall be deemed to be a
waiver or release of the same, such waiver or release to be effected only through a written
document executed by Holder and then only to the extent specifically recited therein. A waiver
or release with reference to any one event shall not be construed as continuing or as constituting
a course of dealing, nor shall it be construed as a bar to, or as a waiver or release of, any
subsequent remedy as to a subsequent event.
48
Any notice to be given or to be served upon any party in connection with this Note,
whether required or otherwise, may be given in any manner permitted under the Loan
Documents.
The term "other person liable for payment of this Note" shall include any endorser,
guarantor, surety or other person now or subsequently primarily or secondarily liable for the
payment of this Note, whether by signing this Note or any other instrument.
This Note shall be a non -recourse promissory note and neither the Maker, nor any of its
partners shall have any personal liability for the payment of any portion of the indebtedness
evidenced by this Note, and in the event of a default by the Maker under this Note, the Holder's
sole remedy shall be limited to exercising its rights under the Loan Documents, including
foreclosure and the exercise of the power of sale or other rights granted under such Loan
Documents, but shall not include a right to proceed directly against the Maker, or any of its
partners, or the right to obtain a deficiency judgment after foreclosure against the Maker or any
of its partners.
The indebtedness evidenced by this Note is and shall be subordinate in right of payment
to the prior payment in full of all amounts then due and payable (including, but not limited to, all
amounts due and payable by virtue of any default or acceleration or upon maturity) with respect
to the indebtedness evidenced by the Note (as defined by that certain [Multifmnily Mortgage,
Assignment of Rents, Security Agreement and Fixture Filmg] by the Maker in favor of
, a national banking association), in the original maximum principal amount of
$ , executed by Maker and payable to _ , as assigned to
("Senior Lender") to the extent and in the manner provided in that certain
[Subordination and Intercred for Agreement], dated as of even date herewith, between Senior
Lender and the holder of this Note (the "Senior Subordination Agreement"). The rights and
remedies of the payee and each subsequent holder of this Note shall be deemed, by virtue of such
holder's acquisition of this Note, to have agreed to perform and observe all of the terms,
covenants and conditions to be performed or observed by the ['`Junior Lender'] under the Senior
Subordination Agreement.
Whenever the context so requires, the neutral gender includes the feminine and/or
masculine, as the case may be, and the singular number includes the plural, and the plural
number includes the singular.
Maker and any other person liable for the payment of this Note respectively, hereby (a)
expressly waive any valuation and appraisal, presentment, demand for payment, notice of
dishonor, protest, notice of nonpayment or protest, all other forms of notice whatsoever, and
diligence in collection; (b) consent that Holder may, from time to time and without notice to any
of them or demand, (i) extend, rearrange, renew or postpone any or all payments, (ii) release,
exchange, add to or substitute all or any part of the collateral for this Note, and/or (iii) release
Maker (or any co -maker) or any other person liable for payment of this Note, without in any way
modifying, altering, releasing, affecting or limiting their respective liability or the lien of any
security instrument; and (c) agree that Holder, in order to enforce payment of this Note against
any of them, shall not be required first to institute any suit or to exhaust any of its remedies
49
against Maker (or any co -maker) or against any other person liable for payment of this Note or to
attempt to realize on any collateral for this Note.
BY EXECUTING THIS NOTE, MAKER KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES ITS RIGHTS OR THE RIGHTS OF ITS HEIRS, ASSIGNS,
SUCCESSORS OR PERSONAL REPRESENTATIVES TO A TRIAL BY JURY, IF ANY,
IN ANY ACTION, PROCEEDING OR SUIT, WHETHER ARISING IN CONTRACT,
TORT OR OTHERWISE, AND WHETHER ASSERTED BY WAY OF COMPLAINT,
ANSWER, CROSSCLAIM, COUNTERCLAIM, AFFIRMATIVE DEFENSE OR
OTHERWISE, BASED ON, ARISING OUT OF, UNDER OR IN CONNECTION WITH,
THIS NOTE OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT TO BE
EXECUTED IN CONNECTION HEREWITH OR WITH THE INDEBTEDNESS OR
THE RENEWAL, MODIFICATION OR EXTENSION OF ANY OF THE FOREGOING
OR ANY FUTURE ADVANCE THEREUNDER THIS PROVISION IS A MATERIAL
INDUCEMENT FOR HOLDER'S EXTENDING CREDIT TO MAKER AND NO
WAIVER OR LIMITATION OF HOLDER'S RIGHTS HEREUNDER SHALL BE
EFFECTIVE UNLESS IN WRITING AND MANUALLY SIGNED ON HOLDER'S
BEHALF.
Maker acknowledges that the above paragraph has been expressly bargained for by
Holder as part of the transaction with Maker and that, but for Maker's agreement, Holder would
not have agreed to lend the Maker the Principal on the terms and at the Interest Rate.
The Mortgage and this Note secured thereby arise out of or are given to secure the financing of
housing under Part V of Chapter 420 of the Florida Statutes and is exempt from taxation
pursuant to Section 420.513 Florida Statutes. Maker shall pay any and all present and future
documentary stamp taxes, intangible taxes, and other similar charges, including interest and
penalties thereon, if any (collectively referred to as the "Documentary Taxes") which arise in
connection with the Mortgage, this Note, or any other Loan Document. Maker shall and hereby
agrees to indemnify the Holder for the full amount of all Documentary Taxes paid by the Holder
or any liability (including penalties and interest, if any and Holder's reasonable costs and
reasonable attorneys fees related thereto) arising therefrom or with respect thereto. Without
prejudice to the survival of any other agreement of Maker hereunder or under any other Loan
Document, the agreements and obligations of Maker contained in this section shall survive the
payment in full of this Note.
[Signature on Following Page]
50
WHEREFORE, Maker has executed this Note as of the first date mentioned above.
MAKER:
AMC HTG 1, LTD.,
a Florida limited partnership
51
By: AMC HTG GP 1, LLC,
A Florida limited liability company,
Its general partner
By:
Name: Randy Rieger
Title: Manager
#12157669_v2
THIS INSTRUMENT WAS PREPARED BY.
RECORD AND RETURN TO:
Terry M. Lovell, Esq.
Stearns Weaver Miller, et al.
150 West Flagler Street, Suite 2200
Miami, Florida 33130
NOTE TO RECORDER: This Mortgage and the Note secured hereby are given to secure
the financing of housing under Part V of Chapter 420 of the Florida Statutes and are
exempt from taxation pursuant to Section 420.513 Florida Statutes.
LEASEHOLD MORTGAGE AND SECURITY AGREEMENT
AND ASSIGNMENT OF LEASES
THIS LEASEHOLD MORTGAGE AND SECURITY AGREEMENT AND ASSIGNMENT
OF LEASES (the "Mortgage"), dated as of the th day of , 2013, by AMC HTG
I, LTD., a Florida limited partnership, with an address of
("Mortgagor"), in favor of , , a with
an address of ("Mortgagee").
WITNESSETH
That for good and valuable consideration, and to secure the payment of the Promissory
Note executed by the Mortgagor in favor of the Mortgagee in the original principal amount of
Seven Million Five Hundred Thousand and No/100 (U.S. $7,500,000.00), as the same may be
renewed, extended or amended, from time to time, (referred to as the "Note" or the "Promissory
Note"), the final payment of which is due on or before the due date provided in the Promissory
Note and to secure any other indebtedness owed by Mortgagor to Mortgagee, now or hereafter
arising under the terms of this Mortgage or in any other instrument constituting additional
security for the Note, and all other sums of money secured as provided under this Mortgage, the
Mortgagor does grant, bargain, sell, remise, release, and convey unto the Mortgagee, its
successors and assigns, the real estate described in Exhibit A, which is attached and made a
part of this Mortgage, which, together with the property hereinafter described, is referred to
herein as the "Property";
TOGETHER WITH:
(a) All buildings and improvements, now or hereafter located on the Property, all
privileges and other rights now or hereafter made appurtenant thereto, including, without
limitation, all right, title and interest of Mortgagor in and to all streets, roads and public places,
opened or proposed, and all easements and rights -of -way, public or private, now or hereafter
used in connection with the Property; and
(b) All fixtures, fittings, furnishings, appliances, apparatus, goods, equipment, and
machinery, and all building material, supplies and equipment now or hereafter delivered to the
Property and installed or used in the Property, all other fixtures and personal property of
whatever kind and nature owned by the Mortgagor on the date of this Mortgage contained in or
hereafter placed in any building standing on the Property; such other goods, equipment, chattels
and personal property as are usually furnished by landlords in letting premises of the character
hereby conveyed, and all renewals or replacements thereof or articles in substitution thereof, all
52
of the estate, right, title and interest of the Mortgagor in and to all property of any nature
whatsoever, now or hereafter situated on the Premises or intended to be used in connection
with the operation thereof, all of which shall be deemed to be fixtures and accessions to the
freehold and a part of the realty as between the parties hereto, and all persons claiming by,
through or under them, and shall be deemed to be a portion of the security for the indebtedness
herein mentioned and secured by the Mortgage. If the lien of this Mortgage on any fixtures or
personal property is or becomes subject to a lease agreement, conditional sale agreement or
chattel mortgage of the Mortgagor, any and all deposits made thereof or therefor are hereby
assigned to the Mortgagee, together with the benefit of any payments now or hereafter made
thereon. There is also transferred, set over, and assigned hereby Mortgage to Mortgagee, its
successors and assigns, all leases and use agreements of machinery, equipment and other
personal property of Mortgagor in the categories hereinabove set forth, under which Mortgagor
is the lessee of, or entitled to use, such items, and Mortgagor agrees to execute and deliver to
Mortgagee specific separate assignments to Mortgagee of such leases and agreements when
requested by Mortgagee, but nothing herein constitutes Mortgagee's consent to any financing of
any fixture or personal property, and nothing herein shall obligate Mortgagee to perform any
obligations of Mortgagor under any such leases or agreements unless it so chooses, which
obligations Mortgagor hereby covenants and agrees to well and punctually perform. The items
set forth in this paragraph (b) are sometimes hereinafter separately referred to as "Collateral";
and
(c) All rents, royalties, issues, profits, revenue, income and other benefits from the
property described in paragraph (a) and (b) hereof to be applied against the indebtedness and
other sums secured hereby, provided, however, that permission is hereby given to Mortgagor so
long as no default has occurred hereunder, to collect, receive, take, use and enjoy such rents,
royalties, issues, profits, revenue, income and other benefits as they become due and payable,
but not in advance thereof. The foregoing assignment shall be fully operative without any
further action on the part of either party and specifically Mortgagee shall be entitled, at its option
upon the occurrence of a default hereunder, to all rents, royalties, issues, profits, revenue,
income and other benefits from the property described in paragraphs (a) and (b) hereof whether
or not Mortgagee takes possession of such property. Upon any such default hereunder, the
permission hereby given to Mortgagor to collect such rents, royalties, issues, profits, revenue,
income and other benefits from the property described in paragraphs (a) and (b) hereof shall
terminate and such permission shall be reinstated upon a cure of the default upon Mortgagee's
specific consent. Neither the exercise of any rights under this paragraph by Mortgagee nor the
application of any such rents, royalties, issues, profits, revenue, income or other benefits to the
indebtedness and other sums secured hereby, shall cure or waive any default or notice of
default hereunder or invalidate any act done pursuant hereto or to any such notice, but shall be
cumulative of all other rights and remedies.
(d) All right, title and interest of Mortgagor in and to all leases now or hereafter on or
affecting the property described in paragraphs (a) and (b) hereof, together with all security
therefor and all monies payable thereunder, subject, however, to the conditional permission
hereinabove given to Mortgagor to collect the rentals under any such lease. The foregoing
assignment of any lease shall not be deemed to impose upon Mortgagee any of the obligations
or duties of Mortgagor provided in any such lease, and, Mortgagor agrees to fully perform all
obligations of the lessor under all such leases. Upon Mortgagee's request, Mortgagor agrees to
send to Mortgagee a list of all leases covered by the foregoing assignment and as any such
lease shall expire or terminate or as any new lease shall be made, Mortgagor shall so notify
Mortgagee in order that at all times Mortgagee shall have a current list of all leases affecting the
property described in paragraphs (a) and (b) hereof. Mortgagee shall have the right, at any time
53
and from time to time, to notify any lessee of the rights of Mortgagee as provided by this
paragraph. From time to time, upon request of Mortgagee, Mortgagor shall specifically assign
to Mortgagee as additional security hereunder, by an instrument in writing in such form as may
be approved by Mortgagee, all right, title and interest of Mortgagor in and to any and all leases
now or hereafter on or affecting the Premises, together with all security therefor and all monies
payable hereunder, subject to the conditional permission hereinabove given to Mortgagor to
collect the rentals under any such lease. Mortgagor shall execute and deliver to Mortgagee any
notification, financing statement or other document reasonably required by Mortgagee to perfect
the foregoing assignment as to any such lease.
(e) To the extent of the indebtedness secured herein, all judgments, awards of
damages and settlements hereafter made as a result of or in lieu of any taking of the Property or
any part thereof or interest therein under the power of eminent domain, or for any damage
(whether caused by such taking or otherwise) to the Property or the improvements thereon or
any part thereof or interest therein, including any award for change of grade of streets.
(f) To the extent of the indebtedness secured herein, all insurance policies covering
all or any portion of the Property and all blueprints, plans, maps, documents, books and records
relating to the Property.
(g) To the extent of the indebtedness secured herein, all proceeds of the conversion,
voluntary or involuntary, of any of the foregoing into cash or liquidated claims.
TO HAVE AND TO HOLD the above granted Property, with all the privileges and
appurtenances to the same belonging to the said Mortgagee, its successors and assigns, to its
and their use and behoof forever.
PROVIDED, HOWEVER, that if the Mortgagor shall pay or cause to be paid to the
Holder of the Note the principal due under the Note, at the time and in the manner stipulated
therein, and shall pay or cause to be paid all other sums payable hereunder and all
indebtedness hereby secured, then, in such case, the estate, right, title and interest of the
Mortgagee in the Property shall cease, determine and become void and the Mortgagee shall,
cancel, release and discharge this Mortgage.
23. Mortgagor's Covenants
Mortgagor covenants and agrees with Mortgagee that:
Title.
The Mortgagor warrants that: it has good and marketable title to an indefeasible
fee simple estate in the Property, subject to no liens, charges or encumbrances other than the
lien of this Mortgage, any encumbrances existing and recorded in the public record prior to or in
connection with the recording of this Mortgage (collectively, the "Permitted Encumbrances");
that it has good right and lawful authority to mortgage the Property in the manner and form
herein provided; that Mortgagor has full power and authority to mortgage the Property in the
manner and form herein done or intended hereafter to be done; that this Mortgage is and shall
remain a valid and enforceable lien on the Property, subject only to the Permitted
Encumbrances which constitute senior mortgage liens, including but not limited to that certain
]mortgage] in favor of f j (the "Senior Lender") (collectively, the "Prior
Encumbrances"); that Mortgagor and its successors and assigns shall warrant and defend the
54
same and priority of this lien forever against the lawful claims and demands of all persons
whomsoever (other than the Prior Encumbrances); and, that this covenant shall not be
extinguished by any foreclosure hereof but shall run with the land. Notwithstanding any
language to the contrary contained herein, any encumbrances approved or allowed by the
Senior Lender and/or the Mortgagee shall be considered a Permitted Encumbrance under this
Mortgage.
Mortgagor shall maintain the property free of all security interests, liens and
encumbrances, other than Permitted Encumbrances, the security interest hereunder or any lien
or encumbrance disclosed to and approved by Mortgagee in writing.
The Mortgagor shall do, execute, acknowledge and deliver all and every such
further acts, deeds, conveyances, mortgages, assignments, notices of assignments, transfers
and assurances as the Mortgagee shall from time to time require, for the better assuring,
conveying, assigning, transferring and confirming unto the Mortgagee the property and rights
hereby conveyed or assigned or intended now or hereafter so to be, or which the Mortgagor
may be or may hereafter become bound to convey or assign to the Mortgagee, or for carrying
out the intention of facilitating the performance of the terms of this Mortgage, or for filing,
registering or recording this Mortgage and, on demand, shall execute and deliver, and hereby
authorizes the Mortgagee to execute in the name of the Mortgagor to the extent it may lawfully
do so, one or more financing statements, chattel mortgages or comparable security instruments,
to evidence more effectively the lien hereof upon the Collateral.
The Mortgagor shall, upon the execution of this Mortgage and the Note (the
"Loan Documents"), cause all recordable Loan Documents, to be filed, registered or recorded in
such manner and in such places as may be required by any present or future law in order to
publish notice of and fully to protect the lien hereof upon, and the interest of the Mortgagee in
the Property.
The Mortgagor shall pay for all filing, registration or recording fees, and all
expenses incident to the preparation, execution and acknowledgment of this Mortgage, any
mortgage supplemental hereto, any security instrument with respect to the Collateral, and any
instrument of further assurance, and all present and future federal, state, county and municipal
stamp taxes, documentary stamp taxes, intangible taxes, all other taxes, duties, imposts,
assessments and other similar charges, including interest and penalties thereon, if any
(collectively referred to as the "Documentary Taxes") arising out of or in connection with the
execution and delivery of the Note, this Mortgage, any mortgage supplemental hereto, any
security instrument with respect to the Collateral or any instrument of further assurance.
Mortgagor shall and hereby agrees to indemnify the Mortgagee for the full amount of all
Documentary Taxes paid by the Mortgagee or any liability (including penalties and interest, if
any and Mortgagee's reasonable costs and reasonable attorneys fees related thereto) arising
therefrom or with respect thereto. Without prejudice to the survival of any other agreement of
Mortgagor hereunder or under any other Loan Document, the agreements and obligations of
Mortgagor contained in this section shall survive the payment in full of the Note.
The Mortgagor, so long as all or part of the indebtedness secured hereby is
outstanding shall preserve in its present form and keep in full force and effect its existence, as a
legal entity under the laws of the state of its formation and shall comply with all regulations,
rules, ordinances, statutes, orders and decrees of any governmental authority or court
applicable to the Premises or any part thereof.
55
Payment of Note. The Mortgagor shall promptly and punctually pay principal, and all
other sums due or to become due pursuant to the terms of the Note, in the time and manner set
forth therein.
Maintenance and Repair. The Mortgagor shall keep the Property in good condition
and operating order and shall not commit or permit any waste thereof. Mortgagor shall diligently
maintain the Property and make any needed repairs, replacements, renewals, additions and
improvements, and complete and restore promptly and in a good workmanlike manner.
Mortgagor shall not remove any part of the Collateral from the Property or demolish any part of
the Property or materially alter any part of the Property without the prior written consent of the
Mortgagee which consent shall not be unreasonably denied, conditioned or delayed. Mortgagor
shall permit Mortgagee or its agents the opportunity to inspect the Property, including the
interior of any structures, at any reasonable time.
Compliance with Laws. The Mortgagor shall comply with all laws, ordinances,
regulations, covenants, conditions and restrictions affecting the Property or the operation
thereof, and shall pay all fees or charges of any kind in connection therewith.
Insurance. The Mortgagor shall keep all buildings and improvements now or
hereafter situated on the Property insured against loss or damage by fire and other hazards as
may reasonably be required by any senior mortgagee under the Prior Encumbrances.
Casualty. Mortgagor shall promptly notify Mortgagee of any material loss whether
covered by insurance or not. Any insurance proceeds shall be used to restore the Property
Condemnation. The Mortgagor, immediately upon obtaining knowledge of the
institution of any proceeding for the condemnation of the Property or any portion thereof, shall
notify Mortgagee in writing of the pendency thereof. Subject to the rights of any senior lenders
under the Prior Encumbrances, the Mortgagor hereby assigns, transfers and sets over unto the
Mortgagee to the extent of the indebtedness secured herein, all compensation, rights of action,
proceeds of any award and any claim for damages for any of the Property taken or damaged
under the power of eminent domain or by condemnation or by sale of the Property in lieu
thereof. Any proceeds of a condemnation award shall be used for the restoration or rebuilding
of the Property.
Liens and Encumbrances. Except as set forth herein, the Mortgagor shall not permit
the creation of any liens or encumbrances on the Property other than the lien of this Mortgage
and of any Permitted Encumbrances, and shall pay when due all obligations, lawful claims or
demands of any person, which, if unpaid, might result in, or permit the creation of, a lien or
encumbrance on the Property or on the rents, issues, income and profits arising therefrom,
whether such lien would be senior or subordinate hereto, including all claims of mechanics,
materialmen, laborers and others for work or labor performed, or materials or supplies furnished
in connection with any work done in and to the Property and the Mortgagor will do or cause to
be done everything necessary so that the lien of this Mortgage is fully preserved, at no cost to
the Mortgagee. Notwithstanding any language to the contrary contained herein or in any of the
other Loan Documents, the Mortgagor may refinance any other mortgage encumbering the
Property and the Mortgagee shall executed any requested Subordination Agreement related to
such refinancing.
Taxes and Assessments. The Mortgagor shall pay in full when due, and in any event
before any penalty or interest attaches, ail general taxes and assessments, special taxes,
56
special assessments, water charges, sewer service charges, and ail other charges against the
Property and shall furnish to Mortgagee official receipts evidencing the payment thereof.
Sale of Property.
Without the consent of Mortgagee, Mortgagor may transfer the Property as long
as after such transfer the Property continues to be subject to the lien of this Mortgage.
Any change in the legal or equitable title of the Property or in the beneficial
ownership of the Property, whether or not of record and whether or not for consideration, or sale
or other disposition of the partnership interests of the borrowing entity, shall not be deemed a
transfer of an interest in the Property.
Any deed conveying the Property, or any part thereof, shall provide that the
grantee thereunder assumes all of the grantor's obligations under this Mortgage, the Note and
all other instruments or agreements evidencing or securing the repayment of the Mortgage
indebtedness. In the event such deed shall not contain such provisions, the grantee under such
deed shall be deemed to assume, by its acquisitions of the Property all the obligations
established by the Loan Documents.
Mortgagor shall not sell, assign, transfer or otherwise dispose of any material
portion of the Collateral or any material interest therein and shalt not do or permit anything to be
done that may impair the Collateral without the prior consent of the Mortgagee, unless the
Mortgagor is not in default under the terms of this Mortgage and the Collateral which is to be
disposed is fully depreciated or unnecessary for use in the operation of the Property.
Notwithstanding any other language to the contrary contained herein, Sections
1.10(a) and (b) above shall only be applicable until the date that is fifteen years from the date
hereof.
Advances. If Mortgagor shall fail to perform any of the covenants herein contained
or contained in any instrument constituting additional security for the Note, the Mortgagee may,
without creating an obligation to do so, make advances on its behalf. Any and all sums so
advanced shall be a lien upon the Property and shall become secured by this Mortgage. The
Mortgagor shall repay on demand all sums so advanced in its behalf with interest at the rate of
four (4%) percent per annum in excess of the rate of the Note at the time of such advance.
Estoppel Certificates. The Mortgagor within ten (10) days from receipt of written
request, shall furnish a duly acknowledged written statement setting forth the amount of the debt
secured by this Mortgage, and stating either that no set -offs or defenses exist against the
Mortgage debt, or if any such setoffs or defenses are alleged to exist, the nature thereof.
Assignment of Rents and Leases. Mortgagor agrees to execute and deliver to
Mortgagee such assignments of the leases and rents applicable to the Property as the
Mortgagee may from time to time request while this Mortgage and the Note and indebtedness
secured by this Mortgage are outstanding.
Subordination to Prior Encumbrances. Notwithstanding anything herein which is or
which may appear to be to the contrary, the lien of this Mortgage and Mortgagee's rights
hereunder are subordinate and inferior to the lien of the Prior Encumbrances whether now
existing or hereafter created. Mortgagee agrees, by its acceptance hereof, that no action
57
required to be taken by Mortgagor under the express terms of any Prior Encumbrance shall
constitute a default or an Event of Default hereunder.
Leases Affecting Mortgaged Property. Mortgagor shall comply with and observe its
obligations as landlord under all leases affecting the Property or any part thereof.
24.
Default
Events of Default. The following shall be deemed to be Events of Default hereunder:
Failure to make any payment when due in accordance with the terms of the Note
secured by this Mortgage.
Failure to keep or perform any of the other material terms, covenants and
conditions in this Mortgage provided that such failure shall have continued for a period of ninety
(90) days after written notice of such failure from the Mortgagee.
Remedies.
Upon and after any such Event of Default, the Mortgagee, by written notice given
to the Mortgagor, may declare the entire principal of the Note then outstanding, if not then due
and payable, and all other obligations of Mortgagor hereunder, to be due and payable
immediately.
Upon and after any such Event of Default, the Mortgagee shall have all of the
remedies of a Secured Party under the Uniform Commercial Code of Florida, Sec. 671-689 et
al. F.S., as amended from time to time.
Upon and after any such Event of Default, the Mortgagee, with or without entry,
or by its agents or attorneys, insofar as applicable, may:
sell the Property to the extent permitted and pursuant to the procedures
provided by law, and all estate, right, title and interest, claim and demand therein, and right of
redemption thereof, at one or more sales as an entity or in parcels, and at such time and place
upon such terms and after such terms and after such notice thereof as may be required, or
institute proceedings for the complete or partial foreclosure of this
Mortgage, or
apply to any court of competent jurisdiction for the appointment of a
receiver or receivers for the Property and of all the earnings, revenues, rents, issues, profits and
income thereof, or
take such steps to protect and enforce its rights whether by action, suit or
proceeding in equity or at law for the specific performance of any covenant, condition or
agreement in the Note, or in this Mortgage, or in aid of the execution of any power herein
granted, or for any foreclosure hereunder, or for the enforcement of any other appropriate legal
or equitable remedy or otherwise as the Mortgagee shall elect.
58
The Mortgagee may adjourn from time to time any sale by it to be made under or
by virtue of this Mortgage by announcement at the time and place appointed for such sale or for
such adjourned sale or sales; and, except as otherwise provided by any applicable provision of
law, the Mortgagee, without further notice or publication, other than that provided in
sub -paragraph 2.02(c) above may make such sale at the time and place to which the same shall
be so adjourned.
Upon the completion of any sale or sales made by the Mortgagee under or by
virtue of this section, the Mortgagor, or an officer of any court empowered to do so, shall
execute and deliver to the accepted purchaser or purchasers a good and sufficient instrument,
or good and sufficient instruments, conveying, assigning and transferring, ail estate, right, title
and interest in and to the property and rights sold. The Mortgagor, if so requested by the
Mortgagee, shall ratify and confirm any such sale or sales by executing and delivering to the
Mortgagee or to such purchaser or purchasers all such instruments as may be advisable, in the
judgment of the Mortgagee, for the purpose, and as may be designated in such request. Any
such sale or sales made under or by virtue of this section whether made under the power of
sale herein granted or under or by virtue of judicial proceedings or of a judgment or decree of
foreclosure and sale, shall operate to divest all the estate, right, title, interest, claim and demand
whatsoever, whether at law or in equity, of the Mortgagor in and to the properties and rights so
sold, and shall be a perpetual bar both at law and in equity against the Mortgagor and against
any and all persons claiming or who may claim the same, or any part thereof from, through or
under the Mortgagor.
In the event of any sale made under or by virtue of this section (whether made
under the power of sale herein granted or under or by virtue of judicial proceedings or of a
judgment or decree of foreclosure and sale), the entire principal of the Note, if not previously
due and payable, and all other sums required to be paid by the Mortgagor pursuant to this
Mortgage, immediately thereupon shall, anything in the Note or in this Mortgage to the contrary
notwithstanding, become due and payable.
The purchase money proceeds or avails of any sale made under or by virtue of
this section, together with any other sums which then may be held by the Mortgagee under the
provisions of this section or otherwise, shall be applied as follows:
First: To the payment of the costs and expenses of such sale, including
reasonable compensation to the Mortgagee, its agents and counsel, and of any judicial
proceedings wherein the same may be made, and of all expenses, liabilities and advances
made or incurred by the Mortgagee under this Mortgage.
Second: To the payment of any other sums required to be paid by the
Mortgagor pursuant to any provisions of this Mortgage or of the Note.
Third: To the payment of the whole amount then due, owing or unpaid
under the Note.
Fourth: To the payment of the surplus, if any, to the Mortgagor or
whomsoever is lawfully entitled to receive the same.
Upon any sale made under or by virtue of this section, whether made
under the power of sale herein granted or under or by virtue of judicial proceedings or of a
judgment or decree of foreclosure and sale, the Mortgagee may bid for and acquire the Property
59
or any part thereof and in lieu of paying cash therefor may make settlement for the purchase
price by crediting upon the indebtedness of the Mortgagor secured by this Mortgage the net
sales price after deducting therefrom the expenses of the sale and the cost of the action and
any other sums which the Mortgagee is authorized to deduct under this Mortgage. The
Mortgagee, upon so acquiring the Property, or any part thereof shall be entitled to hold, lease,
rent, operate, manage and sell the same in any manner provided by applicable laws.
25.
Miscellaneous Terms and Conditions
Rules of Construction. When the identity of the parties hereto or other
circumstances make it appropriate, the masculine gender shall include the feminine and/or
neuter, plural and the singular number shall include the plural. The headings of each paragraph
are for information and convenience only and do not limit or construe the contents of any
provision hereof
Severability. If any term of this Mortgage, or the application thereof to any person or
circumstances, shall, to any extent, be invalid or unenforceable, the remainder of this Mortgage,
or the application of such term to persons or circumstances other than those as to which it is
invalid or unenforceable, shall not be affected thereby, and each term of this Mortgage shall be
valid and enforceable to the fullest extent permitted by law.
Successors in Interest. This Mortgage applies to, inures to the benefit of, and is
binding not only on the parties hereto, but on their heirs, executors, administrators, successors
and assigns. All obligations of Mortgagor hereunder are joint and several. The term
"Mortgagee" shall mean the holder and owner, including pledges, of the Note secured hereby,
whether or not named as Mortgagee herein.
Notices. All notices to be given pursuant to this Mortgage shall be sufficient if mailed
postage prepaid, certified or registered mail, return receipt requested, to the above described
addresses of the parties hereto, or to such other address as a party may request in writing. Any
time period provided in the giving of any notice shall commence upon the date such notice is
deposited in the mail.
Modifications. This Mortgage may not be amended, modified or changed, nor shall
any waiver of any provision be effective, except only by an instrument in writing and signed by
the party against whom enforcement of any waiver, amendment, change, modification or
discharge is sought.
Governing Law. This Mortgage shall be construed according to and governed by the
laws of the State of Florida.
Limitation of Liability. Notwithstanding any provision or obligation to the contrary
hereinbefore or hereinafter set forth, from and after the date of this Mortgage, the indebtedness
secured by this Mortgage including the Note shall be a non -recourse obligation and the liability
of the Mortgagor (including, without limitation, its partners, members, officers, directors or
employees) hereunder shall be limited to the interest in the Premises and the Mortgagee shall
look exclusively thereto, or to such other security as may from time to time be given for payment
of the obligations hereunder, and any judgment rendered against the Mortgagor under this
Mortgage shall be limited to the Premises and any other security so given for satisfaction
60
thereof. No deficiency or other personal judgment nor any order or decree of specific
performance shall be rendered against the Mortgagor (including, without limitation, its partners,
members, officers, directors or employees), their heirs, personal representatives, successors,
transferees or assigns, as the case may be, in any action or proceeding arising out of this
Mortgage, or any judgment, order or decree rendered pursuant to any such action or
proceeding.
Notice and Cure. Notwithstanding the foregoing, the Mortgagee hereby agrees that
any cure of any default made or tendered by the Mortgagor's investor limited partner and/or
special limited partner ( and , respectively, or their affiliates,
or their successors or assigns) shall be deemed to be a cure by the Mortgagor and shall be
accepted or rejected on the same basis as if made or tendered by Mortgagor. Copies of all
notices which are sent to Mortgagor under the terms of this Agreement shall also be sent to:
, , Attention:
with a copy to
, Attention:
[Signature on Following Page]
61
IN WITNESS WHEREOF, the said Mortgagor caused this instrument to be signed and
sealed as of the date first above written.
Signed, sealed and delivered MORTGAGOR:
in the presence of:
Name:
Name:
STATE OF FLORIDA
COUNTY OF
) ss:
}
AMC HTG 1, LTD.,
a Florida limited partnership
By: AMC HTG GP 1, LLC,
A Florida limited liability company,
Its general partner
By:
Name: Randy Rieger
Title: Manager
The foregoing instrument was acknowledged before me this day of , 2013
by Randy Rieger, as Manager of AMC HTG GP 1, LLC, a Florida limited liability company, a
general partner of AMC HTG 1, Ltd., a Florida limited partnership, on behalf of the limited
liability company and the limited partnership.
Personally Known OR Produced Identification
Type of Identification Produced
NOTARY STAMP
Print or Stamp Name:
Notary Public, State of Florida at Large
Commission No.:
My Commission Expires:
62
EXHIBIT A
LEGAL DESCRIPTION
63
#12157665_v2
EXHIBIT E
INSURANCE REQUIREMENTS
I. Commercial General Liability (Primary & Non Contributory)
A. Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence $1,000,000
General Aggregate Limit $2,000,000
Products/Completed Operations* $1,000,000
Personal and Advertising Injury* $1,000,000
B. Endorsements Required
City of Miami and Southeast Overtown/Park West Community Redevelopment
Agency as an Additional Insured (CG 2010 11/85 or its equivalent)
Contingent Liability & Contractual Liability
Premises & Operations Liability
Explosion; Collapse and Underground Hazard
II. Business Automobile Liability
A. Limits of Liability
Bodily Injury and Property Damage Liability
Combined Single Limit
Any Auto/Owned Autos/Scheduled
Including Hired, Borrowed or Non -Owned Autos
Any One Accident
$1,000,000
B. Endorsements Required
City of Miami and Southeast Overtown/Park West Community
Redevelopment Agency as Additional Insured
*to be provided by General Contractor
64
M. Workers' 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 Liability (Excess Follow Form)
A. Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence $3,000,000
Aggregate $10,000,000
B. Endorsements Required
City of Miami and Southeast Overtown/Park West Community Redevelopment
Agency as Additional Insured
V. Owner's & Contractor's Protective
Limits of Liability
Each Occurrence $1,000,000
Policy Aggregate $1,000,000
City of Miami and Southeast Overtown/Park West Community Redevelopment
Agency as Named Insured
W. Builders' Risk
Causes of Loss: All Risk -Specific Coverage Project Location
65
Valuation: Replacement Cost
Deductible: $25,000 All other Perils
5% maximum on Wind
City of Miami and Southeast Overtown/Park West Community Redevelopment
Agency as Additional Insured
A. Limit/Value at Location or Site - Full Replacement
B. Coverage Extensions as provided by insurer
The above policies shall provide the City of Miami and Southeast Overtown/Park West
Community Redevelopment Agency with written notice of cancellation or material change
from the insurer not less than (30) days prior to any such cancellation or material change,
or in accordance to policy provisions.
Companies authorized to do business in the State of Florida, with the following qualifications,
shall issue all insurance policies required above:
The company must be rated no less than "A" as to management, and no less than "Class
V" as to Financial Strength, by the latest edition of Best's Insurance Guide, published by
A.M. Best Company, Oldwick, New Jersey, or its equivalent. All policies and /or
certificates of insurance are subject to review and verification by Risk Management prior
to insurance approval.
66
EXHIBIT F
Restrictive Covenant
67
This document prepared by
and return to:
Owner:
Owner's Address:
RESTRICTIVE COVENANT AGREEMENT
AMC HTG I, Ltd.
3225 Aviation Avenue, Suite 602
Miami, FL 33133
Attention: Mathew Rieger
Legal Description of Property: See Exhibit "A" attached hereto
Name of Project:
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 January 15, 2013, 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 AMC HTG I, LTD., a Florida limited
partnership (together with its successors and assigns, the "Owner").
WITNESSETH:
WHEREAS, the Owner intends to construct a multifamily residential rental project
located within Miami -Dade County, Florida (the "County"), to be occupied by Lower -Income
Tenants all for the public purpose of providing decent, safe, affordable and sanitary housing for
persons or families of low income within the Southeast Overtown/Park West Redevelopment
Area; 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 201E 1 (the "Bonds"), to fund, among other things, a
grant (the "Grant") to [ j, a nonprofit
] formed under the laws of the State of Florida (the "Non -Profit Lender"),
which in turn has agreed to make a forgivable loan (the "Non -Profit Loan") to [ ,
68
a 1 (the "Lender"), which in turn has agreed to make a loan (the "Loan")
to the Owner, pursuant to a promissory note (the "Note") dated as of [ 1, 201i, 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:
26. Definitions and Interpretation.
26.1 The following terms shall have the respective meanings set forth below:
"Applicable Income Limit" means the income limit set forth in the definition of "Lower -
Income Tenants" herein.
"Available Units" means residential units in the Project that are actually occupied and
residential units in the Project that are unoccupied and have been leased at least once after
becoming available for occupancy, provided that a residential unit that is not available for
occupancy due to renovations is not an available unit and does not become an available unit until
it has been leased for the first time after the renovations are completed.
"Certificate of Continuing Program Compliance" means the certificate required to be
delivered by the Owner to the Issuer pursuant to Section 4(d) of this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended. Any reference to a Code
section shall include any successor provision; provided that if the Internal Revenue Code is
amended to eliminate corresponding provisions in connection with low income housing tax
credits, then reference shall be to such provision of the Code immediately prior to such
amendment.
"County" means Miami -Dade County, Florida.
69
"FHFC" means the Florida Housing Finance Corporation.
"HUD" means the United States Department of Housing and Urban Development or any
successor agency.
"Income Certification" means in a form acceptable to the Issuer (the Issuer agrees that a
tenant income certificate that is in a form acceptable to HUD or FHFC will be acceptable to the
Issuer).
"Lower -Income Tenants" means one or more natural persons or a family, whose income,
determined in a manner consistent with Section 42(g)(1) of the Code, does not exceed sixty
percent (60%) of the then current median family income for Miami -Dade County, Florida,
Standard Metropolitan Statistical Area, determined in a manner consistent with Section 42(g)(1)
of the Code, including adjustments for family size.
"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
, located on the Land and financed, in part, with proceeds of the Grant and the
Loan.
"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.
26.2 Unless the context clearly requires otherwise, as used in this Agreement,
words of the masculine, feminine or neuter gender shall be construed to include any other gender
when appropriate and words of the singular number shall be construed to include the plural
number, and vice versa, when appropriate. This Agreement and all the terms and provisions
hereof sliall be construed to effectuate the purposes set forth herein and to sustain the validity
hereof.
26.3 The titles and headings of the sections of this Agreement have been
inserted for convenience of reference only, and are not to be considered a part hereof and shall
not in any way modify or restrict any of the terms or provisions hereof or be considered or given
any effect in construing this Agreement or any provisions hereof or in ascertaining intent, if any
question of intent shall arise.
27. Residential Rental Property. The Owner hereby represents, covenants, warrants
and agrees that, during the term of this Agreement:
27.1 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.
70
27.2 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.
27.3 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.
27.4 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 Area for at least one
year immediately preceding occupancy of the unit) will be rented or available for rent on a
continuous basis to members of the general public, and the Owner will not give preference to any
particular class or group of persons in renting the units in the Project, except to the extent that
units are required to be leased or rented to Lower -Income Tenants. The Owner will not
discriminate against children of any age when renting the units in the Project.
27.5 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.
27.6 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.
28. Lower -Income Tenants and Moderate -Income Tenants. The Owner hereby
represents, warrants and covenants as follows:
28.1 At all times during the term of this Agreement, one hundred percent
(100%) of the Available Units shall be occupied by Lower -Income Tenants.
28.2 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 shall be counted as occupied by a Lower -Income Tenant, during such individual's or
family's tenancy in such unit, even though such individual or family ceases to be a Lower -
Income Tenant; however, any such unit shall cease to be treated as occupied by a Lower -Income
71
Tenant upon a determination that the tenant's most recently reported income exceeds 140% of
the Applicable Income Limit. In addition, a vacant unit shall be counted as occupied by a
Lower -Income Tenant until it is reoccupied other than for a temporary period of not more than
thirty-one days, at which time the unit shall be considered to be occupied by a Lower -Income
Tenant only if the individual or family then occupying the unit satisfies the definition of a
Lower -Income Tenant.
29. Reporting Requirements. During the term of this Agreement:
29.1 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.
29.2 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.
29.3 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 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.
29.4 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 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; (ii) the percentage of residential rental units that were vacant and (iii)
that at all times during the previous year, all of the residential rental units were occupied (or
deemed occupied) by Lower -Income Tenants (as determined in accordance with Section 3 of this
Agreement) and no default has occurred under this Agreement or, if the units failed to be so
occupied, or such a default has occurred, the nature of such failure or default and the steps, if
any, the Owner has taken or proposes to take to correct such failure or default. If any such report
indicates that the vacancy rate at the Project is 10% or higher, the Issuer 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.
29.5 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.
72
29.6 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.
29.7 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.
30. Indemnification. The Owner hereby covenants and agrees that it shall indemnify
and hold harmless the Issuer and its past, present and future officers, members, governing body
members, employees, agents and representatives (any or all of the foregoing being hereinafter
referred to as the "Indemnified Persons") from and against any and all losses, costs, damages,
expenses and liabilities of whatsoever nature or kind (including but not limited to, reasonable
attorneys' fees, litigation and court costs related to trial and appellate proceedings, amounts paid
in settlement and amounts paid to discharge judgments) directly or indirectly resulting from,
arising out of, the design, construction, installation, operation, use, occupancy, maintenance or
ownership of the Project other than for their own negligent, illegal or unlawful 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.
31. 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.
32. 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
73
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.
33. Tenant Lease Restrictions. All tenant leases shall contain clauses, among others,
wherein each individual lessee:
33.1 Certifies the accuracy of the statements made in the Income Certification;
33.2 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
33.3 Agrees not to sublease to any person or family who does not execute, and
deliver to the Owner or the Issuer, an Income Certification.
34. Sale, Lease or Transfer of Project. The Owner shall not sell, assign, convey or
transfer any material portion of the Land, fixtures or improvements constituting a part of the
Project or any material portion of the personal property constituting a portion of the Project
during the term of this Agreement without the prior written consent of the Issuer, which consent
shall not be unreasonably withheld. If a material portion of the Project is sold during the term
hereof and such material portion of such Project consisted of personal property or equipment, the
proceeds from the sale thereof may be used by the Owner to purchase property of similar
function to be used in connection with the Project. If such material portion of such 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
74
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
this Agreement is recorded. 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.
35. 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.
36. Tenn. This Agreement shall remain in full force and effect during the Qualified
Project Period.
37. 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, 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
75
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.
38. 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.
39. Correction for Non -Compliance.
39.1 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 or should have learned of such failure by the exercise of reasonable
diligence.
39.2 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.
39.3 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.
39.4 The failure of Owner to comply with the terms of Section 3(d) and Section
3(e) shall not be deemed a default hereunder if Owner makes the payments required by Section
4(f) on or before the date due. The failure of the Owner to make such payments on or before the
date due shall be an event of default by Owner under this Agreement for which not grace period
shall apply.
40. 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 their successors who shall reside or be eligible to reside in the units
set aside for their occupancy pursuant to Section 3 of this Agreement. If a material violation of
any of the provisions hereof occurs, such parties may institute and prosecute any proceeding at
law or in equity to abate, prevent or enjoin any such violation or attempted violation; and to
compel specific performance hereunder, it being recognized that the beneficiaries of the Owner's
obligations hereunder cannot be adequately compensated by monetary damages in the event of
the Owner's default. In addition to such other remedies as may be provided for herein, if a
violation of any of the provisions hereof occurs or is attempted, and is caused by Manager's act
or omission within Manager's control and authority, the Issuer shall have the right (but not the
obligation) and is specifically authorized by the Owner hereunder (but only in the event the
76
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 shall be limited to specific
performance.
41. 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.
42. Governing Law. This Agreement shall be governed by the laws of the State.
43. 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.
44. 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.
45. 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.
46. 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.
47. 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]
77
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
AMC HTG I, LTD., a Florida limited
partnership
By: AMC HTG GP I LLC, a Florida limited
liability company, as its general partner
By:
Name: Randy Rieger
Title: Manager
RESTRICTIVE COVENANT AGREEMENT
SIGNATURE PAGE
JOINDER
MIAJVII-DADE COUNTY, FLORIDA, a political subdivision of the State of Florida, as
owner of fee simple title to Land as defined in the Restrictive Covenant Agreement, joins in the
Restrictive Covenant Agreement to subject its fee simple interest in the Land to the Restrictive
Covenant Agreement as a covenant running with the Land.
Miami -Dade County, Florida, a political
subdivision of the State of Florida
By:
Mayor
A'I"FEST:
Harvey Ruvin, Clerk
By:
Approved as to from and legal sufficiency
By:
Robert A. Cuevas, Jr.
County Attorney
RESTRICTIVE COVENANT AGREEMENT
SIGNATURE PAGE
JOINDER
ALONZO MOURNING FAMILY FOUNDATION, INC., a Florida not -for -profit
corporation ("Foundation") as owner of a leasehold interest in the Land pursuant to that certain
lease by and between Miami -Dade County, Florida, a political subdivision of the State of Florida
(the "County") as landlord and Alonzo Mourning Charities, Inc., a not -for -profit corporation, as
tenant dated December 19, 2008, as amended (the "Ground Lease") hereby joins in the
Restrictive Covenant Agreement to subject its interest in the Land pursuant to the Ground Lease
to the terms and provisions of the Restrictive Covenant Agreement as a covenant running with its
leasehold interest in the Land pursuant to the Ground Lease.
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
)SS:
)
Alonzo Mourning Family Foundation, Inc., a not -
for -profit corporation
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 the same person
whose name is subscribed to the foregoing instrument as , of Alonzo Mourning
Family Foundation, Inc., a not -for -profit corporation, appeared before me this day in person and
acknowledged that they, being thereunto duly authorized, signed, sealed with the seal of said
corporation, and delivered the said instrument as the free and voluntary act of said corporation
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 , 2013
NOTARY PUBLIC, STATE OF FLORIDA
(SEAL)
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 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
COUNTY OF MIAMI-DADE
)
)SS:
)
I, , a Notary Public in and for the said County in the State aforesaid,
do hereby certify that Randy Rieger, known to me to be Manager of AMC HTG GP I, LLC,
general partner of AMC HTG I, 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 limited partnership, 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)
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 Lower -Income Tenants and at all times during the previous year. 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
or vacant:
Total number of units available for
occupancy as of , 20_
Lower -Income Tenants
Vacant Units
Percentage Number
Authorized Representative for
84
EXHIBIT C
FORM OF CERTIFICATE CONCERNING COMMENCEMENT
AND TERMINATION OF QUALIFIED PROJECT PERIOD
THIS CERTIFICATE is being executed pursuant to the provisions of the Restrictive
Covenant Agreement, dated as of 1, 201_, (the "Agreement), between Southeast
Overtown/Park West Community Redevelopment Agency (the "Issuer"), and AMC HTG I, Ltd.,
a Florida limited partnership (the "Owner") in connection with the financing of
(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 201J-] (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.
85
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
AMC HTG I, LTD., a Florida limited
partnership
By: AMC HTG GP I, LLC, a Florida limited
liability company, as its general partner
By:
Name: Randy Rieger
Title: Manager
I, , a Notary Public in and for the said County in the State aforesaid,
do hereby certify that Randy Rieger, known to me to be Manager of AMC HTG GP I, LLC,
general partner of AMC HTG I, 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 limited partnership, 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)
86
EXHIBIT A
to
Certificate Concerning Commencement
and Termination of Qualified Project Period
REAL PROPERTY DESCRIPTION
87
EXHIBIT G
GUARANTY OF COMPLETION
THIS GUARANTY OF COMPLETION (the "Guaranty") is executed and delivered,
jointly and severally, as of the day of , 201_ by Randy Rieger, an individual, and
Balogh Family Partnership, LLC, a Florida limited liability company (each a "Guarantor", and
collectively, the "Guarantors") in favor of SOUTHEAST OVERTOWN/PARK WEST
COMMUNITY REDEVELOPMENT AGENCY, a public agency and body corporate created
pursuant to Section 163.356, Florida Statutes (the "CRA").
WITNES SETH:
A. AMC HTG 1, Ltd., a Florida limited partnership (the "Developer") has requested
that the CRA make a grant to (the "Non -Profit") in the amount of Seven Million and
Five Hundred Thousand and No/100 Dollars ($7,500,000.00) (the "Grant") pursuant to the terms
and conditions of that Development Agreement dated as of January 15, 2013, by and between
Developer and the CRA as same may be amended from time to time, (the "Development
Agreement") which Grant shall be loaned by the Non -Profit to the General Partner (or Controlled
Entity) in accordance with the terms of the Development Agreement and the Non -Profit Loan
Documents. The General Partner (or Controlled Entity) will loan one hundred percent (100%) of
the proceeds of the Grant to the Developer in accordance with the terms of the Development
Agreement and the GP Loan Documents. All terms not otherwise defined herein shall have the
meanings set forth in the Development Agreement.
B. Guarantors will benefit from the Grant and the transaction contemplated by the
Development Agreement.
C. The CRA would not make the Grant and enter into the Development Agreement
with Developer unless Guarantors agreed to unconditionally guaranty completion of the Project
in accordance with the Plans.
NOW, THEREFORE, in consideration of the CRA's making the Grant and executing the
Development Agreement, which it is acknowledged and agreed that CRA is doing in full reliance
hereon, and as an inducement to CRA to do so and to make advances pursuant thereto, and for
other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, each Guarantor hereby irrevocably covenants, warrants and agrees as follows:
1. That notwithstanding any provision in the Development Agreement, the Funding
Agreement, the Non -Profit Loan Documents, the GP Loan Documents, or in any other agreement
or document executed in connection therewith, each Guarantor hereby unconditionally and
irrevocably guarantees to CRA the following:
a. One hundred percent (100%) lien free completion of the Project in
accordance with the Development Agreement and the Funding Agreement and substantially in
88
accordance with the Plans, as evidenced by (i) the issuance of a final certificate of occupancy
and use (or the equivalent) by the proper governmental authority as to the Project to be
constructed on the Property; (ii) the delivery by the design/supervising architect of a certificate
of completion of the Project substantially in accordance with the Plans approved by CRA; (iii)
the issuance by CRA and CRA's supervising architect/engineer of certificates of completion of
the Project (completion of the Project shall include, but not be limited to completion of grading,
landscaping, all necessary and appropriate utilities, streets, sidewalks, drainage and all on -site
and off -site improvements as reflected on the Plans); and (iv) the delivery to CRA of a final as -
built survey for the completed Project; and
b. Full and punctual payment and discharge of all costs and expenses, in
excess of the Grant amount, of any nature relating to the construction and the completion of the
Project as the same become due and payable, and payment and discharge of all claims and
demands for labor and/or materials used in the construction and the completion of the
Improvements substantially in accordance with the Plans which are or, if unpaid, may become
liens, claims or encumbrances on the Project.
2. Without limiting the generality of the preceding paragraph 1, each Guarantor
hereby agrees:
a. To perform, complete and pay for the construction required by the
Development Agreement and Funding Agreement within the time period allotted therefor and to
pay all costs and expenses of said construction and completion of the Project and all costs
associated therewith, including any sum in excess of the Grant amount, and each Guarantor
hereby indemnifies and agrees to save harmless CRA from all costs and expenses which CRA
suffers as a result of the Project not being completed and paid for in the manner required and
within the time period allotted therefor as set forth in the Development Agreement and the
Funding Agreement.
b. To indemnify and save CRA harmless from any and all costs, expenses
and losses it may incur in connection with the Project (arising from any default by Developer
under the Development Agreement or the Funding Agreement including, but not limited to
losses, costs or expenses resulting from changes, alterations, modifications or deviations from
the Plans previously approved by CRA; but excluding any costs, expenses and losses that may
occur in connection with the Project as a result of the gross negligence or intentional misconduct
of CRA, and to pay any and all such amounts to CRA within fifteen (15) days of written demand,
which demand CRA may make upon any Guarantor without first having made demand upon
Developer or any other party and without having exhausted any other remedy against Developer
or any other party.
c. In the event any mechanic's or materialman's liens should be filed, or
should attach, with respect to the Property, to cause the removal of such liens or the posting of
security against the consequences of their possible foreclosure within thirty (30) days of the
filing of such liens;
d. To pay the costs and fees of all architects and engineers employed by
Developer in connection with the Project;
89
e. To pay within fifteen (15) days of written demand all of CRA's costs and
expenses, including reasonable attorneys' fees and costs, incurred in the enforcement of this
Guaranty.
f. That it may be impossible to accurately measure the damages to CRA
resulting from a breach of Guarantors' covenant to complete or to cause the completion of the
construction and equipping of the Project, and that such a breach will cause irreparable injury to
CRA, and that CRA may not have an adequate remedy at law in respect of such breach and, as a
consequence, each Guarantor agrees that such covenant shall be specifically enforceable against
it and each Guarantor hereby waives and agrees not to assert any defense against an action for
specific performance of such covenant other than the defense that completion has been achieved
with respect to the Project. The preceding sentence shall not prejudice CRA's rights to assert
any and all claims for damages incurred as a result of Guarantors' default hereunder (beyond any
applicable notice and cure periods), and CRA may, hold any Guarantor liable for all losses and
damages sustained and expenses incurred by reason of the Developer or any Guarantor failing to
construct, complete and equip the Project in accordance with the Plans, the Development
Agreement and the Funding Agreement, including, without limitation, the cost of such
completion and the payment of real estate taxes and insurance.
3. Each Guarantor hereby acknowledges and consents to the Plans, the disbursement
schedule and the other terms and conditions of the Development Agreement and related
documents governing the construction of the Project.
4. Each Guarantor hereby waives any and all requirements that CRA institute any
action or proceeding, at law or in equity, against the Developer or against any other party or
parties with respect to the Development Agreement, the Funding Agreement or any related
document as a condition precedent to bringing any action against any Guarantor upon this
Guaranty. All remedies afforded to CRA by reason of this Guaranty are separate and cumulative
remedies and no one of such remedies, whether waived by CRA or not, shall be deemed to be an
exclusion of any one of the other remedies available to CRA and shall not in any way limit or
prejudice any other legal or equitable remedy which CRA may have.
5. Each Guarantor further agrees that Guarantors shall not be released from any
obligations hereunder by reason of any amendment to or alteration of the terms and conditions of
the Development Agreement, the Funding Agreement or of any related document, nor shall
Guarantors' obligations hereunder be altered or impaired by any delay by CRA in enforcing the
terms and obligations of the Development Agreement or the Funding Agreement by any waiver
of any default by CRA under the Development Agreement, the Funding Agreement or any
related document, it being the intention that each Guarantor shall remain fully liable hereunder,
notwithstanding any such event.
6. No extension of the time of payment or performance of any obligation hereunder
guaranteed, or the renewal thereof, nor delay in the enforcement thereof or of this Guaranty, or
the taking, exchanging, surrender or release of other security therefor or the release or
compromise of any liability of any party shall affect the liability of or in any manner release the
Guarantors, and this Guaranty shall be a continuing one and remain in full force and effect until
each and every obligation hereby guaranteed shall have been fully paid and performed.
90
7. That until the Project is fully erected, equipped and completed as aforesaid, and
until each and all of the terms, covenants and conditions of this Guaranty are fully performed,
Guarantors shall not be released by any act or thing which might, but for this provision of this
Guaranty, be deemed a legal or equitable discharge of any Guarantor, or by reason of any
waiver, extension, modification, forbearance or delay by CRA and Guarantors hereby expressly
waive and surrender any defense to Guarantors' liability hereunder based upon any of the
foregoing acts, things, agreements or waivers. Guarantors shall be released from this Guaranty
upon the earlier to occur of completion of the Project, lien -free and otherwise in accordance with
the requirements of the Development Agreement, the Funding Agreement and substantially in
accordance with the Plans.
8. Except as otherwise set forth herein, CRA shall not be required to give any notice
to any Guarantor hereunder in order to preserve or enforce CRA's rights hereunder (including,
without limitation, notice of any default under or amendment to the Development Agreement or
the Funding Agreement), any such notice being expressly waived by Guarantors.
9. Guarantors agree that Guarantors shall make no claim or set-off, defense,
recoupment or counterclaim of any sort whatsoever, nor shall Guarantors seek to impair, limit or
defeat in any way their obligations hereunder. Guarantors hereby waive any right to such a
claim in limitation of their obligations hereunder.
10. This Guaranty is assignable by CRA and shall bind the heirs, devisees, personal
representatives, successors and assigns of the parties hereto and shall inure to the benefit of any
successor or assign of CRA.
11. This Guaranty shall, in all respects, be governed by and construed in accordance
with the laws of the State of Florida, including all matters of construction, validity and
performance.
12. In the event that any provision of this Guaranty is held to be void or
unenforceable, all other provisions shall remain unaffected and be enforceable.
13. Except as otherwise set forth herein, each Guarantor hereby waives notice of
acceptance of this Guaranty by CRA and of presentment, demand, protest, notice of protest and
of dishonor, notice of default and all other notices relative to this Guaranty of every kind and
description now or hereafter provided by any agreement between Developer and CRA or any
statute or rule of law, except only any notices expressly required hereunder.
14. Any notice, demand or request by CRA to any Guarantor or from any Guarantor
to CRA shall be in writing and shall be deemed to have been duly given or made if either
delivered personally or if mailed by certified or registered mail, addressed to the address set forth
below (or at the correct address of any assignee of CRA), except that mailed written notices shall
not be deemed given or served until three days after the date of mailing thereof:
a. If to CRA:
SOUTHEAST OVERTOWN / PARK WEST
COMMUNITY REDEVELOPMENT AGENCY
91
Attention: Clarence E. Woods, III, Executive Director
1490 NW Third Avenue
Suite 105
Miami, FL 33136
Fax: 305-679-6836
b. If to Guarattors:
and
EACH GUARANTOR HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVES THE RIGHTS EACH MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION
WITH THE NOTE, THIS GUARANTY AND ANY DOCUMENT CONTEMPLATED TO BE
EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE
OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTION OF
ANY GUARANTOR, DEVELOPER OR CRA.
[Signature Pages to Follow]
92
IN WITNESS WHEREOF, Guarantors have executed this Guaranty as of the day and
year first above written.
WITNESSES:
Print Name:
Print Name:
Print Name:
Print Name:
Balogh Family Partnership, LLC, a Florida
limited liability company
By:
Name:
Title:
93
Randy Rieger, individually
STATE OF FLORIDA
): ss.
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this day of , 201_, by
Randy Rieger, as Manager of Balogh Family Partnership, LLC, a Florida limited liability
company, on behalf of the limited liability company. He is personally known to me or has
produced as identification.
Notary Public
Name of Notary Printed:
My commission expires: (NOTARY SEAL)
My commission number is:
STATE OF FLORIDA
): ss.
COUNTY OF MIAMI-DADS )
The foregoing instrument was acknowledged before me this day of , 201_, by
Randy Rieger. He is personally known to me or has produced as
identification.
My commission expires:
My commission number is:
94
Notary Public
Name of Notary Printed:
(NOTARY SEAL)
r749,.. x Co-G9Jern, PetIntl-
a Porida lin; 'ad ,iati:."/ asetliotr: i
S.
[
HTG Ana-rfalse,
a r 12;
7ericid 1.-inA 1 Aktia./31111'
EXHTBIT H
OWNERSHIP INTEREST
ORGANIZATIONAL CHART FOR
AMC HTG 1, LTD.
AMC HT3 1, LTD,
! a Panda ;imbed partnership
49 2!_i Ler, rs, Pert-43J - Plallhoidc--;—'' \
031 CGApperat Porirvir
AM Fibs' I; -. GP, Li Z.. 11,1sals TTI:e GrGUr t L.C. .
, 9 cimidg trz led `at !V'y ccornriarri
\ .. 8 F) :!-a He.* 1 'labials oampar.1
J
S,: Isfewb.r
rW Arvelable tiotx-rig I
Farsta nort,sc!S zorp3m
Mmar
Ra, sty niger
95
L
r.vrai.
Abrzn Mo, ft-ng
---IAliarir- urst'
7
eatar
L'Ie Jot -Pt
EXHIBIT I
DEVELOPER CERTIFICATE
The undersigned, acting on behalf of AMC HTG 1, Ltd, a Florida limited partnership (the
"Developer"), hereby certifies to the Southeast Overtown/Park West Community Redevelopment
Agency (the "Issuer"), in connection with the issuance of the Issuer's $ Tax Increment
Revenue Bonds, Series 2012[- 1(the `Bonds"), that:
1. The Developer and the Issuer have entered into a Development Agreement dated
as of January 15, 2013 (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 3.7.1 of the
Development Agreement, and will not make payments to the Issuer under that Section 3.7.1 of
the Development Agreement, that it will comply with the Subcontractor Participation
Requirements set forth in the Development Agreement, and will therefore not make payments to
the Issuer under Section 6.3.1 of the Development Agreement, that it will meet the Laborer
Participation Requirements set forth in the Development Agreement, and will not make
payments to the Issuer under Section 6.3.2 of the Development Agreement, and that it will
comply with the reporting requirements set forth in Section 4 of the Restrictive Covenant
Agreement, and will therefore not make payments to the Issuer under Section 4 of the Restrictive
Covenant Agreement and that it will comply with its obligations under Section 3 of the
Restrictive Covenant Agreement and will therefore not make payments to the Issuer under
Section 3 of the Restrictive Covenant Agreement.
The Developer acknowledges that property financed with proceeds of the Bonds will be treated
as owned, or used for the private business use of, the Developer (the "Bond -Financed Property").
The Developer reasonably expects that it will make no payments to the Issuer, or any related
party to the Issuer with respect to any Bond -Financed Property, directly or indirectly, except for
payment of property taxes of general application or the payment in lieu of property taxes
required by Section 18 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]
96
AMC HTG 1, LTD.
a Florida limited partnership
By: AMC HTG GP 1, LLC, a Florida limited liability company
Its managing general partner
By:
Name: Randy Rieger
Title: Manager
97
#11375366_v8