HomeMy WebLinkAboutCRA-R-14-0006 AttachmentH&K Draft
1/17/14
BLOCK 56 DEVELOPMENT AGREEMENT
THIS Block 56 DEVELOPMENT AGREEMENT (the "Agreement") is made as of the
day of January, 2014, by and between ALL ABOARD FLORIDA NW SIXTH STREET
LLC, a Delaware limited liability company (the "Developer"), and the SOUTHEAST
OVERTOWN/PARK WEST COMMUNITY REDEVELOPMENT AGENCY, a public agency
and body corporate created pursuant to Section 163.356, Florida Statutes (the "CRA").
RECITALS
A. The Southeast Overtown/Park West Project area was designated as a community
redevelopment area (the "Redevelopment Area") by Miami -Dade County, a political subdivision
of the State of Florida (the "County"). A redevelopment plan was approved by the
Commissioners of the City of Miami and the Commissioners of Miami -Dade County with
certain redevelopment authority granted by the County to the City for project implementation.
The City assigned to the CRA the redevelopment authority granted by the County to the City.
B. The CRA issued a request for proposals (the "RFP") for the development of that
certain real property located within the Redevelopment Area which is more particularly
described on Exhibit "A" (the "Property" or "Block 56") together with other property.
C. In response to the RFP, Developer submitted a proposal for the development of
the Property, together with other property, as more particularly described in the proposal
submitted by the Developer (the "Proposal").
D. Based upon the evaluation of the Proposal by the selection committee appointed
by the executive director of the CRA (the "Executive Director") and subsequent negotiations
between the Executive Director and the Developer, the Executive Director has recommended to
the Board of Commissioners of the CRA (the "CRA Board") that the CRA enter into this
Agreement with the Developer for the development of the Property.
E. Pursuant to CRA Resolution Number CRA-R-14- , the CRA Board
authorized the CRA to enter into this Agreement.
F. The CRA desires to convey the Property to the Developer subject to the terms and
provisions of this Agreement and the Developer desires to acquire the Property from the CRA
for the development of the Project, as hereinafter defined, subject to the terms and provisions of
this Agreement.
NOW THEREFORE, for and in consideration of the sum of $10.00 and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and of the
covenants and agreements hereafter set forth, the parties agree as follows:
1. RECITALS. The recitals to this Agreement are true and correct and are
incorporated herein by reference and made a part hereof.
2. PROPERTY. The property to be conveyed by the CRA to Developer pursuant to
the terms of this Agreement consists of the Property and all appurtenances belonging thereto,
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including any and all rights, privileges and easements in any way pertaining thereto, all right,
title and interest of the CRA in and to any adjoining sidewalk and in and to any adjoining street
or alley and all right, title and interest of the CRA in permits and approvals issued by the
applicable governmental authorities relating to the use and development of the Property.
3. DEPOSIT. Within two (2) business days of the Effective Date of this Agreement,
Developer shall deliver to Holland & Knight LLP, as escrow agent (the "Escrow Agent"), the
sum of Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the "Initial Deposit").
(The Initial Deposit and the Additional Deposit, as hereinafter defined, together with all interest
accrued thereon, are collectively referred to as the "Deposit"). Upon receipt of Developer's tax
identification number, the Escrow Agent shall invest the Deposit in an interest -bearing account,
certificate of deposit or repurchase agreement. All interest accrued or earned thereon shall be
paid or credited to Developer except in the event of default of Developer as set forth in this
Agreement, in which event the interest shall be disbursed to the CRA, together with the Deposit,
as liquidated damages.
4. INSPECTION PERIOD.
4.1 Inspections. Developer shall have until 5 p.m. on the ninetieth (90th) day
after the Effective Date, as hereinafter defined, (the "Inspection Period") to perform, at
Developer's sole cost and expense, such investigations and inspections of the Property the
Developer, in Developer's sole and absolute discretion deems appropriate, including, without
limitation, soil tests, zoning investigations, utility availability and environmental matters
(collectively the "Inspections") to determine whether the Property is acceptable to Developer, in
its sole discretion. Prior to performing any on -site Inspections, Developer shall provide at least
one (1) business day's prior written notice to the Executive Director (which may be delivered by
email) at 1490 NW Third Avenue, Suite 105, Miami, Florida 33136, Phone: 305-679-6800;
Facsimile: 305-679-6835; email: ewoods@miamigov.com (or such other CRA representatives
as designated by the Executive Director), which written notice shall provide reasonable detail
regarding the type and scope of Inspection(s) to be performed and the scheduled date and time
for such Inspection(s) and provide the Executive Director the opportunity to have a
representative from the CRA present at any such Inspection(s). Developer shall conduct such
Inspection(s) in a manner so as to not unreasonably interfere with the current use of the Property.
4.2 Restoration. Following any such Inspections, Developer shall promptly
restore the Property to the condition existing immediately prior to such Inspections. The
Inspections shall be conducted in accordance with all applicable laws and by licensed and
insured professionals, and Developer shall cause its inspectors to obtain, at Developer's sole cost
and expense, any and all licenses and permits required to conduct the Inspections, as applicable.
4.3 Environmental Audit. Developer shall be authorized, at Developer's sole
cost and expense, to obtain a Phase II Report during the Inspection Period.
4.4 Disclosure. Developer agrees that in the event the need arises to notify,
under applicable laws, any federal, state or local public agencies of any conditions at the
Property as a result of the Inspections performed by Developer, its agents, employees,
contractors and/or representatives, Developer shall provide the Executive Director with any
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pertinent reports, written material or other evidence of the condition requiring such disclosure, if
any. Any required disclosures shall be made directly by the CRA, and not Developer, to any
such public agencies, unless the Developer is required to make such disclosures by applicable
law, and the CRA fails to timely make such disclosures.
4.5 Indemnification. Developer shall assume all risks associated with the
Inspections and agrees to indemnify, defend and hold harmless the CRA of, from and against any
and all costs, losses, claims, damages, liabilities, expenses and other obligations (including,
without limitation reasonable attorney's fees and court costs) to the extent arising from, out of or
in connection with or otherwise relating to the Inspections, including, without limitation, the
entry by any one or more of Developer's agents, employees, contractors and other
representatives in or upon the Property for the purpose of the Inspections; provided, however,
that the foregoing indemnification obligation of Developer shall not apply to the mere discovery
of any adverse findings relative to the Property by Developer or any of its agents, representatives
or independent contractors. The foregoing indemnification obligations of Developer shall
survive the expiration or termination of this Agreement.
4.6 Insurance. Developer shall, prior to entering the Property and performing
any Inspections, provide to the CRA evidence of insurance by Developer or its contractors, as
applicable, as specified in items I and IV on Exhibit "B" attached hereto, insuring against any
liability by any one or more of Developer, its agents, employees, contractors or other
representatives to the extent arising from, out of or in connection with or otherwise relating to
the entry by any one or more of Developer, its agents, employees, contractors or other
representatives in or upon the Property for the purpose of the Inspections. Developer shall
provide the CRA with a certificate of insurance evidencing such insurance coverage, identifying
the CRA as an additional insured thereon and which insurance coverage shall be kept in force
until the expiration or early termination of this Agreement.
4.7 Acceptance of Property. If for any reason whatsoever Developer, in its
sole discretion, determines during the Inspection Period that it does not wish to proceed with the
transaction contemplated by this Agreement, Developer shall have the absolute right to terminate
this Agreement by giving written notice of such termination to the CRA prior to the expiration of
the Inspection Period. Upon the CRA's receipt of such notice prior to the end of the Inspection
Period, this Agreement shall be deemed terminated and of no further force and effect and the
Escrow Agent shall promptly return the Initial Deposit together with any interest accrued thereon
to Developer, whereupon the parties shall be released and relieved from any liability or
obligations hereunder, except for those obligations which expressly survive the termination of
this Agreement. If Developer does not terminate this Agreement prior to the expiration of the
Inspection Period, then it shall be presumed conclusively that Developer has had adequate
opportunity to review and inspect all portions of the Property, including, without limitation, the
environmental condition of the Property and, Developer has determined that the condition of all
portions of the Property are satisfactory to Developer and Developer has accepted every portion
of the Property in its "AS IS, WHERE IS, WITHI ALL FAULTS" condition.
4.8 No Lien. Developer shall not create or permit to be created any
mechanic's liens upon the Property, or any part thereof, as a result of the Inspections. If any lien
shall at any time be filed against the Property, or any part thereof in connection with the
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Inspections, Developer shall cause same to be discharged or transferred to bond in accordance
with applicable laws within thirty (30) days after Developer first becomes aware that such lien
has been recorded against the Property. This provision shall survive the expiration or
termination of this Agreement.
4.9 CRA Deliveries. Prior to the date of this Agreement, the CRA has
provided to Developer copies of all surveys, title policies and environmental studies which the
CRA has been able to locate with respect to the Property (collectively the "CRA Deliveries").
Any reliance upon the CRA Deliveries is at the sole risk of Developer and the CRA makes no
representations or warranties, express or implied, with respect to the accuracy or completeness of
the CRA Deliveries, and any reliance upon same is at the sole risk of Developer.
4.10 Disclaimer of Representations by Developer. Developer hereby expressly
acknowledges and agrees that, except as specifically provided in this Agreement:
4.10.1 The CRA makes and has made no warranty or representation
whatsoever as to the condition or suitability of the Property for the Project.
4.10,2 The CRA makes and has made no warranty, express or implied,
with regard to the accuracy or completeness of any information furnished to Developer, and the
CRA shall not be bound by any statement of any broker, employee, agent or other representative
of the CRA.
4.10.3 The CRA has made no representations, warranties or promises to
Developer not explicitly set forth in this Agreement.
4.10.4 The CRA has made no representations or warranties, express or
implied, with regard to the neighborhood, that the Redevelopment Area will be developed, or as
to the precise type or quality of improvements that will be constructed within the Redevelopment
Area or the timing thereof.
4.10.5 The CRA makes and has made no representation or warranty,
express or implied, concerning any portion of the Property, its condition or other things or
matters directly or indirectly relating thereto or hereto, including, without limitation, no warranty
as to merchantability or fitness for any particular purpose or relating to the absence of latent or
other defects.
4.11 Developer specifically acknowledges that the transaction contemplated by
this Agreement and the time frame for performance by Developer under this Agreement is not
contingent upon the redevelopment of the Redevelopment Area, the removal of slum or blight
from the Redevelopment Area, the reduction of crime in the Redevelopment Arca or the status of
any other projects in the Redevelopment Area.
4.12 Copies of Reports. Developer shall provide the CRA with copies of any
third party reports prepared for Developer regarding the physical condition of the Property
within ten (10) days of Developer obtaining the final reports from such third party. This
provision shall survive termination.
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4.13 Additional Deposit If Developer fails to terminate this Agreement prior
to the end of the Inspection Period, Developer shall deliver to Escrow Agent an additional
deposit in the amount of Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (the
"Additional Deposit") by wire transfer of federal funds within one (1) business day after the
expiration of the Inspection Period. The failure of Developer to make the Additional Deposit
shall result in the automatic termination of this Agreement in which event the Escrow Agent
shall promptly return the Initial Deposit, together with all interest accrued thereon, to Developer
and the parties shall be relieved from any liability or obligations hereunder except for those
obligations under this Agreement which expressly survive termination.
5. AS -IS, WHERE IS, AND WITH ALL FAULTS CONDITION.
5.1 Developer does hereby acknowledge, represent, warrant and agree, to and
with CRA, that, (i) Developer is acquiring the Property in an "AS IS, WHERE IS, AND WITH
ALL FAULTS" condition with respect to any facts, circumstances, conditions and defects of all
kinds; (ii) CRA have no obligation to repair or correct any such facts, circumstances, conditions
or defects or compensate Developer for same; (iii) Developer is and will be relying strictly and
solely upon the advice and counsel of its own agents and representatives and such physical
inspections, examinations and tests of the Property as Developer deems necessary or appropriate
under the circumstances; (iv) Developer has had and will have, pursuant to this Agreement, an
adequate opportunity to make such legal, factual and other inquiries and investigations as
Developer deems necessary, desirable or appropriate with respect to the Property; (v) the CRA is
not making and has not made any warranty or representation, express or implied, with respect to
the Property as an inducement to the Developer to enter into this Agreement, or for any other
purpose, except as expressly set forth herein; and (vi) by reason of all of the foregoing, from and
after the Closing (as hereinafter defined), Developer shall assume the full risk of any loss or
damage occasioned by any fact, circumstance, condition or defect pertaining to the physical and
other conditions of the Property, regardless of whether the same is capable of being observed or
ascertained.
5.2 THE CRA HAS NOT, DOES NOT AND WILL NOT, WITH RESPECT
TO THE PROPERTY, MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS
OR IMPLIED, OR ARISING BY OPERATION OF LAW, INCLUDING, BUT IN NO WAY
LIMITED TO, ANY WARRANTY OF CONDITION OR MEERCHANTABILITY, OR WITH
RESPECT TO THE VALUE, PROFITABILITY OR OPERATING POTENTIAL OF THE
PROPERTY.
5.3 Developer hereby releases the CRA from any liability, claims, damages,
penalties, costs, fees, charges, losses, causes of action, demands, expenses of any kind or nature
or any other claim it has or may have against the CRA resulting from the presence, removal or
other remediation of "Hazardous Materials" (as hereinafter defined) on or under the Property or
which has migrated from adjacent lands owned by third parties to the Property or from the
Property to adjacent lands, except to the extent the presence of the Hazardous Materials was
known to the Executive Director and the Executive Director failed to notify Developer of the
presence of the same. In connection therewith, Developer acknowledges that the Executive
Director has disclosed to Developer the information contained in those certain environmental
assessments dated February 16, 2006 prepared by ATC Associates, Inc. for the Property and that
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the Property has been used as a parking lot and that the Property has previously been used as the
Trailway bus maintenance site where contamination is known to have occurred.
5.4 The term "Hazardous Materials" shall mean asbestos, any petroleum fuel
and any hazardous or toxic substance, material or waste which is or becomes regulated by any
local governmental authority, the state where the Property is located or the United States
Government, including, but not limited to, any material or substance defined as a "hazardous
waste," "extremely hazardous waste," "restricted hazardous waste," "hazardous substance,"
"hazardous material" or "toxic pollutant" under state law and/or under the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601, et seq.
5.5 The provisions of this Section 5 shall survive any termination of this
Agreement and shall survive Closing and the delivery of the Special Warranty Deed at Closing.
6. TITLE AND SURVEY.
6.1 Developer shall obtain a title insurance commitment (the "Commitment")
and a survey (the "Survey") of the Property, at the Developer's sole cost and expense. The
Commitment and the Survey shall show the CRA to be vested in good and marketable fee simple
title to the Property, subject only to the following (the "Permitted Exceptions"):
6.1.1 Ad valorem real estate taxes and assessments for the year of
Closing and subsequent years.
6.1.2 All applicable laws, ordinances and governmental regulations,
including, but not limited to, all applicable building, zoning, land use, environmental ordinances
and regulations.
6.1.3 Any matters arising by, through, or under Developer.
6.1.4 Terms and provisions of that certain Declaration of Restrictions
dated May 8, 2013 by and between the County and CRA recorded May 15, 2013 in Official
Records Book 28631, at Page 1264 of the Public Records of Miami -Dade County, Florida (the
"Original Declaration"), as such Original Declaration shall be modified by the Declaration
Amendment, as hereinafter defined (collectively, the "Declaration").
6.1.5 Those matters listed on Exhibit "C" attached hereto and made a
part hereof.
6.2 Developer shall have until 5:00 p.rn. on the forty-fifth (45th) day
following the Effective Date (the "Title Review Period") to obtain and examine the Commitment
and the Survey. Developer shall promptly provide the CRA with a copy of the Commitment and
the Survey upon Developer's receipt of same. The survey shall be certified to Developer and the
CRA. If the Commitment and Survey reveals any particular condition of title other than the
Permitted Exceptions, Developer shall, no later than the expiration of the Title Review Period,
notify the CRA in writing of the defect(s). If Developer fails to give the CRA written notice of
the defect(s) prior to the end of the Title Review Period, the defect(s) shown in the Commitment
and the Survey shall be deemed to be waived as title objections and same shall be deemed to
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constitute Permitted Exceptions for all purposes under this Agreement. If Developer has given
CRA written notice of defect(s) prior to the end of the Title Review Period other than the
Permitted Exceptions, the CRA shall elect within ten (10) days after receipt of written notice of
the title defects) whether the CRA will elect to attempt to cure the title defect(s). Failure of the
CRA to respond within the ten (10) day period shall be deemed the election of the CRA not to
cure the title defect(s). If the CRA does not elect to cure the title defect(s), Developer shall have
the option, to be exercised within ten (10) days after Developer receives written notice from the
CRA that the CRA has elected not to cure the title defect(s), of either (i) waiving the defect(s), in
which event the defect(s) shall be deemed to constitute a Permitted Exception under this
Agreement, or (ii) canceling this Agreement, in which event Escrow Agent shall return the
Deposit paid to date, together with interest accrued thereon, to Developer and the parties shall be
released from any further obligations under this Agreement, except for those obligations that
expressly survive the termination of this Agreement. If the CRA elects to attempt to cure the
title defect(s), the CRA shall have sixty (60) days from receipt of the written notice of defect(s)
to use commercially reasonable efforts to cure same (the "Cure Period"). If the CRA elects to
cure the title defect(s), the CRA shall discharge any lien(s), judgment(s) or other matters
affecting title to the Property in a liquidated amount. The CRA shall not be required to
commence litigation to resolve any matters. In the event the CRA attempts to cure the title
defects and the CRA is not able to cure the defect(s) after using commercially reasonable efforts
prior to the end of the Cure Period, Developer shall have the option, to be exercised within ten
(10) days after the end of the Cure Period, of either (i) waiving the defect(s), in which event the
defect(s) shall be deemed to constitute a Permitted Exception under this Agreement, or (ii)
canceling this Agreement, whereupon Escrow Agent shall return the Deposit paid to date,
together with interest accrued thereon, to Developer and the parties shall be released from any
further obligations under this Agreement, except for those obligations that expressly survive the
termination of this Agreement.
6.3 In the event of any new title defect(s) arising from and after the effective
date of the Commitment and prior to the Closing Date (as hereinafter defined), the CRA shall use
commercially reasonable efforts to cure such title defect(s) prior to the Closing Date. The CRA
shall discharge any lien(s), judgment(s) or other matters affecting title to the Property that are in
a liquidated amount. The CRA agrees not to enter into any amendment to the Declaration, or the
Declaration Amendment, without the written approval of the Developer, which approval shall
not be unreasonably withheld, conditioned or delayed. The CRA shall not be required to bring
any lawsuit(s) to cure any title defect(s) or expend any funds to cure any title defect(s) not in a
liquidated amount. In the event that the CRA is unable to cure the title defect(s) prior to the
Closing Date after using commercially reasonable efforts, Developer shall have the option on the
Closing Date of. (i) waiving the title defect(s) and accepting title "as is" whereupon the title
defect(s) will be deemed to constitute a Permitted Exception under this Agreement; or (ii)
canceling this Agreement, whereupon Escrow Agent shall return the Deposit to Developer and
the parties shall be released from all further obligations under this Agreement, except for those
obligations that expressly survive the termination of this Agreement.
7. ZONING APPROVALS. As of the Effective Date of this Agreement, the CRA
shall execute any documents and/or applications reasonably required by the Developer, which
documents must be executed by the record owner of the Property in connection with any zoning
or land use approvals or permit applications (the "Zoning Approvals") required to be obtained by
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the Developer for the Project, to enable the Project to be developed in accordance with the
Conceptual Design Documents, as hereinafter defined, provided such documents and
applications do not impose any financial obligations or liability upon the CRA. If Developer
elects to terminate this Agreement during either the Title Review Period or Inspection Period the
Developer shall promptly withdraw the Property from any applications for Zoning Approvals
and if an application for any Zoning Approvals has been filed and scheduled for a public hearing,
Developer shall voluntarily withdraw said application and the CRA shall execute and submit the
consent(s), waiver(s) or other documentation required in connection therewith from the owner of
the Property to execute such withdrawal. Should Developer's voluntary withdrawal preclude the
City's consideration of any applications for any zoning approvals with respect to the Property
within eighteen (18) months from the date of withdrawal pursuant to Section 7.1.3.8.b. of Miami
21, Developer shall, at its sole cost and expense, use commercially reasonable efforts to procure
any required waiver(s) from the City Commission pursuant to Section 7.1.3.8.c. of Miami 21 to
allow the City to immediately consider any future zoning applications authorized by the CRA as
the owner of the Property.
8. PROJECT.
8.1 Description of the Project. The project (the "Project") shall consist of (i)
not less than 112,500 square feet of retail, office and/or other commercial space, (ii) a sufficient
number of parking spaces to comply with the applicable codes plus the Additional Parking
Spaces, as hereinafter defined, and (iii) the south one-half (1/2) of the 7th Street Promenade, as
defined in Section 8.8 below, excluding the Roadway, as defined in Section 8.8 below, all as
more particularly shown on the Conceptual Design Documents. The Roadway, which is not part
of the defined term Project, shall be developed as set forth in Section 8.8.
8.2 Design of the Project. The Project shall be developed substantially in
accordance with the conceptual design documents attached hereto as Exhibit "D" (the
"Conceptual Design Documents").
8.3 Schematic Documents. Within ninety (90) days of the Effective Date, the
Developer shall submit to the Executive Director for its review and approval the schematic
design documents for the Project consisting of drawings and other documents (such as an
architectural site plan, floor plans and building elevations) illustrating the scale and relationship
of Project components (the "Schematic Documents"). The Schematic Documents 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 Schematic Documents are consistent with the
Conceptual Design Documents. The Developer agrees to utilize its good faith efforts to make
modifications to the Schematic Documents to satisfy the requirements of the Executive Director
if the Schematic Documents are inconsistent with Conceptual Design 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
Schematic Documents. The Executive Director shall have fifteen (15) days from the receipt of
the Schematic Documents to approve or disapprove same. If the Executive Director fails to
respond within said fifteen (15) day period, the Schematic Documents 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 Schematic Documents, as appropriate, to
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address the comments and concerns of the Executive Director to cause the Schematic Documents
to be consistent with the Conceptual Design 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 Schematic Documents. If the Executive Director has rejected the Schematic
Documents two (2) times, then, following the second rejection, the Developer may elect to
submit such dispute regarding the approval of the Schematic Documents to the CRA Board for
resolution. The Schematic Documents as approved or deemed approved by the Executive
Director shall mean the "Approved Schematic Documents".
8.4 Design Development Documents. Within one hundred twenty (120) days
of the approval or deemed approval of the Approved Schematic Documents, the Developer shall
submit to the Executive Director for its review and approval the design development documents
for the Project consisting of building massing and elevations, exterior materials and color
schemes, fenestrations and a detailed description of all building systems for the Project (the
"Design Development Documents"). The Design Development Documents 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 Design Development Documents are consistent with the
Approved Schematic Documents (except that the south one-half (1/2) of the 7th Street
Promenade does not need to be consistent). The Developer agrees to utilize its good faith efforts
to make modifications to the Design Development Documents to satisfy the requirements of the
Executive Director if the Design Development Documents are inconsistent with Approved
Schematic Documents and to address any comments regarding the south one-half (1/2) of the 7th
Street Promenade. 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 Design Development Documents. The Executive Director shall have
fifteen (15) days from the receipt of the Design Development Documents to approve or
disapprove same. If the Executive Director fails to respond within said fifteen (15) day period,
the Design Development Documents 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 Design Development Documents, as appropriate, to address the
comments and concerns of the Executive Director to cause the Design Development Documents
to be consistent with the Schematic Documents and to address any comments regarding the south
one-half (1/2) of the 7th Street Promenade. 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 Design Development Documents. If the Executive Director has rejected the
Design Development Documents two (2) times, the Developer may elect to submit such dispute
regarding the approval of the Design Development Documents to the CRA Board for resolution.
The Design Development Documents as approved or deemed approved by the Executive
Director shall mean the "Design Documents".
8.5 Construction Documents. Developer shall use commercially reasonable
efforts to submit to the Executive Director for its review and approval Developer's plans and
specifications for the construction of the Project, which shall be of sufficient detail to allow the
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Developer to apply for a building permit for the Project (the "Plans and Specifications") within
one hundred eighty (180) days of the approval or deemed approval of the Design Documents but
no later than the time Developer submits the Plans and Specifications in connection with its
application for a building permit for the Project. 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 Design
Documents in all material respects. The Developer agrees to utilize its good faith efforts to make
modifications to the Plans and Specifications to satisfy the requirements of the Executive
Director if the Plans and Specifications are inconsistent with Design Documents in any material
respects. 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 respond in such fifteen (15) days period, 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 Design Documents in all material
respects. 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".
8.6 Development Requirements. Developer shall be required to develop the
Project substantially in accordance with the Plans. Any material variation to the Plans, other than
those changes required by the City in connection with the issuance of the building permit to
comply with applicable laws, shall require the approval of the Executive Director, which
approval shall not be unreasonably withheld or delayed provided that same is in accordance with
the spirit and intent of Plans and this Agreement.
8.7 Development Timefrarne.
8.7.1 Land Use and Zoning Approvals for the Project. Developer shall
obtain all applicable land use and zoning approvals for the Project including any required
approval to narrow the width of the existing pavement for NW 7th Street to twenty-two (22) feet
or other width approved by the City and/or County and develop the south one-half (1/2) of the
7th Street Promenade (the "Approvals") on or before May 15, 2015 (the "Approval Period"),
time being of the essence. In the event the Developer does not obtain the Approvals on or before
the end of the Approval Period, the CRA or the County may declare the Developer in default by
sending Default Notice, as defined in the Declaration, in the manner provided in the Declaration.
Following its receipt of such Default Notice, the Developer shall have Default Cure Period, as
defined in the Declaration, to obtain the Approvals. In the event the Default Notice is issued
pursuant to this Section 8.7.1 and Section 9 of the Declaration, and Developer will not be able to
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obtain the Approvals within the Default Cure Period, the Developer may extend (the "Approval
Extension Option") the Approval Period to November 15, 2015 (the "Extended Approval
Period") by paying to each of the County and the CRA Two Hundred Fifty Thousand and
No/100 Dollars ($250,000.00) on or before the end of the Default Cure Period. In the event the
Developer extends the timeframe in which to obtain the Approvals in accordance with the
previous sentence and does not obtain the Approvals on or before the end of Extended Approval
Period, the CRA or the County may then declare the Developer in default by sending a Default
Notice in the manner provided in the Declaration, with respect to failure to obtain the Approvals
by the Extended Approval Period. Following its receipt of such Default Notice, the Developer
shall have the Default Cure Period to obtain the Approvals. If Developer has not obtained the
Approvals on or before the end of the Approval Period or the Extended Approval Period, as
applicable, which failure is not cured during the applicable Default Cure Period, this Agreement
shall automatically terminate in which event Escrow Agent shall deliver the Deposit to the CRA,
as liquidated damages, and the parties will be relieved from all further obligations under this
Agreement except the obligations which expressly survive termination. Further, (i) if Developer
does not exercise the Approval Extension Option, Developer may exercise the Approval
Extension Option to extend the Completion Date by six (6) months as provided in the
Declaration and (ii) if Developer exercises the Approval Extension Option and Developer
obtains the Approvals prior to the expiration of the Extended Approval Period, Developer may
extend the Completion Date by the number of days remaining between the date Developer
obtains the Approvals and the expiration of the Extended Approval Period as provided in the
Declaration (the "Unused Extension Days"). To the extent of a conflict between the terms and
provisions of this Section 8.7.1 and the terms and provisions of the Declaration, the Declaration
shall control.
8.7.2 Commencement and Completion of Construction. Developer must
commence "Vertical Construction" (defined as physical structures actually being constructed on
the Property pursuant to the applicable permits) on the Property on or before May 15, 2016, time
being of the essence (the "Commencement of Construction Deadline"). The Project must be
substantially completed by the Completion Date as defined in the Declaration, as evidenced by
one or more temporary or permanent certificates of occupancy (or their equivalent) for all
components of the improvements comprising the Project as reflected on the Plans
("Completion"). The Completion Date and the Extended Completion Date, as hereinafter
defined, if applicable, shall automatically be extended one day for each day of Unavoidable
Delays provided the Executive Director of the CRA concurs with the Developer that an
Unavoidable Delay has occurred and the County (by its Mayor or Mayor's designee) agrees that
an Unavoidable Delay has occurred, as provided in the Declaration, which concurrence and
approval of the Executive Director and the County shall not be unreasonably withheld as
provided in the Declaration. The term "Unavoidable Delay" means delays due to area wide
strikes, acts of God, floods, hurricanes, casualties, fire, acts of the public enemy and
governmental moratoriums. The term Unavoidable Delay shall not include any delays caused by
any other source, including, but not limited to, any govermmental entity acting in its proprietary
or regulatory capacity or delay caused by lack of funds. In the event the Developer fails to
achieve Completion by the Completion Date, the CRA or the County may declare the Developer
in default by sending a Default Notice in the manner provided in the Declaration. Following its
receipt of such Default Notice, the Developer shall have the Default Cure Period to achieve
Completion. In the event Developer will not be able to achieve Completion within the Default
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Cure Period, the Developer may extend the Completion Date, as same shall have been extended
as a result of Unavoidable Delays, by the Unused Extension Days, if any, as provided in the
Declaration, and then further extend that revised Completion Date (the "Completion Extension
Option") to that date which is six (6) months from such revised Completion Date (the "Extended
Completion Date") by paying to each of the County and the CRA Two Hundred Fifty Thousand
and No/100 Dollars ($250,000.00) on or before the end of the Default Cure Period as provided in
the Declaration. In the event the Developer extends the Completion Date pursuant to the
previous sentence and fails to achieve Completion by the Extended Completion Date, as same
shall automatically be extended one day for each day of Unavoidable Delays provided the
Executive Director of the CRA concurs with the Developer that an Unavoidable Delay has
occurred and the County (by its Mayor or Mayor's designee) agree that an Unavoidable Delay
has occurred, as provided in the Declaration, which concurrence and approval of the Executive
Director and the County shall not be unreasonably withheld as provided in the Declaration, the
CRA or the County may declare the Developer in default by sending a Default Notice in the
manner provided in the Declaration. If Developer did not exercise the Approval Extension
Option, the Developer may further extend the Completion Date, as same shall have been
extended as a result of Unavoidable Delays, if any, and the exercise of the Completion Extension
Option, to that date which is six (6) months from the Extended Completion Date, as same shall
have been extended as a result of Unavoidable Delays, if any (the "Second Extended Completion
Date") by exercising the Approval Extension Option on or before the end of the Default Cure
Period as provided in the Declaration. In the event the Developer extends the Completion Date
pursuant to the previous sentence and fails to achieve Completion by the Second Extended
Completion Date, as same shall automatically be extended one day for each day of Unavoidable
Delays provided the Executive Director of the CRA concurs with the Developer that an
Unavoidable Delay has occurred and the County (by its Mayor or Mayor's designee) agrees that
an Unavoidable Delay has occurred, as provided in the Declaration, which concurrence and
approval of the Executive Director and the County shall not be unreasonably withheld as
provided in the Declaration, the CRA or the County may declare the Developer in default by
sending a Default Notice in the manner provided in the Declaration. To the extent of a conflict
between the terms and provisions of this Section 8.7.2 and the terms and provisions of the
Declaration, the Declaration shall control.
8.7.3 Failure to Comply with Commencement of Construction Deadline.
If Developer fails to commence Vertical Construction on the Property by the Commencement of
Construction Deadline, and the Developer has received written notice from the CRA prior to the
commencement of said Vertical Construction that the Executive Director has received written
notice from the County pursuant to Section 11 of the Declaration that the Property shall revert to
the County, this Agreement shall automatically terminate in which event the Escrow Agent shall
deliver the Deposit to the CRA as liquidated damages and the parties shall be relieved from any
further obligations under this Agreement except for the obligations that expressly survive
termination.
8.7.4 Failure to Complete the Project. If Developer has not achieved
Completion prior to the later of (i) the Completion Date or the Extended Completion Date, as
applicable, as each shall automatically be extended one day for each day of Unavoidable Delays
provided the Executive Director of the CRA concurs with the Developer that an Unavoidable
Delay has occurred and the County (by its Mayor or Mayor's designee) agrees that an
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Unavoidable Delay has occurred, as provided in the Declaration, which approval of the County
shall not be unreasonably withheld as provided in the Declaration, which failure is not cured
during the Default Cure Period or (ii) May 15, 2018 (the "Outside Date"), and provided that the
County does not assert that title to the Property has reverted to the County prior to Developer
achieving Completion thereby waiving by inaction the County's right of reversion as set forth in
the Declaration, the Developer shall pay to the CRA, as liquidated damages, Two Thousand Five
Hundred and No/100 Dollars ($2,500.00) per day for each day between the Outside Date until
Completion. Said amount shall be due and payable within thirty (30) days of the Completion.
No such payment shall be due if title to the Property reverts to the County pursuant to the
Declaration.
8.7.5 Extensions of the Default Cure Period. As provided in the
Declaration, extensions of a Default Cure Period shall not be unreasonably withheld, conditioned
or delayed for good cause shown, in the sole discretion of the Executive Director of the CRA if
the CRA has issued the Default Notice, or in the sole discretion of the Mayor or the Mayor's
designee if the County has issued the Default Notice.
8.8 7th Street Promenade.
8.8.1 The CRA, as part of the development of the Project and the
development of the Block 45, as hereinafter defined, requires the development of a pedestrian
plaza to be constructed in the right of way of NW 7th Street between NW 2nd Avenue and NW
1st Court (the "7th Street Promenade"). In reviewing and approving the Design Development
Documents for the Project pursuant to this Agreement and reviewing the Block 45 Design
Development Documents (as defined below), the CRA shall use commercially reasonable efforts
to cause the respective developers to coordinate the elevations of the first two levels or stories of
the prospective projects facing NW 7th Street (the "Elevations") so that they are compatible for
the development of the 7th Street Promenade.
8.8.2 If Developer submits the Design Development Documents
pursuant to Section 8.4 of this Agreement prior to the date that the Block 45 Developer, as
hereinafter defined, submits 'design development documents with respect to Block 45 (the "Block
45 Design Development Documents"), the Executive Director shall provide copies of the Design
Development Documents to the Block 45 Developer and seek input from the Block 45 Developer
regarding the Elevations in connection with the approval of the Design Development
Documents. Upon approval or deemed approval of the Design Development Documents by the
Executive Director in accordance with Section 8.4, the Elevations shall be established and the
Executive Director shall require the Block 45 Developer to cause the Block 45 Design
Development Documents to be compatible with the Elevations.
8.8.3 If the Block 45 Developer submits the Block 45 Design
Development Documents to the Executive Director for approval prior to the date that Developer
submits the Design Development Documents to the Executive Director pursuant to Section 8.4 of
this Agreement, the Executive Director shall provide copies of the Block 45 Design
Development Documents to the Developer and seek input from the Developer with respect to the
Elevations in connection with the approval of the Block 45 Design Development Documents.
Upon approval or deemed approval of the Block 45 Design Development Documents by the
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Executive Director, the Elevations shall be established and the Executive Director shall require
the Developer to cause the Design Development Documents to be compatible with the
Elevations.
8.8.4 As part of the Project the Developer shall be responsible for the
development of the south one-half of the 7th Street Promenade, excluding the Roadway, as
hereinafter defined, consisting of the curb and gutter, sidewalks and lighting, all as reflected on
the Design Documents. The Block 45 Developer will be responsible for developing the north
one-half of the 7th Street Promenade, excluding the Roadway, consisting of the curb and gutter,
sidewalk and lighting located in the north one-half of the 7th Street Promenade as shown on the
Block 45 Design Development Documents as approved or deemed approved by the Executive
Director.
8.8.5 The first of the Developer or the Block 45 Developer to commence
vertical construction above grade level of their respective project shall be responsible for the
design, permitting and construction of the asphalt road area of the 7th Street Promenade to be
developed (the "Roadway"). The Developer or the Block 45 Developer, as applicable, shall be
responsible for the preparation of a budget, schedule, the design, permitting and construction of
the Roadway and shall submit the plans and budget for the Roadway to the Executive Director
and Developer or the Block 45 Developer, as applicable, for approval which approval shall not
be unreasonably withheld or delayed. The parties agree that the Roadway shall be designed and
constructed in accordance with Miami -Dade County standards for roadway construction or the
City of Miami standard for roadway construction, whichever are applicable. Upon approval of
the design and budget for the Roadway by the Executive Director and the Developer or the Block
45 Developer, as applicable, the Developer and the Block 45 Developer shall each be responsible
for 1/2 of the actual cost and expense reasonably necessary and incurred in connection with the
design, permitting and construction of the Roadway (the "Roadway Costs") whether completed
by the Developer or the Block 45 Developer. Within fifteen (15) days of written request of
Developer or the Block 45 Developer, as appropriate, which is responsible for construction of the
Roadway, both Developer and the Block 45 Developer shall deposit in escrow with an escrow
agent mutually acceptable to Developer and Block 45 Developer (the "Roadway Escrow Agent")
their respective one-half (1/2) of the Roadway Costs reflected in the approved budget for the
Roadway Costs. The Roadway Escrow Agent shall disburse the funds deposited in escrow on a
monthly basis for the expenditures set forth in the approved draw request. All draw requests
shall be accompanied by reasonably detailed supporting documentation, including (i) the written
approval and certification of the project engineer regarding both the payment request and the
completion of the portion of the work for which payment is requested; and (ii) partial release(s)
of lien for the work completed pursuant to the previous draw requests.
8.8.6 The Developer or the Block 45 Developer who is responsible for
the design, permitting and construction of the Roadway shall be responsible for the lien free
completion of the Roadway in accordance with the approved plans and specifications and for
obtaining all necessary approvals and final signoffs with respect to the construction of the
Roadway from the City or the County, as applicable, and comply with all construction
warranties.
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8.8.7 The Restrictive Covenant shall provide that the failure of either the
Developer or the Block 45 Developer to pay its share of the Roadway Costs shall result in a lien
being filed against the land on which the respective project is located. Notwithstanding the
foregoing, it is understood and agreed that Developer shall have no liability, express or implied,
with regard to the Roadway after completion and acceptance by the City or County, as
applicable, except as expressly provided in, and subject to, this Section 8.8 of this Agreement.
9. DEVELOPMENT AND FINANCIAL APPROVALS.
9.1 Development of the 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:
9.1.1 Construction Contract. The construction contract for the Project
(the "Construction Contract") shall include the obligation of the general contractor to comply
with the participation requirements set forth in Section 10.2.1 and 10.2.2 of this Agreement. The
Executive Director will not have approval rights over the terms of the Construction Contract.
The approval of the Executive Director shall be limited to the issue of whether the Construction
Contract includes the obligation of the general contractor to comply with the participation
requirements set forth in Section 10.2.1 and 10.2.2 of this Agreement.
9.1.2 Loan Commitment. If applicable, a loan commitment from a
financial institution (the "Lender") evidencing that Developer has obtained a construction loan
commitment for the development of the Project (the "Loan Commitment") which shall be
reasonably acceptable to the Executive Director. The Executive Director will not have approval
rights over the loan terms or equity investment terms. The approval of the Executive Director
shall be limited to the issue of whether the Loan Commitment reflects that funds will be
available for construction of the Project and the amount of funds that will be made available for
construction together with the Equity (as hereinafter defined) provides the funds required under
the Budget (as hereinafter defined).
9.1.3 Project 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 or if no Loan Commitment, the equity available to
complete the Project in accordance with the Budget (the "Equity").
9.1.4 Budget. The line item budget for the Project reflecting all hard and
soft costs anticipated to be incurred by the Developer in connection with the Project (the
"Budget"). If the Developer has provided a Loan Commitment, the Budget shall be deemed
approved by the Executive Director if approved by the Lender as reflected in the Loan
Commitment.
9.1.5 Project Schedule. The detailed project schedule for the
construction of the Project (the " Project Schedule"). The Project Schedule must reflect that the
Developer will achieve Completion prior to the Completion Date. The Executive Director will
approve the Project Schedule if same has been approved by the Lender as reflected in the Loan
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Commitment and/or if the Project Schedule reflects that the Developer will achieve Completion
prior to the Completion Date.
9.1.6 Approval Required by Section 9.1. If the Executive Director fails
to provide its approval or its disapproval, to items submitted to the Executive Director in
accordance with Section 9.1, within fifteen (15) days from receipt of a request for approval from
Developer, the item shall be deemed approved. If the Executive Director disapproves any item,
the Executive Director shall describe in its disapproval notice the reason for such disapproval
with reasonable specificity.
10. MINORITY AND WOMEN' S PARTICIPATION AND EQUAL
EMPLOYMENT OPPORTUNITY.
10.1 Minority and Women Participation and Equal Opportunity. In connection
with the Project, the Developer agrees that it and its general contractor will:
i) Take definitive action in the recruitment, advertising and to attract
and retain minority and female contractors and subcontractors;
ii) Provide a reasonable opportunity in the recruitment, advertising
and hiring of professionals, contractors and subcontractors residing
within the Redevelopment Area and within the City of Miami;
iii) Take reasonable definitive action in retaining employees regardless
of race, color, place of birth, religion, national origin, sex, age,
marital status, veterans and disability status;
iv) Maintain equitable principles in the recruitment, advertising,
hiring, upgrading, transfer, layoff, termination, compensation and
all other terms, conditions and privileges of employment;
v) Monitor and review all personnel practices to guarantee that equal
opportunities are being provided to all employees regardless of
race, color, place of birth, religion, national origin, sex, age,
marital status, veterans and disability status;
vi) Post in conspicuous places, availability to employees and
applicants for employment, notices in a form to be provided to the
Executive Director, setting forth the non-discrimination clauses of
this Section 10.
vii) In all solicitations and advertisements for employment placed by or
on behalf of Developer, state that all applicants will receive
consideration for employment without regard to race, creed, color
or national origin.
10.2 Participation Requirements. Developer agrees to comply with, or shall
cause its general contractor to comply with, the following subcontractor participation
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requirements and laborer participation requirements (the "Participation Requirements") with
respect to the Project:
10.2.1 Subcontractor Participation. The Developer shall cause its general
contractor to hire not less than twenty percent (20%) of the subcontractors for the construction of
the Project utilizing companies that have their principal place of business within Miami -Dade
County, Florida, giving first priority to subcontractors who principal place of business is in the
Redevelopment Area, second priority to subcontractors whose principal place of business is in
Overtown, third priority to subcontractors whose principal place of business is within District 5
of the City of Miami, fourth priority to subcontractors whose principal place of business is in the
City of Miami and last priority to subcontractors whose principal place of business is in Miami -
Dade County, Florida, with it being understood that Developer shall not be required to engage
any subcontractor that fails to meet the requisite requirements for the Project established by the
general contractor which will apply to all subcontractors uniformly such as drug free work force.
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 Miami -Dade County, Florida and
the total dollar value of all subcontracts entered into by the general contract for the respective
Phase ("Subcontractor Participation Requirement").
10.2.2 Laborer Participation. Developer agrees to cause its general
contractor and all subcontractors to hire forty percent (40%) of the unskilled labor for the
construction of the Project ("Laborer Participation Requirement") from workers residing in
either the Miami -Dade County, Florida giving first priority to workers residing in the
Redevelopment Area, second priority to workers residing in Overtown, third priority to workers
residing in District 5 of the City of Miami, fourth priority to workers residing in the City of
Miami with last priority to workers residing in Miami -Dade County, Florida.
10.2.3 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 Miami -Dade
County, Florida or whether any laborer resides in Miami -Dade County, Florida and whether the
Developer complied with the priority requirements, 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 CRA Board for resolution which shall be
binding on the parties.
10.3 Report Requirements. The Developer shall be required to submit to the
Executive Director (i) on a quarterly basis commencing thirty (30) days after the end of the first
quarter after the commencement of the Project until thirty days following Completion, detailed
reports evidencing compliance with the Subcontractor Participation Requirements during the
prior quarter and (ii) on a monthly basis commencing thirty (30) days after the commencement
of construction of the Project until thirty days following Completion, detailed reports evidencing
compliance with the Laborer Participation Requirements during the prior month ("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 with respect to the Project.
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10,3.1 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 one-time 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") with respect to the Project. The Subcontractor Non -Compliance Funds
shall be calculated by the Executive Director after Completion 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 with respect
to the Project. 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.
10.3.2 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 one-time penalty
for such noncompliance One Thousand and No/100 Dollars ($1,000.00) for each percentage
point below the Laborer Participation Requirements (the "Laborer Non -Compliance Fund") with
respect to the Project. The Laborer Non -Compliance Funds shall be calculated by the Executive
Director after Completion and shall be due within thirty (30) from Developer's receipt of written
statement from the Executive Director stating the amount of Laborer Non -Compliance Funds
due. To the extent of any dispute between the Executive Director and the Developer with respect
to the compliance with the Laborer Participation Requirements, such dispute shall be submitted
to the CRA Board for resolution, which arbitration shall be binding upon the parties.
10.4 Job Fair.
10.4.1 Construction Job Opportunities. Developer shall broadly
disseminate information regarding job opportunities for local area residents and businesses to
allow them to participate in construction of the Project, including, without limitation, hosting at
least two (2) job fairs within the Redevelopment Area prior to the commencement of the Project.
10.4.2 Permanent Job Opportunities. Developer shall broadly disseminate
information regarding job opportunities for local residents and businesses post -construction, with
respect to the Project, including newly generated trade and service related jobs upon completion,
including, without limitation, hosting at least one (1) job fair within the Redevelopment Area
upon Completion.
11. CRA CONDITIONS PRECEDENT.
11.1 The obligations of the CRA to close the transaction contemplated by this
Agreement with respect to the Project is subject to the satisfaction or waiver of the following
conditions precedent (the "CRA Conditions Precedent"):
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11.1.1 The Executive Director shall have approved the Plans pursuant to
Section 8.5 of this Agreement or the Plans shall have been deemed approved in accordance with
Section 8.5 of this Agreement.
11.1.2 The Executive Director shall have approved the Construction
Contract pursuant to Section 9.1.1 of this Agreement or the Construction Contract shall have
been deemed approved pursuant to Section 9.2 of this Agreement.
11.1.3 The Executive Director shall have approved the Project Schedule
pursuant to Section 9.1.5 of this Agreement or the Project Schedule shall have been deemed
approved pursuant to Section 9.2 of this Agreement.
11.1.4 The Executive Director shall have approved the Loan
Commitment, if provided, pursuant to Section 9.1.2 of this Agreement or the Loan Commitment
shall have been deemed approved pursuant to Section 9.2 of this Agreement.
11.1.5 The Executive Director shall have approved the Budget pursuant to
Section 9.1.3 of this Agreement or the Budget shall have been deemed approved pursuant to
Section 9.2 of this Agreement.
11.1.6 The Executive Director shall have confirmed that Developer has
sufficient equity to meet the requirements for the construction of the Project pursuant to Section
9.1.3 of this Agreement or that shall have been deemed approved pursuant to Section 9.2 of this
Agreement.
11.1.7 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
or the Developer has sufficient equity to meet the requirements for the construction of the Project
to the reasonable satisfaction of the Executive Director.
11.1.8 Developer or its contractor shall have provided to the Executive
Director a payment and performance bond based on AIA Document 312 (2010 Edition), with
changes in form and substance mutually satisfactory to the CRA and Developer in their
reasonable discretion, in an amount equal to one hundred percent (100%) of the hard
construction costs for the Project as reflected in the Budget, which shall be issued by a surety
having a credit rating of "A" or higher with a financial strength of X or higher (the " Payment
and Performance Bond").
11.1.9 The Developer has obtained a building permit for the Project to
enable the Developer to construct the Project in accordance with the Plans, or provided the
Executive Director with evidence that a building permit for the construction of the Project in
accordance with the Plans is ready to be issued subject only to the payment of the building
permit fees and impact fees.
11.1.10 Developer and CRA have executed the Zoning Agreement,
as hereinafter defined, if required.
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Covenant.
Agreement.
11.1.11 The Executive Director has approved the Restrictive
11.1.12 The Executive Director has approved the Parking
11.2 In the event the CRA Conditions Precedent are not satisfied or waived by
the CRA on or before April 15, 2016, then the CRA may either (i) terminate this Agreement in
which the Escrow Agent shall deliver the Deposit to the CRA, as liquidated damages, and the
parties shall be released from all further obligations under this Agreement except for the
obligations under this Agreement which expressly survive the termination, or (ii) waive the
condition and proceed in accordance with this Agreement.
12. CLOSING DATE.
12.1 Closing. The closing of the transaction (the "Closing") contemplated by
this Agreement shall occur on the earlier of the following (the "Closing Date") (a) ten (10) days
after all the CRA Conditions Precedent to closing have been either satisfied or waived by the
CRA or (b) April 15, 2016, 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:
12.1.1 CRA Deliveries. The CRA shall deliver to Developer at Closing:
12.1.1.1 A special warranty deed in the form of Exhibit "E"
attached hereto and made a part hereof (the " Deed").
12.1.1.2 A certified copy of the resolution authorizing the
conveyance by the CRA and the execution and delivery of the documents contemplated by this
Agreement.
12.1.1.3 A no lien and possession affidavit.
12.1.1.4 A FIRPTA affidavit.
12.1.1.5 A restrictive covenant in the form of Exhibit "F"
attached hereto and made a part hereof (the "Restrictive Covenant") executed by the CRA.
12.1.1.6 A copy of the fully executed Declaration
Amendment, duly recorded in the Public Records of Miami -Dade County.
reasonably request.
12.1.1.7 Such other documents as the title company may
12.1.1.8 The Zoning Agreement executed by the CRA.
12.2 Developer Deliveries. Developer shall deliver to the CRA or cause to be
delivered to the CRA at Closing:
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12.2.1 Evidence of authority to close the transaction and execute and
deliver the appropriate closing documents.
12.2.2 Payment and Performance Bond.
12.2.3 A guaranty (the "Guaranty") of the lien free completion of the
Project executed by Florida East Coast Industries, LLC, a Delaware limited liability company,
the successor by conversion to Florida Coast Industries, Inc., a Florida corporation ("FECI") or
another entity (the "Replacement Guarantor"), provided such Replacement Guarantor has a Net
Worth (hereinafter defined) of no less than $50,000,000.00. The Guaranty shall be in the form of
Exhibit "G" attached hereto. The term "Net Worth" shall mean the total assets of the
Replacement Guarantor less the Replacement Guarantor's total liabilities, determined in
accordance with generally accepted accounting principles.
12.2.4 Pay to the County by wire transfer of federal funds: (i) Two
Million Five Hundred Thousand and No/100 Dollars ($2,500,000.00) to be held and disbursed by
the County for projects which support Overtown redevelopment; and (ii) One Hundred Twenty -
Five Thousand and No/100 Dollars ($125,000.00) to be held and disbursed by the County for the
Program (as defined in the Approved Variances).
12.2.5 Pay to the CRA by wire transfer of federal funds: One Million
Three Hundred Seventy -Five Thousand and No/100 Dollars ($1,375,000.00) to be utilized by the
CRA for projects in the Redevelopment Area.
12.2.6 If the CRA has obtained the Sawyer's Walk Release, as hereinafter
defined, and the Opinion Letter, as hereinafter defined and the Sawyer's Walk Indemnification,
as hereinafter defined, and the CRA, City and County has approved the receipt of such
documents as an alternative risk management solution (the "Alternative Risk Management
Solution") in lieu of providing the Indemnification Agreement in accordance with the Settlement
Agreement (as defined in the Declaration), the Developer shall pay to the CRA on the Closing
Date by wire transfer of federal funds Five Hundred Thousand and No/100 Dollars
($500,000.00) which amount shall be paid by the CRA to Sawyer's Walk, Ltd., and Poinciana
Village of Miami, Ltd. (collectively, the "Sawyer's Walk Parties").
12.2.7 The Restrictive Covenant executed by the Developer.
12.2.8 The Zoning Agreement executed by the Developer.
12.2.9 Such other documents as the title company may reasonably
request.
12.3 Recording Costs. The documentary stamp tax and surtax to be affixed to
the Deed and the cost for recording the Deed and the Restrictive Covenant shall be paid by
Developer. Each party shall bear the cost of the fees of their own respective attorneys and other
professionals and the cost of their own respective performance under this Agreement.\
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12.4 Adjustments and Prorations. Developer and the CRA acknowledge that
the Project is currently exempt for ad valorem real estate taxes and assessments and therefore
taxes and assessments shall not be prorated.
12.5 Parties in Possession. On the Closing Date the CRA shall provide the
Property to the Developer free and clear of all parties in possession.
12.6 Deposit. The Deposit shall be delivered by Escrow Agent to the CRA
simultaneously with the consummation of the Closing, which shall reduce the amount to be paid
to the CRA at Closing.
13. PARKING.
13.1 Parking for the Redevelopment Area. Developer acknowledges the
parking needs for Redevelopment Area. Developer shall provide the CRA with key -cards,
stickers or other identification or entrance system to provide parking in the parking garage at the
Project for the vehicles of fifty (50) individuals from 5:00 am to 9:00 am seven (7) days a week
and for parking in the parking garage at the Project for the vehicles of fifty (50) individuals from
11:00 am to 1:00 pm seven (7) days a week, During the Inspection Period, Developer and the
CRA shall negotiate a parking agreement acceptable to the parties (the "Parking Agreement").
The Parking Agreement shall require the individuals that receive parking privileges to comply
with reasonable rules governing the use of the parking garage from time to time which are
applicable to all users of the parking garage and all applicable ordinances, rules, regulations,
codes, laws, statutes and requirements of all Federal, state, county and municipal governmental
bodies or their subdivision respecting the use of the parking garage which are applicable to all
users of the parking garage. The failure of such individuals to comply with such rules shall
result in the termination of the Parking Agreement pursuant to terms and provisions to be
negotiated.
13.2 Parking for Lyric Theatre.
13.2.1 Lyric Theatre Parking. Developer acknowledges the parking needs
of the Lyric Theatre for providing parking in connection with events held at the Lyric Theatre.
Developer shall enter into an agreement (the "Lyric Theatre Parking Plan Agreement") with The
Black Archives History and Research Foundation of South Florida, Inc. (the "Black Archives")
to provide parking to attendees of events held at the Lyric Theatre, which parking plan is
attached hereto as Exhibit "H" and made a part hereof (the "Lyric Theatre Parking Plan").
13.2.2 Compliance with Parking Plan. Developer covenants and agrees
with the CRA to implement the Lyric Theatre Parking Plan for the benefit of the Black Archives
as long as the Lyric Theatre remains operational and in compliance with its agreement with the
Developer. This Section shall survive the Closing.
13.2,3 Offsite Lyric Parking. If the Developer and Black Archives
mutually agree in writing pursuant to a binding agreement on a location other than on the
Property for providing parking to benefit Lyric Theatre, then with the approval of the Executive
Director which shall not be unreasonably withheld: (a) compliance with the Lyric Theatre
Parking Plan and the Lyric Theatre Parking Plan Agreement shall no longer be required, and (b)
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CRA shall take reasonable efforts to cooperate with Developer in seeking to obtain approval
from the County to the release from the Declaration of the requirement for inclusion the
Additional Parking Spaces, provided that such change is otherwise approved as a separate
modification to the Declaration. This Section shall survive the Closing.
14. INDEMNIFICATION. If the City, the County and the CRA have not approved
the Alternative Risk Management Solution on or before the end of the Inspection Period, this
Agreement shall automatically terminate in which event the Escrow Agent shall promptly return
the Initial Deposit, together with interest thereon, to the Developer and the parties shall be
released from all further obligations hereunder except for the obligations that expressly survive
termination.
15. VARIANCES FROM DECLARATION. Developer acknowledges that the
County and the CRA have approved the variances to the Original Declaration listed on Exhibit
"I" attached hereto and made a part hereof (the "Approved Variances"). The CRA agrees to
utilize its good faith efforts to enter into an amendment to the Original Declaration signed by
both the County and the CRA (the "Declaration Amendment") to implement the Approved
Variances prior to the end of the Inspection Period. The Declaration Amendment shall be
subject to the prior approval of the Developer which approval shall not be unreasonably withheld
or delayed, and which approval shall be given if the Declaration Amendment is consistent with
the Approved Variances. Any dispute between the Executive Director and the Developer
regarding the Developer's approval of the Declaration Amendment may be submitted by the
Developer to the CRA Board for resolution which resolution shall be binding on the parties. In
the event that the Declaration Amendment has not been duly executed and recorded in the Public
Records of Miami -Dade County on or before the end of the Inspection Period, this Agreement
shall automatically terminate in which event the Escrow Agent shall promptly return the Initial
Deposit to Developer, whereupon the parties shall be released and relieved from any liability or
obligations hereunder, except for those obligations which expressly survive the termination of
this Agreement.
16. REPRESENTATIONS OF CRA.
16.1 The CRA makes the following representations:
16.1.1 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.
16.1.2 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.
16.1.3 This Agreement constitutes the valid and binding obligation of the
CRA, enforceable against the CRA, and its successors and assigns, in accordance with their
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respective terms, subject to bankruptcy, insolvency and other similar laws affecting the rights of
creditors generally.
16.1.4 The CRA is not a party to any outstanding contracts or options to
purchase the Property or any portion thereof in favor of any third party. Other than alleged
claims that may be asserted by persons intended to be indemnified against by the Indemnification
Agreement (as defined in the Settlement Agreement) and by the Longshoremen's Union and
Black Archives with respect to parking on the Property, no person, corporation or other entity
has or on the Closing Date shall have any right or option to purchase the Property or any portion
of the Property.
16.1.5 The CRA will not take any action to affect title to the Property
prior to the conveyance of the Property to the Developer contemplated herein, including, without
limitation, executing any leases or agreement which are not terminable upon thirty (30) days
written notice with no penalty.
16.2 Survival of Representations. All of the representations of the CRA set
forth in this Agreement shall be true upon the execution of this Agreement, shall be deemed to be
repeated and as of the Closing Date and shall be true as of the Closing Date. All of the
representations, warranties and agreements of the CRA set forth in this Agreement shall survive
the Closing for a period of six (6) months.
17. DEVELOPER'S REPRESENTATIONS.
17.1 Developer makes the following representations to the CRA as follows:
17.1.1 Developer is a limited liability company duly organized and
validly existing under the laws of the State of Delaware, 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.
17.1.2 Copies of the articles of organization and the operating agreement
for Developer are attached hereto as Exhibit "J" (the "Organizational Documents"). The
organizational chart of Developer and a list of members of Developer is attached hereto as
Exhibit "K" and made a part hereof (the "Organizational Chart").
17.1.3 Developer's execution, delivery and performance of this
Agreement has been duly authorized by all necessary company 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.
17.1.4 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.
17.2 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
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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 for a period of six (6) months.
18. DEFAULT.
18.1 Developer Failure to Perform.
18.1.1 If Developer does not obtain the Approvals on or before the end of
the Approval Period or the Extended Approval Period, as applicable, and fails to obtain the
Approvals within the applicable Default Cure Period following receipt of a Default Notice from
the CRA, Developer shall be in default under this Agreement and this Agreement shall
automatically terminate in which event the Escrow Agent shall deliver the Deposit to the CRA as
liquidated damages and the parties will be relieved from any further obligations under this
Agreement except for the obligations that expressly survive termination.
18.1.2 If the CRA Conditions Precedent have not been satisfied, deemed
satisfied or waived on or before April 15, 2016, Developer shall be in default under this
Agreement and the CRA may terminate this Agreement in which event the Escrow Agent shall
deliver the Deposit to the CRA as liquidated damages and the parties will be relieved from any
further obligations under this Agreement except for the obligations that expressly survive
termination.
18.1.3 If Developer fails to commence Vertical Construction on the
Property by the Commencement of Construction Deadline and the Developer has received
written notice from the CRA prior to the commencement of said Vertical Construction that the
Executive Director has received written notice from the County pursuant to Section 11 of the
Declaration that the Property shall revert to the County, this Agreement shall automatically
terminate in which event the Escrow Agent shall deliver the Deposit to the CRA as liquidated
damages and the parties shall be relieved from any further obligations under this Agreement
except for the obligations that expressly survive termination.
18.1.4 In the event the CRA becomes aware of any material
misrepresentations by the Developer set forth in Section 16 of this Agreement prior to Closing,
and the Developer fails to cure such breach within ten (10) days of its receipt of written notice
from the CRA delivered pursuant to Section 20 hereof, the CRA, as its sole and exclusive
remedy, may terminate this Agreement, in which event the Escrow Agent shall deliver the
Deposit to the CRA as liquidated damages and the parties shall be released from all further
obligations under this Agreement except for the obligations that expressly survive termination.
18.1.5 In the event the Developer breaches any other terms and provisions
of this Agreement not addressed in Sections 19.1.1 through 19.1.4 or in Section 8.7, which is not
cured within thirty (30) days of written notice of default from the CRA delivered pursuant to
Section 20 below, the CRA may pursue all remedies available at law or in equity, including
specific performance, as a result of such breach; provided however, the CRA shall not have the
right to terminate this Agreement with respect to a breach other than as expressly addressed in
Sections 18.1.1 through 18.1.4 above and Section 8.7.
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18.1.6 Extensions of the Default Cure Period. As provided in the
Declaration, extensions of a Default Cure Period shall not be unreasonably withheld, conditioned
or delayed for good cause shown, in the sole discretion of the Executive Director of the CRA if
the CRA has issued the Default Notice, or in the sole discretion of the Mayor or the Mayor's
designee if the County has issued the Default Notice.
18.2 In the event of a default by the CRA under this Agreement (other than an
intentional default) 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 Escrow Agent shall promptly
return the Deposit to Developer, whereupon 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 except if the CRA conveys the Property to another party prior to
the termination of this Agreement, in which event the Developer may pursue all remedies
available at law or in equity as a result of such breach as a result of the remedy of specific
performance not being available.
19. BROKERS. The parties each represent and warrant to the other that there are no
real estate broker(s), salesman (salesmen) or finder(s) involved in this transaction. If a claim for
commissions in connection with this transaction is made by any broker, salesman or finder
claiming to have dealt through or on behalf of one of the parties hereto ("Indemnitor"),
Indemnitor shall indemnify, defend and hold harmless the other party hereunder ("Indemnitee"),
and Indemnitee's officers, directors, agents and representatives, from and against all liabilities,
damages, claims, costs, fees and expenses whatsoever (including reasonable attorney's fees and
court costs at trial and all appellate levels) with respect to said claim for commissions.
Notwithstanding anything to the contrary contained in this Agreement, the provisions of this
Paragraph shall survive the Closing.
20. ASSIGNABILITY. Prior to Completion, 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. After Completion, the Developer may assign this Agreement without the consent
of the CRA. Notwithstanding the foregoing, Developer may collaterally assign its interest in this
Agreement to a lender in connection with financing for the Project.
21. 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 or mailed by
certified or registered mail, return receipt requested, in a postage prepaid envelope, and
addressed as follows:
If to Developer:
ALL ABOARD FLORIDA NW SIXTH STREET LLC
2855 LeJeune Road, 4th Floor
Coral Gables, FL 33134
Attention: Michael Reininger
Telephone: (305) 520-2339
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Facsimile: (305) 520-
With a copy to:
If to CRA:
ALL ABOARD FLORIDA NW SIXTH STREET LLC
2855 Le.leune Road, 4th Floor
Coral Gables, FL 33134
Attention: General Counsel
Telephone: (305) 520-2300
Facsimile: (305) 520-2400
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 3 000
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 hand delivered shall be deemed given on the date of delivery or the date delivery is
refused and notices mailed in accordance with the foregoing, shall be deemed delivered upon the
date the return receipt is executed or the date delivery is refused.
22. CHALLENGES. Developer acknowledges and agrees that the CRA shall have no
liability whatsoever to Developer in connection with any challenge by a third party to the CRA's
right to enter into 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 such challenge by a third party and covenants and
agrees not to initiate any legal proceedings against the CRA in connection with any such
challenges to this Agreement by any third parties; provided, however, that nothing contained in
this Agreement, is, nor shall it be deemed, a limitation or waiver of Developer's rights (a) as to
any fraud, misrepresentation, other illegal, or tortious acts committed by the CRA, (b) to comply
with applicable law, or (e) to enforce any rights or remedies pursuant to this Agreement.
23. REAL ESTATE TAXES. It is the intention of the CRA and the Developer that
upon conveyance of the Property to the Developer that the Project shall be fully taxable for the
purposes of ad valorem real estate taxes to the extent payable by the land owners within the City
of Miami 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 or
any portion thereof is not subject to ad valorem real estate taxes that would otherwise be payable
by a land owner in the City of Miami as a result of an exemption, then the Developer shall pay to
the CRA a payment in lieu of such taxes (a "PILOT") on or before December 31 of each year in
the amount of ad valorem real estate taxes that would have been due with respect to the Project
or any portion thereof if the Project had not been exempt in whole or in part from the payment of
ad valorem real estate taxes.
23.1 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
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other liens and encumbrances and shall be binding upon the Developer and its successors and
assigns through December 31, 2029.
24. BLOCK 45 DEVELOPMENT AGREEMENT. This Agreement is expressly
subject to the CRA entering into a development agreement (the "Block 45 Development
Agreement") with Overtown Gateway Partners, LLC, a Florida limited liability company (the
"Overtown") for the development of Block 45 NORTH, CITY OF MIAMI, according to the Plat
thereof recorded in Plat Book "B", at Page 41, of the Public Records of Miami -Dade County,
Florida ("Block 45"). If the Block 45 Development Agreement is not executed by all parties on
or before January 29, 2014, this Agreement shall automatically terminate and be of no further
force and effect and Escrow Agent shall return the Initial Deposit to the Developer and the
parties will be released from all further obligations under the Agreement except for the
obligations that expressly survive termination, For purposes of this Agreement, the "Block 45
Developer" shall be Overtown or, if the conditions of this Section are met, but the Block 45
Development Agreement is thereafter terminated, the actual developer of Block 45.
25. SAWYER'S WALK RELEASE. Developer acknowledges that the CRA is
currently negotiating a development agreement (the `Block 46 Development Agreement") with
the Sawyer's Walk Parties. Developer further acknowledges that if the Block 46 Development
Agreement is executed the Sawyer's Walk Parties will be required to deliver a release
substantially in the form of Exhibit "L" attached hereto (the "Sawyer's Walk Release"), a legal
opinion regarding the Sawyer's Walk Release (the "Opinion Letter") and an indemnification
agreement substantially in the form of Exhibit "M" attached hereto (the "Sawyer's Walk
Indemnification") upon closing the transaction contemplated under the Block 46 Development
Agreement. Should the CRA obtain the Sawyer's Walk Release, the Opinion Letter and the
Sawyer's Walk Indemnity, the Developer shall pay to the CRA at Closing Five Hundred
Thousand and No/100 Dollars ($500,000.00) pursuant to Section 12.2.6 of this Agreement.
26. ZONING AGREEMENT.
26.1 Developer shall utilize its good faith efforts to enter into an agreement (the
"Zoning Agreement") with the CRA prior to the end of the Inspection Period for (i) the transfer
by Developer of 50,000 square feet of development rights from Block 56 to Block 45 at no
charge to CRA or the developer of Block 45 and (ii) the transfer of unused development rights
on Block 56 to the CRA for use in connection with Block 45 pursuant to tent is mutually agreed
upon between Developer and the CRA and the developer of Block 45 at the then current rates
charged by the City for public benefit bonus density within the immediate vicinity of the
Property. Developer shall determine if there are available development rights to transfer to the
CRA within thirty (30) days of the CRA's approval of Developer's Design Development
Documents. The CRA and the developer of Block 45 shall be entitled to determine how much of
the unused development rights are to be purchased.
26.2 The CRA, at its option may elect to utilize its good faith efforts to transfer
50,000 square feet of development rights from Block 56 to Block 45 prior to conveyance of the
Property to Developer and in such event Developer acknowledges that the CRA may enter into a
covenant in lieu agreement or other agreements with the City to accomplish the transfer of the
50,000 square feet of development rights from Block 56 to Block 45 as required by applicable
29
law and in the event the CRA is successful in accomplishing the transfer of the 50,000 square
feet of development rights from Block 56 to Block 45 the obligation for such transfer shall be
deleted from the Zoning Agreement.
27. PROGRAM. In addition to the payments to be made by the Developer on the
Closing Date, Developer shall be obligated to pay to the County One Hundred Twenty -Five
Thousand and No/100 Dollars ($125,000.00) each year for nine (9) years following the Closing
to be held and disbursed by the County for the Program for such nine (9) years pursuant to the
terms of the Declaration.
28. MISCELLANEOUS.
28.1 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.
28.2 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.
28.3 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.
28.4 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.
28.5 All of the exhibits attached to this Agreement are incorporated in, and
made a part of, this Agreement.
28.6 Time shall be of the essence for each and every provision of this
28.7 This Agreement may not be recorded in the Public Records of Miami-
28.8 The "Effective Date" shall mean the date this Agreement is last executed
by Developer and the CRA.
Agreement.
Dade County.
28.9 Developer acknowledges and agrees that 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.
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28.10 The term "day" shall be understood to refer to a calendar day, unless
expressly provided otherwise to refer to a "business" day, which, when used, refers to a day
other than a Saturday or Sunday upon which national banks are open for business in Miami -Dade
County, Florida.
29. 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.
30. ESCROW AGENT. The Deposit shall be held by Escrow Agent in trust, on the
terms hereinafter set forth:
30.1 The Escrow Agent shall deliver the Deposit in accordance with the terms
of this Agreement.
30.2 It is agreed that the duties of the Escrow Agent are only as herein
specifically provided and purely ministerial in nature, and the Escrow Agent shall incur no
liability whatsoever except for willful misconduct or gross negligence, as long as the Escrow
Agent has acted in good faith. The CRA and the Developer each release the Escrow Agent from
any act done or omitted to be done by the Escrow Agent in good faith in the performance of its
duties hereunder.
30.3 The Escrow Agent is acting as stakeholder only with respect to the
Deposit. If there is any valid dispute as to whether the Escrow Agent is obligated to deliver the
Deposit, the Escrow Agent shall not make any delivery, but in such event, the Escrow Agent
shall hold same until receipt by it of an authorization in writing, signed by all parties having
interest in such dispute, directing the disposition of same; or in the absence of such authorization,
the Escrow Agent shall hold the Deposit until final determination of the rights of the parties in
the appropriate proceedings. If such written authorization is not given or proceedings for such
determination are not begun within thirty (30) days of written notice to the Escrow Agent of the
existence of a dispute with respect to the Deposit and diligently continued, the Escrow Agent
may bring an appropriate action or proceeding to interplead the Deposit. The Escrow Agent
shall be reimbursed for all costs and expenses of such action or proceeding, including, without
limitation, reasonable attorneys' fees and disbursements, by the party determined not to be
entitled to the Deposit. Upon making delivery of the Deposit, the Escrow Agent shall have no
further liability unless such delivery constituted willful misconduct or gross negligence. The
Developer acknowledges that the Escrow Agent is counsel to the CRA, and can represent the
CRA hereunder in the event of any dispute hereunder, concerning the Deposit, and Developer
waives any right to object to same.
30.4 The provisions of this Section 26 shall survive the termination of this
Agreement.
31. RECOGNIZED MORTGAGES.
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31.1 After Closing, Developer may, at its sole cost and expense and without the
consent of the CRA, execute, deliver and cause or permit to be recorded against Developer's
interest in the Property and Developer's improvements and facilities on the Property, one or more
Recognized Mortgages (as hereinafter defined). Developer or any Recognized Mortgagee (as
hereinafter defined) shall notify the CRA in writing in accordance with Section 22 of this
Agreement of the execution of such Recognized Mortgage and the name and place for service of
notice upon such Recognized Mortgagee. Any references in this Agreement to the "Recognized
Mortgagee" shall be references to the Recognized Mortgagee or representative of more than one
Recognized Mortgagee, acting on behalf of such Recognized Mortgagees, the notice of whose
Recognized Mortgage was earliest received by the CRA unless the context otherwise requires.
31.2 For purposes hereof, a "Recognized Mortgage" is a mortgage or other
similar security agreements given to any Recognized Mortgagee of the interest of Developer
hereunder, and shall be deemed to include any mortgage or trust indenture under which this
Agreement shall have been encumbered, and including any and all renewals, modifications,
advances, additions, and extensions of or to a Recognized Mortgage. A "Recognized
Mortgagee" is a public or private lending source or institution, federal, state, county or municipal
governmental agency or bureau, bank, savings and loan, pension fund, insurance company, real
estate investment trust, tax credit syndication entity, or other real estate investment or lending
entity, savings bank, whether local, national or international, and/or the holder of any purchase
money mortgage given back to a transferor, that is or becomes the holder, mortgagee or
beneficiary under any Recognized Mortgage and the successors or assigns of such holder,
mortgagee or beneficiary, and shall be deemed to include, without limitation, the trustee under
any such trust indenture and the successors or assigns of such trust. A parent, subsidiary,
affiliate, division, or entity controlling, controlled by, or under common control with Developer
shall not be a "Recognized Mortgagee" for the purposes of this Agreement.
31.3 Whenever a Recognized Mortgagee exists as to which the CRA has been
provided notice in accordance with Section 20 of this Agreement, until the obligations of
Developer secured by a Recognized Mortgage have been completely paid and performed and the
Recognized Mortgage has been discharged of record, the CRA shall send to the Recognized
Mortgagee, a copy of any notice to Developer of a default by Developer under this Agreement at
the same time as such notice of default shall be given by the CRA to Developer, addressed to
Recognized Mortgagee at the address last furnished to the CRA by such Recognized Mortgagee
in accordance with Section 20 of this Agreement.
31.4 Developer irrevocably directs that the CRA accept, and the CRA agrees to
accept, performance and compliance by a Recognized Mortgagee of and with any term,
covenant, agreement, provision, condition or limitation on Developer's part to be kept, observed
or performed under the Agreement with the same force and effect as though kept, observed or
performed by Developer. Notwithstanding anything provided to the contrary in the Agreement,
the Agreement shall not be terminated until and unless: (i) notice of any such Default shall have
been delivered to Recognized Mortgagee in accordance with the provisions of this Agreement
and (ii) the Recognized Mortgagee has not cured such default within the time frame allowed
under this Agreement.
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31.5 The CRA agrees that while any Recognized Mortgage is outstanding, the
CRA shall not agree to any amendment to or modification of this Agreement or agree to a
voluntary surrender or termination of this Agreement by Developer without the consent of the
Recognized Mortgagee.
[SIGNATURE PAGES TO FOLLOW]
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IN WITNESS hereof the parties have executed this Agreement as of the date first above
written.
DEVELOPER:
ALL ABOARD FLORIDA NW SIXTH STREET LLC
By:
Kolleen Cobb
Vice President
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
APPROVED AS TO INSURANCE REQUIREMENTS:
Francisco Gomez, Jr., Risk Management Administrator
34
JOINDER
The undersigned join in this Agreement for the purpose of agreeing to provide the
Guaranty.
Florida East Coast Industries, LLC, a
Delaware limited liability company
By:
Name:
Title:
Schedule of Exhibits
A. Legal Description
B. Insurance Requirements
C. Permitted Exceptions
D. Conceptual Documents
E. Deed
F. Restrictive Covenant
G. Guaranty of Completion
H. Lyric Theatre Parking Plan
I. Approved Variances
7, Organizational Documents of Developer
K. Organizational Chart of Developer
L. Sawyer's Walk Release
M. Sawyer's Walk Indemnification
EXHIBIT A
Legal Description
Lots 1 through 12, inclusive, Block 56, NORTH, CITY OF MIAMI, according to the Plat
thereof, as recorded in Plat Book "B" at Page 41 of the Public Records of Miami -Dade County,
Florida.
EXHIBIT B
INSURANCE REQUIREMENTS
I. Commercial General Liability (Primary & Non Contributory)
A. Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence $1,000,000
General Aggregate Limit $ 2,000,000
Products/Completed Operations Aggregate $ 2,000,000
Personal and Advertising Injury $1,000,000
B. Coverage/Endorsements Required
City of Miami and Southeast Overtown/Park West Community Redevelopment
Agency as an Additional Insured (CG 2010 11/85 or its equivalent)
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 Lhnit
Any Auto/Owned Autos/Scheduled
Including Hired, Borrowed or Non -Owned Autos
Any One Accident $ 1,000,000
B. Endorsements Required
City of Miami & Southeast Overtown/Park West Community Redevelopment
Agency listed as an additional insured
III. Worker's Compensation
Limits of Liability
Statutory -State of Florida
Waiver of subrogation
Employer's Liability
A. Limits of Liability
$1,000,000 for bodily injury caused by an accident, each accident.
$1,000,000 for bodily injury caused by disease, each employee
$1,000,000 for bodily injury caused by disease, policy limit
IV. Umbrella Policy/Excess Liability (Excess Follow Form)
A. Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence $3,000,000
Aggregate $3,000,000
B. Endorsements Required
City of Miami & Southeast Overtown/Park West Community Redevelopment
Agency listed as an additional insured
V. Owner's & Contractor's Protective Liability
Required only in the event that the CGL policy is not provided on a "per project" basis.
Limits of Liability
Each Occurrence $1,000,000
Policy Aggregate $1,000,000
City of Miami and Southeast Overtown/Park West Community Redevelopment
Agency as Named Insured
VI. Builders' Risk
Causes of Loss: Completed Value Builders Risk Form
Valuation: Replacement Cost
Deductible: $25,000 All other Perils
5% maximum on Wind
City of Miami and Southeast Overtown/Park West Community Redevelopment
Agency listed as an Additional Insured
A. Limit/Value at Location or Site - Full Replacement
B. Coverage Extensions as provided by insurer
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.
EXHIBIT C
Additional Permitted Exceptions
1. County Ordinance No. 86-44 recorded in Official Records Book 12923, at page 2622.
2. A covenant in lieu and other agreements required by the City to transfer 50,000 square
feet of development rights from the Property to Block 45.
EXHIBIT D
Conceptual Design Documents
EXHIBIT E
THIS INSTRUMENT WAS PREPARED BY:
William R. Bloom, Esquire
Holland & Knight LLP
701 Brickell Ave., Suite 3000
Miami, Florida 33131
Folio Number:
SPECIAL WARRANTY DEED
THIS DEED, made this day of , 201_, between SOUTHEAST
OVERTOWN/PARK WEST COMMUNITY REDEVELOPMENT AGENCY, a body
corporate and politic of the State of Florida ("Grantor") and ALL ABOARD FLORIDA NW
SIXTH STREET LLC, a Delaware limited liability company ("Grantee").
Wherever used herein, the terms "Grantor" and "Grantee" shall include singular and
plural, heirs, legal representatives, assigns of individuals, and the successors and assigns of
corporations, wherever the context so admits or requires.
WITNESSETH:
THAT, for and in consideration of the sum of Ten and No/100 Dollars ($10.00), and
other good and valuable consideration, the receipt and sufficiency of which is acknowledged by
Grantor, Grantor hereby grants, bargains, and sells unto Grantee, the following described
property located in Miami -Dade County, Florida ("the Property"):
Lots 1 through 12, Block 56, NORTH, CITY OF MIAMI,
according to the Plat thereof, as recorded in Plat Book "B", at Page
41, Public Records of Miami -Dade County, Florida,
TOGETHER WITH all the tenements, hereditaments and appurtenances thereto
belonging or in any way appertaining.
TO HAVE AND TO HOLD the same unto Grantee in fee simple, forever.
THIS CONVEYANCE IS SUBJECT TO:
1. Taxes and assessments for the year 201_ and subsequent years;
2. Zoning and other governmental restrictions;
3. Terms and provisions of that certain Declaration of Restrictions dated May 8,
2013 and recorded May 15, 2013 in Official Records Book 28631, at Page 1264 of the Public
Records of Miami -Dade County, Florida, as amended by that certain [Amendment
tol[Amendment and Restatement of] Declaration of Restrictions recorded , 201 in
Official Records Book , at Page of the Public Records of Miami -Dade County,
Florida.
4. Terms and provisions of the Restrictive Covenant between Grantor and Grantee to
be recorded simultaneously with this deed.
5. [Add Covenant in lieu and other agreements required to transfer 50,000 square
feet of development rights from the Property to Block 45 if appropriate]
TO HAVE AND TO HOLD, the same in fee simple forever.
AND Grantor has good right and lawful authority to sell and convey the property, the
Grantor hereby fully warrants the title to said land and will defend the same against the lawful
claims of all persons claiming by, through and under Grantor and none other.
SIGNATURES FOLLOW ON NEXT PAGE
IN WITNESS WHEREOF, Grantor has caused this special warranty deed to be executed
as of the day and year first above written.
Signed, sealed and delivered
in our presence:
WITNESSES: GRANTOR:
Name:
SOUTHEAST OVERTOWN/PARK WEST
COMMUNITY REDEVELOPMENT
AGENCY, a body corporate and politic of the
State of Florida
Name: By:
Name: Clarence E. Woods III
Title: Executive Director
Approved for legal sufficiency
By:
William R. Bloom, Esq.
Holland & Knight LLP
Special Counsel to the CRA
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
The foregoing instrument was acknowledged before me this day of
, 201._, by Clarence E. Woods III, as Executive Director of
SOUTHEAST OVERTOWN/PARK WEST COMMUNITY REDEVELOPMENT AGENCY, a
body corporate and politic of the State of Florida, on behalf of the Agency, who is personally
known to me or has produced as identification.
Notary Public, State of Florida
My Commission Expires:
EXHIBIT F
Restrictive Covenant
The parties shall negotiate the terms of the Restrictive Covenant prior to the end of the
Inspection Period. The Restrictive Covenant shall incorporate the following provisions of the
Development Agreement which survive the Closing Date:
1. Section 8.5 requiring Project to be developed substantially in accordance with the Plans.
2. Sections 8.7.2, 8.7.3, and 8.7.4 requiring Developer to comply with the Commencement
of Construction Deadline and Completion Deadline.
3. Section 8.8 regarding the development of the Roadway.
4. Section 10.1 regarding equal opportunity.
5. Sections 10.2, 10.3 and 10.4 regarding participation requirements.
6. Section 13.1 regarding the Parking Agreement.
7. Section 13.2 regarding Lyric Theatre Parking.
8. Section 23 regarding real estate taxes.
9. Section 27 regarding the Program.
EXHIBIT G
GUARANTY OF COMPLETION
THIS GUARANTY OF COMPLETION (the "Guaranty") is executed and delivered,
jointly and severally, as of the day of , 20_ by [FLORIDA EAST COAST
INDUSTRIES, LLC, a Delaware limited liability company (successor by conversion to Florida
East Coast Industries, Inc.] or [AN ENTITY WITH A NET WORTH OF FIFTY MILLION
DOLLARS] (the "Guarantor") in favor of SOUTHEAST OVERTOWN/PARK WEST
COMMUNITY REDEVELOPMENT AGENCY, a public agency and body corporate created
pursuant to Section 163.356, Florida Statutes (the "CRA").
WITNESSETH:
A. On or about the date hereof, the CRA conveyed to All Aboard Florida NW Sixth
Street, LLC, a Delaware limited liability company (the "Developer"), the property described on
Exhibit "A" attached hereto and made a part hereof (the "Property"), pursuant to the terms and
conditions of that Development Agreement dated as of , 2013, by and between
Developer and the CRA as same has been and/or may be amended from time to time (the
"Development Agreement"). All terms not otherwise defined herein shall have the meanings set
forth in the Development Agreement.
B. Guarantor will benefit from the transaction contemplated by the Development
Agreement (the "Transaction").
C. The CRA would not close on the Transaction pursuant to the Development
Agreement unless Guarantor agreed to unconditionally guaranty completion of the Project in
accordance with the Plans and the Project Schedule.
NOW, THEREFORE, in consideration of the CRA's conveying the Property to the
Developer pursuant to 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 for other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
Guarantor hereby irrevocably covenants, warrants and agrees as follows:
1. That notwithstanding any provision in the Development Agreement or in any
other agreement or document executed in connection therewith, Guarantor hereby
unconditionally and irrevocably guarantees to CRA the following (collectively, the "Guaranties
Obligations"):
a. One hundred percent (100%) lien free completion of the Project in
accordance with the Development Agreement and substantially in accordance with the Plans, as
evidenced by (i) the issuance of a final certificate of occupancy (or the equivalent) by the proper
governmental authority as to the Project to be constructed on the Property; and (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. 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, all as reflected on the Plans; and
b. Full and punctual payment and discharge of all costs and expenses 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 Project substantially in accordance with the Plans
which are or, if unpaid, may become liens, claims or encumbrances on the Property.
c. To perform, complete and pay for the construction of the Project within
the time period allotted therefor in the Project Schedule (as same may be amended, modified
and/or extended in accordance with the terms of the Development Agreement or pursuant to a
written agreement by the CRA and the Developer) and to pay all costs and expenses of said
construction and completion of the Project in accordance with the Plans and all costs associated
therewith.
d. 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
Guarantor having actual knowledge of the filing of such liens;
e. To pay the costs and fees of all architects and engineers employed by
Developer in connection with the Project; and
f. 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, subject to the terms of Section 13 below.
2. Guarantor hereby acknowledges and consents to the Plans, the disbursement
schedule of the Lender, if any, and the other terms and conditions of the Development
Agreement and related documents governing the construction of the Project.
3. 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 or any related document as a condition precedent to
bringing any action against 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.
4. Guarantor further agrees that Guarantor 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 or of any related document, nor shall Guarantor's obligations hereunder
be altered or impaired by any delay by CRA in enforcing the terms and obligations of the
Development Agreement by any waiver of any default by CRA under the Development
Agreement or any related document, it being the intention that Guarantor shall remain fully
liable hereunder, notwithstanding any such event.
5. 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
Guarantor, 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.
6. 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,
Guarantor 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 Guarantor, or by reason of any waiver,
extension, modification, forbearance or delay by CRA, and Guarantor hereby expressly waives
and surrenders any defense to Guarantor's liability hereunder based upon any of the foregoing
acts, things, agreements or waivers. Guarantor shall be automatically released from this
Guaranty upon the satisfaction of the Guarantied Obligations, without any further need for CRA
to execute a release instrument (though, CRA shall promptly deliver the original of this Guaranty
to Guarantor).
7. Except as otherwise set forth herein, CRA shall not be required to give any notice
to 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),
any such notice being expressly waived by Guarantor.
8. In the event this Guaranty is executed by Florida East Coast Industries, LLC
("FECI", for the purpose of this Section 9 only), FECI shall have the right to substitute this
Guaranty with a new guaranty (the "Replacement Guaranty") executed by an entity (the
"Replacement Guarantor"), provided such Replacement Guarantor, as of the date of the delivery
of the Replacement Guaranty, has a Net Worth (hereinafter defined) of no less than
$50,000,000.00. The Replacement Guaranty shall be in the same, or substantially the same, form
as this Guaranty. Upon the delivery to CRA of (i) a Replacement Guaranty in the same form or
(ii) a Replacement Guaranty in substantially the same form. with any material changes being
acceptable to the Executive Director, this Guaranty shall be null and void and CRA shall
promptly deliver this Guaranty to the Guarantor. The term "Net Worth" shall mean, as of a
given date, the total assets of Guarantor as of such date less Guarantor's total liabilities as of such
date, determined in accordance with generally accepted accounting principles.
9. This Guaranty is assignable by CRA, but only upon and to the assignee of the
CRA's rights under the Development Agreement. This Guaranty shall bind the heirs, devisees,
personal representatives, successors and assigns of the parties hereto and shall inure to the
benefit of any permitted successor or assign of CRA.
10. 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.
11. 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.
12. In the event of any litigation between the parties under this Guaranty, the
prevailing party shall be entitled to reasonable attorney's fees and court costs at all trial and
appellate levels and in any bankruptcy proceedings.
13. Except as otherwise set forth herein, 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 Guarantor or from 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
Attention: Clarence E. Woods, III, Executive Director
1490 NW Third Avenue
Suite 105
Miami, FL 33136
Fax: 305-679-6836
b. If to Guarantor:
and
EACH OF CRA (BY REASON OF ITS ACCEPTANCE OF THIS GUARANTY) AND
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 1N CONNECTION
WITH 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
GUARANTOR, DEVELOPER OR CRA.
IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the day and year
first above written.
WITNESSES:
Print Name: By:
Name:
Title:
Print Name:
STATE OF FLORIDA )
): ss.
COUNTY OF MIAMI-DADE
The foregoing instrument was acknowledged before me this day of , 201_, by
, as of , a , on
behalf of He is personally known to me or has produced
as identification.
Notary Public
Name of Notary Printed:
(NOTARY SEAL)
My commission expires:
My commission number is:
EXHIBIT H
Lyric Theatre Parking Plan
EXHIBIT I
Approved Variances
Unless otherwise defined herein, all capitalized terms set forth herein are as defined in that
certain Declaration of Restrictions recorded May 15, 2013 in Official Records Book 28631, Page
1264 of the Public Records of Miami -Dade County, Florida (the "Declaration").
Overtown Gateway and All Aboard propose the following variances to the Declaration, which
shall be accomplished through an amendment of the Declaration or by amending and restating
the Declaration into two declarations, with one relating to Block 56 and the other relating to
Block 45:
1. Default and Reversion. Default with respect to Block 45 under the Declaration shall not
constitute a default with respect to Block 56 and default with respect to Block 56 under the
Declaration shall not constitute a default with respect to Block 45 under the Declaration and the
rights and remedies related to default shall be enforceable separately as to each Developer (e.g.,
terms regarding Default Cure Periods and reversion shall apply as to All Aboard for Block 56
and as to Overtown Gateway for Block 45). Further, reversion with respect to Block 45 under
the Declaration shall not constitute a reversion with respect to Block 56 and reversion with
respect to Block 56 under the Declaration shall not constitute a reversion with respect to Block
45 under the Declaration.
2. Project Payments. In lieu of making the Project Payments, which requires payment over
time, (i) Overtown Gateway shall pay (A) to the County on the Closing Date, Two Million Five
Hundred Thousand and No/100 Dollars ($2,500,000.00) which shall be used only for projects
that support Overtown redevelopment efforts, to be held in a County account or separated to be
utilized solely for such purpose, (B) to the CRA on the Closing Date, One Million Three
Hundred Seventy -Five Thousand and No/100 Dollars ($1,375,000.00) to be utilized by the CRA
for projects in the Southeast Overtown/Park West Community Redevelopment Area, and (C) to
the community benefits program to be established within the Southeast Overtown/Park West
Community Redevelopment Area (the "Program"), One Hundred Twenty -Five Thousand and
No/100 Dollars ($125,000.00) per year for 10 years to the Program with the first payment
commencing on the Closing Date and each anniversary thereof; and (ii) All Aboard shall pay (A)
to the County on the Closing Date, Two Million Five Hundred Thousand and No/100 Dollars
($2,500,000.00) which shall be used for projects that support Overtown redevelopment efforts to
be held in a County account or separated to be utilized solely for such purpose, (B) to the CRA
on the Closing Date, One Million Three Hundred Seventy -Five Thousand and No/100 Dollars
($1,375,000.00) to be utilized by the CRA for projects in the Southeast Overtown/Park West
Community Redevelopment Area, and (C) to the Program One Hundred Twenty -Five Thousand
and No/100 Dollars ($125,000.00) per year for 10 years with the first payment commencing on
the Closing Date and each anniversary thereof. The Program shall be administered by a
committee appointed by community stakeholders from the Southeast Overtown Park/Park West
community and the County shall act as the fiduciary for holding and disbursing funds contributed
to the Program.
3. Project Components.
(i) Overtown Gateway shall be required to complete a portion of the Retail
Component which shall be a minimum of 75,000 square feet and the Residential Component to
be constructed on Block 45.
(ii) All Aboard shall be required to complete a portion of the Retail Component
which shall be a minimum of 75,000 square feet to be constructed on Block 56.
The minimum square feet for the Retail Component set forth above for each block shall be in
lieu of the minimum of 150,000 square feet for the Retail Component set forth in the Declaration
for both blocks.
4. Residential Restrictions. The Residential Component shall be constructed on Block 45.
Block 56 shall not be required to have a Residential Component. Sixty (60) residential units still
have to be provided on Block 45 in compliance with the provisions of Section 3 of the
Declaration. All residential units in excess of 60 residential units can be market rate units and
will not be limited by the affordable housing restrictions of Section 3 of the Declaration.
5. Completion Date. The Declaration provides that the Developer shall be required to
obtain the Approvals by May 15, 2015 and to commence construction of the vertical
improvements of the Residential Component and the Retail Component by May 15, 2016 and
complete the Residential Component within twenty-four (24) months after commencement of
vertical construction of the Residential Component and complete the Retail Component within
twenty-four (24) months after commencement of vertical construction of the Retail Component,
subject to Unavoidable Delay, default cure periods as provided in Section 9 of the Declaration
and the ability to extend the time period to obtain the Approvals for a six month period in
accordance with Section 9(B) of the Declaration, extend the Residential Completion Date for a
six month period in accordance with Section 9(D) of the Declaration and to extend the Retail
Completion Date in accordance with Section 9(C) of the Declaration.
(i) Overtown Gateway requests a waiver to provide (i) that if the extension of the
time period pursuant to Section 9(B) of the Declaration to obtain the Approvals is not exercised
or exercised and not used in its entirety, Overtown Gateway may exercise such extension or use
the unused portion of the approval extension period to extend the Residential Completion Date
and the Retail Completion Date, in addition to the current ability to extend the Residential
Completion Date and the Retail Completion Date for six months pursuant to Sections 9(C) and
9(D) and (ii) if Overtown Gateway commences construction of the Residential Component and
the Retail Component on Block 45 prior to May 15, 2016, the time for completion of the
construction of the Residential Component and the Retail Component shall be extended for the
number of days between said commencement date and May 15, 2016. Overtown Gateway further
requests that if the Retail Component and the Residential Component are built as part of one
integrated structure the date Overtown Gateway commences vertical construction of either the
Residential Component or the Retail Component shall constitute commencement of construction
of both the Residential Component and the Retail Component and the Residential Completion
Date and Retail Completion Date shall be the same. Further, if the Retail Component and
Residential Component are built as part of one integrated structure, Overtown Gateway may
extend both the Residential Completion Date and the Retail Completion Date in pursuant to
Section 9(C) and 9(D) of the Declaration by making one payment of Two Hundred Fifty
Thousand and No/Dollars ($250,000.00) which payment will extend both the Residential
Completion Date and the Retail Completion Date, but such extension pursuant to payment under
Sections 9(C) and 9(D) shall be limited to a total of 6 months.
(ii) All Aboard requests a waiver to provide (i) that if the extension of the time period
pursuant to Section 9(B) of the Declaration to obtain the Approvals is not exercised or exercised
and not used in its entirety, then All Aboard may exercise such extension or use the unused
portion of the approval extension period to extend the Retail Completion Date in addition to the
current ability to extend the Retail Completion Date for six months pursuant to Section 9(C) and
(ii) if All Aboard commences construction of the Retail Component on Block 56 prior to May
15, 2016, the time for completion of the construction of the Retail Component shall be extended
for the number of days between said commencement date and May 15, 2016. Further, All
Aboard may extend the Retail Completion Date in pursuant to Section 9(C) of the Declaration by
making one payment of Two Hundred Fifty Thousand and No/Dollars ($250,000.00) which
payment will extend the Retail Completion Date.
6, Parking. Overtown Gateway agrees to provide 150 parking spaces in excess of code
requirements existing at the time of commencement of vertical construction with respect to the
development on Block 45, and All Aboard agrees to provide 150 parking spaces in excess of
code requirements existing at the time of commencement of vertical construction on Block 56.
7. Development Agreements.
(a) The CRA shall negotiate two (2) separate development agreements: one with All
Aboard for Block 56 and one with Overtown Gateway for Block 45.
EXHIBIT K
Organization Documents of Developer
EXHIBIT L
Organizational Chart of Developer
As of the date hereof, Florida East Coast Industries, LLC is the sole member of Developer.
EXHIBIT M
POINCIANA/SAWYER'S WALK RELEASE
KNOW ALL MEN BY THESE PRESENTS that SAWYER'S WALK, LTD., a
Florida limited partnership ("Sawyer's Walk") and POINCIANA VILLAGE OF
MIAMI, LTD., a Florida limited partnership ("Poinciana") [INSERT NAMES OF
PARTNERS OF EACH] (Sawyer's Walk and Poinciana, and their respective
partners, are collectively referred to as the "first party") and CITY OF MIAMI, a
Florida municipal corporation (the "City"); SOUTHEAST OVERTOWN/PARK
WEST COMMUNITY REDEVELOPMENT AGENCY, an agency of the State of
Florida (the "CRA'), MIAMI-DADE COUNTY, a political subdivision of the State of
Florida (the "County"); ALL ABOARD FLORIDA NW SIXTH STREET LLC, a
Delaware limited liability company ("All Aboard") and OVERTOWN GATEWAY
PARTNERS, LLC, a Florida limited liability company ("Overtown Gateway") (the
City, the County, Overtown Gateway, All Aboard and the CRA are collectively
referred to as the "second party"), for and in consideration of Ten and 00/100 Dollars
($10.00), and other good and valuable consideration, the receipt and adequacy of
which is hereby acknowledged, remises, releases, acquits, satisfies, and forever
discharges the said second party and their officers, directors, commissioners, agents
and employees, of and from all, and all manner of action and actions, cause and
causes of action, suits, debts, dues, sums of money, accounts, agreements, promises,
damages, judgments, executions, claims and demands whatsoever, in law or in
equity, which said first party ever had, now has, or which said first party hereafter
can, shall or may have, against said second party, for, upon or by reason of any
matter, cause or thing whatsoever, from the beginning of the world to the date of
these presents relating to or arising out of, directly or indirectly: (i) that in response
to a request for proposals (the "RFP") issued by the City with respect to that certain
real property located in Miami -Dade County, Florida more particularly described on
Exhibit "A" attached hereto and made a part hereof (the "Poinciana Village
Project"); (ii) the response to the RFP submitted by Indian River Investments of
Miami, Inc., a Florida corporation ("Indian River"), acting in the capacity of general
partner on behalf of Poinciana; (iii) the selection of Poinciana as a successful
proposer to the RFP by the City for the Poinciana Village Project; (iv) the approval
by the City Commission of Poinciana as the successful proposer with respect to the
RFP and Poinciana Village Project; (v) the Southeast OvertownlPark West Lease
and Development Agreement dated June 15, 1988, as amended by Amendment No.
1 dated February 17, 1989, as amended by Amendment No. 2, dated July 13, 1989,
as amended by Amendment No. 3, dated January 11, 1990, as amended by an
Amendment dated September 23, 1998; and as assigned from the City to the CRA
by that certain Assignment of Leases dated January 9, 1996 (collectively the
"Poinciana Lease"); (vii) RFP issued by the City with respect to that certain real
property located in Miami -Dade County, Florida, more particularly described on
Exhibit "B", attached hereto and made a part hereof (the "Sawyer's Walk Project");
(viii) the sole response to the RFP submitted by Sawyer's Walk with respect to the
Sawyer's Walk Project; (ix) the City of Miami Resolution No. 91-509 selecting
Sawyer's Walk as the developer of the Sawyer's Walk Project; (x) matters raised and
the matters that could have been raised in the action styled Southeast
Overtown/Park West Community Redevelopment Agency v. Poinciana Village of
Miami, Ltd., Case No. 02-06846 CA 9, pending in the Circuit Court of the 11th
Judicial Circuit in and for Miami -Dade County, Florida; (xii) matters raised and the
matters that could have been raised in the action styled The City of Miami vs.
Sawyer's Walk, Ltd., Case No. 00-28860 CA 9, pending in the 11th Judicial Circuit
in and for Miami -Dade County, Florida; (xiii) any claims related to having any
development rights with respect to the property described on Exhibit A and Exhibit
B.
This Release shall not release the CRA from its obligations under the
Development Agreement dated January _, 2014 by and between Sawyer's Walk,
Poinciana and the CRA.
First party hereby represents and warrants that they are fully competent and
able to understand the terms of this Release, that first party is not relying upon any
statements or representations (whether express or implied) of the second party,
their employees and attorneys regarding this Release and that first party is
entering into this Release under their own free will believing that this Release to be
in their best interest.
The terms of this release are contractual and not a mere recital.
This Release shall be governed by and construed in accordance with the laws
of the State of Florida.
IN WITNESS WHEREOF, we have hereunto set out hand and seal this —
day of , 20_.
WITNESSES:
SAWYER'S WALK LTD., a Florida limited
Print Name: partnership
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Partners of Sawyer's Walk, Ltd.
By:
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POINCIANA VILLAGE OF MIAMI, LTD., a
Print Name: Florida limited partnership
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Partners of Poinciana Village of Miami, Ltd.
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Exhibit "A"
Legal Description Poinciana Village
Lots 1-12 and Lots 16-20 Block 46 NORTH, CITY OF MIAMI, according to the Plat thereof, as
recorded in Plat Book'B" at Page 41 of the Public Records of Miami -Dade County, Florida
AND
Lots 1, 2, 3, 4, 5, 6, 7, 8 and closed NW 2"d Court (lying North of NW 7th Street between Lots 2,
7 and 8, and Lots 3, 5 and 6), of GEORGE C. BOLLES RE -SUBDIVISION of Lots 13, 14 and
15, of Block 46 North, City of Miami, according to the Plat thereof, as recorded in Plat Book 1,
at Page 16, of the Public Records of Miami -Dade County, Florida.
Exhibit "B"
Legal Description Sawyer's Walk
All of Blocks 45, 55 and 56 NORTH, CITY OF MIAMI, according to the Plat thereof, as
recorded in Plat Book "B", at Page 41 of the Public Records of Miarni-Dade County, Florida.
EXHIBIT 0
Sawyer's Walk Indemnification
Indemnification Agreement
This Indemnification Agreement (this "Agreement"), dated this day of ,
2013, is executed by Sawyer's Walk Ltd., a Florida limited partnership ("Sawyer's Walk"),
Poinciana Village of Miami, Ltd., a Florida limited partnership ("Poinciana", together with
Sawyer's Walk "Indemnitor"), in favor of CITY OF MIAMI, a Florida municipal corporation
(the "City"), MIAMI-DADE COUNTY, FLORIDA, a political subdivision of the State of
Florida (the "County") and SOUTHEAST OVERTOWN/PARK WEST COMMUNITY
REDEVELOPMENT AGENCY, a public agency and body corporate created pursuant to Section
163.356, Florida Statutes (the "CRA;" and together with the City and the County, individually
and collectively, the "Indemnitee").
RECITALS
A. City previously issued a request for proposals (as may have been amended from
time to time, the "Poinciana RFP") with respect to that certain real property located in Miami -
Dade County, Florida more particularly described on Exhibit "A" attached hereto and made a
part hereof (the "Poinciana Village Project").
B. A response to the Poinciana RFP was submitted by Indian River Investments of
Miami, Inc., a Florida corporation ("Indian River"), acting in the capacity of general partner on
behalf of Poinciana.
C. Pursuant to the Poinciana RFP, the City selected Poinciana as the successful
proposer for the Poinciana Village Project.
D. The City Commission subsequently approved Poinciana as the successful
proposer with respect to both the Poinciana RFP and the Poinciana Village Project.
E. The Poinciana Village Project is subject to that certain Southeast Overtown/Park
West Lease and Development Agreement dated June 15, 1988, as amended by Amendment No.
1 dated February 17, 1989, as amended by Amendment No. 2, dated July 13, 1989, as amended
by Amendment No. 3, dated January 11, 1990, as amended by an Amendment dated September
23, 1998; and as assigned from the City to the CRA by that certain Assignment of Leases dated
January 9, 1996 (collectively the "Poinciana Lease").
F. The City issued an additional request for proposals (as same may have been
amended from time to time, the "Sawyer's Walk RFP") with respect to that certain real property
located in Miami -Dade County, Florida, more particularly described on Exhibit "B", attached
hereto and made a part hereof (the "Sawyer's Walk Project"),
G. The sole response to the Sawyer's Walk RFP was submitted by Sawyer's Walk
with respect to the Sawyer's Walk Project.
H. Pursuant to City of Miami Resolution No. 91-509 (the "Resolution"), the City
selected Sawyer's Walk as the developer of the Sawyer's Walk Project subject to the satisfaction
of certain conditions as set in the Resolution.
I. Subsequently, the following litigation was commenced with respect to the
Poinciana Village Project: Southeast Overtown/Park West Community Redevelopment Agency
v. Poinciana Village of Miami, Ltd., Case No. 02-06846 CA 9, filed in the Circuit Court of the
I lth Judicial Circuit in and for Miami -Dade County, Florida (the "Poinciana Litigation");
J. Subsequently, the following litigation was commenced with respect to the
Sawyer's Walk Project: The City of Miami vs. Sawyer's Walk, Ltd., Case No. 00-28860 CA 9,
filed in the 1 lth Judicial Circuit in and for Miami -Dade County, Florida (the "Sawyer's Walk
Litigation").
K. Sawyer's Walk, Poinciana, the CRA and the City entered into that certain
settlement agreement dated as of January 27, 2005 with respect to the Poinciana Litigation and
the Sawyer's Walk Litigation, as amended, (the "Settlement Agreement").
L. The transaction contemplated by the Settlement Agreement was never
consummated and the Sawyer's Walk Litigation and the Poinciana Litigation have been
consolidated and were dismissed for lack of prosecution on December 5, 2007.
M. The CRA issued a request for proposals (the "New RFP") with respect to that
certain real property located in Miami -Dade County, Florida more particularly described on
Exhibit "C" attached hereto (the "New Project").
N. As a condition of awarding the New Project to Indemnitor pursuant to the New
RFP, Indemnitor has agreed to execute this Agreement in favor of each Indemnitee.
NOW THEREFORE, in consideration of other agreements and other good and valuable
consideration, the sufficiency and receipt of which are hereby acknowledged, Indemnitor,
intending to be legally bound, agrees as follows:
1. Recitals. The foregoing recitals are true and correct and are hereby incorporated
into, and constitute a part of, this Agreement.
2. Indemnity. Indemnitor hereby agrees to indemnify, defend and hold harmless
each Indemnitee from and against any claim, loss, demand, damage, liability, obligation, suit,
cause of action, cost or expense (including fees, costs and disbursements of attorneys and other
professionals and court costs at trial and on appeal (but excluding any attorney fees and costs
incurred by the Indemnitee prior to the date hereof) and regardless of whether an action or
lawsuit is actually instituted or filed) by Sawyer's Walk, Indian River Investment Communities,
Inc., a Florida corporation ("Communities"), Indian River, and Poinciana, or any of them, and
any of their successors and assigns, based upon, directly or indirectly, the Sawyer's Walk RFP,
the Poinciana Litigation, the Sawyer's Walk Litigation and/or the Settlement Agreement,
including, without limitation, claims raised or that could have been raised by Indian River,
Communities, Poinciana and Sawyer's Walk or any of them, in the Poinciana Litigation and/or
the Sawyer's Walk Litigation.
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3. Release. Indemnitor hereby remises, releases, acquits, satisfies, and forever
discharges each Indemnitee, of and from all, and all manner of action and actions, cause and
causes of action, suits, debts, dues, sums of money, accounts, agreements, promises, damages,
judgments, executions, claims and demands whatsoever, in law or in equity, which Indemnitor
ever had, now has, or which Indemnitor hereafter can, shall or may have, against any Indemnitee,
for, upon or by reason of any matter, cause or thing whatsoever, from the beginning of the world
to the date of these presents relating to or arising out of, directly or indirectly, to the Poinciana
Village Project, the Sawyer's Walk Project, the Poinciana Lease, the Sawyer's Walk RFP and
the Settlement Agreement.
4. Governing Law. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Florida without giving effect to the choice of law
provisions thereof.
5. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be binding as of the date first written above, and all of which shall constitute
one and the same instrument. Each such copy shall be deemed an original, and it shall not be
necessary in making proof of this Agreement to produce or account for more than one such
counterpart.
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IN WITNESS WHEREOF, the Buyer has executed this Indemnity and Release
Agreement dated the date written above.
SAWYER'S WALK LTD., a Florida limited
Print Name: partnership
Print Name:
By:
Name:
Title:
POINCIANA VILLAGE OF MIAMI, LTD., a
Print Name: Florida limited partnership
Print Name:
STATE OF FLORIDA
) SS
COUNTY OF MIAMI-DADE
By:
Name:
Title:
The foregoing instrument was acknowledged before me this _ day of
201_ by , as , a , on behalf of
said . He/She is personally known to me or has produced
as identification.
NOTARY PUBLIC
State of Florida at Large
My Commission Expires:
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STATE OF FLORIDA
COUNTY OF MIAMI-DADE
)
) SS
)
The foregoing instrument was acknowledged before me this _ day of
201 by , as , a , on behalf of
said . He/She is personally known to me or has produced
as identification.
NOTARY PUBLIC
State of Florida at Large
My Commission Expires:
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