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HomeMy WebLinkAboutCRA-R-14-0043 BackupSUPPORTING DOCUMENTATION SECOND AMENDMENT THIS SECOND AMENDMENT to Development Agreement is made as of June 2014 by and between LYRIC DEVELOPMENT LLC, a Florida limited liability company (the "Developer"), LYRIC HOUSING, LTD., a Florida limited partnership ("Housing") and 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 Developer and the CRA entered into that certain development agreement dated as of December 17, 2012 (the "Original Development Agreement"). B. The Developer and the CRA entered into that certain amendment to the Original Development Agreement dated as of September 30, 2013, (the "First Amendment"; together with the Original Development Agreement, the "Development Agreement"). C. Developer assigned all of its right, title and interest in the Development Agreement with respect to Phase I, as defined in the Development Agreement, to Housing. D. The Developer, Housing and the CRA desire to modify and amend certain terms and provisions of the Development Agreement as hereinafter provided. NOW THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Recitals. The Recitals to this Second Amendment are true and correct and hereby incorporated by reference and made a part hereof. 2. Defined Terms. All defined terms utilized in this Second Amendment but not defined in this Second Amendment shall have the meanings ascribed to said terms in the Development Agreement. 3. Third Party Reports. CRA acknowledges that Developer has provided to the CRA copies of all third party reports prepared for Developer regarding the physical condition of the Property in accordance with Section 4.12 of the Development Agreement. 4. Proposed Variances. Developer, Housing and the CRA acknowledge that the Proposed Variances approved by the BCC and the CRA Board were the variances attached hereto as Exhibit "A" (the "Approved Proposed Variances"). Developer and Housing waive the right to terminate the Development Agreement with respect to Phase IV based upon the Approved Proposed Variances. 1 5. Block 36 Restriction. All references to the Block 36 Restrictions contained in the Development Agreement shall be deemed references to the Declaration of Restrictions recorded May 15, 2013 in Official Records Book 28631, at Page 1277 of the Public Records of Miami -Dade County, Florida as amended by the Amendment to Declaration of Restrictions, in substantially in the form attached hereto as Exhibit "B". 6. Phase IV of the Project. Section 6.1(iv) of the Development Agreement is hereby amended in its entirety to read as follows: "(iv) Phase IV of the Project ("Phase IV") shall contain a minimum of 55,000 square feet of retail, office, hotel and permitted institutional component and a sufficient number of parking spaces not less than as required by the applicable zoning code to be constructed on that portion of the Property more particularly described on Exhibit "H" attached hereto and made a part hereof (the "Phase IV Property")." 7. Phase IV Property. Developer Housing and the CRA acknowledge that the Approved Proposed Variances were approved by the CRA Board and the BCC and therefore the legal description for the Phase IV Property shall be set forth on Exhibit "C" attached hereto and made a part hereof (the "Phase IV Property") which legal description shall be substituted for Exhibit "H" to the Development Agreement. 8. Phase 1 Easement. If the CRA does not obtain Bond Issue Approval on or before December 31, 2014, the Developer and the Executive Director shall agree on the terms of the Phase I Easement Agreement on or before February 1, 2015. 9. Phase I Plans and Specifications. The CRA acknowledges that the Developer has complied with the requirements of Section 6.2, 7.1 and 7.2 of the Development Agreement with respect to Phase 1. The Phase I Plans are described on Exhibit "D" attached hereto, subject to Developer amending the Phase I Plans to incorporate an additional 3,000-8,000 square feet of ground floor commercial space facing the Ninth Street Mall. 10. CRA Phase I Contribution. Section 7.8.6 of the Development Agreement is hereby amended and restated to read as follows: "7.8.6 The CRA and the Non -Profit will enter into the Non -Profit Grant Agreement which shall govern the use of the CRA Phase I Contribution. The Non -Profit Grant Agreement will require the Non -Profit to make the Non -Profit Loan of the CRA Phase I Contribution to GGI (or the Controlled Entity) as contemplated by this Agreement. In the event the Non -Profit Loan is repaid by GGI (or the Controlled Entity) to the Non -Profit, the Non -Profit shall utilize the money to establish a micro lending program to support businesses within the Redevelopment Area. The Non -Profit shall not be permitted to retain any portion of the CRA Phase I Contribution and any fees and costs of the Non -Profit must be paid from sources other than the CRA Phase I Contribution." 11. Non -Profit Grant Agreement. Section 6 of the Non -Profit Grant Agreement is hereby amended and restated to read as follows: 2 "6. REPAYMENT OF THE NON-PROFIT LOAN. In the event the Borrower repays all or any portion of the Non -Profit Loan to the NON-PROFIT, the NON-PROFIT covenants and agrees to utilize any such money to establish a micro lending program to support businesses located in the Redevelopment Area. Notwithstanding the foregoing, if the Borrower returns a portion of the Non -Profit Loan pursuant to Section 7.8.3 of the Development Agreement, or the Non -Profit Loan is not fully disbursed and is reduced pursuant to Section 7.8.3, the NON- PROFIT covenants and agrees to utilize any such money to establish a micro lending program to support businesses located in the Redevelopment Area." 12. Closing Date Phase IV. Section 20.1 of the Development Agreement is hereby amended to provide that the Phase IV Closing Date shall occur on th earlier of (a) ten (10) days after all the CRA Phase TV Conditions Precedent have been either satisfied or waived by the CRA in accordance with Section 19.2, or (b) August 15, 2015, time being of the essence. Notwithstanding the foregoing, in the event the Lyric Plat has not been recorded on or before August 1, 2014, as same may be extended by Block 36 Unavoidable Delays and delays caused by the Black Archives, then the time frame set forth in Section 20.1 shall automatically be extended one day for each additional day until the Lyric Plat is recorded. 13. Lyric Plat. Developer and Housing acknowledge that the finalization of the Lyric Plat has been delayed since January 9, 2014 by the Black Archives as a result of liens filed against portions of the land included in the Lyric Plat owned by the Black Archives. As a result, the August 1, 2014 date will be extended one day for each day subsequent to January 9, 2014 until the liens filed against the property owned by the Black Archives are released or transferred to bond or the lienors execute the Lyric Plat. 14. Closing Date Phase 1. Section 14.1 (b) of the Development Agreement is hereby amended to delete "Four Hundred Fifty (450) days after the Effective Date" and substitute "December 31, 2014" therefor. 15. Bond Issue Approval. All references in the First Amendment to the phrase "if the CRA obtains Bond Issue Approval on or before December 31, 2013" are hereby amended to read as follows: "if the CRA obtains Bond Issue Approval for a Bond Issue of not less than Forty Million and No/100 Dollars ($40,000,000.00) on or before December 31, 2014". Developer acknowledges and agrees that if the Bond Issue Approval is for a Bond Issue of less than Forty Million and No/100 Dollars ($40,000,000.00) the condition for Bond Issue Approval will not have been satisfied. 16. Zoning Approval Deadline. The Zoning Approval Deadline is hereby amended to read November 14, 2014. 17. Vertical Construction Deadline. The Vertical Construction Deadline is hereby amended to read November 14, 2015. 3 18. Conflicts. To the extent of any conflicts between the terms and provisions of this Second Amendment and the terms and provisions of the Development Agreement, the terms and provisions of this Second Amendment shall control. 19. Ratification. Except as modified by this Second Amendment, all the terms and provisions of the Development Agreement are hereby ratified and reaffirmed by the parties. - SIGNATURES ON NEXT PAGE - 4 IN WITNESS HEREOF, the parties have executed this Amendment as of the date first above written. DEVELOPER: LYRIC DEVELOPMENT, LLC, a Florida limited liability company The Gatehouse Group, Inc., a Commonwealth of Massachusetts corporation, Its manager By: Name: Title: HOUSING: LYRIC HOUSING, LTD., By: Lyric GP LLC, its General Partner By: The Gatehouse Group, Inc. By: Name: Title: CRA: SOUTHEAST OVERTOWN / PARK WEST COMMUNITY REDEVELOPMENT AGENCY By: Clarence E. Woods, ITI, Executive Director ATTEST: Todd B. Hannon, Clerk of the Board 5 Approved for legal sufficiency By: William R. Bloom, Esq. Holland & Knight LLP, Special Counsel to CRA 6 Exhibit "A" APPROVED PROPOSED VARIANCES Variances requested from Block 36 Declaration of Restrictions 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 2277 of the Public Records of Miami -Dade County, Florida (the "Declaration"). The Developer proposes the following variances to the Declaration, which shall be accomplished through an amendment of the Declaration: 1. Extending the Zoning Approval Deadline from May 14, 2014 to November 14, 2014. 2. Extending the Vertical Construction Deadline from May 14, 2015 to November 14, 2015. 3. Elimination of the Parking Component and all references to the Parking Component inthe Block 36 Declaration of Restrictions. 4. The minimum size of the Retail Component shall be increased from 30,000 square feet to 55,000 square feet as a condition of elimination of the Parking Component. Project Payments. In addition to making the Project Payments, the Developer shall pay to the community benefits program to be established within the Southeast Overtown/Park West Community Redevelopment Area (the "Program"), Fifty Thousand and No/100 Dollars ($50,000.00) per year for 10 years to the Program with the first payment commencing on the Closing Date and each anniversary thereof. 7 426086703 v1 Exhibit "B" AMENDMENT TO DECLARATION 8 Prepared by: William R. Bloom, Esq. Holland & Knight LLP 701 Brickell Avenue, Suite 3300 Miami, FL 33131 AMENDMENT TO DECLARATION OF RESTRICTIONS THIS AMENDMENT is made and entered into as of , 2014, by and between the SOUTHEAST OVERTOWN/PARK WEST COMMUNITY REDEVELOPMENT AGENCY, a public agency and body corporate created pursuant to Section 163.358, Florida Statutes (the "CRA") and MIAMI-DADE COUNTY, FLORIDA, a political subdivision of the State of Florida (the "County"). RECITALS A. The County and the CRA entered into that certain Declaration of Restrictions recorded May 15, 2013 in Official Records Book 28631, Page 2277 of the Public Records of Miami -Dade County, Florida (the "Declaration"). B. The County and the CRA desire to modify and amend certain terms and provisions of the Declaration, as hereinafter provided. NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledge, the County and the CRA agree as follows: 1. Recitals. The Recitals to this Amendment are true, correct and are incorporated herein by reference. 2. Defined Terms. All defined terms utilized in this Amendment but not defined in this Amendment shall have the meanings ascribed to said terms in the Declaration. 3. Development Restrictions. Section 2 of the Declaration is hereby amended and restated in its entirety to read as follows: "2. Development Restrictions. The CRA and the County agree that the Property shall be developed as a retail, office, hotel and/or permitted institutional component containing a minimum of 55,000 square feet and a sufficient number of parking spaces not less than as required by the applicable building codes (the "Retail Component")." 9 4. Zoning Approvals. Section 5 of the Declaration is hereby amended and restated in its entirety to read as follows: "5. Zoning Approvals. The Developer shall obtain all applicable land use and zoning approvals for the Project (the "Approvals") on or before November 14, 2014 (the "Zoning Approval Deadline"). The CRA shall convey the Property by deed to the Developer prior to the Developer commencing vertical construction of the Retail Component." 5. Construction. Section 6 of the Declaration is hereby amended and restated in its entirety to read as follows: "6. Construction. The Developer must commence vertical construction (defined as physical structures actually being constructed on the Property pursuant to applicable permits) of the Retail Component on or before November 14, 2015 if Gatehouse or its affiliate is the developer, or on or before May 15, 2016 if the developer is not Gatehouse or its affiliate (the "Vertical Construction Deadline"). The Developer must substantially complete construction of the Retail Component within twenty-four (24) months from commencement of vertical construction of the Retail Component (the "Retail Completion Date"). The Retail Completion Date shall be evidenced by one or more temporary or permanent certificates of occupancy (or their equivalent) for all buildings comprising the Retail Component. The Retail Completion Date shall automatically be extended one day for each day of Unavoidable Delay provided the Executive Director of the CRA concurs with Developer that an Unavoidable Delay has occurred and the County (by its Mayor or Mayor's designee) agrees that an Unavoidable Delay has occurred, which approval by the County shall not be unreasonably withheld. The term "Unavoidable Delay" means delays due to area -wide strikes, acts of God, floods, hurricanes, casualties, fires, acts of the public enemy and governmental moratoriums. The term Unavoidable Delay shall not include delays caused by any other source, including, but not limited to, a government entity acting in its proprietary or regulatory capacity or delays caused by lack of funds." 6. Developer Defaults. Section 7 is hereby amended as follows: (a) Section 7 (A) (iii) is hereby deleted. (b) Section 7 (D) is hereby deleted. (c) All references in Section 7 to subparagraphs 7(A)(iii) are hereby deleted. (d) Section 7(A)(iv) is hereby amended to read as follows: "(iv) fails to make any Project Payment when due (as defined in Paragraph 17 herein) and/or any payment to the Program when due," 7. Failure to Commence Vertical Construction. Section 9 of the Declaration is hereby amended and restated in its entirety to read as follows: 10 "9. Failure to Commence Vertical Construction. Notwithstanding any other provision set forth herein, in the event that vertical construction (defined as physical structures actually being constructed on the Property) has not commenced on the Property by November 14, 2015 if the developer is Gatehouse or its affiliate, or May 15, 2016 if the developer is an entity other than Gatehouse or its affiliate, the Property shall revert to the County upon written notice by the County to the Executive Director of the CRA at any time prior to the commencement of vertical construction. If requested by the County, the CRA shall provide the County with a special warranty deed transferring all right, title and interest in and to the Property to the County free and clear of this Declaration which the County shall record. However, such reverter shall become effective upon receipt by the CRA of written notice of the exercise of the reverter, regardless of the special warranty deed. In the event of such reversion, this Declaration shall then automatically terminate, and notice of same may be recorded by the County." 8. Compensation. Section 17 of the Declaration is hereby amended to delete Section 17 (B). 9. Community Benefits. a. In addition to the Project Payment Developer shall pay to a community benefits program to be established in the Southeast Overtown/Park West Redevelopment Area (the "Program") Fifty Thousand and No/100 Dollars ($50,000.00) per year for ten (10) years to the Program with the first payment to commence on the date the CRA conveys title to the Property to the Developer and each anniversary thereof. The County shall act as the fiduciary for holding and disbursing funds contributed to the Program. b. In the event Developer fails to make the payment to the Program within ten (10) days of when due, the Developer shall pay to the County a late fee equal to five percent (5%) of the payment then due. c. In the event Developer fails to make any payment to the Program within thirty (30) clays of when due such payment to the Program shall bear interest at 12% per annum from the date due until paid. 10. Conflict. In the event of a conflict between the terms and provisions of this Amendment and the terms and provisions of the Declaration, the provisions of this Amendment shall control. 11. Ratification. Except as herein modified, the CRA and the County ratify and reaffirm all terms and provisions of the Declaration as modified by this Amendment. [SIGNATURE PAGES TO FOLLOW] 11 IN WITNESS WHEREOF, the County and the CRA have executed this Amendment as of the date first above written. Witnesses: CRA: Southeast OvertownlPark West Community Redevelopment Agency, a public agency and body corporate created Printed Name: pursuant to Section 163.358, Florida Statutes Printed Name: By: Clarence E. Woods, III Executive Director ATTEST: Clerk of the Board By: Approved for legal sufficiency By: William R. Bloom, Esq. Holland & Knight LLP Special Counsel COUNTY: MIAMI-DADE COUNTY, a political Printed Name: subdivision of the State of Florida Printed Name: Pursuant to County Resolution No. 12 By: ATTEST: Harvey Ruvin, Clerk By: Deputy Clerk Approved for legal sufficiency County Attorney STATE OF FLORIDA ) SS. COUNTY OF MIAMI-DADE By: The foregoing instrument was acknowledged before me this day of , 2014, by Clarence E. Woods, III, Executive Director of the Southeast Overtown/Park West Community Redevelopment Agency, on behalf of the Agency. He is personally known to me or has produced as identification. (SEAL) Notary Public - State of Commission Number: 13 Exhibit "C" PHASE IV LEGAL DESCRIPTION Lots 1, 2, 3, 6, 7, 8, 9, 10, 11, 14, 15, 16, 17, 18, 19, 22, 23, 24, 25, 26, 27, 30, 31, 32, 33, 34, 35, 38, 39, 40, 41, 42, 43, 46, 47 and 48 in Block 36 of P. W. WHITE'S RE - SUBDIVISION, according to the plat thereof as recorded in Plat Book "B", Page 34, of the Public Records of Miami - Dade County, Florida; LESS that portion thereof lying within the Metropolitan Dade County Metrorail right-of- way which is described as follows: Begin at the Southeast corner of said Block 36; thence run South 87° 46' 59" West, along the South line of said Block 36, for a distance of 1,53 feet; thence run North 04° 44' 53" West for a distance of 187.90 feet to a point of intersection with the arc of a circular curve concave to th'e Southwest, the center of which bears South 82° 00' 08" West from said point of intersection; thence run Northwesterly along the arc of said circular curve concave to the Southwest, having a radius of 987.00 feet, through a central angle of 06° 39' 50", for an arc distance of 114.79 feet to the point of intersection with the North line of said Block 36; thence run North 87° 46' 14" East, along the North line of said Block 36, for a distance of 27.71 feet to the Northeast corner of said Block 36; thence run South 02° 16' 19" East, along the East line of said Block 36, for a distance of 301.01 feet to the Point of Beginning. AND LESS AND EXCEPT: The West 40 feet of Lots 11, 14, 19, 22, 27, 30, 35, 38, 43 and 46 of Block 36 of P. W. WHITE'S RESUBDIVISION, recorded in Plat Book "B", Page 34, of the Public Records of Miami - Dade County, Florida. AND TOGETHER WITH: All right, title and interest, if any, of the CRA in the East 5 feet of the 10 foot alley adjacent to Lots 3 and 6 of Block 36 of P. W, WHITE'S RESUBDIVISION, recorded in Plat Book "B", Page 34, of the Public Records of Miami - Dade County, Florida. AND TOGETHER WITH: All right, title and interest, if any of the CRA in a portion of N.W. 1st Court (being indicated as an un-named right of way 40 feet in width) in Block 36, as shown on the Plat of P. W. WHITE'S RE -SUBDIVISION OF BLOCKS NO. 16-26 AND 36 NORTH OF THE CITY OF MIAMI, according to the plat thereof as recorded in Plat Book "B", Page 34, of the Public Records of Miami -Dade County, Florida. AND TOGETHER WITH 14 All right, title and interest of the CRA in the ten (10) foot alley lying easterly of the aforementioned "unnamed right of way" and adjacent to Lots 1, 2, 7, 8, 9, 10, 15, 16, 17, 18, 23, 24, 25, 26, 31, 32, 33, 34, 39, 40, 41, 42, 47 and 48, Block 36 of P.W. WHITE'S RE -SUBDIVISION, recorded in Plat Book "B" at Page 34 of the Public Records of Miami- Dade County, Florida. NOTE: The foregoing property is also described as Tract "D" of Lyric Subdivision on the tentative plat being processed with the City of Miami when the various roads and alleyways have been vacated and roadways dedicated for NW 9th Street and NW 8th Street. 15 Exhibit "D" DESCRIPTION OF PHASE IV PLANS 16 4250017582 v6