HomeMy WebLinkAboutCRA-R-15-0018 ExhibitFOURTH AMENDMENT
THIS FOURTH AMENDMENT is made as of the _ day May, 2015 by and between
OVERTOWN GATEWAY PARTNERS, LLC, a Florida limited liability company
("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 Developer and the CRA entered into that certain Block 45 Development
Agreement dated as of January 29, 2014, as amended by Amendment dated as of April 25, 2014,
and as amended by Second Amendment dated as of May 30, 2014, and as amended by Third
Amendment dated July 15, 2014 (collectively the "Agreement").
B. The Developer and the CRA desire to modify and amend certain terms and
provisions of the 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 Fourth Amendment are true and correct and hereby
are incorporated by reference and made a part hereof.
2. Defined Terms. All defined terms utilized in this Fourth Amendment but not
defined in this Fourth Amendment shall have the meanings ascribed to said terms in the
Agreement.
3. Description of the Project. Section 8.1(i) is hereby amended to read as follows:
"(i) not less than 270 residential apartment units (the "Residential Units");"
4. Schematic Documents. Section 8.1 is hereby amended to provide that on or
before a reasonable time after the date of this Fourth Amendment but in no event later than one
hundred twenty (120) days after the Second Declaration Amendment, as hereinafter defined, is
executed by the CRA and the County, Developer shall submit to the Executive Director for its
review and approval the Schematic Documents.
5. Commencement of Construction Deadline. In the event the Second Declaration
Amendment is executed by the CRA and the County, the Commencement of Construction
Deadline shall automatically be extended from May 15, 2016 to November 15, 2016, time being
of the essence.
6. Completion Date. In the event the CRA and the County execute the Second
Declaration Amendment, the Agreement shall be deemed automatically amended to extend the
Completion Date from May 15, 2018 to November 15, 2018.
7. Participation Reports. The Developer and the CRA agree that the Participation
Reports shall be in the form of Exhibit "A" attached hereto and made a part hereof.
8. Declaration Amendment. The Developer acknowledges that the Developer
approved the Declaration Amendment which was recorded September 30, 2014 in Official
Records Book 29330, at Page 2018 of the Public Records of Miami -Dade County, Florida.
9. Housing Restrictive Covenant. The Developer and the CRA agree that the
Housing Restrictive Covenant shall be in the form of Exhibit "B" attached hereto and made a
part hereof.
10. Restrictive Covenant, The Developer and the CRA agree that the Restrictive
Covenant shall be in the form of Exhibit "C" attached hereto and made a part hereof.
11. CRA Grant Agreement. The Developer and the CRA agree that the CRA Grant
Agreement shall be in the form of Exhibit "D" attached hereto and made a part hereof.
12. Closing Date. The first sentence of Section 13.1 of the Agreement is hereby
amended to read as follows:
"The closing of the transaction contemplated by this Agreement (the "Closing Date")
shall occur on the earlier of (a) ten (10) days after all of the CRA Conditions Precedent to
closing have been either satisfied or waived by the CRA, or (b) thirty (30) days prior to
the Commencement of Construction Deadline, time being of the essence.
13. Parking. Section 14.1.3 of the Agreement is hereby amended and restated to read
as follows:
"14.1.3 Offsite Community Parking. If Developer and the CRA mutually agree in
writing pursuant to a binding agreement (the "Alternative Parking Agreement") on a
permanent location other than the Property for providing parking access to benefit the
Longshoremen's Union as required by Sections 14.1.1 and 14.1.2 of this Agreement, then
(a) compliance with the Longshoremen's Parking Plan at the Property and the provisions
of the Restrictive Covenant regarding the Longshoremen's Parking Plan at the Property
shall no longer be required and the Developer shall be released from such obligations
under the Restrictive Covenant by the CRA in a recordable document, and (b) the CRA
shall take reasonable efforts to cooperate with Developer in seeking to obtain approval
from the County to the release from the Declaration the requirement for inclusion of 150
parking spaces in excess of applicable zoning codes on the Property (the "Additional
Parking Spaces"), provided that such change is otherwise approved as a separate
modification to the Declaration. If the Alternative Parking Agreement is executed prior
to Completion, the CRA shall be released from its obligation to make the Grant."
14. Failure to Complete the Project. Section 8.7.4 is hereby amended and restated to
read as follows:
"If the Developer has not achieved Completion prior to twelve (12) months after the
Completion Date, as same may be extended as provided in this Agreement (the "Outside
Date"), then. 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 from the Outside
Date until Completion."
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15. Roadway. The CRA and the Developer acknowledge and agree that the
provisions of Sections 8.8.5, 8.8.6 and 8.8.7 of the Agreement are superseded by the provisions
of Section 4 of the Restrictive Covenant which is attached hereto as Exhibit C and in the event of
a conflict between the terms and provisions of Section 4 of the Restrictive Covenant and the
terms and provisions of Sections 8.8.5, 8.8.6 and 8.8.7 of the Agreement, the terms of Section 4
of the Restrictive Covenant shall control.
16. Default. Section 19.1.2 is hereby amended and restated to read as follows:
"If the CRA Conditions Precedent have not been satisfied, deemed satisfied or waived on
or before thirty (30) days prior to the Commencement of Construction Deadline,
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 (or the
CRA shall be entitled to draw down the letter of credit, as appropriate) as liquidated
damages and the parties will be relieved from any further obligations under this
Agreement except for the obligations that expressly survive termination."
17. Residential Restrictions. Section 11.1(f) of the Agreement is hereby amended and
restated to read as follows:
"(f) The Residential Component shall consist of one bedroom units, two bedroom units
and three bedroom units, if three bedroom units are included in the Project. The mix of
one, two and three bedroom units shall be determined by the Developer based upon
market conditions."
18. Notice. Section 22 of the Agreement is hereby amended and restated to read as
follows:
"22. NOTICES. Any notices required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been given if delivered by hand, sent by recognized
overnight courier (such as Federal Express), or mailed by certified or registered mail, return
receipt requested, in a postage prepaid envelope, and addressed as follows:
If to Developer:
Overtown Gateway Partners, LLC
c/o The Peebles Corporation
Attention: General Counsel — Block 45
2020 Ponce de Leon Blvd., Suite 907
Coral Gables, FL 33134
With a copy to:
Lydecker Diaz LLP
Attention: Stephen H. Johnson, Esq.
Re: BACH RE --- Overtown Gateway
1221 Brickell Avenue, 19111 Floor
Miami, FL 33131
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If to CRA:
SOUTHEAST OVERTOWN / PARK WEST
COMMUNITY REDEVELOPMENT AGENCY
Attention: Clarence E. Woods, III., Executive Director
819 NW 2nd Avenue, Third Floor
Miami, FL 33136
Fax: 305-679-6836
With a copy to:
William R. Bloom, Esq.
Holland & Knight, LLP
Suite 3300
701 Brickell Avenue
Miami, FL 33131
And with a copy to:
Staff Counsel
Southeast Overtown/Park West
Cornrnunity Redevelopment Agency
819 NW 2nd Avenue, Third Floor
Miami, FL 33136
Notices personally delivered shall be deemed given on the date of delivery and notices
mailed in accordance with the foregoing shall be deemed given upon receipt or the date
delivery is refused."
19. Zoning Agreement. Section 28 of the Agreement is hereby amended and restated
to read as follows:
"28.1 Developer desires for the CRA to transfer 50,000 square feet of development
rights from Block 56 to Block 45. The Developer and the CRA acknowledge and agree that
under Miami 21 in effect as of the date hereof the CRA can only transfer development rights
from Block 56 to Block 45 utilizing a declaration of restrictive covenant in lieu of unity of title
and such other documents the City may require which would cause Block 45 and Block 56 to be
treated as one parcel for zoning purposes. Developer has requested that the CRA not proceed
with the transfer of the 50,000 square feet of development rights if a declaration of restriction in
lieu of unity of title and other agreements are required by the City. If the applicable law changes
prior to the conveyance of Block 56 to the Block 56 Developer to allow the transfer of
development rights from Block 56 to Block 45 without requiring the declaration of restrictions in
lieu of unity of title and other agreements other than documentation reducing the development
rights with respect to Block 56 and increasing the development rights for Block 45, the CRA
shall execute the required documentation to transfer from Block 56 to Block 45 the lesser of: (a)
50,000 square feet of development rights; or (b) the (i) the development rights uniquely available
for use on Block 56 pursuant to the applicable zoning regulations in effect at the time of the
transfer less (ii) the development rights required to permit the Block 56 Developer to develop its
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project on Block 56 in accordance with the design development documents approved by the
Executive Director, and such documents that .the City may require to evidence such transfer in
accordance with applicable laws, shall constitute Permitted Exceptions. Developer shall pay any
costs associated with such transfer charged by the City.
28.2 If the zoning category under which the project will be developed on Block 56
allows for the transfer of development rights without undue burden on the project to be
developed on Block 56 or the placement of restrictions against Block 56 other than the
documents required by the City to reflect the transfer of the development rights as contemplated
by Section 28.1 then in such event, Block 56 Developer shall determine if there are available
development rights to transfer to the CRA within thirty (30) days of the CRA's approval of the
Block 56 Developer's design development documents or such earlier time as the Block 56
Developer has notified the CRA of the available additional development rights, whichever
occurs first. The determination of development rights available for purchase shall be calculated
as (i) the development rights uniquely available for use on Block 56 per zoning regulations then
applicable to Block 56 minus (ii) the development rights to be utilized for the development of the
project on Block 56 defined by the Block 56 Developer's design development documents that are
approved by the CRA. The Developer shall be entitled to determine how much of the available
development rights are to be purchased. In such event the CRA shall be entitled to transfer the
applicable square footage of available development rights to Block 45 for a purchase price (the
"Development Rights Purchase Price") of the then current rates charged by the City for public
benefit bonus density within the immediate vicinity of the Property for the amount of
development rights to be transferred. The CRA shall charge the Developer the Development
Rights Purchase Price at the closing and promptly remit said amount to Block 56 Developer."
20. Acknowledgement. With respect to Section 28.2 of the Development
Agreement, the CRA has advised Developer that the Block 56 Developer has determined that
there are no available development rights to transfer to the CRA based upon the Block 56
Developer's design development documents which were approved by the CRA.
21. Labor Participation. Section 10.2.2 of the Agreement is hereby amended and
restated to read as follows:
"10.2.2 Laborer Participation. Developer shall require its general contractor and
all subcontractors to hire forty percent (40%) of the labor for the construction of the
Project ("Laborer Participation Requirement") with the following hiring priority:
a. first, to City residents living within the Redevelopment Area;
b. second, to City residents living within the boundaries of the
Overtown community;
c. third, to City residents within zip codes 33127, 33128, 33130,
33136, 33142, 33125, 33135, 33150 and the West Coconut Grove (the "CRA Targeted Zip
Codes") which include the five (5) highest poverty rated zip codes located in the City;
Codes;
d. fourth, to City residents residing outside the CRA Targeted Zip
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e. fifth, to County residents of zip codes 33010, 33030, 33034,
33054, and 33161 (the "County Targeted Zip Codes") which are the five (5) highest poverty
rated zip codes located in the County; and
f. sixth, to residents in the County residing outside of the County
Targeted Zip Codes.
22. Ratification. Except as modified by this Fourth Amendment, Developer and the
CRA ratify and reaffirm all the terms and provisions of the Agreement.
23. Conflict. In the event of conflict between the terms and provisions of this Fourth
Amendment and the terms and provisions of the Agreement, the terns and provisions of this
Fourth Amendment shall control.
24. Counterparts. This Fourth Amendment may be executed in counterparts by the
parties hereto and each shall be considered an original as far as the parties are concerned but
together such counterparts shall comprise of only one amendment. Executed counterparts
transmitted by email shall be deemed binding on the parties.
(Signatures follow on next page)
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IN WITNESS HEREOF, the parties have executed this Fourth Amendment as of the date
and year first above written.
DEVELOPER:
OVERTOWN GATEWAY PARTNERS, LLC
a Florida limited liability company
By:
Name: Barron Channer
Title: Managing Member
By:
Name: R. Donahue Peebles
Title: Managing Member
CRA:
SOUTHEAST OVERTOWN / PARK WEST
COMMUNITY REDEVELOPMENT AGENCY
By:
Clarence E. Woods, III., Executive Director
Approved for legal sufficiency
By:
William R. Bloom, Esq.
Holland & Knight LLP,
Special Counsel to CRA
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Exhibit "A"
Fa of Participation Reports
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UNSKILLED LABORER MONITORING CERTIFICATE
The undersigned hereby certifies to the SOUTHEAST OVERTOWN/PARK WEST
COMMUNITY REDEVELOPMENT AGENCY, a public agency and body corporate created
pursuant to Section 163.356, Florida Statutes (the "CRA"), that in accordance with Section 10.3
of the Block 45 Development Agreement dated as of January 29, 2013, as amended (the
"Agreement") by and among the CRA, Overtown Gateway Partners, LLC, a Florida limited
liability company, (the "Developer") that during the month of , the following is
true and correct report reflecting the laborers (the "Laborers") employed at the Project, as defined
in the Agreement:
CUMMULATIVE TOTALS FOR LABORERS EMPLOYED AT THE PROJECT FOR
THE MONTH OF
Total Laborers employed
Number of Laborers employed who resided
in the Redevelopment Area, as defined in
the Agreement
Number of Laborers employed who reside
in Overtown (excluding those who reside
in the Redevelopment Area)
Number of Laborers employed who resided
in the CRA Targeted Zip Codes not
included above
Number of Laborers employed who resided
in the City of Miami outside the CRA
Targeted Zip Codes not included above
Nurnber of Laborers employed who resided
in the Miami -Dade County Targeted Zip
Codes not included above
Percentage of Laborers who reside in
Miami -Dade County
SEE EXHIBIT "A" FOR DETAIL BREAKDOWN
CUMMULATIVE TOTALS OF LABORERS EMPLOYED AT THE PROJECT
SINCE COMMENCEMENT OF CONSTRUCTION:
Total Laborers employed
Number of Laborers employed who resided
in the Redevelopment Area, as defined in
the Agreement
Number of Laborers employed who reside
in Overtown (excluding those who reside
in the Redevelopment Area
Number of Laborers employed who resided
in CRA Targeted Zip Codes
Number of Laborers employed who resided
in the City of Miami outside the CRA
Targeted Zip Codes not included above
Number of Laborers employed who resided
in Miami -Dade County Targeted. Zip
Codes not included above
Percentage of Laborers who reside in
Miami -Dade County
2
CUMMULATIVE PERCENTAGE OF LABORERS EMPLOYED AT THE PROJECT
SINCE COMMENCEMENT OF CONSTRUCTION
Percentage of Laborers involved in the construction of
Project who reside in the Redevelopment Area
Percentage of Laborers employed who reside in
Overtown (excluding those who reside in the
Redevelopment Area)
Percentage of Laborers involved in the construction of
the Project who reside in CRA Targeted Zip Codes.
Percentage of Laborers involved in the construction of
Project who reside outside CRA Targeted Zip Codes and
included above.
Percentage of Laborers involved in the construction of
the Project who reside in Miami -Dade County Targeted
Zip Codes and included above.
Total Percentage of Laborers involved in the construction
Project who reside in Miami -Dade County
Developer acknowledges that the CRA is relying on this Certificate to confirm compliance with
the requirements of Section 10.2 of the Agreement.
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
)ss.
)
OVERTOWN GATEWAY PARTNERS
LLC, a Florida limited liability company
By:
Name:
Title:
The foregoing instrument was acknowledged before me this day of , 201, by
as of OVERTOWN GATEWAY PARTNERS LLC, a Florida
limited liability company, on behalf of the limited liability company, who is personally known to
me or has produced as identification.
Notary Public, State of:
Commission No.:
My Commission Expires:
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Exhibit "A"
General Contractor Reports and Subcontractor Reports
on Laborers for the Month of
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General Contractor Name:
Total Laborers employed during the month
of
Number of Laborers employed who resided
in the Redevelopment Area, as defined in
the Agreement
Number of Laborers employed who reside
in Overtown (excluding those who reside
in the Redevelopment Area)
Number of Laborers employed who resided
in CRA Targeted Zip Codes not included
above
Number of Laborers employed who resided
in the City of Miami outside the CRA
Targeted Zip Codes not included above
Number of Laborers employed who resided
in Miami -Dade County Targeted Zip
Codes not included above
Percentage of Laborers employed who
reside in Miami -Dade County
5
Subcontractor Name:
Total Laborers employed during the month
of
Number of Laborers employed who resided
in the Redevelopment Area, as defined in the
Agreement
Number of Laborers who reside in Overtown
(excluding those who reside in the
Redevelopment Area)
Number of Laborers employed who resided
in CRA Targeted Zip Codes not included
above
Number of Laborers employed who resided
in the City of Miami outside CRA Targeted
Zip Codes not included above
Number of Laborers employed who resided
in Miami -Dade County Targeted Zip Codes
not included above
Percentage of Laborers who reside in Miami -
Dade County
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Subcontractor Name:
Total Laborers employed during the month
of
Number of Laborers employed who resided
in the Redevelopment Area, as defined in the
Agreement
Number of Laborers who reside in Overtown
(excluding those who reside in the
Redevelopment Area)
Number of Laborers employed who resided
in CRA Targeted Zip Codes not included
above
Number of Laborers employed who resided
in the City of Miami outside CRA Targeted
Zip Codes not included above
Number of Laborers employed who resided
in Miami -Dade County Targeted Zip Codes
not included above
Percentage of Laborers who reside in Miami -
Dade County
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Subcontractor Name:
Total Laborers employed during the month
of
Number of Laborers employed who resided
in the Redevelopment Area, as defined in the
Agreement
Number of Laborers who reside in Overtown
(excluding those who reside in the
Redevelopment Area)
Number of Laborers employed who resided
in CRA Targeted Zip Codes not included
above
Number of Laborers employed who resided
in the City of Miami outside CRA Targeted
Zip Codes not included above
Number of Laborers employed who resided
in Miami -Dade County Targeted Zip Codes
not included above
Percentage of Laborers who reside in Miami -
Dade County
Subcontractor Name:
Total Laborers employed during the month
of
Number of Laborers employed who resided
in the Redevelopment Area, as defined in the
Agreement
Number of Laborers who reside in Overtown
(excluding those who reside in the
Redevelopment Area)
Number of Laborers employed who resided
in CRA Targeted Zip Codes not included
above
Number of Laborers employed who resided
in the City of Miami outside CRA Targeted
Zip Codes not included above
Number of Laborers employed who resided
in Miami -Dade County Targeted Zip Codes
not included above
Percentage of Laborers who reside in Miami -
Dade County
[CONTINUE FOR EACH SUBCONTRACTOR EMPLOYED BY THE GENERAL
CONTRACTOR]
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#30402056_v2
Exhibit `B"
Housing Restrictive Covenant
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This document prepared by
and return to:
William R. Bloom, Esq.
Holland & Knight, LLP
701 Brickell Avenue
Suite 3300
Miami, FL 33131
HOUSING RESTRICTIVE COVENANT AGREEMENT
THIS HOUSING RESTRICTIVE COVENANT AGREEMENT (this "Agreement")
is made and entered into as of [ ], 201 , by and between SOUTHEAST
OVERTOWN/PARK WEST COMMUNITY REDEVELOPMENT AGENCY, a public body
corporate and politic created pursuant to the laws of the State of Florida (the "CRA"); and
OVERTOWN GATEWAY PARTNERS, LLC, a Florida limited liability company (the
"Owner").
RECITALS
A. Owner and the CRA entered into the certain Block 45 Development Agreement
dated January 29, 2014, as amended (the "Development Agreement") with respect to the
development of the certain real property located in the City of Miami, which is more particularly
described on Exhibit "A" attached hereto and made a part hereof (the "Land").
B. The project (the "Entire Project") to be developed on the Land is to consist of
approximately residential apartment units (the "Residential Units"); a hotel
containing approximately separate hotel rooms (the "Hotel"); and approximately
square feet of office space (the "Office Space"). [TO BE UPDATED TO
REFLECT APPROVED PROJECT]
C. Of the Residential Units, the sixty (60) residential units designated on
Exhibit "B" attached hereto and made a part hereof ("Project") shall be subject to the terms and
provisions of this Agreement. The balance of the Entire Project, including the Residential Units
other than the sixty (60) residential units included in the Project is specifically not subject to the
tetnis of this Agreement.
NOW THEREFORE, in consideration of $10.00 and other good and valuable
consideration Owner covenants and agrees with the CRA as follows:
1. Recitals. The Recitals to this Agreement are true and correct and incorporated
herein by reference.
2. Definitions and Interpretation.
2.1 The following tenns shall have the respective meanings set forth below:
"Applicable Income Limit" means (i) with respect to Lower -Income Tenants, the
applicable income limit set forth in the definition of "Lower -Income Tenants" herein, (ii) with
respect to Modest -Income Tenants, the applicable income limit set forth in the definition of
"Modest -Income Tenants" herein; (iii) with respect to Moderate-Incoine Tenants, the applicable
income limit set forth in the definition of "Moderate -Income Tenants" herein; and (iv) with
respect to Eligible Persons, the applicable income limit set forth in the definition of "Eligible
Persons" herein.
"Available Units" means residential units in the Project that are actually occupied and
residential units in the Project that are unoccupied and have been leased at least once after
becoming available for occupancy, provided that a residential unit that is not available for
occupancy due to renovations is not an available unit and does not become an available unit until
it has been leased for the first time after the renovations are completed.
"Certificate of Continuing Program Compliance" means the certificate required to be
delivered by the Owner to the CRA pursuant to Section 5.4 of this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended. Any reference to a Code
section shall include any successor provision; provided that if the Internal Revenue Code is
amended to eliminate corresponding provisions in connection with low income housing tax
credits then reference shall be to such provision of the Code immediately prior to such
amendment.
"County" means Miami -Dade County, Florida, a political subdivision of the State of
Florida.
"Eligible Person" means a person(s) or family (i) whose total adjusted gross income, as
set forth in Section 3 of the Income Certification, does not exceed 140% of the then current
median family income for Miami -Dade County, Florida, as published annually by HUD.
"HUD" means the United States Department of Housing and Urban Development or any
successor agency.
"Income Certification" means the certificate required to be obtained by the Owner from
each tenant pursuant to Section 5.1 of this Agreement.
"Land" has the meaning ascribed to that teen in the Recitals.
"Lower -Income Tenants" means one or more natural persons or a family, whose income
does not exceed thirty percent (30%) of the then current median family income for the County as
published by HUD, including adjustments for family size.
"Manager" means the Owner or any agent hired by or on behalf of the Owner to operate
and manage the Project.
"Moderate -Income Tenants" means one or more natural persons or a family, whose
income is more than eighty percent (80%) but not greater than one hundred forty percent (140%)
of the then current median family income for the County, as published by HUD, including
adjustments for family size.
"Modest -Income Tenants" means one or more natural persons or a family, whose
income is more than thirty percent (30%) but not greater than eighty percent (80%) of the then
current median family income for the County, as published by HUD, including adjustments for
family size.
"Project" has the meaning ascribed to said term in the Recital.
"Qualified Project Period" means a period beginning on the first day on which
temporary certificate(s) of occupancy (or its equivalent) have been issued for all sixty (60)
residential units comprising the Project and ending on the date which is thirty (30) years
thereafter. The Owner is authorized to use Exhibit "C" attached hereto to evidence the
foregoing.
"State" means the State of Florida.
2.2 Unless the context clearly requires otherwise, as used in this Agreement, words of
the masculine, feminine or neuter gender shall be construed to include any other gender when
appropriate and words of the singular number shall be construed to include the plural number,
and vice versa, when appropriate. This Agreement and all the terms and provisions hereof shall
be construed to effectuate the purposes set forth herein and to sustain the validity hereof.
2.3 The titles and headings of the sections of this Agreement have been inserted for
convenience of reference only, and are not to be considered a part hereof and shall not in any
way modify or restrict any of the terns or provisions hereof or be considered or given any effect
in construing this Agreement or any provisions hereof or in ascertaining intent, if any question of
intent shall arise.
3. Residential Rental Property The Owner hereby represents, covenants, warrants
and agrees that, during the term of this Agreement:
3.1 The Owner will construct, own and operate the Project for the purpose of
providing a multifamily residential rental project, and the Project shall be continually managed
and operated as a multifamily residential rental property during the Qualified Project Period.
3.2 Each residential unit in the Project shall be contained in one or more buildings or
structures located on the Land and shall be similarly designed, appointed and constructed (except
as to unit dimensions, number of bedrooms and bathrooms), each of which will contain complete
facilities for living, sleeping, eating, cooking and sanitation for an individual or a family,
including a living area, a sleeping area, bathing and sanitation facilities and cooking facilities
equipped with a cooking range, refrigerator and sink, all of which are separate and distinct from
the other units.
3.3 None of the units in the Project will at any time be (1) utilized on a transient basis,
(2) used as a hotel, motel, dormitory, fraternity or sorority house, rooming house, nursing home,
hospital, sanitarium, rest home, trailer court or park, or (3) rented for initial lease periods of less
than six months. No part of the Project will, at any time during the Qualified Project Period, be
owned or used by a cooperative housing corporation. The Project may be included as part of a
condominium (provided the entire Project is to be owned by Owner or its permitted assigns in
accordance with Section 10).
3.4 All of the units in the Project will be rented or available for rent on a continuous
basis to members of the general public, and the Owner will not give preference to any particular
class or group of persons in renting the units in the Project, except to the extent that units are
required to be leased or rented to Lower -Income Tenants, Modest -Income Tenants and
Moderate -Income Tenants. Lower -Income Tenants, Modest -Income Tenants and Moderate -
Income Tenants will have equal access to and enjoyment of all common facilities of the Project.
The Owner will not discriminate against children of any age when renting the units in the
Project.
3.5 The Owner shall not (i) demolish any part of the Project necessary for the
operation thereof for its intended purposes or substantially subtract from any real or personal
property of the Project; or (ii) permit the use of the dwelling accommodations of the Project for
any purpose except rental residences in compliance with this Agreement. Nothing herein shall
limit Owner from undertaking repairs necessary for making residential units in the Project
available for occupancy.
3.6 The Owner shall maintain "all risk" property insurance on the Project at 100% of
replacement cost, with deductible amounts which are commercially reasonably, consistent with
other similar properties.
4. Lower -Income Tenants, Modest -Income Tenants and Moderate -Income
Tenants. The Owner hereby represents, warrants and covenants as follows:
4.1 At all times during the taw of this Agreement, one hundred percent (100%) of
the Available Units shall be occupied by Lower -Income Tenants, Modest -Income Tenants and
Moderate -Income Tenants. The Available Units occupied or held for occupancy by Lower -
Income Tenants shall be generally distributed throughout the Project and shall consist of
approximately ten percent (10%) of the total residential units in the Project. The Available Units
occupied or held for occupancy by Modest -Income Tenants shall be generally distributed
throughout the Project and shall consist of approximately seventy percent (70%) of the total
residential units in the Project. The Available Units occupied or held for occupancy by
Moderate -Income Tenants shall be generally distributed throughout the Project and shall consist
of approximately twenty percent (20%) of the total residential units in the Project.
4.2 Intentionally Deleted.
4.3 For purposes of Section 4.1 and Section 3.4, a unit occupied by an individual or
family who at the commencement of the occupancy of such unit is a Lower -Income Tenant shall
be counted as occupied by a Lower -Income Tenant during such individual's or family's tenancy
in such unit, even though such individual or family ceases to be a Lower -Income Tenant;
however, such unit shall cease to be counted as occupied by a Lower -Income Tenant (but shall
continue to be counted as occupied by an Moderate -Income Tenant) upon a determination that
the tenant's most recently reported income exceeds 140% of the Applicable Income Limit for a
Lower -Income Tenant. In addition, a vacant unit that was occupied by a Lower -Income Tenant
shall not be counted as occupied by a Lower -Income Tenant until it is leased and reoccupied, at
which time the unit shall be considered to be occupied by a Lower -Income Tenant only if the
individual or family then occupying the unit satisfies the definition of a Lower -Income Tenant.
Nothing contained in this Section 4.3 shall be deemed or construed to require Owner to make
available more than ten percent (10%) of the units comprising the Project to Lower -Income
Tenants.
4.4 For the purpose of Section 4.1 and Section 3.4, a unit occupied by an individual or
family who, at the commencement date of the occupancy of such unit, is a Modest -Income
Tenant, shall be counted as occupied by a Modest -Income Tenant during such individual's or
fan -lily's tenancy in such unit, even though such individual or family ceases to be a Modest -
Income Tenant; however, such unit shall cease to be counted as occupied by a Modest -Income
Tenant (but shall continue to be counted as occupied by an Moderate -Income Tenant) upon the
determination that the tenant's most recent reported income exceeds 140% of the Applicable
Income Limit for a Modest -Income Tenant. In addition, the vacant unit that was occupied by a
Modest -Income Tenant shall not be counted as occupied by a Modest -Income Tenant until it is
leased and reoccupied, at which time the unit shall be considered to be occupied by a Modest -
Income Tenant, only if the individual or family then occupying the unit satisfies the definition of
a Modest -Income Tenant. Nothing contained in this Section 4.4 shall be deemed or construed to
require the Owner to make available more than seventy percent (70%) of the units comprising
the Project to Modest -Income Tenants.
4.5 For purposes of Section 4.1 and Section 3.4, a unit occupied by an individual or
family who, at the commencement of the occupancy of such unit, is a Moderate -Income Tenant
shall be counted as occupied by an Moderate -Income Tenant during such individual's or family's
tenancy in such unit, even though such individual or family ceases to be a Moderate -Income
Tenant. In addition, a vacant unit that was occupied by an Moderate -Income Tenant shall not be
counted as occupied by an Moderate -Income Tenant until it is leased and reoccupied, at which
time the unit shall be considered to be occupied by a Moderate -Income Tenant only if the
individual or family then occupying the unit satisfies the definition of Moderate -Income Tenant.
Nothing contained in this Section 4.5 shall be deemed or construed to require the Owner to make
available more than twenty percent (20%) of the units comprising the Project to Moderate -
Income Tenants.
5. Reporting Requirements. During the term of this Agreement:
5.1 Income Certifications in the form attached hereto as Exhibit "D" shall be
obtained from each occupant (i) no less than five days prior to the time of initial occupancy of
such unit by such occupant, and (ii) no less frequently than once each calendar year thereafter.
5.2 The Owner shall file with the CRA, on or before the tenth day of each month (and
if the tenth of the month falls on a weekend or holiday, submission must be made the first
business day after), copies of the Income Certifications specified in Section 5.1 hereof obtained
by the Owner during the previous month.
5.3 The Owner shall maintain complete and accurate records pertaining to the
incomes of (as of the date of initial occupancy of each tenant and annually thereafter) and rentals
charged to Lower -Income Tenants, Modest -Income Tenants and Moderate -Income Tenants
residing in the Project, and shall permit during normal business hours and upon five business
days' notice to the Owner, any duly authorized representative of the CRA to inspect the books
and records of the Owner pertaining to the incomes of and rentals charged to all tenants residing
in the Project. Such inspection shall occur at the Entire Project or another location in the
County.
5.4 The Owner shall prepare and submit to the CRA at the beginning of the Qualified
Project Period, and on or before the tenth day of each month (and if the tenth of the month falls
on a weekend or holiday, submission must be made the next business day after) thereafter, rent
rolls for the Project and a Certificate of Continuing Program Compliance in the form attached
hereto as Exhibit "E", executed by the Owner. If any such report indicates that the vacancy rate
at the Project is 10% or higher, the CRA shall be permitted during normal business hours and
upon five business days' notice to the Owner, to inspect all or some of the vacant units in the
Project to determine to its reasonable satisfaction that such vacant units are ready and available
for rental.
5.5 No later than April 1st of each year during the Qualified Project Period, the Owner
shall submit to the CRA a certification by an independent compliance agency which is selected
by the Owner and reasonably acceptable to the CRA, evidencing compliance or non-compliance
with the provisions of Section 4 of this Agreement during the prior calendar year.
5.6 In the event that the Owner fails to submit to the CRA the items which the Owner
is required to submit under Sections 5.2, 5.4 and 5.5 above on or before the date required, the
Owner shall be liable for the payment to the CRA of a late fee of $100.00 per day until such item
is delivered, which amount shall be payable within ten business days of written notification from
the CRA of the amount of such late fee. The failure of the Owner to timely pay a late fee shall
be an event of default by. the Owner under this Agreement.
5,7 If the certificate prepared by the independent compliance agency in accordance
with Section 5.5 evidences that the Owner has failed to comply with the requirements of
Section 4, then in such event the Owner shall pay to the CRA, as a penalty for non-compliance
with such requirements, the sum of (i) $1,000 for the initial unit which is not in compliance, (ii)
$2,500 for a second unit which is not in compliance, and (iii) $5,000 for each additional unit
which is not in compliance, all determined on an annual basis, based upon such certificate.
Amounts, if any, clue from the Owner in accordance with this Section 5.7 shall be calculated
annually as of each January 1 and paid by the Owner within thirty (30) days of issuance of the
certificate in accordance with Section 5.5. The failure of the Owner to pay the amount due under
this Section 5.7 shall be an event of default by Owner under this Agreement.
6. Indemnification. The Owner hereby covenants and agrees that it shall indemnify
and hold harmless the CRA, the City of Miami, the County and their respective past, present and
future officers, members, governing body members, employees, agents and representatives (any
or all of the foregoing being hereinafter referred to as the "Indemnified Persons") from and
against any and all losses, costs, damages, expenses and liabilities of whatsoever nature or kind
(including but not limited to, reasonable attorneys' fees, litigation and court costs related to trial
and appellate proceedings, amounts paid in settlement and amounts paid to discharge judgments)
directly or indirectly resulting from or arising out of, the design, construction, installation,
operation, use, occupancy, maintenance or ownership of the Project other than for matters arising
from the negligent, illegal or unlawful acts or omissions of the Indemnified Persons. In the event
that any action or proceeding is brought against any Indemnified Persons with respect to which
indemnity may be sought hereunder, the Owner, upon timely written notice from any of the
Indemnified Persons, shall assume the investigation and defense thereof, including the
employment of counsel, reasonably acceptable to such Indemnified Persons, and the payment of
all expenses for such counsel. The Indemnified Persons shall have the right to participate in the
investigation and defense thereof and may employ separate counsel either with the approval and
consent of the Owner at the sole cost of such Indemnified Persons, which consent shall not be
unreasonably withheld, or in the event the Indemnified Persons reasonably determines that a
conflict of interest exists between such Indemnified Persons and the Owner in connection
therewith, in such event the Owner shall pay the reasonable fees and expenses of such separate
counsel retained by Indemnified Persons and may terminate the counsel retained by Owner.
7. Fair Housing Laws. The Owner will comply with all fair applicable housing
laws, rules, regulations or orders applicable to the Project and shall not violate any applicable
laws related to discrimination on the basis of race, creed, color, sex, age or national origin in the
lease, use or occupancy of the Project or in connection with the employment or application for
employment of persons for the operation and management of the Project. All advertising and
promotional material used in connection with the Project shall contain the phrase "Fair Housing
Opportunity."
8. Tenant Lists. All tenants lists, applications, and waiting lists relating to the
Project ("Tenancy Information") shall at all tunes be kept separate and identifiable from any
other business of the Owner which is unrelated to the Project, and shall be maintained, as
required by the CRA from time to tune, in a reasonable condition for proper audit and subject to
examination during business hours by representatives of the CRA. Failure to keep the Tenancy
Information or to make them available to the CRA will be a default hereunder. Owner shall not
be required to maintain Tenancy Information for a period longer than five (5) years after
collection.
9. Tenant Lease Restrictions. All tenant leases with respect to the Project shall
contain clauses, among others, wherein each individual lessee:
9.1 Certifies the accuracy of the statements made in the Income Certification;
9.2 Agrees that the family income, family composition and other eligibility
requirements shall be deemed substantial and material obligations of such lessee's tenancy; that
such lessee will comply promptly with all requests for information with respect thereto from the
Owner or the CRA, and that such lessee's failure to provide accurate information in the Income
Certification or refusal to comply with a request for information with respect thereto shall be
deemed a violation of a substantial obligation of such lessee's tenancy; and
9.3 Agrees not to sublease to any person or family who does not execute, and deliver
to the Owner, an Income Certification.
10. Sale, Lease or Transfer of Project.
10.1 The Owner shall not sell or otherwise transfer the Project in whole or in part
without providing written notice of the proposed transfer to the CRA not less than ten (10) days
prior to the date the transfer is to occur. Prior to completion of the Project, the CRA shall have
approval rights of the proposed transferee, which approval shall not be unreasonably withheld,
conditioned or delayed and which approval shall be given if the proposed transferee has the
experience to complete the construction of the Project. After completion of the Project the CRA
shall not have approval rights with respect to such transfer and after completion of the Project,
Owner may sell or otherwise transfer the Project in whole, but not in part, provided the purchaser
or transferee shall execute an assumption of all of the duties and obligations of the Owner under
this Agreement arising from and after the date of such transfer. It is hereby expressly stipulated
and agreed that any sale, transfer or other disposition of the Project in violation of this Section
shall be null, void and without effect, shall cause a reversion of title to the Owner and shall be
ineffective to relieve the Owner of its obligations under this Agreement. In the event that the
purchaser or transferee shall assume the obligations of the Owner under this Agreement, the
Owner shall be released from its obligations hereunder, other than its obligations under Section 5
hereof arising prior to such date of assumption.
10.2 Notwithstanding anything in this Section 10 to the contrary, the restrictions set
forth above on the sale, transfer or other disposition or encumbrance of the Project or any portion
thereof shall not be applicable to any of the following: (i) leases of apartment units as
contemplated by this Agreement, (ii) grants of utility related easements and service or concession
related leases or easements, including, without limitation, coin -operated laundry service leases
and/or television cable easements on the Project, providing same are granted in connection with
the operation of the Project as contemplated by this Agreement, (iii) any sale or conveyance to a
condemning governmental authority as a direct result of the condemnation or a governmental
taking or a threat thereof, (iv) any transfer pursuant to or in lieu of a foreclosure or any exercise
of remedies (including, without limitation, foreclosure) under any mortgage on the Project;
provided, that the purchaser acquires the Project subject to the terms of this Agreement, (v) any
sale, transfer, assignment, encumbrance of non -managing membership interest or addition of
new non -managing members in the Owner; (vi) the placing of a mortgage lien, assignment of
leases and rents or security interests on or pertaining to the Project if made expressly subject and
subordinate to this Agreement; or (vii) any change in allocations or preferred return of capital,
depreciation or losses or any final adjustment in capital accounts (all of which may be freely
transferred or adjusted by Owner pursuant to Owner's operating agreement); or (viii) any title
encumbrance existing at the time the CRA conveys the Land to the Owner. Any other transfer or
lien granted by the Owner or its transferees shall be and remain subject to the restrictions
contained herein.
11. Covenants to Run with the Land. This Agreement and the covenants, reservations
and restrictions set forth herein shall be deemed covenants running with the land and, during the
term of this Agreement, shall pass to and be binding upon the Owner's assigns and successors
and all subsequent owners of the Project or any interest therein; provided, however, that upon the
termination of this Agreement in accordance with the terms hereof said covenants, reservations
and restrictions shall expire. Each and every contract, deed or other instrument hereafter
executed covering or conveying the Project or any portion thereof or interest therein shall
conclusively be held to have been executed, delivered and accepted subject to such covenants,
reservations and restrictions, regardless of whether such covenants, reservations and restrictions
are set forth in such contract, deed or other instruments. If a portion or portions of the Project is
conveyed, all of such covenants, reservations and restrictions shall run to each portion of the
Proj ect.
12. Term This Agreement shall remain in full force and effect during the Qualified
Project Period.
13. Burden and Benefit. The CRA and the Owner hereby declare their understanding
and intent that the burden of the covenants set forth herein touch and concern the Land and run
with the Land.
14. The CRA and the Owner hereby further declare their understanding and intent
that the benefit of such covenants set forth herein touch and concern the Land by enhancing and
increasing the enjoyment and use of the Project by Lower -Income Tenants, Modest -Income
Tenants and Moderate -Income Tenant, the intended beneficiaries of such covenants, reservations
and restrictions, and by furthering the public purposes contemplated by the Development
Agreement. The Owner hereby expressly acknowledges that this Agreement is necessary to
accomplish the CRA's public purpose and covenants and agrees that in connection with the
construction, ownership and operation of the Project, it shall fully comply with all terns and
conditions of this Agreement.
15. Application of Insurance and Condemnation Proceeds. If, during the Qualified
Project Period, the Project is damaged or destroyed or if all or a portion thereof is taken through
eminent domain proceedings, or under threat thereof, proceeds from insurance on the Project or
any condemnation awards pertaining to such eminent domain proceedings shall be applied solely
to the repair, reconstruction or replacement of the Project except that any excess proceeds
available after. the Project has been restored may be utilized by the Owner for other purposes.
Notwithstanding the foregoing, if during the Qualified Project Period the holder of any mortgage
encumbering the Entire Project requires the insurance proceeds or eminent domain proceeds, as
applicable, to be applied to reduce the outstanding indebtedness and does not make same
available to restore the Project, or any portion thereof, then in such event, Owner shall not be
required to restore the Project so long as no portion of the Residential Units shall be permitted to
be occupied and/or used until such time as the Project is fully restored unless otherwise approved
in writing by the CRA.
16. Remedies; Enforceability. The benefits of this Agreement shall inure to, and may
be enforced by the CRA and its successors and assigns. If a material violation of any of the
provisions hereof occurs or is attempted, the CRA may institute and prosecute any proceeding at
law or in equity to abate, prevent or enjoin any such violation or attempted violation; and to
compel specific performance hereunder, it being recognized that the CRA cannot be adequately
compensated by monetary damages in the event of the Owner's default. In addition to such other
remedies as may be provided for herein, if a violation of any of the provisions hereof occurs or is
attempted, the CRA shall have the right to seek to have a receiver appointed to operate the
Project in compliance with this Agreement. No delay in enforcing the provisions hereof as to
any breach or violation shall impair, damage or waive the right of any party entitled to enforce
the provisions hereof or to obtain relief against or recover for the continuation or repetition of
such breach or violation or any similar breach or violation hereof at any later tine or times.
17. Filing. Upon execution and delivery by the parties hereto, the Owner shall cause
this Agreement and all amendments and supplements hereto to be recorded and filed in the
official public records of Miami -Dade County, Florida, and in such manner and in such other
places as the CRA may reasonably request, and shall pay all fees and charges incurred in
connection therewith. If the Owner has failed to make any such filing, the CRA may cause such
document(s) to be filed.
18. Governing Law. This Agreement shall be governed by the laws of the State of
Florida.
19. Assigmnent. The Owner shall not assign its interest in the Project, except by
writing and in connection with an assignment of the Project in accordance with the provisions of
Section 10 hereof.
20. Amendments. This Agreement shall not be amended, revised, or terminated
except by a written instrument, executed by the parties hereto (or their successors in title), and
duly recorded in the official public records for Miami -Dade County, Florida.
21. Notice. Any notices required or permitted to be given under this Agreement shall
be in writing and shall be deemed to have been given if delivered by hand, sent by recognized
overnight courier (such as Federal Express), or mailed by certified or registered mail, return
receipt requested, in a postage prepaid envelope, and addressed as follows:
If to Developer:
Overtown Gateway Partners, LLC
c/o The Peebles Corporation
Attention: General Counsel -- Block 45
2020 Ponce de Leon Blvd., Suite 907
Coral Gables, FL 33134
And with a copy to:
Lydecker Diaz LLP
Attention: Stephen H. Johnson, Esq.
Re: BACHE RE -- Overtown Gateway
1221 Brickell Avenue, 19th Floor
If to CRA:
Miami, FL 33131
SOUTHEAST OVERTOWN / PARK WEST
COMMUNITY REDEVELOPMENT AGENCY
Attention: Clarence E. Woods, III., Executive Director
819 NW 2nd Avenue, Third Floor
Miami, FL 33136
With a copy to:
William R. Bloom, Esq.
Holland & Knight, LLP
Suite 3000
701 Brickell Avenue
Miami, FL 33131
And with a copy to:
Staff Counsel
Southeast Overtown/Park West
Coininunity Redevelopment Agency
819 NW 2nd Avenue, Third Floor
Miami, FL 33136
Notices personally delivered or sent via overnight courier shall be deemed given on the
date of delivery and notices mailed in accordance with the foregoing shall be deemed given upon
receipt or the date delivery is refused.
22. Severability. If any provision hereof shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining portions hereof shall not in any way be
affected or impaired thereby.
23. Multiple Counterparts. This Agreement may be simultaneously executed in
multiple counterparts, all of which shall constitute one and the same instrument, and each of
which shall be deemed to be an original.
24. No Third Party Beneficiary. The provisions of this Agreement are and will be for
the benefit of Developer and CRA only and are not for the benefit of any third party, and
accordingly, no third party shall have the right to enforce the provisions of this Agreement.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the CRA and the Owner have executed this Agreement by
duly authorized representatives, all as of the date first set forth above.
Witnesses:
Print Name
Print Nanie
Attest:
Clerk of the Board
Approved for Legal Sufficiency
By:
William R. Bloom, Esq.
Holland & Knight, LLP
Special Counsel
SOUTHEAST OVERTOWN/PARK WEST
COMMUNITY REDEVELOPMENT
AGENCY,
a public agency and body corporate created
pursuant to section 163.356, Florida Statutes
By:
Clarence E. Woods, Ill
Executive Director
Witnesses: OVERTOWN GATEWAY PARTNERS,
LLC, a Florida limited liability cornpany
Print Name By:
Print Name
By:
Print Name
Print Name
Barron Channer,
Manager Member
R. Donahue Peebles,
Manager Member
STATE OF FLORIDA
)SS:
COUNTY OF MIAMI-DADE
The foregoing instrument was acknowledged before me this day of
, 201_, 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:
STATE OF FLORIDA
)SS:
COUNTY OF MIAMI-DADE
The foregoing instrument was acknowledged before me this day of
, 201_, by Barron Changer, as Manager Member of the Overtown
Gateway Partners, LLC, a Florida limited liability company, on behalf of the limited liability
company. He is personally known to me or has produced as
identification.
STATE OF FLORIDA
)SS:
COUNTY OF MIAMI-DADE
(SEAL)
Notary Public — State of
Commission Number:
The foregoing instrument was acknowledged before me this day of
, 201 , by R. Donahue Peebles, as Manager Member of the Overtown
Gateway Partners, LLC, a Florida limited liability company, on behalf of the limited liability
company. He is personally known to me or has produced as
identification.
(SEAL)
Notary Public — State of
Commission Number:
EXHIBIT A
LEGAL DESCRIPTION OF REAL ESTATE
Lots 1-12, inclusive, Block 45, 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
Identification of the 60 Residential Units which comprise the Project
[The 60 units shall be evenly disbursed throughout the Residential Units, however, none of the
60 Residential Units which comprise the Project shall be required to be located on the top three
(3) floors of the Project.}
EXHIBIT C
FORM OF CERTIFICATE CONCERNING COMMENCEMENT
AND TERMINATION OF QUALIFIED PROJECT PERIOD
THIS CERTIFICATE is being executed pursuant to the provisions of the Housing
Restrictive Covenant Agreement, dated as of 1, 201_, (the "Agreement), among
Southeast Overtown/Park West Community Redevelopment Agency (the "CRA") and Overtown
Gateway Partners, LLC, a Florida limited liability company_(the "Owner"), in connection with
that certain project located in Miami -Dade County located on real property described on Exhibit
"A" hereto as such project is more particularly defined in the Agreement (the "Project").
The period for which the restrictions set forth in the Agreement are applicable to the
Project is referred to as the "Qualified Project Period" and is defined in the Agreement as
follows:
"Qualified Project Period" means a period beginning on the first day on which the last
temporary certificate(s) of occupancy (or its equivalent) have been issued for all sixty
(60) residential units comprising the Project and ending on the date which is thirty (30)
years thereafter.
To evidence the Qualified Project Period with respect to the Project, the Owner certifies
to the CRA the date on which the last temporary certificate of occupancy (or its equivalent) for
all sixty (60) residential units comprising the Project was obtained on
Therefore, the Qualified Project Period began on and expires on (insert date 30 years
later).
Prior to the recording of this Certificate in the land records of Miami -Dade County,
Florida, the Owner has supplied the CRA with documentation to establish the facts relating to the
Project set forth in this Certificate, which documentation has been found satisfactory to the CRA.
Nothing in this Certificate is intended to modify the requirement of the Agreement that all
residential units in the Project be rented as residential rental property or any other provision of
the Agreement.
IN WITNESS WHEREOF, the Owner has caused this Certificate to be executed by its
duly authorized representative as of this day of , 20_.
Overtown Gateway Partners, LLC,
a Florida limited liability company
By:
By:
Barron Charmer, Manager Member
R. Donahue Peebles, Manager Member
STATE OF FLORIDA
)SS:
COUNTY OF MIAMI-DADE
The foregoing instrument was acknowledged before me this day of
, 201_, by Barron Charmer, as Manager Member of the Overtown
Gateway Partners, LLC, a Florida limited liability company, on behalf of the limited liability
company. He is personally known to me or has produced as
identification.
STATE OF FLORIDA
}SS:
COUNTY OF MIAMI-DADE
(SEAL)
Notary Public — State of
Commission Number:
The foregoing instrument was acknowledged before me this day of
, 201 , by R. Donahue Peebles, as Manager Member of the Overtown
Gateway Partners, LLC, a Florida limited liability company, on behalf of the limited liability
company. He is personally known to me or has produced as
identification.
(SEAL)
Notary Public — State of
Commission Number:
EXHIBIT A
to
Certificate Concerning Commencement
and Termination of Qualified Project Period
REAL PROPERTY DESCRIPTION
Lots 1-12, inclusive, Block 45, 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 D
CERTIFICATION OF TENANT ELIGIBILITY
RE:
[ 1 Apartments
[Address]
Unit #
The undersigned hereby (certify) (certifies) that:
1. This Income Certification is being delivered in connection with the undersigned's
application for occupancy of apartment # [ ] Apartments in Miami -Dade
County, Florida.
2. List all occupants of the apartment, the relationship (if any) of the various
occupants, their ages, and the total anticipated income, reasonably acceptable to the Southeast
OvertownlPark West Community Redevelopment Agency for each person listed below during
the 12-month period commencing with the date occupancy will begin.
Name
(a)
(b)
(c)
(d)
(e)
(f)
Annual
Relationship Age Income
DEFINITION OF INCOME: Full amount, before payroll deductions, of wages, salaries,
overtime, commissions, fees, tips and bonuses; net income from operation of a business or
profession; interest and dividends and other net income from real or personal property; periodic
payments from social security, annuities, insurance policies, retirement funds, pensions,
disability or death benefits and other similar types of periodic payments; payments in lieu of
earnings, such as unemployment and disability compensation, worker's compensation and
severance pay; public assistance income, where payments include amounts specifically
designated for shelter and utilities; periodic and determinable allowances such as alimony and
child support, and regular contributions or gifts from persons not residing in the dwelling; all
regular and special pay and allowances of members of the Armed Forces (whether or not living
in the dwelling) who are the head of the family or spouse; but excluding: casual, sporadic or
irregular gifts; amounts which are specifically for reimbursement of medical expenses; lump sum
additions to family assets, such as inheritances, insurance payments (including payments under
health and accident insurance and worker's compensation), capital gains and settlement for
personal or property losses; amounts of educational scholarships paid directly to the student or
the educational institution, and amounts paid by the government to a veteran for use in meeting
costs of tuition, fees, books and equipment, but in either case only to the extent used for such
purposes; special pay to a servicemen head of family who is away from home and exposed to
hostile fire; relocation payments under Title II of the Uniform Relocation Assistance and Real
Property Acquisition Policies Act of 1970; foster child care payments; the value of coupon
allotments for the purposes of food pursuant to the Food Stamp Act of 1964 which is in excess of
the amount actually charged for the allotments; payments received pursuant to participation in
ACTION volunteer programs; and income from the employment of children (including foster
children) under the age of eighteen (18) years.
3. If any of the occupants listed in Section 2 has any savings, bonds, or equity in real
property, or other forms of capital investment (but do not include necessary items such as
furniture or automobiles) * enter the following amounts:
* Include the value over and above actual consideration received, except in foreclosure or
bankruptcy, of any asset disposed of for less than fair market value within two (2) years of
the date of this Income Certification.
(a) The total value of all such assets owned by all persons: $
(b) A percentage of the value of such assets based on the current passbook savings
rate, as determined by HUD (applicable passbook savings rate %):
$ . ** If assets do not exceed $5,000 and resident is not a Lower
Income Tenant, do not impute assets.
(c)
The amount of income expected to be derived from such assets in the 12 month
period commencing with the occupancy of the unit: $
4. RESIDENT'S STATEMENT: The information on this form is to be used to
determine maximum income for eligibility. I/We have provided, for each person set forth in
Section 2, either (a) an Employer's Verification of current anticipated annual income, if the
potential occupant is currently employed, or (b) if the potential occupant is currently
unemployed, such other evidence of current anticipated income as is consistent with income
determinations under Section 8 of the United States Housing Act of 1937, as amended, or (c)
copies of the potential occupants' most recent Federal Income Tax Return, if a return was filed
for the most recent year, I/We certify that the statements above are true and complete to the best
of my/our knowledge and belief on the date hereof and are given under penalty of perjury.
Name
(a)
(b)
(c)
(d)
Date
22
(e)
(f)
5. OWNER STATEMENT: The family or individual(s) named in Section 2 is/are
eligible to live in an apartment in the Project under the provisions of the Housing Restrictive
Covenant Agreement between the undersigned and the Southeast Overtown/Park West
Community Redevelopment Agency, dated , to the best of Owner's knowledge
based on information provided by said family or individual(s) in Section 2, which Owner has no
reason to believe is inaccurate in any material way based upon the aggregate anticipated annual
income set forth in Section 2 and, if applicable, the greater of the amounts in Section 3 (b), or
(c), which in the aggregate will be $ , the family or individual(s) named in Section 2
constitutes (check one):
a. A Lower- Income Tenant (maximum income $ based on a family size of ); or
b. A Modest- Income Tenant (maximum income $ based on a family size of ); or
c. A Moderate- Income Tenant (maximum income $ based on a family size of ).
[TO BE MODIFIED BASED UPON UNIT MIX]
6. CAPITALIZED TERMS: Capitalized terms not otherwise defined in this
certificate shall have the meanings ascribed to them in the Housing Restrictive Covenant
Agreement.
Date: , 20
OVERTOWN GATEWAY PARTNERS, LLC,
a Florida limited liability company
By:
By:
Barron Charmer, Manager Member
R. Donahue Peebles, Manager Member
23
EXHIBIT E
FORM OF CERTIFICATION OF CONTINUING PROGRAM COMPLIANCE
Witnesseth that on this day of , 20 , the undersigned
(the "Owner"), does hereby certify to the Southeast Overtown1Park West Community
Redevelopment Agency (the "CRA") and Miami -Dade County, Florida (the "County"), that such
multi -family rental housing Project is in continuing compliance with the Housing Restrictive
Covenant Agreement executed by the Owner and the CRA dated
and filed in the official public records of Miami -Dade County, Florida (including the
requirement that all units be and remain rental units available for rent), that an Income
Certification has been submitted for each new tenant of the Project as required by the Housing
Restrictive Covenant Agreement and that the same are true and correct to the best of the
undersigned's knowledge and belief. [At all times during the previous month, at least 10% of the
residential units were occupied (or deemed occupied) by Lower -Income Tenants, at least 70% of
the residential units were occupied (or deemed occupied) by Modest -Income Tenants and 20% of
the residential units were made available to Moderate -Income Tenants and 100% of the
residential units were occupied (or deemed occupied) by Eligible Persons. To the best of
Owner's knowledge,. no default has occurred under the Housing Restrictive Covenant
Agreement, or, if a default has occurred, the nature of the default and the steps, if any, Owner
has taken or proposes to take to correct such default are outlined on the Schedule attached hereto.
As of the date of this Certificate, the following percentages of completed residential units in the
Project are occupied by Lower -Income Tenants, Modest -Income Tenants and Moderate -Income
Tenants or are vacant:
Total number of units available for
occupancy as of , 20
Lower -Income Tenants
Modest -Income Tenants
Moderate -Income Tenants
Vacant Units
Percentage Number
Capitalized terms not otherwise defined herein shall have the meanings ascribed to them
in the Housing Restrictive Covenant Agreement.
244
Total Number of
1-Bedroom
Units
(A)
Total Number of
2-Bedroom
Units
(A)
Total Number of
3-Bedroom
Units
(A)
Number of
Occupied Units by
Low -Income
Tenants
(B)
Number of
Occupied Units by
Low -Income
Tenants
(B)
Number of
Occupied Units by
Low -Income
Tenants
(B)
% of 1-Bedroom
Units Occupied by
Low -Income
Tenants
(B/A)
% of 2-Bedroom
Units Occupied by
Low -Income
Tenants
(B/A)
of 3-Bedroom
Units Occupied by
Low -Income
Tenants
(BIA)
Number of
Occupied Units by
Modest -Income
Tenants
(B)
Number of
Occupied Units by
Modest -Income
Tenants
(B)
Number of
Occupied Units by
Modest -Income
Tenants
(B)
[TO BE REVISED IF NO THREE -BEDROOM UNITSI
#303 2975 7v10
25
% of 1-Bedroom
Units Occupied by
Modest -Income
Tenants
(B/A)
% of 2-Bedroom
Units Occupied by
Modest -Income
Tenants
(B/A)
% of 3-Bedroom
Units Occupied by
Modest -Income
Tenants
(B/A)
Number of
Occupied Units by
Moderate -Income
Tenants
(B)
Number of
Occupied Units by
Moderate -Income
Tenants
(B)
Number of
Occupied Units by
Moderate -Income
Tenants
(B)
Overtown Gateway Partners, LLC,
a Florida limited liability company
By:
Name:
Title:
% of 1-Bedroom
Units Occupied by
Moderate -Income
Tenants
(B/A)
% of 2-Bedroom
Units Occupied by
Moderate -Income
Tenants
(B/A)
% of 3-Bedroom
Units Occupied by
Moderate -Income
Tenants
(B/A)
Exhibit "C"
Restrictive Covenant
10
Prepared by:
William R. Bloom, Esq.
Holland & Knight LLP
701 Brickell Avenue, Suite 3300
Miami, FL 33131
RESTRICTIVE COVENANT
H&K Draft 5/14/15
THIS RESTRICTIVE COVENANT is made as of this day of , 201 by and
between OVERTOWN GATEWAY PARTNERS, LLC, a Florida limited liability company (the
"Developer") and the SOUTHEAST OVERTOWN/PARK WEST COMMUNITY
REDEVELOPMENT AGENCY, a public agency and body corporate created pursuant to Section
163.356, Florida Statutes (the "CRA").
RECITALS
A. The CRA is the owner of that certain real property located in the City of Miami
more particularly described on Exhibit "A" attached hereto and made a part hereof (the
"Property")
B. Simultaneously with the execution of this Restrictive Covenant, the CRA is
conveying the Property to Developer subject to the terms and provisions set forth in this
Restrictive Covenant, which shall constitute a covenant running with the land and that title to the
Property shall be subject to the terms and conditions of this Restrictive Covenant, as hereinafter
set forth.
NOW, THEREFORE, for and in consideration of $10.00 and other good and valuable
consideration, the sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Recitals. The Recitals to this Restrictive Covenant are true and correct and
hereby incorporated by reference and made a part hereof.
2. Project.
2.1 Description of the Project. The project (the "Project") shall consist of: (i)
residential apartment units (the "Residential Units"); (ii) a hotel containing separate
guest hotel rooms (the "Hotel"); (iii) approximately square feet of commercial office
space (the "Office Space"); (iv) approximately 30,000 square feet of ground floor retail space
(the "Retail Space"); (v) the north one-half (1/2) of the 7th Street Promenade, as hereinafter
defined excluding the Roadway, as hereinafter defined; and (vi) a sufficient number of parking
spaces to comply with the applicable codes plus one hundred fifty (150) parking spaces in excess
of those required under the applicable codes for the Project (the "Additional Parking Spaces"), all
as more particularly shown on the plans and specifications prepared by
dated last revised consisting of
PLANS]
(the "Plans"). [TO BE REVISED BASED UPON FINAL APPROVED
2.2 Development Requirements. Developer shall develop the Project
substantially in accordance with the Plans. Any material variation to the Plans, other than those
changes required by the City of Miami, a municipal corporation (the "City") in connection with
the issuance of the building permit to comply with applicable laws, shall require the approval of
the executive director of the CRA (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.
3. DEVELOPMENT TIMEFRAME.
3.1 Declaration. Developer shall develop the Project in accordance with the
time frames required by the Amended and Restated Declaration of Restrictions for Block 45 by
and between Miami -Dade County, Florida, a political subdivision of the State of Florida (the
"County") and the CRA dated September 2, 2014 and recorded September 30, 2014 in Official
Records Book 29930, at Page 2018 of the Public Records of Miami -Dade County, Florida (the
"Declaration").
3.2 Failure to Comply with Commencement of Construction Deadline. If
Developer fails to commence vertical construction on the Property by [insert applicable date
based upon Declaration at Closing], in accordance with the Declaration, and if the Developer has
received written notice from the CRA prior to the commencement of said vertical construction in
accordance with the Declaration, that the Executive Director has received written notice from the
County pursuant to Section 12 of the Declaration that the Property shall revert to the County, this
Agreement shall automatically terminate.
3.3 Failure to Complete the Project. If the Developer has not completed the
Project as evidenced by one or more temporary or pelinanent certificates of occupancy (or their
equivalent) for all components of the improvements comprising the Project as reflected in the
Plans ("Completion"), within twelve (12) months of the Retail Completion Date and the
Residential Completion Date, as defined in the Declaration, as same may be extended pursuant to
the terms of the Declaration (the "Outside Date"), 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 from the Outside Date until Completion. Said amount shall be due and payable within
thirty (30) days of the Completion. The provisions of this Section 3.3 shall not apply if title to
the Property reverts to the County prior to Completion.
4. 7TH STREET PROMENADE
4.1 The CRA, as part of the development of the Project and the development
of Lots 1-12, 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
2
("Block 56"), 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 "7t}' Street Promenade").
4.2 As part of the Project, the Developer shall be responsible for the
development of the north one-half of the 7t1i Street Promenade, excluding the Roadway, as
hereinafter defined, consisting of the curb and gutter, sidewalks and lighting, all as reflected on
the Plans. The developer selected by the CRA for the development of Block 56 (the "Block 56
Developer") will be responsible for developing the south one-half of the 7t1' Street Promenade,
excluding the Roadway, consisting of the curb and gutter, sidewalk and lighting located in the
north one-half of the 7t' Street Promenade.
4.3 The first of the Developer or the Block 56 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 56 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 56 Developer, as applicable, for approval which approval shall not
be unreasonably withheld, conditioned or delayed. The budget shall include a fifteen percent
(15%) contingency. 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 56 Developer,
as applicable, the Developer and the Block 56 Developer shall each be responsible for one-half
(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 56 Developer. Within thirty (30) days of written request of
Developer or the Block 56 Developer, as appropriate, which is responsible for construction of the
Roadway, both Developer and the Block 56 Developer shall deposit in escrow with an escrow
agent mutually acceptable to Developer and Block 56 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 expenditures set forth in the approved draw request as the Roadway is
completed. All draw requests shall be accompanied by reasonably detailed supporting
documentation, including 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 releases of lien for work completed pursuant to previous draw requests.
If the Roadway Costs actually incurred exceed the approved budget, the Developer and the
Block 56 Developer shall utilize commercially reasonable efforts to agree on the Roadway Costs
in excess of the approved budget. If the Developer and the Block 56 Developer are not able to
agree on such additional Roadway Costs within five (5) business days from the date the
Developer or the Block 56 Developer, as applicable, who is not responsible for construction of
the Roadway is advised in writing that the Roadway Costs actually incurred exceed the approved
budget, at any time thereafter either the Developer or the Block 56 Developer may submit the
dispute to the Executive Director for resolution, whose decision shall be final and binding on the
Developer and the Block 56 Developer. Any additional expenses determined to be due shall be
paid within five (5) business days of the date the Developer and the Block 56 Developer agree on
3
such additional expenses or five (5) business days after the Executive Director determines the
amount of such additional expenses.
4.4 The Developer or the Block 56 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 construction of the Roadway
from the City or the County, as applicable, and all construction warranties.
4.5 If the Developer is not responsible for construction of the Roadway, and if
Developer fails to pay one -half (1/2) of the Roadway Costs to the Roadway Escrow Agent
within thirty (30) days of written request from the Block 56 Developer, the Block 56 Developer
shall be entitled to file a lien against the Property in the unpaid amount and same shall bear
interest at ten percent (10%) per annum from the date due to the Roadway Escrow Agent until
paid. The lien filed by the Block 56 Developer shall have priority from the date of recording of
this Restrictive Covenant and same may be foreclosed in the same manner in which a mortgage
is foreclosed and the prevailing party shall be entitled to recover from the non -prevailing party,
reasonable attorneys fees and costs, including, without limited, at trial and appellate levels.
4.6 Release of Obligations.
(a) If the Block 56 Developer is responsible for construction of the Roadway
upon payment of one-half (1/2) of the Roadway Costs to Roadway Escrow Agent, Developer
will have no further obligations under this Section 4 and upon providing evidence of such
payment to the Executive Director, the CRA shall execute a recordable instrument reflecting that
the Developer is released from its obligations under this Section 4.
(b) If Developer is responsible for the construction of the Roadway, upon
completion of the Roadway and obtaining all necessary approvals and signoffs with respect to
the construction of the Roadway from the City or the County, as applicable, and providing
evidence of same to the Executive Director, the CRA shall execute a recordable instrument
releasing Developer from its obligations under this Section 4. Furthermore, in such event, the
Developer shall have the same enforcement rights against the Block 56 Developer as provided in
Sections 4.5 and Section 15 of this Restrictive Covenant.
5. MINORITY AND WOMEN'S PARTICIPATION AND EQUAL
EMPLOYMENT OPPORTUNITY.
5.1 In connection with the Project, the Developer agrees that it will and that
Developer will require its general contractor to:
a. Take definitive action in the recruitment, advertising to attract and
retain minority and female contractors and subcontractors;
b. Provide a reasonable opportunity in the recruitment, advertising
and hiring of professionals, contractors and subcontractors residing
within the Southeast Overtown/Park West redevelopment area (the
"Redevelopment Area") and within the City of Miami;
4
c. 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;
d. Maintain equitable principles in the recruitment, advertising,
hiring, upgrading, transfer, layoff, termination, compensation and
all other terms, conditions and privileges of employment;
e. 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;
f. Post in conspicuous places, available 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 5.
g•
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.
5.2 Participation Requirements. Developer agrees to comply with the
following subcontractor participation requirements and laborer participation requirements (the
"Participation Requirements") with respect to the Project:
5.2.1 Subcontractor Participation. The Developer shall use reasonable
efforts to require its general contractor to lure 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
whose 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. For purpose
of calculating the twenty percent (20%) subcontractor participation, the twenty percent (20%)
participation shall be calculated based upon the numerator being the dollar value of all
subcontracts given to subcontractors whose principal place of business is in Miami -Dade
County, Florida and the denominator being the total dollar value of all subcontracts entered into
by the general contractor over the entire course of the Project ("Subcontractor Participation
Requirement").
5.2.2 Laborer Participation. Developer shall require its general
contractor and all subcontractors to hire forty percent (40%) of the labor for the construction of
the Project ("Laborer Participation Requirement") with the following hiring priority:
5
a. first, to City residents living within the Redevelopment Area;
b. second, to City residents living within the boundaries of the
Overtown community;
c. third, to City residents within zip codes 33127, 33128, 33130,
33136, 33142, 33125, 33135, 33150 and the West Coconut Grove (the "CRA Targeted Zip
Codes") which include the five (5) highest poverty rated zip codes located in the City;
d. fourth, to City residents residing outside the CRA Targeted Zip
Codes;
e. fifth, to County residents of zip codes 33010, 33030, 33034,
33054, and 33161 (the "County Targeted Zip Codes") which are the five (5) highest poverty
rated zip codes located in the County; and
f sixth, to residents in the County residing outside of the County
Targeted Zip Codes.
5.2.3 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 ar, at the option of the
Developer, to Arbitration, as hereinafter defined, for resolution which resolution shall be binding
on the parties.
5.3 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 construction of the Project until thirty days following
Completion, detailed reports of performance against the Subcontractor Participation Requirement
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 of performance against the Laborer Participation Requirement during the prior month
("Participation Reports"). The Participation Report shall be in the form of Exhibit "B" attached
hereto. The Participation Reports shall contain such additional 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 Requirement and the Laborer
Participation Requirement with respect to the Project.
5.3.1 Penalties for Non -Compliance with Subcontractor Participation
Requirements. To the extent Developer fails to comply with the Subcontractor Participation
Requirements, with respect to the Project, Developer shall pay to the CRA as a penalty for such
non-compliance Two Thousand Five Hundred and No/100 Dollars ($2,500.00) for each
percentage point below the Subcontractor Participation Requirement (the "Subcontractor Non -
Compliance Funds") 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
6
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 Requirement, such dispute
shall be submitted to the CRA Board for resolution or, at the election of the Developer, to
Arbitration, which resolution shall be binding on the parties,
5.3.2 Penalties for Non Compliance with Laborer Participation
Requirements. To the extent Developer fails to comply with the applicable Laborer Participation
Requirements, with respect to Project, Developer shall pay to the CRA as a penalty for such
noncompliance One Thousand and No/100 Dollars ($1,000.00) for each percentage point below
the Laborer Participation Requirement (the "Laborer Non -Compliance Fund") with respect to the
Project. The Laborer Non -Compliance Funds with respect to the Project shall be calculated by
the Executive Director after Completion of the Project and shall be due within thirty (30) from
Developer's receipt of written statement from the Executive Director stating the amount of
Laborer Non -Compliance Funds due. To the extent of any dispute between the Executive
Director and the Developer with respect to the compliance with the Laborer Participation
Requirement, such dispute shall be submitted to the CRA Board for resolution which shall be
binding on the parties or, at the election of the Developer, to Arbitration for resolution which
shall be binding upon the parties.
5.4 Job Fair.
5,4.1 Construction Job Opportunities. Developer shall broadly
disseminate information regarding job opportunities for local area residents and businesses
within the Redevelopment Area 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.
5,4.2 Permanent Job Opportunities. Developer shall broadly disseminate
information regarding job opportunities for local residents and businesses within the
Redevelopment Area post -construction, including newly generated trade and service related jobs
upon Completion, including, without limitation, hosting at least one (1) job fair within the
Redevelopment Area after Completion.
5.5 Release of Obligations under Section 5. Upon Completion and payment to
the CRA of any amounts due pursuant to Sections 5.3.1 and 5.3.2, Developer shall have no
further obligations to comply with the provisions of this Section 5 and at the request of the
Developer the CRA shall execute a recordable instrument reflecting that Developer is released
from its obligations under this Section 5.
6. PARKING FOR COMMUNITY BASED ORGANIZATIONS.
6.1 Parking for Community Based Organizations.
6.1.1 Longshoremen's Parking. Members of International
Longshoremen's Local 1416 (the "Longshoremen's Union") currently utilize the Property for
parking vehicles when members of the Longshoremen's Union go to the Longshoremen's Union
7
office building for job assignments. Developer has agreed to provide parking to members of the
Longshoremen's Union in accordance with the parking plan which is more particularly described
on Exhibit "C" attached hereto and made a part hereof (the "Longshoremen's Parking Plan").
The CRA acknowledges that the Developer has not entered into any agreement with the
Longshoremen's Union but that Developer has agreed with the CRA to provide parking for the
Longshoremen's Union as described in the Longshoremen's Parking Plan.
6.1.2 Compliance with Parking Plan. Developer covenants and agrees
with the CRA to implement the Longshoremen's Parking Plan for the benefit of members of the
Longshoremen's Union in accordance with this Restrictive Covenant as long as the
Longshoremen's Union maintains its offices where currently located.
6.1.3 Offsite Community Parking. If Developer and the CRA mutually
agree in writing pursuant to a binding agreement (the "Alternative Parking Agreement") on a
permanent location other than the Property for providing parking access to benefit the
Longshoremen's Union as required by Sections 6.1.1 and 6.1.2 of this Restrictive Covenant, then
(a) compliance with the Longshoremen's Parking Plan at the Property and the provisions of this
Restrictive Covenant regarding the Longshoremen's Parking Plan at the Property shall no longer
be required and the Developer shall be released from such obligations under this Restrictive
Covenant by the CRA which release shall be evidenced in a recordable document, and (b) the
CRA shall take reasonable efforts to cooperate with Developer in seeking to obtain approval
from the County to the release from the Declaration the requirement for inclusion of 150 parking
spaces in excess of that required under the applicable zoning codes on the Property (the
"Additional Parking Spaces"), provided that such change is otherwise approved as a separate
modification to the Declaration. If the Alternative Parking Agreement is executed prior to
Completion, the CRA shall be released from its obligation to make the Grant.
6.1,4 CRA Grant Agreement. If Developer fully complies with the
terms and provisions of that certain Grant Agreement dated as of even date herewith by and
between the CRA and Developer (the "CRA Grant Agreement"), and the CRA does not cause the
Escrow Agent, as defined in the CRA Grant Agreement, to fund the Grant, as defined in the
CRA Grant Agreement, to Developer, in accordance with the terms and conditions of the CRA
Grant Agreement, which failure is not cured within the applicable grace period as more
particularly provided in the CRA Grant Agreement, Developer will no longer be required to
provide parking for members of the Longshoremen's Union in accordance with the
Longshoremen's Parking Plan and this Restrictive Covenant, as more particularly provided in the
CRA Grant Agreement. In such event the Developer shall no longer be required to comply with
the requirements of Sections 6,1.1, 6.1.2 and 6.1.3 of this Restrictive Covenant and the CRA
shall promptly, at the request of the Developer, record an appropriate document releasing
Developer from its obligation to provide parking for members of the Longshoremen's Union in
accordance with Sections 6.1.1, 6.1.2 and 6.1.3 of this Restrictive Covenant. The remedy set
forth in this Section 6.1.4 shall be the sole remedy available to Developer should the CRA not
fund the Grant in accordance with the terms of the CRA Grant Agreement which failure is not
cured within the applicable grace period and under no circumstances shall Developer be entitled
to sue the CRA for specific performance or damages for failing to fund the Grant.
8
7. REAL ESTATE TAXES.
7.1 It is the intention of the CRA and the Developer that upon conveyance of
the Property to the Developer that the Project shall be fully taxable for the purposes of ad
valorem real estate taxes and that the Developer and its successors or assigns not take advantage
of any tax exemptions which may allow the Developer or its successors or assigns not to be
required to pay any 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 as a result
of an exemption, then the Developer shall pay to the CRA a payment in lieu of taxes (a
"PILOT") on or before December 31 of each year in the amount of ad valorem real estate taxes
that would have been due with respect to the Project 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.
7.2 The obligation of the Developer to make the PILOT shall constitute a
covenant running with the Property and shall constitute a first lien on the Property senior to all
other liens and encumbrances and shall be binding upon the Developer and its successors and
assigns through December 31, 2029.
8. ZONING. If the applicable law changes prior to the conveyance of Block 56
to the Block 56 Developer to allow the transfer of development rights from Block 56 to Block 45
without requiring the declaration of restrictions in lieu of unity of title and other agreements
other than documentation reducing the development rights with respect to Block 56 and
increasing the development rights for Block 45, the CRA shall execute the required
documentation to transfer from Block 56 to Block 45 the lesser of; (a) 50,000 square feet of
development rights; or (b) the (i) the development rights uniquely available for use on Block 56
pursuant to the applicable zoning regulations in effect at the time of the transfer less (ii) the
development rights required to permit the Block 56 Developer to develop its project on Block 56
in accordance with the design development documents approved by the Executive Director, and
such documents that the City may require to evidence such transfer in accordance with
applicable laws, shall constitute Permitted Exceptions. Developer shall pay any costs associated
with such transfer charged by the City.
9. DEFAULT AND REMEDIES. If Developer fails to comply with any of the
terms and provisions of this Restrictive Covenant, including, without limitation, the payment of
money or the performance of any other obligation under this Restrictive Covenant which failure
is not cured by the Developer within thirty (30) days of written notice from the CRA, the CRA
may pursue all remedies available at law or in equity to enforce the terms and provisions of this
Restrictive Covenant, including, without limitation, specific performance.
10. ARBITRATION. The disagreement between the Developer and the CRA may be
resolved by the mechanism set forth below ("Arbitration"). The Executive Director and the
Developer shall attempt to agree on the selection of a neutral arbitrator within ten (10) days after
notification by the Developer to utilize this alternative dispute mechanism. If the parties cannot
agree on such selection within such ten (10) day period, then one of the disputing parties shall
select one (1) arbitrator, and the other disputing party shall select one (1) arbitrator, which
selections shall take place no later than ten (10) days after a disagreement is noticed by the
Developer (the "Filing Date"), and the two (2) selected arbitrators shall mutually agree on the
9
selection of a third arbitrator within ten (10) days after being approved. If one of the disputing
parties fails to timely select an arbitrator, then the one arbitrator appointed shall alone elect the
other arbitrator to resolve the dispute. If the two (2) selected arbitrators fail to agree on the
selection of a third arbitrator within such period of time, then the American Arbitration
Association, Miami, Florida office, shall select the third arbitrator. The decision of the
arbitrators by majority vote shall be final and binding on the parties. Any delays resulting from a
dispute being subject to Arbitration shall not extend any of the time deadlines contained in this
Restrictive Covenant. All arbitrator(s) must meet the qualification criteria of the American
Arbitration Association for construction arbitrators and have no less than ten (10) years of
experience as an architect or engineer.
11. NOTICES. Any notices required or permitted to be given under this Restrictive
Covenant shall be in writing and shall be deemed to have been given if delivered by hand, sent
by recognized overnight courier (such as Federal Express), or mailed by certified or registered
mail, return receipt requested, in a postage prepaid envelope, and addressed as follows:
If to Developer:
Overtown Gateway Partners, LLC
c/o The Peebles Corporation
Attention: General Counsel — Block 45
2020 Ponce de Leon Blvd., Suite 907
Coral Gables, FL 33134
With a copy to:
If to CRA:
Lydecker Diaz LLP
Attention: Stephen H. Johnson, Esq.
Re: BACH RE — Overtown Gateway
1221 Brickell Avenue, 19a' Floor
Miami, FL 33131
SOUTHEAST OVERTOWN / PARK WEST
COMMUNITY REDEVELOPMENT AGENCY
Attention: Clarence E. Woods, III., Executive Director
819 NW 2nd Avenue
Third Floor
Miami, FL 33136
With a copy to:
William R. Bloom, Esq.
Holland & Knight, LLP
Suite 3300
10
701 Brickell Avenue
Miami, FL 33131
And with a copy to:
Staff Counsel
Southeast Overtown/Park West
Community Redevelopment Agency
819 NW 2nd Avenue
Third Floor
Miami, FL 33136
Notices personally delivered, sent by overnight courier shall be deemed given on the date
of delivery and notices mailed in accordance with the foregoing shall be deemed given upon
receipt or the date delivery is refused.
12. MISCELLANEOUS.
12.1 This Restrictive Covenant 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 Restrictive Covenant 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.
12.2 In the event any term or provision of this Restrictive Covenant is
deten lined 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 Restrictive Covenant shall be construed to be in full force and effect.
12.3 In the event of any Arbitration or litigation between the parties under this
Restrictive Covenant, the prevailing party shall be entitled to recovering from the non prevailing
party reasonable attorney's fees and costs including, without limitation, at all trial and appellate
levels.
12.4 In construing this Restrictive Covenant, 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 Section headings shall be
disregarded.
12.5 All of the exhibits attached to this Restrictive Covenant are incorporated
in, and made a part of, this Restrictive Covenant.
12.6 Time shall be of the essence for each and every provision of this
Restrictive Covenant.
12.7 The provisions of this Restrictive Covenant, except for those which relate
to rights of the Block 56 Developer, are and will be for the benefit of Developer and CRA only
11
and are not for the benefit of any other third parties, and accordingly, no third party shall have
the right to enforce the provisions of this Restrictive Covenant except with respect to the Block
56 Developer with respect to Section 4.
12. RESTRICTIVE COVENANT RUNNING WITH THE LAND, This Restrictive
Covenant shall be deemed a covenant running with the Property and shall be binding upon
Developer and its successors and assigns.
13. LIEN RIGHTS UNDER SECTION 4, If Developer fails to pay to the Roadway
Escrow Agent its share of the Roadway Costs in accordance with Section 4.3, within thirty (30)
days of the date due pursuant to Section 4.3, then in such event the Block 56 Developer shall
have a lien on the Property in the amount of the Roadway Costs due from Developer, which
amount shall bear interest at ten percent (10%) per annum from the date due until paid and such
payment shall be secured by this Restrictive Covenant. Such lien on the Property shall have
priority from the recording of this Restrictive Covenant and same may be foreclosed upon in the
same manner in which a mortgage is foreclosed. Likewise, if the Block 56 Developer fails to
make its required payments, then the Developer shall have the same lien rights against the Block
56 Developer.
14. LIEN RIGHTS UNDER SECTION 5. If Developer fails to pay any amount due
to the CRA pursuant to Sections 5.3.1 or 5.3.2, such unpaid amounts shall bear interest at twelve
percent (12%) per annum from the date due until paid and shall be secured by this Restrictive
Covenant. Many amounts due pursuant to Sections 5.3.1 or 5.3.2 have not been paid within sixty
(60) days of when due, the sane shall constitute a lien upon the Property having priority as of the
date of the recording of this Restrictive Covenant and same may be foreclosed upon in the same
manner in which a mortgage is foreclosed.
15. ENTIRE AGREEMENT. This Restrictive Covenant 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
Restrictive Covenant 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 Restrictive
Covenant shall be binding upon the parties hereto and their respective successors and permitted
assigns.
12
IN WITNESS hereof the parties have executive this Restrictive Covenant as of the date
first above written.
DEVELOPER:
OVERTOWN GATEWAY PARTNERS, LLC,
a Florida limited liability company
By:
Name:
Title:
By:
Name:
Title:
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
13
STATE OF FLORIDA
) SS:
COUNTY OF MIAMI-DADE
The foregoing instrument was acknowledged before me, this day of
201, by , Manager of Overtown Gateway Partners, LLC, a Florida limited
liability company, on behalf of the limited liability company. He/she is personally known to me
or has produced as identification.
My commission expires:
STATE OF FLORIDA
) SS:
COUNTY OF MIAMI-DADE
Notary Public
Print Name:
The foregoing instrument was acknowledged before me, this day of
201_, by , Manager of Overtown Gateway Partners, LLC, a Florida limited
liability company, on behalf of the limited liability company. He/she is personally known to me
or has produced as identification.
My commission expires:
14
Notary Public
Print Name:
STATE OF FLORIDA
) SS:
COUNTY OF MIAMI-DADE
The foregoing instrument was acknowledged before me, this day of
201_, by Clarence E. Woods, III, Executive Director of SOUTHEAST OVERTOWN/PARK
WEST COMMUNITY REDEVELOPMENT AGENCY, a public agency and body corporate
created pursuant to Section 163.356, Florida Statutes, on behalf of the agency. He/she is
personally known to me or has produced as identification.
My commission expires:
15
Notary Public
Print Name:
A. Legal Description
B. Participation Report Form
C. Longshoremen Parking Plan
Schedule of Exhibits
16
EXHIBIT A
Legal Description
Lots 1-12, inclusive Block 45, 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.
17
EXHIBIT B
Form of Participation Report
18
EXHIBIT C
Longshoremen's Parking Plan
1. Developer shall make available on the Property, free of charge, one hundred fifty (150)
parking spaces for parking of vehicles of members of Longshoremen's Union at any one time
during the following time periods seven (7) days a week:
a. Morning: from 5:00 A.M. to 9:00 A.M.
b. Afternoon: from 1:00 P.M. to 3:00 P.M.
2. No more than 150 parking spaces will be required to be provided at any one time. A parking
space may be utilized more than once during each of the time windows (i.e. a vehicle may
leave and another vehicle arrive to replace the one that left).
Members of Longshoremen's Union will be required to produce approved validation at
point of payment processing for Property's parking facility in order to receive service free of
charge.
3. Developer shall enter into a license agreement with the Longshoremen's Union to implement
item (1) and (2) above.
[DID YOU WANT TO PROVIDE PROCEDURE NOW?]
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Exhibit "D"
CRA Grant Agreement
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GRANT AGREEMENT
(No Guaranty of Completion)
THIS GRANT AGREEMENT (the "Agreement") is made as of this day of ,
201_ by and between OVERTOWN GATEWAY PARTNERS, LLC, a Florida limited liability
company (the "Developer") and the SOUTHEAST OVERTOWN/PARK WEST COMMUNITY
REDEVELOPMENT AGENCY, a public agency and body corporate created pursuant to Section
163.356, Florida Statutes (the "CRA").
RECITALS
A. The CRA is the owner of that certain real property located in the City of Miami
more particularly described on Exhibit "A" attached hereto and made a part hereof (the
"Property").
B. Simultaneously with the execution of this Agreement, the CRA is conveying the
Property to Developer for the development of the Project, as hereinafter defined.
C. The CRA has agreed to make a grant to the Developer in the amount of Three
Million and No/100 Dollars (3,000,000.00) to be utilized in connection with the construction of
the Project, subject to the terms and provisions of this Agreement.
NOW, THEREFORE, for and in consideration of $10.00 and other good and valuable
consideration, the sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Recitals. The Recitals to this Agreement are true and correct and hereby
incorporated by reference and made a part hereof.
2. Description of the Project. The project (the "Project") shall consist of: (i)
residential apartment units (the "Residential Units"); (ii) a hotel containing separate guest
hotel rooms (the "Hotel"); (iii) approximately square feet of commercial office space (the
"Office Space"); (iv) approximately 30,000 square feet of ground floor retail space (the "Retail
Space"); (v) the north one-half (1/2) of the 7th Street promenade excluding the roadway; and (vi)
a sufficient number of parking spaces to comply with the applicable codes plus an additional one
hundred fifty (150) parking spaces in excess of those required under the applicable code, all as
more particularly shown on the plans and specifications prepared by
(the "Architect") dated last revised consisting of (the
"Plans"). [TO BE REVISED BASED UPON FINAL APPROVED PLANS]
3. CRA GRANT.
3.1 The CRA agrees to make a grant to the Developer in the amount of Three
Million and No/100 Dollars ($3,000,000.00) (the "Grant") to be utilized by Developer to pay
costs and expenses incurred by Developer in connection with the Project which constitute
permitted expenses under applicable law for utilization of tax increment funds.
1
3.2 Simultaneously with the execution of this Agreement, the CRA shall
deposit the Grant in escrow with Holland & Knight LLP (the "Escrow Agent"). Escrow Agent
shall hold and disburse the Grant pursuant to the terms of this Agreement.
3.3 Once Developer has achieved Completion (as defined below), Developer
shall submit the Required Documentation (as defined below) to the Executive Director of the
CRA (the "Executive Director") and the Escrow Agent. The Executive Director shall have ten
(10) business days from the receipt of the Required Documentation to review same (the "Review
Period"). If the Executive Director, acting reasonably, disputes whether the Required
Documentation provided by the Developer evidences Completion, the Executive Director shall
provide written notice to the Escrow Agent and the Developer on or before the end of the
Review Period. If the Executive Director does not object to the Required Documentation within
the Review Period, then Escrow Agent shall disburse the Grant to the Developer within ten (10)
days after the end of the Review Period by wire transfer of funds in accordance with the wire
transfer instructions provided by Developer as part of the Required Documentation.
3.4 If the Executive Director provides written notice to the Developer and the
Escrow Agent during the Review Period that the Executive Director objects to the Required
Documentation, Escrow Agent shall not disburse the Grant until Escrow Agent receives either (i)
written notice from the Executive Director that the CRA has approved the Required
Documentation; or (ii) if either the Developer or the Executive Director has submitted the
dispute regarding the Required Documentation to Arbitration in accordance with Section 5,
written notice of the decision of the arbitrators by majority vote finding that the Developer has
submitted the Required Documentation evidencing Completion which the Executive Director
should have approved. In either of which events Escrow Agent shall wire transfer the Grant to
the Developer within ten (10) days of the date Escrow Agent receives written notice of either (i)
or (ii) above and in accordance with the wire transfer instructions provided by Developer as part
of the Required Documentation.
3.5 For purposes of this Agreement, the teen "Completion" means all the
following have occurred: (i) the Architect and the General Contractor, as hereinafter defined,
have issued a certificate (on form AIA Document G704) to the effect that all work required to be
performed to complete the construction of the Project (other than punch list items) have been
substantially completed in accordance with the Plans, without material deviation therefrom; (ii)
the applicable government authorities have issued temporary or permanent certificate(s) of
occupancy (or their equivalent) for all components comprising the Project; (iii) the general
contractor retained by Developer (the "General Contractor") has issued a final contractor's
affidavit evidencing payment in full of all costs and expenses incurred in connection with the
construction of the Project and evidencing that all subcontractors and materialmen have been
paid in full, subject only to outstanding amounts required in connection with the completion of
punch list items; and (iv) the General Contractor has issued a final lien waiver evidencing
payment in full of all amounts due in connection with the construction of the Project other than
with respect to punch list items. Upon achieving Completion, the Developer shall promptly
submit to the Escrow Agent and the Executive Director for review items (i) through (iv) required
above together with wire transfer instructions regarding the account where the Grant shall be sent
(the "Required Documentation"). Items (iii) and (iv) above shall be deemed satisfied if
Developer provides (a) an affidavit executed by the General Contractor evidencing payment in
2
full of all costs and expenses incurred in connection with the construction of the Project and
evidencing that all subcontractors and materialmen have been paid in full with respect to all
undisputed items subject only to outstanding amounts required in connection with the completion
of punch list items and setting forth the full the amount of all disputed items claimed by General
Contractor and its subcontractors and (b) the General Contractor has issued a final lien waiver
evidencing payment in full of all amounts due in connection with the construction of the Project
other than with respect to punch list items and with respect to the disputed items and setting forth
the full amount claimed by the Contractor and its subcontractors with respect to the disputed
items or in lieu of items (a) and (b) the Developer provides evidence that the General Contractor
has filed suit against the Developer which clearly sets forth the amount claimed by the General
Contractor; and (c) evidence that Developer has either obtained a bond or posted cash deposit in
the amount of 125% of the disputed amount with the General Contractor and its subcontractors
which arrangements with respect to the bond or cash deposit shall be acceptable to the Executive
Director.
3.6 If any mechanic liens have been filed against the Property which have not
been satisfied or transferred to appropriate bond, Developer shall be deemed not to have
achieved Completion. Any mechanics liens which have been filed and which have been
transferred to appropriate bond(s) in accordance with Section 713, Florida Statutes, shall be
deemed paid for the purpose of determining whether the Required Documentation reflect
Completion.
3.7 Any disputes under this Section as to whether Developer has achieved
Completion and submitted the appropriate Required Documentation to evidence same to the
Executive Director and the Escrow Agent shall be submitted to Arbitration for resolution which
shall be binding on the parties.
4. Failure to Fund Agreement. If the CRA fails to fund the Grant to Escrow Agent
within ten (10) business days after the execution of this Agreement or if Escrow Agent fails to
fund the Grant to Developer as provided in Section 3, which failure is not cured within fifteen
(15) days of written demand from the Developer, Developer will no longer be required to
provide parking for members of the Longshoremen's Union in accordance with the
Longshoremen's Parking Plan as said terms are defined in that certain Covenant by and between
the Developer and the CRA of even date herewith to be recorded in the Public Records of
Miami -Dade County, Florida (the "Covenant"). In such event the Developer shall no longer be
required to comply with the requirements of Sections 6.1.1, 6.1.2 and 6.1.3 of the Covenant and
the CRA shall promptly, at the request of the Developer, record an appropriate document
releasing Developer from its obligation to provide parking for members of the Longshoremen's
Union in accordance with Sections 6.1.1, 6.1.2 and 6.1.3 of the Covenant. In the event of a
dispute between the Developer and the CRA as to whether the CRA has complied with the terns
and provisions of this Agreement, within the applicable grace period, such dispute shall be
submitted to Arbitration in accordance with Section 5 of this Agreement which shall be binding
on the parties. The remedy set forth in this Section 4 shall be the sole remedy available to
Developer should the CRA not fund the Grant to Escrow Agent, which failure is not cured within
the applicable grace period, and under no circumstances shall Developer be entitled to sue the
CRA for specific performance or damages for failing to fund the Grant.
3
5. Arbitration. Any disagreement between the Developer and the CRA regarding
this Agreement may be resolved by the mechanism set forth below ("Arbitration"). The
Executive Director and the Developer shall attempt to agree on the selection of a neutral
arbitrator within ten (10) days after notification by the Developer to utilize this alternative
dispute mechanism. If the parties cannot agree on such selection within such ten (10) day period,
then one of the disputing parties shall select one (1) arbitrator, and the other disputing party shall
select one (1) arbitrator, which selections shall take place no later than ten (10) days after a
disagreement is noticed by the Developer (the "Filing Date"), and the two (2) selected arbitrators
shall mutually agree on the selection of a third arbitrator within ten (10) days after being
approved. If one of the disputing parties fails to timely select an arbitrator, then the one
arbitrator appointed shall alone elect the other arbitrator to resolve the dispute. If the two (2)
selected arbitrators fail to agree on the selection of a third arbitrator within such period of time,
then the American Arbitration Association, Miami, Florida office, shall select the third arbitrator.
The decision of the arbitrators by majority vote shall be final and binding on the parties. Any
delays resulting from a dispute being subject to Arbitration shall not extend any of the time
deadlines contained in this Agreement. All arbitrator(s) must meet the qualification criteria of
the American Arbitration Association for construction arbitrators and have no less than ten (10)
years of experience as an architect or engineer.
6. ESCROW AGENT. The Grant shall be held by Escrow Agent in trust, on the
terms hereinafter set forth:
6.1 The Escrow Agent shall disburse the Grant in accordance with the terms
of Section 3 of this Agreement.
6.2 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.
6.3 The Escrow Agent is acting as stakeholder only with respect to the Grant.
If there is any dispute as to whether the Escrow Agent is obligated to disburse the Grant, the
Escrow Agent shall not make any disbursement, but in such event, the Escrow Agent shall hold
same until receipt by it of an authorization in writing, signed by the Executive Director and the
Developer, directing the disposition of same in accordance with Section 3.4; or in the absence of
such authorization, the Escrow Agent shall hold the Grant until final determination of the rights
of the parties in the Arbitration proceedings as provided in Section 3.4. If such written
authorization is not given or Arbitration 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 Grant and diligently continued, the Escrow Agent may bring an appropriate action or
proceeding to interplead the Grant. The Escrow Agent shall be reimbursed for all costs and
expenses of such action or proceeding, including, without limitation, reasonable attorneys' fees
and disbursements in connection with filing such proceedings by the non -prevailing party in such
action. Upon making delivery of the Grant, the Escrow Agent shall have no further liability
unless such delivery constituted willful misconduct or gross negligence. The Developer
4
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 Grant, and Developer waives
any right to object to same.
7. NOTICES. Any notices required or permitted to be given under this Agreement
shall be in writing and shall be deemed to have been given if delivered by hand, sent by
recognized overnight courier (such as Federal Express), sent mailed by certified or registered
mail, return receipt requested, in a postage prepaid envelope, and addressed as follows:
If to Developer:
Overtown Gateway Partners, LLC
c/o The Peebles Corporation
Attention: General Counsel — Block 45
2020 Ponce de Leon Blvd., Suite 907
Coral Gables, FL 33134
With a copy to:
Lydecker Diaz LLP
Attention: Stephen H. Johnson, Esq.
Re: BACH RE — OGP 45
1221 Brickell Avenue, 19th Floor
Miami, FL 33131
5
If to CRA:
SOUTHEAST OVERTOWN / PARK WEST
COMMUNITY REDEVELOPMENT AGENCY
Attention: Clarence E. Woods, III., Executive Director
819 NW 2nd Avenue, 3rd Floor
Miami, FL 33136
With a copy to:
William R. Bloom, Esq.
Holland & Knight, LLP
Suite 3300
701 Brickell Avenue
Miami, FL 33131
And with a copy to:
Staff Counsel
Southeast Overtown/Park West
Community Redevelopment Agency
819 NW 2nd Avenue, 31d Floor
Miami, FL 33136
Notices personally delivered or sent by overnight courier shall be deemed given on the date of
delivery and notices mailed in accordance with the foregoing shall be deemed given upon receipt
or the date delivery is refused.
8. MISCELLANEOUS.
8.1 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.
8.2 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.
8.3 In the event of Arbitration or 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.
6
8,4 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 Section headings shall be disregarded.
8.5 All of the exhibits attached to this Agreement are incorporated in, and
made a part of, this Agreement.
8.6 Time shall be of the essence for each and every provision of this
Agreement.
8.7 The provisions of this Agreement are and will be for the benefit of
Developer and CRA only and are not for the benefit of any third party, and accordingly, no third
party shall have the right to enforce the provisions of this Agreement.
8.8 Nothing herein, expressed or implied, is intended or shall be construed to
confer upon or give to any person or entity, other than the parties hereto and their successors and
assigns, any rights or remedies under or by reason of this Agreement.
9. 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 Developer and the
CRA. This Agreement shall be binding upon the parties hereto and their respective successors
and permitted assigns.
7
IN WITNESS hereof the parties have executive this Agreement as of the date first above
written.
DEVELOPER:
OVERTOWN GATEWAY PARTNERS, LLC,
a Florida limited liability company
By:
Name:
Title:
By:
Name:
Title:
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
8
STATE OF FLORIDA
) SS:
COUNTY OF MTAMI-DADE
The foregoing instrument was acknowledged before me, this day of
201_, by , Manager of Overtown Gateway Partners, LLC, a Florida limited
liability company, on behalf of the limited liability company. He/she is personally known to me
or has produced as identification.
My commission expires:
STATE OF FLORIDA
) SS:
COUNTY OF MIAMI-DADE
Notary Public
Print Name:
The foregoing instrument was acknowledged before me, this day of
201, by , Manager of Overtown Gateway Partners, LLC, a Florida limited
liability company, on behalf of the limited liability company. He/she is personally known to me
or has produced as identification.
My commission expires:
Notary Public
Print Name:
9
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
)
) SS:
)
The foregoing instrument was acknowledged before me, this day of
201, by Clarence E. Woods, III, Executive Director of SOUTHEAST OVERTOWN/PARK
WEST COMMUNITY REDEVELOPMENT AGENCY, a public agency and body corporate
created pursuant to Section 163.356, Florida Statutes, on behalf of the agency. He/she is
personally known to me or has produced as identification.
My commission expires:
Notary Public
Print Name:
10
EXHIBIT A
Legal Description
Lots 1-12, inclusive Block 45, 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,
11
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