HomeMy WebLinkAbout09-00526 LegislationCity of Miami
Legislation
CRA Resolution
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Drive
Miami, FL 33133
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File Number: 09-00526 Final Action Date:
A RESOLUTION OF THE BOARD OF COMMISSIONERS OF THE OMNI
REDEVELOPMENT DISTRICT COMMUNITY REDEVELOPMENT AGENCY, WITH
ATTACHMENT(S), AUTHORIZING EXECUTION OF AN ECONOMIC INCENTIVE
AGREEMENT, IN SUBSTANTIALLY THE ATTACHED FORM, WITH DOWNTOWN
MIAMI MALL, LLC AND DOWNTOWN MIAMI HOTEL, LLC FOR DEVELOPMENT
OF THE OMNI SHOPS PROJECT.
WHEREAS, the Omni Redevelopment District Community Redevelopment Agency ("CRA") is
responsible for carrying out community redevelopment activities and projects within the
Redevelopment Area in accordance with its approved Redevelopment Plan; and
WHEREAS, Section III.B., at page 9, of the Omni Area Redevelopment Plan, as amended, lists
"[c]reat[ing] economic magnets to draw more businesses to the Omni area . . as a stated
redevelopment objective; and
WHEREAS, Section III.D., at page 10, of the Omni Area Redevelopment Plan, as amended,
lists '"[p]rovi[sion of] employment opportunities and upward job mobility for residents" as a stated
redevelopment objective; and
WHEREAS, Downtown Miami Mall, LLC and Downtown Miami Hotel, LLC (collectively, the
"Owner") own the property at Biscayne Boulevard and N.E. 15th Street, and intend to develop "The
Omni Shops," a mixed use development consisting of approximately 350,000 square feet of office
space, approximately 16,000 square feet of retail space, and the renovation of an approximately
527-room hotel and related banquet facilities (''Project''); and
WHEREAS, the Owner has requested funding assistance, in an amount not to exceed
$7,000,000, from the CRA for the development and construction of the Project; and
WHEREAS, the CRA and the Owner have negotiated an economic incentive agreement that
requires the Owner to expend approximately $95,000,000 and create approximately 817 full-time jobs
and 538 part-time jobs, in exchange for the receipt of 50% of the tax increment revenues generated by
the Project; and
WHEREAS, the Board of Commissioners wishes to authorize execution of the development
agreement with the Owner;
NOW, THEREFORE BE IT RESOLVED BY THE BOARD OF COMMISSIONERS OF THE
OMNI REDEVELOPMENT DISTRICT COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF
MIAMI, FLORIDA;
Section 1. The recitals and findings contained in the Preamble to this Resolution are
City of Miami
Page 1 of 2 Printed On: 5/13/2009
File Number: 09-00526
adopted by reference and incorporated herein as if fully set forth in this Section.
Section 2. Execution of an economic incentive agreement, in substantially the attached
form, with the Owner for development of the Omni Shops project is authorized.
Section 3. This Resolution shall become effective immediately upon its adoption.
APPROVED AS TO FORM AND CORRECTNESS:
WILLIAM R. BLOOM
SPECIAL COUNSEL
Cih' of Miami
Page 2 of 2 Printed On: 5 13,2009
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OMNI DEVELOPMENT INCENTIVE AGREEMENT
THIS OMNI DEVELOPMENT INCENTIVE AGREEMENT (the "Agreement") is made
as of the day of May, 2009 by and between DOWNTOWN MIAMI MALL, LLC, a
Delaware limited liability company ("Mall Owner"), and DOWNTOWN MIAMI HOTEL, LLC,
a Delaware limited liability company ("Hotel Owner"; together with Mall Owner, are sometimes
collectively hereinafter referred to as the "Owner"), and the OMNI REDEVELOPMENT
DISTRICT COMMUNITY REDEVELOPMENT AGENCY, a public agency and body
corporate created pursuant to Section 163.356, Florida Statutes (the "CRA").
RECITALS:
A. The CRA was formed for the purpose of removing slum and blight in the Omni
redevelopment area (the "Redevelopment Area") and to promote redevelopment and employment
within the Redevelopment Area.
B. Mall Owner is the owner of that certain real property located in the
Redevelopment Area consisting of Mall Parcel 1, Mall Parcel 2 and Mall Parcel 3 (collectively,
the "Mall Parcel"), all as more particularly described and identified on Exhibit "A" attached
hereto and made a part hereof, and is the owner of Vacant Parcel 1 and Vacant Parcel 2
(collectively, the "Vacant Parcel"), all as more particularly described and identified on Exhibit
"B" attached hereto and made a part hereof.
C. Mall Owner intends to redevelop portions of Mall Parcel 1 and Mall Parcel 2,
excluding approximately 100,000 square feet of office space occupied by Miami International
University of Art & Design (the "Arts College Space"), as an office building containing
approximately 350,000 square feet of Class A office space and approximately 16,000 square feet
of retail space (the "Office Phase") and redevelop a portion of Mall Parcel 2, Mall Parcel 3 and
possibly the Vacant Parcel into approximately 225,000 square feet of big box retail space (the
"Retail Phase").
D. Hotel Owner is the owner of that certain real property located in the
Redevelopment Area more particularly described on Exhibit "C" attached hereto and made a part
hereof (the "Hotel Parcel"; together with the Mall Parcel, the "Omni Mali"). The Hotel Owner
currently operates a 527 room hotel and related banquet facilities (the "Hotel") on the Hotel
Parcel and is in the process of renovating the Hotel (the "Hotel Phase").
E. The Omni Mall previously had been a key component of the economic vitality of
the Redevelopment Area; however, as a result of changes in market conditions the retail areas of
the Mall Parcel have closed and the condition of the Hotel had deteriorated.
F. The Owner has requested that the CRA provide economic incentives to the Owner
to assist in the redevelopment of the Office Phase, the Retail Phase and the Hotel Phase and the
job creation that will result from the redevelopment of the Omni Mall, as hereinafter provided.
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NOW THEREFORE, in consideration of the foregoing and of the covenants and
agreements hereinafter set forth and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Owner and the CRA hereby agree as follows:
1. RECITALS. The Recitals to this Agreement are true and correct, are incorporated
herein by reference and made a part hereof.
2. DEFINITIONS. The following terms used in this Agreement shall have the
following meanings:
2.1 "Affiliate" of any Person (the "Specified Person") means any other Person
(a) that directly or indirectly controls, is controlled by or is under common control with such
Specified Person, (b) who is an officer, manager, employee or agent of, partner in, or trustee of,
or serves in a similar capacity with respect to, the Specified Person (or any of the Persons named
in clause (a) (above), (c) of which the Specified Person is an officer, manager, employee, agent,
partner or trustee, or serves in a similar capacity, or (d) who is a member of the Specified
Person's family. For purposes of this definition, the term "control" means the direct or indirect
possession of the power to direct or cause the direction of the management or policies of a
Person, whether through the ownership of securities, by contract or otherwise.
2.2 "Auditor" means an independent third party auditor, who may be retained
by the CRA, in accordance with Section 25.
2.3 "Base Year" with respect to each Phase, other than the Hotel Phase, shall
mean the earlier to occur of (i) 2012 and (ii) the year prior to the tax rolls for that Phase
reflecting an increase in the assessed value of the respective Phase as a result of the renovation to
that Phase, or if there is no such increase in the assessed value of the respective Phase as a result
of the renovations to that Phase, the year prior to the respective Phase being Substantially
Completed (i.e., If the Office Phase is Substantially Completed in 2010, then the Base Year for
the Office Phase would be 2009). The "Base Year" for the Hotel Phase shall be 2008.
2.4 "Certificates" means the Hotel Baseline Certificate, the Hotel Employment
Certificate, the Hotel Renovation Costs Certificate, the Office Employment Certificate, the
Office Renovation Costs Certificate, the Retail Employment Certificate, and the Retail
Renovation Costs Certificate, or any of them.
Florida.
2.5 "City" means the City of Miami, a municipal corporation of the State of
2.6 "Completion" means Substantial Completion of the respective Phase and
completion of all punch Iist items for such Phase.
of Florida.
2.7 "County" means Miami -Dade County, a political subdivision of the State
2.8 "County Approval" means the approval by the County of the Annual CRA
Budget for the respective year which CRA Budget includes the line item of the payment to Mall
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Section 3.2.9.
Owner and Hotel Owner, respectively, of the Incremental TIF contemplated to be paid in
accordance with the terms of this Agreement.
2.9 "CRA Approval" means the approval by the CRA Board of the annual
operating budget for the CRA for the respective year, which includes the line item of the
Incremental TIT contemplated to be paid in accordance with the terms of this Agreement.
2.10 "CRA Board" means the board of commissioners of the CRA.
2.11 "CRA Budget" means the annual budget for the operation of the CRA
approved by the CRA Board.
2.12 "Dedication" has the meaning ascribed to such term in Section 23.
2.13 "Educational Facility" has the meaning ascribed to such term in
2.14 "Executive Director" means the executive director of the CRA.
2.15 "First Source Hiring Agreement Hotel (Operations)" has the meaning
ascribed to such term in Section 5.2.7.
2.16 "First Source Hiring
meaning ascribed to such term in Section 3.1
2.17 "First Source Hiring
meaning ascribed to such term in Section 3.2
2.18 "First Source Hiring
meaning ascribed to such term in Section 4.1
Agreement
.6.
Agreement
.7.
Agreement
.6.
2.19 "First Source Hiring
meaning ascribed to such term in Section 4.2.
Agreement
7.
Office Phase (Construction)" has the
Office Phase (Operations)" has the
Retail Phase (Construction)" has the
Retail Phase (Operations)" has the
2.20 "Full -Time Job" means the full time employment of an individual of not
less than thirty-five (35) hours per week by a business operated within the applicable Phase,
receiving all of the employee benefits offered by the respective employer to other similarly
employed individuals and classified by such employer as a full-time job for fifty-two (52) weeks
in a calendar year. For purposes of calculating economic incentives in accordance with this
Agreement, (i) if a Full -Time Job is maintained for twenty-six (26) weeks during a calendar year
on a full time basis, such employment shall count as one-half (1/2) of a Full -Time Job, and (ii)
two (2) Part -Time Jobs shall count as one (1) Full -Time Job.
2.21 "Hotel Baseline Certificate" means that certificate in the form of Exhibit
"D" attached hereto and made a part hereof, reflecting the Hotel Full -Time Job Baseline and the
Hotel Part -Time Job Baseline, prepared by the Hotel Owner, and certified as being true and
correct by Hotel Owner.
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2.22 "Hotel Employment Certificate" means a statement, broken down in
reasonable detail, for each tenant of the Hotel Phase, reflecting the number of Full -Time Jobs
and Part -Time Jobs created by the Hotel Phase, in the form of Exhibit "E" attached hereto and
made a part hereof, prepared by Hotel Owner, and certified as being true and correct by Hotel
Owner.
Section 5.2.1.
Section 5.2.2.
2.23 "Hotel Full -Time Job Base Line" has the meaning ascribed to such term in
2.24 "Hotel Part -Time Job Base Line" has the meaning ascribed to such term in
2.25 "Hotel Parcel" has the meaning ascribed to that term in the Recitals.
2.26 "Hotel Renovation Costs" means the hard and soft costs actually paid by
Hotel Owner to third parties not affiliated with Hotel Owner in connection with the renovation of
the Hotel Phase through Completion of the Hotel Phase, as certified to the CRA by the Hotel
Owner in the Hotel Renovation Costs Certificate.
2.27 "Hotel Renovation Costs Certificate" means the certificate prepared by the
Hotel Owner reflecting the Hotel Renovation Costs, in the form of Exhibit "F" attached hereto
and made a part hereof, which certificate shall have appropriate backup, reasonably acceptable to
the Executive Director, to substantiate the Hotel Renovation Costs, including, without limitation,
an AIA Form G702, certified as being true and correct by Hotel Owner.
2.28 "Incremental TIF" shall mean the tax increment funds, if any, actually
received by the CRA from the County and City generated from the respective Phase for the
applicable year after deducting all administrative charges imposed by the County and the City
and excluding all charges and/or payments related to the Children's Trust above the tax
increment funds actually received by the CRA from the County and the City for the Base Year
applicable to the respective Phase after deducting all administrative charges imposed by the
County and the City and excluding charges and/or payments related to the Children's Trust for
the Base Year.
2.29 "Mall Parcel 1" has the meaning ascribed to that term on Exhibit A.
2.30 "Mall Parcel 2" has the meaning ascribed to that term on Exhibit A.
2.31 "Mall Parcel 3" has the meaning ascribed to that term on Exhibit A.
2.32 "Office Employment Certificate" means a statement, broken down in
reasonable detail, for each tenant of the Office Phase reflecting the number of Full -Time Jobs
and Part -Time Jobs created by the Office Phase, in the form of Exhibit "G" attached hereto and
made a part hereof, prepared by Mall Owner, and certified as being true and correct by Mall
Owner.
2.33 "Office Renovation Costs" means the hard and soft costs actually paid by
Mall Owner to third parties not affiliated with Mall Owner in connection with the renovation of
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the Office Phase through Completion of the Office Phase, as certified to the CRA by the Mall
Owner in the Office Renovation Costs Certificate.
2.34 "Office Renovation Costs Certificate" means the certificate prepared by
the Mall Owner reflecting the Office Renovation Costs, in the form of Exhibit "H" attached
hereto and made a part hereof, which certificate shall have appropriate backup, reasonably
acceptable to the Executive Director, to substantiate the Office Renovation Costs, including,
without limitation, an AIA Form G702, certified as being true and correct by Mall Owner.
2.35 "Omni Mall" has the meaning ascribed to that term in the Recitals.
2.36 "Part -Time Job" means the part-time employment of an individual of more
than twenty (20) hours per week by a business operated within the applicable Phase for fifty-two
(52) weeks in a calendar year. For purposes of calculating economic incentives in accordance
with this Agreement, (i) if a Part -Time Job is maintained for thirteen (13) weeks during a
calendar year on a part-time basis, such employment shall count as one quarter (1/4) of a Part -
Time Job, and (ii) one (1) Full -Time Job shall count as two (2) Part -Time Jobs.
2.37 "Person" means any individual, sole proprietorship, partnership, joint
venture, limited liability company, limited liability partnership, trust, estate, unincorporated
organization, association, corporation, institution or other entity.
2.38 "Phase" means applicable phase of the Project.
2.39 "Project" means the renovation of the Omni Mall consisting of the Hotel
Phase, the Office Phase and the Retail Phase.
Recitals.
2.40 "Redevelopment Area" has the meaning ascribed to such term in the
2.41 "Retail Employment Certificate" means that statement, broken down in
reasonable detail, for each tenant of the Retail Phase reflecting the number of Full -Time Jobs and
Part -Time Jobs created by the Retail Phase, in the form of Exhibit "I" attached hereto and made a
part hereof, prepared by the Mall Owner, and certified as being true and correct by Mall Owner.
2.42 "Retail Renovation Costs" means the hard and soft costs actually paid by
Mall Owner to third parties not affiliated with Mall Owner in connection with the renovation of
the Retail Phase through Completion of the Retail Phase, as certified to the CRA by Mall Owner
in the Retail Renovation Costs Certificate.
2.43 "Retail Renovation Costs Certificate" means the certificate prepared by the
Mali Owner reflecting the Retail Renovation Costs, in the form of Exhibit "J" attached hereto
and made a part hereof, which certificate shall have appropriate backup, reasonably acceptable to
the Executive Director, to substantiate the Office Renovation Costs, including, without
limitation, an AIA Form G702, certified as being true and correct by Mall Owner.
2.44 "SEOPW Redevelopment Area" means the area shown on Exhibit "K"
attached hereto and made a part hereof.
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2.45 "Substantially Completed" means that the renovations to the respective
Phase have been substantially completed in accordance with the plans and specifications, subject
only to the completion of minor punch list items and a temporary certificate of occupancy, or its
equivalent, has been issued by the City.
2.46 "Targeted Office Full -Time Jobs" has the meaning ascribed to such term
in Section 3.2.1.
2.47 "Targeted Office Part -Time Jobs" has the meaning ascribed to such term
in Section 3.2.2.
Section 4.2.1.
Section 4.2.2.
2.48 "Targeted Retail Full -Time Jobs" has the meaning ascribed to such term in
2.49 "Targeted Retail Part -Time Jobs" has the meaning ascribed to such term in
2.50 "Vacant Parcel" has the meaning ascribed to that term in the Recitals.
3. OFFICE PHASE.
3.1 OFFICE PHASE RENOVATION. Mall Owner hereby represents and
warrants to the CRA that Mall Owner will expend approximately Forty Million and No/100
Dollars ($40,000,000.00) in Office Renovation Costs in connection with the renovation of the
Office Phase, and that as a result of the renovations to the Office Phase, the Mall Owner
anticipates that the Office Phase will create at least seven -hundred (700) new Full -Time Jobs and
at least three -hundred (300) new Part -Time Jobs once the Office Phase reaches full occupancy.
As an inducement to Mall Owner to undertake the renovation of the Office Phase and create
approximately seven -hundred (700) new Full -Time Jobs and three hundred (300) new Part -Time
Jobs within the Office Phase, the CRA agrees to pay to Mall Owner a percentage of the
Incremental T1F actually generated from the Office Phase as follows:
3.1.1 Incremental TIF Adjustment. If the Mall Owner expends not less
than Forty Million Dollars ($40,000,000.00) in Office Renovation Costs in
connection with the renovation of the Office Phase, the CRA shall pay to the Mall
Owner twenty-five percent (25%) of the Incremental T1F generated from the
Office Phase above the Base Year for a period of ten (10) years commencing with
the first tax year after the Base Year, subject to the County Approval and the CRA
Approval of the CRA Budget being obtained on an annual basis. If Mall Owner
expends less than Forty Million Dollars ($40,000,000.00) in Office Renovation
Costs to complete the renovations to the Office Phase, then in such event, the
percentage of Incremental TIF which will be payable to the Mall Owner shall be
reduced by the percentage the Office Renovation Costs are less than Forty Million
Dollars ($40,000,000.00). For example, should the Office Renovation Costs
equal $30,000,000, based upon the Office Renovation Costs Certificate, the
percentage of the Incremental TIF which the CRA will be obligated to pay to the
Mall Owner shall be reduced by 25% so that the percentage of Incremental TIF
payable to the Mall Owner shall be reduced by 25% (i.e. $30,000,000
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$40,000,000 = 75% x 25% = 18.75%). Mall Owner shall not receive any
additional percentage of Incremental TIF for expending more than Forty Million
Dollars ($40,000,000.00).
3.1.2 Office Renovation Costs Certificate. Within sixty (60) days of
Completion of the renovations to the Office Phase, the Mall Owner shall submit
to the CRA the Office Renovation Costs Certificate. The Office Renovation
Costs Certification shall be utilized by the CRA to calculate the percentage of the
Incremental TIF which will be payable to Mall Owner. Mall Owner shall not be
entitled to any of the Incremental TIF pursuant to Section 3.1.1 until Mall Owner
provides the Office Renovation Costs Certificate. The Office Renovation Costs
Certificate shall be subject to audit in accordance with Section 25.
3.1.3 Disputes. In the event of a dispute between the Executive Director
and Mall Owner as to the Office Renovation Costs, the Executive Director and
Mall Owner shall proceed in good faith to resolve the dispute. If the parties are
not able to resolve the dispute within thirty (30) days of written notice to the
other, the dispute shall be submitted to the CRA Board for resolution within
ninety (90) days, which decision by the CRA Board shall be binding upon the
parties.
3.1.4 Payment of Incremental TIF. Subject to County Approval and
CRA Approval of the CRA Budget, on an annual basis, and subject to Mall
Owner complying with Section 3.1.2, for each year after the Base Year, the CRA
shall pay to the Mall Owner the applicable percentage of the Incremental TIF due
pursuant to Section 3.1.1, within thirty (30) days after the CRA's receipt of the
Incremental TIF from the County and the City.
3.1.5 Tenant Improvement Costs. Mall Owner acknowledges and agrees
that the estimated Forty Million Dollars ($40,000,000.00) to be expended on
Office Renovation Costs does not include funds which will be utilized by Mall
Owner to build out office space for tenants of the Office Phase. Mall Owner
represents to the CRA that the anticipated cost to complete the tenant
improvements to the Office Phase is anticipated to be approximately Ten Million
and No/100 Dollars ($10,000,000.00).
3.1.6 First Source Hiring of Office Phase. As a further inducement for
the CRA to enter into this Agreement, the Mall Owner and the CRA have agreed
to enter into a first source hiring agreement with respect to employment during
construction of the Office Phase in the form of Exhibit "L" attached hereto (the
"First Source Hiring Agreement Office Phase (Construction)").
3.2 OFFICE PHASE EMPLOYMENT. The Office Phase is currently
anticipated to be completed in March 2009. Commencing for the calendar year 2010 for a period
of ten (10) years thereafter, subject to the County Approval and the CRA Approval of the CRA
Budget being obtained annually, the CRA will pay to the Mall Owner a portion of the
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Incremental TIF generated from the Office Phase based upon Mall Owner achieving the
employment objectives each calendar year as follows:
3.2.1 Base Job Full -Time Incremental TIF. The Office Phase is
anticipated to generate a total of seven -hundred (700) Full -Time Jobs upon full
occupancy by tenants. The Office Phase is expected to go through a ramp -up
period, generating additional Full -Time Jobs over a period of time. The Office
Phase is anticipated to generate two -hundred (200) Full -Time Jobs in 2010, two -
hundred (200) Full -Time Jobs in 2011, five -hundred (500) Full -Time Jobs in
2012, six -hundred (600) Full -Time Jobs in 2013, and seven -hundred (700) Full -
Time Jobs in 2014 and in each year thereafter (the number of Office Phase Full -
Time Jobs in the applicable calendar year is the "Targeted Office Full -Time
Jobs"). If no less than the number of Targeted Office Full -Time Jobs are
generated by the Office Phase during the applicable calendar year, subject to the
County Approval and CRA Approval of the CRA Budget, the CRA shall pay to
Mall Owner seventeen and one-half percent (17.5%) of the Incremental TIF
generated by the Office Phase. If the number of Full -Time Jobs generated by the
Office Phase during the applicable calendar year is less than the number of
Targeted Office Full -Time Jobs, then the percentage of Incremental TIF payable
to Mall Owner shall be reduced by the same percentage that the number of Full -
Time Jobs for the applicable year is less than the number of Targeted Office Full -
Time Jobs. For example, if only seventy-five percent (75%) of the Targeted
Office Full -Time Jobs is achieved in a given year, then the percentage of
Incremental TIF which will be payable to Mall Owner, pursuant to this Section
3.2.1, shall be reduced by 25%.
3.2.2 Base Job Part -Time Incremental TIF. The Office Phase is
anticipated to generate a total of three hundred (300) Part -Time Jobs upon full
occupancy by tenants. The Office Phase is expected to go through a ramp -up
period, generating additional Part -Time Jobs over a period of time. The Office
Phase is anticipated to generate ninety (90) Part -Time Jobs in 2010, ninety (90)
Part -Time Jobs in 2011, two hundred fifteen (215) Part -Time Jobs in 2012, two
hundred forty (240) Part -Time Jobs in 2013, and three hundred (300) Part -Time
Jobs in 2014 and in each year thereafter (the number of Office Phase Part -Time
Jobs in the applicable year is the "Targeted Office Part -Time Jobs"). If no less
than the number of Targeted Office Part -Time Jobs are generated by the Office
Phase during the applicable calendar year, subject to the County Approval and
CRA Approval of the CRA Budget, the CRA shall pay Mall Owner seven and
one-half percent (7.5%) of the Incremental TIF generated by the Office Phase. If
the number of Part -Time Jobs generated by the Office Phase during the applicable
calendar year is less than the number of Targeted Office Part -Time Jobs, then the
percentage of Incremental TIF payable to Mall Owner shall be reduced by the
same percentage that the number of Part -Time Jobs is less than the number of
Targeted Office Part -Time Jobs for the applicable year. For example, if only fifty
percent (50%) of the Targeted Office Part -Time Jobs is achieved in a given year,
then the percentage of Incremental TIF, which shall be payable to Mall Owner
pursuant to this Section 3.2.2, shall be reduced by 50%.
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3.2.3 Consideration of Additional Full -Time Jobs. Any Full -Time Job
created that exceeds the Targeted Office Full -Time Jobs shall be counted as one
(1) job towards the satisfaction of the Targeted Office Part -Time Jobs.
3.2.4 Office Employment Certificate. On an annual basis, Mall Owner
shall submit to the CRA the Office Employment Certificate, which shall be
utilized by the CRA to calculate the percentage of the Incremental TIF which will
be payable to the Mall Owner. The Office Employment Certificate shall be
subject to audit as provided in Section 25.
3.2.5 Disputes. In the event of a dispute between the Executive Director
and Mall Owner as to the Office Employment Certificate, the Executive Director
and Mall Owner shall proceed in good faith to resolve the dispute. If the parties
are not able to resolve the dispute within thirty (30) days of written notice to the
other, the dispute shall be submitted to the CRA Board for resolution within
ninety (90) days, which decision by the CRA Board shall be binding upon the
parties.
3.2.6 Payment of Incremental TIF. Subject to County Approval and
CRA Approval of the CRA Budget, on an annual basis, after the Base Year, the
CRA shall pay to the Mall Owner the applicable percentage of the Incremental
TIF, due pursuant to Section 3.2.1, 3.2.2 and 3.2.3, within thirty (30) days after
the CRA's receipt of the Incremental TIF from the County and the City.
3.2.7 First Source Hiring Agreement. As a further inducement for the
CRA to enter into this Agreement, the Mall Owner and the CRA have agreed to
enter into a first source hiring agreement with respect to employment during
operation of the Office Phase in the form of Exhibit "M" attached hereto (the
"First Source Hiring Agreement Office Phase (Operations)").
4. RETAIL PHASE
4.1 RETAIL PHASE RENOVATION. Mall Owner hereby represents and
warrants to the CRA that Mall Owner will expend approximately Thirty Million and No/100
Dollars ($30,000,000.00) in Retail Renovation Costs in connection with the renovation of the
Retail Phase, and that as a result of the renovations to the Retail Phase, the Mall Owner
anticipates that the Retail Phase will create at least one hundred (100) new Full -Time Jobs and
two hundred (200) new Part -Time Jobs once the Retail Phase reaches full occupancy. As an
inducement to Mall Owner to undertake the renovation of the Retail Phase and create
approximately one hundred (100) new Full -Time Jobs and two hundred (200) new Part -Time
Jobs within the Retail Phase, the CRA agrees to pay Mall Owner a percentage of the Incremental
TIF actually generated from the Retail Phase as follows:
4.1.1 Incremental TIF Adjustment. If the Mall Owner expends not less
than Thirty Million Dollars ($30,000,000.00) in Retail Renovation Costs in
connection with the renovation of the Retail Phase, the CRA shall pay to the Mall
Owner twenty-five percent (25%) of the Incremental TIF generated from the
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Retail Phase above the Base Year for a period of ten (10) years commencing with
the first tax year after the Base Year, subject to the County Approval and the CRA
Approval of the CRA Budget being obtained on an annual basis. If Mall Owner
expends less than Thirty Million Dollars ($30,000,000.00) in Retail Renovation
Costs to complete the renovations to the Retail Phase, then in such event, the
percentage of Incremental TIF which will be payable to the Mall Owner shall be
reduced by the percentage the Retail Renovation Costs are less than Thirty
Million Dollars ($30,000,000.00). For example, should the Retail Renovation
Costs equal $15,000,000, based upon the Retail Renovation Costs Certificate, the
percentage of the Incremental TIF which the CRA will be obligated to pay to the
Mall Owner shall be reduced by 50% so that the percentage of Incremental TIF
payable to the Mall Owner shall be reduced by 50% (i.e. $15,000,000
$30,000,000 = 50% x 25% = 12.50%). Mall Owner shall not receive any
additional percentage of Incremental TIF for expending more than Thirty Million
Dollars ($30,000,000.00).
4.1.2 Retail Renovation Costs Certificate. Within sixty (60) days of
Completion of the renovations to the Retail Phase, the Mall Owner shall submit to
the CRA the Retail Renovation Costs Certificate, which shall be utilized by the
CRA to calculate the percentage of the Incremental TIF which will be payable to
Mall Owner. Mall Owner shall not be entitled to any of the Incremental TIF
pursuant to Section 4.1.1 until Mall Owner provides the Retail Renovation Costs
Certificate. The Retail Renovation Costs Certificate shall be subject to audit in
accordance with Section 25.
4.1.3 Disputes. In the event of a dispute between the Executive Director
and Mall Owner as to the Retail Renovation Costs, the Executive Director and
Mall Owner shall proceed in good faith to resolve the dispute. If the parties are
not able to resolve the dispute within thirty (30) days of written notice to the
other, the dispute shall be submitted to the CRA Board for resolution within
ninety (90) days, which decision by the CRA Board shall be binding upon the
parties.
4.1.4 Payment of Incremental TIF. Subject to County Approval and
CRA Approval of the CRA Budget, on an annual basis, and subject to Mall
Owner complying with Section 4.1.2, for each year after the Base Year, the CRA
shall pay to the Mall Owner the applicable percentage of the Incremental TIF due
pursuant to Section 4.1.1, within thirty (30) days after the CRA's receipt of the
Incremental TIF from the County and the City.
4.1.5 Tenant Improvement Costs. Mall Owner acknowledges and agrees
that the estimated Thirty Million Dollars to be expended on Retail Renovation
Costs does not include funds which will be utilized by Mall Owner to build out
office space for tenants of the Retail Phase. Mall Owner represents to the CRA
that the anticipated cost to complete the tenant improvements to the Retail Phase
is anticipated to be approximately Ten Million and No/100 Dollars
($10,000,000.00).
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4.1.6 First Source Hiring. As a further inducement for the CRA to enter
into this Agreement, the MalI Owner and the CRA have agreed to enter into a first
source hiring agreement with respect to employment during construction of the
Retail Phase in the form of Exhibit "N" attached hereto (the "First Source Hiring
Agreement Retail Phase (Construction)").
4.2 RETAIL PHASE EMPLOYMENT. The Retail Phase is currently
anticipated to be completed in 2012. Commencing for the calendar year 2013 for a period of ten
(10) years thereafter, subject to the County Approval and the CRA Approval of the CRA Budget
being obtained annually, the CRA will pay to the Mall Owner a portion of the Incremental TIF
generated from the Retail Phase based upon Mall Owner achieving the employment objectives
each calendar year as follows:
4.2.1 Full -Time Incremental TIF. The Retail Phase is anticipated to
generate a total of one hundred (100) Full -Time Jobs upon full occupancy by
tenants. The Retail Phase is expected to go through a ramp -up period, generating
additional Full -Time Jobs over a period of time. The Retail Phase is anticipated
to generate thirty (30) Full -Time Jobs in 2013, seventy (70) Full -Time Jobs in
2014, and one -hundred (100) Full -Time Jobs in 2015 and in each year thereafter
(the number of Retail Phase Full -Time Jobs in the applicable calendar year is the
"Targeted Retail Full -Time Jobs"). If no less than the number of Targeted Retail
Full -Time Jobs are generated by the Retail Phase during the applicable calendar
year, subject to the County Approval and CRA Approval of the CRA Budget, the
CRA shall pay to Mall Owner twelve and one-half percent (12.5%) of the
Incremental TIF generated by the Retail Phase. If the number of Full -Time Jobs
generated by the Retail Phase during the applicable calendar year is less than the
number of Targeted Retail Full -Time Jobs, then the percentage of Incremental
TIF payable to Mall Owner shall be reduced by the same percentage that the
number of Full -Time Jobs for the applicable year is less than the number of
Targeted Retail Full -Time Jobs. For example, if only seventy-five percent (75%)
of the Targeted Retail Full -Time Jobs is achieved in a given year, then the
percentage of Incremental TIF which will be payable to Mall Owner, pursuant to
this Section 4.2.1, shall be reduced by 25%.
4.2.2 Part -Time Incremental TIF. The Retail Phase is anticipated to
generate a total of two hundred (200) Part -Time Jobs upon full occupancy by
tenants. The Retail Phase is expected to go through a ramp -up period, generating
additional Part -Time Jobs over a period of time. The Retail Phase is anticipated
to generate seventy (70) Part -Time Jobs in 2013, one hundred thirty (130) Part -
Time Jobs in 2014, and two hundred (200) Part -Time Jobs in 2015 and in each
year thereafter (the number of Retail Phase Part -Time Jobs in the applicable year
is the "Targeted Retail Part -Time Jobs"). If no less than the number of Targeted
Retail Part -Time Jobs are generated by the Retail Phase during the applicable
calendar year, subject to the County Approval and CRA Approval of the CRA
Budget, the CRA shall pay Mall Owner twelve and one-half percent (12.5%) of
the Incremental TIF generated by the Retail Phase. If the number of Part -Time
Jobs generated by the Retail Phase during the applicable calendar year is less than
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the number of Targeted Retail Part -Time Jobs, then the percentage of Incremental
TIF payable to Mall Owner shall be reduced by the same percentage that the
number of Part -Time Jobs is less than the number of Targeted Retail Part -Time
Jobs for the applicable year. For example, if only fifty percent (50%) of the
Targeted Retail Part -Time Jobs is achieved in a given year, then the percentage of
Incremental TIF, which shall be payable to Mall Owner pursuant to this Section
4.2.2, shall be reduced by 50%.
4.2.3 Consideration of Additional Full -Time Jobs. Any Full -Time Job
created that exceeds the Targeted Retail Full -Time Jobs shall be counted as one
(1) job towards the satisfaction of the Targeted Retail Part -Time Jobs.
4.2.4 Retail Employment Certificate. On an annual basis, Mall Owner
shall submit to the CRA the Retail Employment Certificate, which shall be
utilized by the CRA to calculate the percentage of the Incremental TIF which will
be payable to the Mall Owner. If requested by the Executive Director, the Mall
Owner shall provide reasonable additional back up documentation for the Retail
Employment Certificate. The Retail Employment Certificate shall be subject to
audit in accordance with Section 25.
4.2.5 Disputes. In the event of a dispute between the Executive Director
and Mall Owner as to the Retail Employment Certificate, the Executive Director
and Mall Owner shall proceed in good faith to resolve the dispute. If the parties
are not able to resolve the dispute within thirty (30) days of written notice to the
other, the dispute shall be submitted to the CRA Board for resolution within
ninety (90) days, which decision by the CRA Board shall be binding upon the
parties.
4.2.6 Payment of Incremental TIF. Subject to County Approval and
CRA Approval of the CRA Budget, on an annual basis, after the Base Year, the
CRA shall pay to the Mall Owner the applicable percentage of the Incremental
TIF, due pursuant to Section 4.2.1, 4.2.2 and 4.2.3, within thirty (30) days after
the CRA's receipt of the Incremental TIF from the County and the City.
4.2.7 First Source Hiring Agreement. As a further inducement for the
CRA to enter into this Agreement, the Mall Owner and the CRA have agreed to
enter into a first source hiring agreement with respect to employment during
operation of the Retail Phase in the form of Exhibit "0" attached hereto (the "First
Source Hiring Agreement Retail Phase (Operations)").
5. HOTEL PHASE
5.1 HOTEL PHASE RENOVATION. Hotel Owner has represented to the
CRA that Hotel Owner expects to expend approximately Twenty -Five Million and No/100
Dollars ($25,000,000.00) in Hotel Renovation Costs in connection with the renovation of the
Hotel Phase, and that as a result of the renovations to the Hotel Phase, the Hotel Owner
anticipates that the Hotel Phase will create at least approximately seventeen (17) new Full -Time
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Jobs and thirty-eight (38) new Part -Time Jobs. As an inducement to Hotel Owner to undertake
the renovation of the Hotel Phase and create approximately seventeen (17) new Full -Time Jobs
and thirty-eight (38) new Part -Time Jobs within the Hotel Phase, the CRA agrees to pay Hotel
Owner a percentage of the Incremental TIF actually generated from the Hotel Phase as follows:
5.1.1 Incremental TIF Adjustment. If the Hotel Owner expends not less
than Twenty -Five Million Dollars ($25,000,000.00) in Hotel Renovation Costs in
connection with the renovation of the Hotel Phase, the CRA shall pay to the Hotel
Owner twenty-five percent (25%) of the Incremental TIF generated from the
Hotel Phase above the Base Year for a period of ten (10) years commencing with
the first tax year after the Base Year, subject to the County Approval and the CRA
Approval of the CRA Budget being obtained on an annual basis. If Hotel Owner
expends less than Twenty -Five Million Dollars ($25,000,000.00) in Hotel
Renovation Costs to complete the renovations to the Hotel Phase, then in such
event, the percentage of Incremental TIF which will be payable to the Hotel
Owner shall be reduced by the percentage the Hotel Renovation Costs are less
than Twenty -Five Million Dollars ($25,000,000.00). For example, should the
Hotel Renovation Costs equal $20,000,000.00 based upon the Hotel Renovation
Costs Certificate, the percentage of the Incremental TIF which the CRA will be
obligated to pay to the Hotel Owner shall be reduced by 20% so that the
percentage of Incremental TIF payable to the Hotel Owner shall be reduced by
20% (i.e. $20,000,000 = $25,000,000 = 80% x 25% = 20%). Hotel Owner shall
not receive any additional percentage of Incremental TIF for expending more than
Twenty -Five Million Dollars ($25,000,000.00).
5.1.2 Hotel Renovation Costs Certificate. Within sixty (60) days of
Completion of the renovations to the Hotel Phase, the Hotel Owner shall submit
to the CRA the Office Renovation Costs Certificate, which shall be utilized by the
CRA to calculate the percentage of the Incremental TIF which will be payable to
Hotel Owner. Hotel Owner shall not be entitled to any of the Incremental TIF
pursuant to Section 5.1.1 until Hotel Owner provides the Hotel Renovation Costs
Certificate. The Hotel Renovation Costs Certificate shall be subject to audit in
accordance with Section 25.
5.1.3 Disputes. In the event of a dispute between the Executive Director
and Hotel Owner as to the Hotel Renovation Costs, the Executive Director and
Hotel Owner shall proceed in good faith to resolve the dispute. If the parties are
not able to resolve the dispute within thirty (30) days of written notice to the
other, the dispute shall be submitted to the CRA Board for resolution within
ninety (90) days, which decision by the CRA Board shall be binding upon the
parties.
5.1.4 Payment of Incremental TIF. Subject to County Approval and
CRA Approval of the CRA Budget, on an annual basis, and subject to Hotel
Owner complying with Section 5.1.2, for each year after the Base Year, the CRA
shall pay to the Hotel Owner the applicable percentage of the Incremental TIF due
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pursuant to Section 5.1.1, within thirty (30) days after the CRA's receipt of the
Incremental TIF from the County and the City.
5.2 HOTEL PHASE EMPLOYMENT. The Hotel Phase was completed in
December 2008. Commencing for the calendar year 2009 for a period of ten (10) years
thereafter, subject to the County Approval and the CRA Approval of the CRA Budget being
obtained annually, the CRA will pay to the Hotel Owner a portion of the Incremental TIF
generated from the Hotel Phase based upon Hotel Owner achieving the employment objectives
each calendar year as follows:
5.2.1 Base Job Full -Time Incremental TIF. Hotel Owner shall provide to
the CRA sufficient backup information and documentation, as requested by the
CRA to substantiate that the Hotel Phase currently provides for two -hundred
forty-five (245) Full -Time Jobs (the "Hotel Full -Time Job Base Line"), and
submit the Hotel Baseline Certificate to the CRA. The Hotel Phase is anticipated
to generate a total of seventeen (17) new Full -Time Jobs above the Hotel Full -
Time Base Line each year (the number of Hotel Phase Full -Time Jobs in the
applicable calendar year is the "Targeted Hotel Full -Time Jobs"). If no less than
the Targeted Hotel Full -Time Jobs are generated by the Hotel Phase during the
applicable calendar year, subject to the County Approval and CRA Approval of
the CRA Budget, the CRA shall pay to Hotel Owner twelve and one-half percent
(12.5%) of the Incremental TIF generated by the Hotel Phase. If the number of
Targeted Hotel Full -Time Jobs generated by the Hotel Phase during the applicable
calendar year is less than the number of Targeted Hotel Full -Time Jobs, then the
percentage of Incremental TIF payable to Hotel Owner shall be reduced by the
same percentage that the number of Full -Time Jobs above the Hotel Full -Time
Base Line for the applicable year is less than the number of Targeted Hotel Full -
Time Jobs. For example, if only seventy-five percent (75%) of the Targeted
Hotel Full -Time Jobs is achieved in a given year, then the percentage of
Incremental TIF which will be payable to Hotel Owner, pursuant to this Section
5.2.1, shall be reduced by 25%.
5.2.2 Base Job Part -Time Incremental TIF. The Hotel Owner hereby
certifies to the CRA that the Hotel Phase currently provides zero (0) Part -Time
Jobs (the "Hotel Part -Time Job Base Line"), and the Hotel Part -Time Job Baseline
shall be included in the Hotel Baseline Certificate, The Hotel Phase is anticipated
to generate a total of thirty-eight (38) new Part -Time Jobs above the Hotel Part -
Time Base Line each year (the number of Hotel Phase Part -Time Jobs in the
applicable year is the "Targeted Hotel Part -Time Jobs"). If no less than the
number of Targeted Hotel Part -Time Jobs are generated by the Hotel Phase during
the applicable calendar year, subject to the County Approval and CRA Approval
of the CRA Budget, the CRA shall pay Hotel Owner twelve and one-half percent
(12.5%) of the Incremental TIF generated by the Hotel Phase. If the number of
Part -Time Jobs generated by the Hotel Phase during the applicable calendar year
is less than the number of Targeted Hotel Part -Time Jobs, then the percentage of
Incremental TIF payable to Hotel Owner shall be reduced by the same percentage
that the number of Part -Time Jobs above the Hotel Part -Time Base Line is less
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than the number of Targeted Hotel Part -Time Jobs for the applicable year. For
example, if only fifty percent (50%) of the Targeted Hotel Part -Time Jobs is
achieved in a given year, then the percentage of Incremental TIF, which shall be
payable to Hotel Owner pursuant to this Section 5.2.2, shall be reduced by 50%.
5.2.3 Consideration of Additional Full -Time Jobs. Any Full -Time Job
created that exceeds the Targeted Hotel Full -Time Jobs shall be counted as one
(1) job towards the satisfaction of the Targeted Hotel Part -Time Jobs.
5.2.4 Hotel Employment Certificate. On an annual basis, Hotel Owner
shall submit to the CRA the Hotel Employment Certificate, which shall be
utilized by the CRA to calculate the percentage of the Incremental TIF which will
be payable to the Hotel Owner. If requested by the Executive Director, the Mall
Owner shall provide reasonable additional backup documentation for the Hotel
Employment Certificate. The Hotel Employment Certificate shall be subject to
audit in accordance with Section 25.
5.2.5 Disputes. In the event of a dispute between the Executive Director
and Hotel Owner as to the Hotel Employment Certificate, the Executive Director
and Hotel Owner shall proceed in good faith to resolve the dispute. If the parties
are not able to resolve the dispute within thirty (30) days of written notice to the
other, the dispute shall be submitted to the CRA Board for resolution within
ninety (90) days, which decision by the CRA Board shall be binding upon the
parties.
5.2.6 Payment of Incremental TIF. Subject to County Approval and
CRA Approval of the CRA Budget, on an annual basis, after the Base Year, the
CRA shall pay to the Hotel Owner the applicable percentage of the Incremental
TIF, due pursuant to Section 5.2.1, 5.2.2 and 5.2.3, within thirty (30) days after
the CRA's receipt of the Incremental TIF from the County and the City.
5.2.7 First Source Hiring Agreement. As a further inducement for the
CRA to enter into this Agreement, the Hotel Owner and the CRA have agreed to
enter into a first source hiring agreement with respect to employment during
operation of the Hotel Phase in the form of "Exhibit "P" attached hereto (the
"First Source Hiring Agreement Hotel Phase (Operations)").
6. SUBORDINATION OF INCREMENTAL TIF. Owner acknowledges and agrees
that in addition to the obligation of the CRA to make the payments to Owner contemplated by
this Agreement the obligations of the CRA under this Agreement are junior and subordinate to
the obligations of the CRA to pay debt service with respect to the obligations of the CRA to pay
debt service on any bonds issued in the future by the CRA or the City on the CRA's behalf or any
pledge of Incremental TIF by the CRA or the City on the CRA's behalf (collectively the "CRA
Bond Obligations"). Under no circumstances shall the CRA be obligated to make payments to
Owner from its general revenues or any other sources if Increment TIF is unavailable after the
CRA makes all required payments under the CRA Bond Obligations. To the extent no
Incremental TIF or only a portion of the Incremental TIF is available to pay the CRA's
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obligations under this Agreement as a result of the CRA Bond Obligations, such payments shall
be reduced to the amount of Incremental TIF available, if any. For each year in which the
Incremental TIF is not available to pay the CRA's obligations under this Agreement as a result of
the CRA Bond Obligations, the time period in which the Mall Owner and/or the Hotel Owner, as
applicable, will be eligible to earn Incremental TIF pursuant to this Agreement shall be extended
for one (1) additional year but in no event beyond the existence of the CRA. The Owner
covenants and agrees to execute a subordination agreement confirming that this Agreement is
junior and subordinate to any CRA Bond Obligations within ten (10) days of written request by
the CRA.
7. CHALLENGES.
7.1 No Liability. Owner acknowledges and agrees that the CRA shall have no
liability whatsoever to Owner in connection with any challenge to this Agreement and Owner
hereby forever waives and releases the CRA from any liability whatsoever, now or hereafter
arising in connection with any challenge to this Agreement and covenants and agrees not to
initiate any legal proceedings against the CRA in connection with any challenges to this
Agreement.
7.2 No Duty to Defend. In the event of any challenge to this Agreement, the
CRA shall have no duty arising under this Agreement to defend such challenge. Owner, at its
sole cost and expense, may defend any such challenge.
7.3 Waiver of Claim. Owner waives any and all claims which Owner now
have or may hereafter have against the CRA as a result of any challenge to this Agreement, and
Owner acknowledges and agrees to assume the risk of any challenge to this Agreement. Under
no circumstances shall Owner be entitled to any recovery with respect to any claims or any cause
of action against the CRA resulting from any challenge to this Agreement, all such claims being
expressly waived by Owner.
8. REPRESENTATIONS OF OWNER. Owner makes the following representations
to the CRA as follows:
8.1 Mall Owner and Hotel Owner are each limited liability companies, duly
organized and validly existing under the laws of the State of Delaware, and qualified to conduct
business in the State of Florida, and have full power and capacity to own their properties, to
carry on their business as presently conducted, and to enter into the transactions contemplated by
this Agreement.
8.2 Owner's execution, delivery and performance of this Agreement has been
duly authorized by all necessary company actions and does not and shall not conflict with or
constitute a default under any indenture, agreement or instrument to which such entities are a
party or by which they may be bound or affected.
8.3 This Agreement constitutes the valid and binding obligation of Owner,
enforceable against Owner and its successors and assigns, in accordance with its terms, subject to
bankruptcy, insolvency and other similar laws affecting the rights of creditors generally.
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9. NOTICES. Notices required or permitted to be given pursuant to the terms of this
Agreement will be delivered in person or by facsimile transmission (provided the original notice
is delivered in person or by mail or delivery service as set forth herein) or sent by certified mail,
return receipt requested, postage prepaid, by recognized contract carrier providing signed receipt
for delivery, and will be deemed delivered upon receipt or refusal of delivery. Notices will be
delivered at the following addresses, subject to the right of any party to change the address at
which it is to receive notice by written notice to the other party:
MALL OWNER:
Downtown Miami Mall, LLC
c/o Argent Ventures, LLC
551 Fifth Avenue, 34th Floor
New York, NY 10176
Fax: 212-681-6096
Copy to:
James Shindell, Esq.
Bilzon Sumberg Baena Price & Axelrod LLP
200 So. Biscayne Blvd., Suite 2500
Miami, FL 33131
Fax: 305-351-2256
HOTEL OWNER:
Downtown Miami Hotel, LLC
c/o Argent Ventures, LLC
551 Fifth Avenue, 34th Floor
New York, NY 10176
Fax: 212-681-6096
Copy to:
James Shindell, Esq.
Bilzin Sumberg Baena Price & Axelrod LLP
200 So. Biscayne Blvd., Suite 2500
Miami, FL 33131
Fax: 305-351-2256
CRA:
James H. Villacorta, Executive Director
Omni Redevelopment District Community Redevelopment Agency
49 NW 5th Street, Suite 100
Miami, FL 33128
Fax: 305-679-6836
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Copy to:
William R. Bloom, Esq.
Holland & Knight LLP
701 Brickell Avenue, Suite 3000
Miami, FL 33131
Fax: 305-789-7799
10. STATUS OF LAW. Owner acknowledges that no voter approval was obtained in
connection with this Agreement and that the County has not approved this Agreement. In the
event this Agreement is determined to be unenforceable as a result of (i) the multi -year CRA
commitment regarding the use of the Incremental TIF; (ii) the failure to obtain County Approval
of the CRA Budget on an annual basis; or (iii) the failure of the CRA Board to approve the CRA
Budget on an annual basis, the Owner acknowledges and agrees that the CRA shall have no
liability to Hotel Owner or Mall Owner arising under this Agreement. Hotel Owner and Mall
Owner acknowledge that this provision is a material inducement for the CRA to enter into this
Agreement.
11. COUNTY APPROVAL. In addition to the right to approve the annual CRA
Budget, the County may claim the right to approve agreements entered into by the CRA
expending Incremental TIF. Owner acknowledges that this Agreement has not been submitted to
the County for review or approval but that the Incremental TIF payments contemplated by this
Agreement will be included in the annual budget submitted by the CRA to the County, if the
CRA Budget is approved by the CRA Board. The CRA shall have no liability to the Owner in
the event the County does not approve this Agreement and the CRA is not permitted by the
County to make the payments contemplated by this Agreement. The CRA hereby agrees that it
will not submit this Agreement to the County for approval, unless it is required by the County or
applicable law.
12. NON -RECOURSE. This Agreement is non -recourse to the CRA. In the event of
breach of this Agreement by the CRA, the Owner may seek specific performance of this
Agreement and any recovery shall be limited to Incremental TIF generate by the Project above
the applicable Base Year, to the extent permitted to be paid to the Owner by the County.
13. DEFAULT BY OWNER. In the event Owner breaches its duties and obligations
under this Agreement and such failure is not cured within thirty (30) days of Owner's receipt of
written notice of default specifying the breach, or such longer period of time, not to exceed
ninety (90) days if the default, by its nature cannot be cured within thirty (30) days and Owner
commences the curative action within thirty (30) days and diligently pursues same, then the CRA
will have no further duties and obligations under this Agreement. Notwithstanding this section, a
failure by Owner, or its successors or assigns, to file applicable documentation, including but not
limited to renovation cost certificates or employment certificates, or any other failure to access
the Incremental TIF, as described in Section 3, Section 4, or Section 5, shall only constitute a
breach of its obligations for that calendar year, and shall not constitute a default in future years
under this Agreement.
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14. RESIDENTIAL UNITS. Owner acknowledges and agrees that Owner shall not
be entitled to any of the Incremental TIF resulting from any portions of the Omni Mall being
developed for residential purposes, other than the Hotel. Owner acknowledges that under the
existing Major Use Special Permit issued by the City with respect to the Project, approximately
6,800 market rate housing units may be developed as part of the Omni Mall and Owner agrees
that Owner shall not be entitled to any Incremental TIF generated from the development of any
residential housing units as part of the Project other than the Hotel.
15. ADJUSTMENTS TO FOLIO NUMBERS. Owner and the CRA acknowledge
that the current tax folio numbers and assessed values with respect to the Office Phase, the Hotel
Phase, and the Retail Phase may change as a result of the reconfiguration of the Omni Mall in
connection with the Project and to reflect that the Arts College Space is not considered part of
the Office Phase for purposes of this Agreement. In such event, the Executive Director, the Mall
Owner and the Hotel Owner shall proceed in good faith to agree as to (i) which new folio
numbers are applicable to the respective Phases, based upon the adjustment in such new folio
numbers by the Miami -Dade County Property Appraiser, and (ii) which assessed values will be
applicable to the various Phases for the Base Year and thereafter with respect to each Phase. In
addition, Mall Owner and the CRA must agree on the applicable adjustment to the assessed value
of the Office Phase as a result of the Arts College Space not being included therein. Should the
parties not be able to agree to the allocation within thirty (30) days of written demand by either
party, the dispute shall be submitted to the CRA Board for resolution, which decision shall be
binding on the parties.
16. RELATIONSHIP BETWEEN PARTIES. This Agreement does not evidence the
creation of, nor shall it be construed as creating, a partnership or joint venture between the CRA
and Owner. No party can create any obligations or responsibility on behalf of the others or bind
the others in any manner. Each party is acting for its own account, and it has made its own
independent decisions to enter into this Agreement and as to whether the same is appropriate or
proper for it based upon its own judgment and upon advice from such advisors as it has deemed
necessary. Each party acknowledges that none of the other parties hereto is acting as a fiduciary
for or an adviser to it in respect of this Agreement or any responsibility or obligation
contemplated herein. Owner further represents and acknowledges that no one was paid a fee,
commission, gift or other consideration by Owner, or Owner's agent, as an inducement to
entering into this Agreement.
17. AGREEMENT TO RUN WITH THE LAND. This Agreement, and all rights and
obligations herein, shall be binding upon the successors in interest, and assigns of Owner who
are Owners of the Omni Mall or portions thereof and run with the land. It is acknowledged that
Owner, as the fee simple owner of the Project, is free to convey title (fee simple, leasehold or
otherwise) to third parties of all or portions of the Project subject to the terms of this Agreement.
18. ASSIGNMENT. Owner may assign its rights under this Agreement only to its
successors or assigns owning fee simple title to the Project or portions thereof. Nothing
contained herein shall prevent Owner from paying portions of the Incremental TIF received by
Owner to others to promote employment at the Project.
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19. CAP ON INCREMENTAL TIF. Notwithstanding anything to the contrary
contained in this Agreement, the total amount of Incremental TIF that shall be paid to Owner, in
the aggregate, for the Project shall not exceed Seven Million and No/100 Dollars
($7,000,000.00).
20. CRA MEETINGS. Hotel Owner covenants and agrees to make its meeting
facilities available for use by the CRA, or its designee, for CRA meetings and other public
meetings four (4) times a year, at no charge, other than for food services, if any, requested by the
CRA, or its designee, in connection with any such meetings, and to provide free parking for up to
fifty (50) cars for use in connection with such meetings.
21. CRA BUDGET. The CRA covenants and agrees to include in its annual
operating budget a line item for the annual payments contemplated by this Agreement, subject to
CRA Board approval.
22. DUTIES OF OWNER. In acknowledging the importance of supporting CRA job
training initiatives, Hotel Owner agrees to provide appropriate meeting space to the CRA, or its
designee, at no cost and expense other than food service requested by the CRA or its designee,
no less than four (4) job training workshops annually during the time period Mall Owner and/or
Hotel Owner is entitled to be paid any Incremental TIF pursuant to this Agreement, commencing
upon execution of this Agreement, and to provide parking for up to fifty (50) cars free of charge.
23. DEDICATION OF RIGHT OF WAY. Mall Owner acknowledges that the CRA
has requested that Owner dedicate a portion of the Vacant Parcel to enable the City of Miami to
construct a traffic circle at the intersection of North Bayshore Drive and 17a` Street (the
"Dedication"). In the event Mall Owner seeks compensation for the Dedication, the Incremental
TIF to be paid pursuant to this Agreement shall be reduced by the amount paid to Mall Owner
for the Dedication.
24. CONSULTANT AND PRO1~ESSIONAL COMPENSATION. Owner may retain
consultants and professionals to assist Owner in connection with the negotiation and execution of
this Agreement, and Owner may compensate those consultants and professionals at their
standard hourly rate for services performed, or any other method of compensation that is
considered standard and reasonable for that particular service. Notwithstanding anything to the
contrary contained herein, in no event shall Owner compensate any consultant or professional in
any form that would be deemed a "bonus", "success fee" or "finder's fee".
25. AUDITOR. Owner hereby acknowledges that the CRA may elect to retain
Auditor in order to certify and substantiate the information provided by Owner in the various
Certificates, the cost of which shall be paid by the Owner, and is not to exceed Fifteen Thousand
and 00/100 Dollars ($15,000.00), per year, per Certificate. In the event the CRA elects to retain
Auditor, Mall Owner and Hotel Owner shall provide or make available to the Auditor all
necessary back-up information or documentation that is reasonably requested by Auditor.
26. MISCELLANEOUS.
26.1 This Agreement shall be construed and governed in accordance with the
laws of the State of Florida. All of the parties to this Agreement have participated fully in the
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negotiation and preparation hereof, and, accordingly, this Agreement shall not be more strictly
construed against any one of the parties hereto.
26.2 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.
26.3 In the event of any litigation between the parties under this Agreement, the
parties shall bear their own attorneys' fees and costs at trial and appellate levels.
26.4 In construing this Agreement, the singular shall be held to include the
plural, the plural shall be held to include the singular, the use of any gender shall be held to
include every other and all genders, and captions and Paragraph headings shall be disregarded.
26.5 All of the exhibits attached to this Agreement are incorporated in, and
made a part of, this Agreement.
26.6 Time shall be of the essence for each and every provision of this
Agreement.
26.7 No provision of this Agreement is intended, nor shall any be construed, as
a covenant of any official (either elected or appointed), director, employee or agent of the Omni
CRA, or City of Miami, in an individual capacity.
26.8 This Agreement shall be governed by and construed in accordance with
the laws of the State of Florida. Any action, in equity or in law, with respect to this Agreement
must be brought and heard in Miami -Dade County, Florida.
26.9 This Agreement may not be amended, unless evidenced in writing and
executed by all parties hereto.
26.10 This Agreement may not be recorded in the Public Records of Miami -
Dade County.
27. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and
understanding between the parties with respect to the subject matter hereof and there are no other
agreements, representations or warranties other than as set forth herein. This Agreement may not
be changed, altered or modified except by an instrument in writing signed by the party against
whom enforcement of such change would be sought. This Agreement shall be binding upon the
parties hereto and their respective successors and permitted assigns.
[SIGNATURE PAGES TO FOLLOW]
21
•
•
•
IN WITNESS hereof the parties have executed this Agreement as of the date first above written.
MALL OWNER:
Downtown Miami Mall, LLC, a Delaware
Witness: limited liability company
Print Name:
Print Name:
By:
Name:
Title:
HOTEL OWNER:
Downtown Miami Hotel, LLC, a Delaware
Witness: limited liability company
Print Name:
Print Name:
By:
Name:
Title:
Signatures continue on next page
22
•
•
•
Witness:
Print Name:
CRA:
Omni Redevelopment District Community
Redevelopment Agency,
a public agency and body corporate created
pursuant to Section 163.356, Florida
Statutes
B y:
Print Name: Name: James H. Villacorta
Title: Executive Director
ATTEST:
By:
Priscilla A. Thompson,
Clerk of the CRA Board
APPROVED AS TO INSURANCE REQUIREMENTS
By:
LeeAnn Brehm, Director
Risk Management
APPROVED AS TO LEGAL FORM SUFFICIENCY
By:
William R. Bloom, Esq.
Special Counsel
23
•
•
•
Exhibit "A"
Legal Description of Mall Parcel
Mall Unit 1 of OMNI CONDOMINIUM, according to the Declaration of
Condominium recorded in Official Records Book 18893, at Page 1822, as
amended and restated in that certain Amended and Restated Declaration of
OMNI CONDOMINIUM, recorded in Official Records Book 19131, at
Page 3847 of the Public Records of Miami -Dade County, Florida; and
Mall Unit 2 of OMNI CONDOMINIUM, according to the Declaration of
Condominium recorded in Official Records Book 18893, at Page 1822, as
amended and restated in that certain Amended and Restated Declaration of
OMNI CONDOMINIUM, recorded in Official Records Book 19131, at
Page 3847 of the Public Records of Miami -Dade County, Florida; and
Mall Unit 3 of OMNI CONDOMINIUM, according to the Declaration of
Condominium recorded in Official Records Book 18893, at Page 1822, as
amended and restated in that certain Amended and Restated Declaration of
OMNI CONDOMINIUM, recorded in Official Records Book 19131, at
Page 3847 of the Public Records of Miami -Dade County, Florida.
•
•
•
Exhibit "B"
Legal Description of Vacant Parcel
All of Lot 4, Block 2, RICE & SULLIVAN Sub -Division, according to the
Plat thereof, as recorded in Plat Book 4, Page 64 of the Public Records of
Miami -Dade County, Florida:
and
The East portion of Lot 1, Block 14, MIRAMAR 3rd AMENDED,
according to the Plat thereof, as recorded in Plat Book 5, Page 4 of the
Public Records of Miami -Dade County, Florida, and described as follows:
Commencing at the Northeast corner of Lot 4, Block 2, RICE AND
SULLIVAN Sub -Division, Plat Book 4, Page 64, Miami -Dade County,
Florida which is the Southeasterly corner of Lot 1, Block 14, MIRAMAR
3rd AMENDED, Plat Book 5, Page 4, Miami -Dade County, Florida, and
the Point of Beginning of the Parcel of land herein described, thence South
89° 45' 20" West along the South line of said Lot 1 and along the North
line of said Lot 4, for a distance of 151.0 feet to the Northwest corner of
said Lot 4; thence North 35° 27' 25" East for a distance of 95.478 feet to a
point which is on the Northeasterly boundary of said Lot 1 and the
Southwesterly right-of-way line of Northeast 17th Terr.; thence South 51°
19' 33" East along the Northeasterly boundary of said Lot 1 a distance of
122.30 feet to the Point of Beginning.
•
•
•
Exhibit "C"
Legal Description of Hotel Parcel
Hotel Unit of OMNI CONDOMINIUM, according to the Declaration of
Condominium recorded in Official Records Book 18893, at Page 1822, as
amended and restated in that certain Amended and Restated Declaration of
OMNI CONDOMINIUM, recorded in Official Records Book 19131, at
Page 3847 of the Public Records of Miami -Dade County, Florida.
•
•
•
Exhibit "D"
Hotel Baseline Certificate
HOTEL EMPLOYMENT BASE LINE CERTIFICATE
The undersigned hereby certifies to the OMNI COMMUNITY REDEVELOPMENT
AGENCY, a public agency and body corporate created pursuant to Section 163.356, Florida
Statutes (the "CRA"), that as of this day of , 2009, the Hotel Phase, as defined in
the Omni Economic Incentive Agreement dated , 200_ by and between the
undersigned, Downtown Miami Mall, LLC, a Delaware limited liability company, and the CRA
(the "Incentive Agreement"), currently employs Two Hundred Forty -Five (245) employees,
which employment constitutes Full -Time Jobs (as defined in the Incentive Agreement), as more
particularly identified on Exhibit "A", attached hereto and made a part hereof, and no employees
which would constitute Part -Time Jobs (as defined in the Incentive Agreement).
The undersigned hereby further certifies to the CRA that the information contained in this
certificate and in Exhibit "A" is true and correct in all material respects as of the date hereof.
STATE OF FLORIDA
)ss.
COUNTY OF MIAMI-DADE
The foregoing instrument was
, by , as
Delaware limited liability company, on
or has produced
DOWNTOWN MIAMI HOTEL, LLC,
a Delaware limited liability company
B y:
Name:
Title:
acknowledged before me this day of
of Downtown Miami Hotel, LLC, a
behalf of the company, who is personally known to me
as identification.
Notary Public, State of
Commission No.:
My Commission Expires:
•
EXHIBIT "A"
FULL-TIME EMPLOYMENT BASELINE SCHEDULE
NO.
NAME
POSITION
HIRE DATE
SALARY
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
38.
39.
•
40.
41.
42.
43.
44.
45.
46.
47.
48.
49.
50.
51.
52.
53.
54.
55.
56.
57.
58.
59.
60.
61.
62.
63.
64.
65.
66.
67.
68.
69.
70.
71.
72.
73.
74.
75.
76.
77.
78.
79.
80.
81.
82.
83. _
84.
MIAMI 1678256.3 7652127221
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29
•
•
•
85.
86.
87.
88.
89.
90.
91.
92,
93.
94.
95.
96.
97.
98.
99.
100.
101.,
102.
103.
104.
105.
106.
107.
108.
109.
110.
111.
112.
113.
114.
115.
116.
117.
118.
119.
120.
121.
122.
123.
124.
125.
126.
1271
128.,
129.
MIAMI 1678256.3 7652127221
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30
•
•
•
130.
131.
132.
133.
134.
135.
136.
137.
138.
139.
140.
141.
142.
143.
144.
145.
146.
147.
148.
149.
150.
151.
152.
153.
154.
155.
156.
157.
158.
159.
160.
161.
162.
163.
164.
165.
166.
167.
168.
169.
170.
171.
172.
173.
174.
MIAMI 1678256.3 7652127221
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31
•
•
•
175.
176.
177.
178.
179.
180.
181.
182.
183.
184.
185.
186.
187.
188.
189.
190.
191.
192.
193,
194.
195.
196.
197.
198.
199.
200.
201.
202.
203.
204.
205.
206,
207.
208.
209.
210.
211.
212.
213.
214.
215.
216.
217.
218.
219.
MIAMI 1678256.3 7652127221
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32
•
220.
221.
222.
223.
224.
225.
226.
227.
228.
229.
230.
231.
232.
233.
234.
235.
236.
237.
238.
239.
240.
241.
242.
243.
244.
245.
# 6077889_v2
MIAMI 1678256.3 7652127221
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•
•
Exhibit "E"
Hotel Employment Certificate
HOTEL EMPLOYMENT CERTIFICATE
The undersigned hereby certifies to the OMNI COMMUNITY REDEVELOPMENT
AGENCY, a public agency and body corporate created pursuant to Section 163.356, Florida
Statutes (the "CRA"), that for the year commencing on and ending
, the Hotel Phase, as defined in the Omni Economic Incentive
Agreement dated , 200_ by and between the undersigned, Downtown Miami Mall,
LLC, a Delaware limited liability company, and the CRA (the "Incentive Agreement"), has
generated Full -Time Jobs above the Hotel Full -Time Job Base Line, and Part -
Time Jobs above the Hotel Part -Time Job Base Line (all as defined in the Incentive Agreement),
as more particularly reflected on (i) that Schedule of Hotel Phase Full -Time Jobs, attached hereto
as Exhibit "A" ("Full -Time Job Schedule"), and (ii) that Schedule of Hotel Phase Part -Time Jobs,
attached hereto as Exhibit "B" ("Part -Time Jobs Schedule").
The undersigned hereby further certifies to the CRA that the inforrn.ation contained in this
certificate and in Exhibits "A" and "B", attached hereto and made a part hereof, is true and
correct in all material respects as of the date hereof.
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
)
)ss.
DOWNTOWN MIAMI HOTEL, LLC,
a Delaware limited liability company
By:
Name:
Title:
The foregoing instrument was acknowledged before me this day of
, by , as of Downtown Miami Hotel, LLC, a
Delaware limited liability company, on behalf of the company, who is personally known to me
or has produced as identification.
MIAMI 1678256.3 7652127221
5/13/09
Notary Public, State of
Commission No.:
My Commission Expires:
34
•
•
•
EXHIBIT "A?!
FULL-TIME JOB SCHEDULE
NO.
NAME
EMPLOYER
POSITION
HIRE
DATE
SALARY
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
•
•
•
EXHIBIT "B"
PART-TIME JOB SCHEDULE
NO.
NAME
EMPLOYER
POSITION
HIRE
DATE
SALARY
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
# 6076558_v1
MIAMI 1678256.3 7652127221
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•
•
•
Exhibit "F"
Hotel Renovation Costs Certificate
HOTEL RENOVATION COST CERTIFICATE
The undersigned hereby certifies to the OMNI COMMUNITY REDEVELOPMENT
AGENCY, a public agency and body corporate created pursuant to Section 163.356, Florida
Statutes (the "CRA"), that DOWNTOWN MIAMI HOTEL, LLC, a Delaware limited liability
company ("Hotel Owner") has actually paid $ in hard and soft construction costs to third
parties unaffiliated with Hotel Owner in connection with the renovation of the Hotel Phase, as
defined in the Omni Economic Incentive Agreement dated , 200_ by and between
Downtown Miami Mall, LLC, a Delaware limited liability company, Hotel Owner, and the CRA,
as reflected on (i) AIA Form G702 attached hereto as Exhibit "A" ("Form G702"), (ii) the
Schedule of Soft Costs attached hereto as Exhibit "B" ("Schedule of Soft Costs") and (iii) the
Final Lien Waivers attached hereto as Exhibit "C" (the "Final Lien Waivers"), and that that the
Form G702, the Schedule of Soft Costs, and the Final Lien Waivers are true and correct in all
material respects.
# 5818172_vl
MIAMI 1678256.3 7652127221
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37
DOWNTOWN MIAMI HOTEL, LLC,
a Delaware limited liability company
By:
Name:
Title:
•
•
•
Exhibit "G"
Office Employment Certificate
OFFICE EMPLOYMENT CERTIFICATE
The undersigned hereby certifies to the OMNI COMMUNITY REDEVELOPMENT
AGENCY, a public agency and body corporate created pursuant to Section 163.356, Florida
Statutes (the "CRA"), that for the year commencing on
and ending
, the Office Phase, as defined in the Omni Economic Incentive
Agreement dated , 200_ by and between the undersigned, Downtown Miami Hotel,
LLC, a Delaware limited liability company, and the CRA (the "Incentive Agreement"), has
generated Full -Time Jobs and Part -Time Jobs (both as defined in the Incentive
Agreement), as more particularly reflected on (i) that Schedule of Office Phase Full -Time Jobs,
attached hereto as Exhibit "A" ("Full -Time Job Schedule"), and (ii) that Schedule of Office
Phase Part -Time Jobs, attached hereto as Exhibit "B" ("Part -Time Jobs Schedule").
The undersigned hereby further certifies to the CRA that the information contained in this
certificate and in Exhibits "A" and "B", attached hereto and made a part hereof, is true and
correct in all material respects as of the date hereof.
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
)ss.
The foregoing instrument was
, by , as
Delaware limited liability company, on
or has produced
MIAMI 1678256.3 7652127221
5/13/09
DOWNTOWN MIAMI MALL, LLC,
a Delaware limited liability company
By:
Name:
Title:
acknowledged before me this day of
of Downtown Miami Mall, LLC, a
behalf of the company, who is personally known to me
as identification.
Notary Public, State of
Commission No.:
My Commission Expires:
38
•
•
•
EXHIBIT "A"
FULL-TIME JOB SCHEDULE
NO.
NAME
EMPLOYER
POSITION
1
HIRE
DATE
SALARY
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
•
NO.
1
2
EXHIBIT "B"
PART-TIME JOB SCHEDULE
NAME
EMPLOYER
POSITION
HIRE
DATE
SALARY
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
L.
# 6075554_v1
MIAMI 1678256.3 7652127221
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40
•
Exhibit "H"
Office Renovation Costs Certificate
OFFICE RENOVATION COST CERTIFICATE
The undersigned hereby certifies to the OMNI COMMUNITY REDEVELOPMENT
AGENCY, a public agency and body corporate created pursuant to Section 163.356, Florida
Statutes (the "CRA"), that DOWNTOWN MIAMI MALL, LLC, a Delaware limited liability
company ("Mall Owner") has actually paid $ in hard and soft construction costs to third
parties unaffiliated with Mall Owner in connection with the renovation of the Office Phase, as
defined in the Omni Economic Incentive Agreement dated , 200_ by and between
Downtown Miami Hotel, LLC, a Delaware limited liability company, Mall Owner the CRA, as
reflected on (i) AIA Form G702 attached hereto as Exhibit "A" ("Form G702"), (ii) the Schedule
of Soft Costs attached hereto as Exhibit "B" ("Schedule of Soft Costs") and (iii) the Final Lien
Waivers attached hereto as Exhibit "C" (the "Final Lien Waivers"), and that that the Form G702,
the Schedule of Soft Costs, and the Final Lien Waivers are true and correct in all material
respects.
# 5842I76_v 1
MIAMI 1678256.3 7652127221
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41
DOWNTOWN MIAMI MALL, LLC,
a Delaware limited liability company
By:
Name:
Title:
•
•
•
Exhibit "I"
Retail Employment Certificate
RETAIL EMPLOYMENT CERTIFICATE
The undersigned hereby certifies to the OMNI COMMUNITY REDEVELOPMENT
AGENCY, a public agency and body corporate created pursuant to Section 163.356, Florida
Statutes (the "CRA"), that for the year commencing on
, and ending
, , the Retail Phase, as defined in the Omni Economic Incentive
Agreement dated , 200_ by and between the undersigned, Downtown Miami Hotel,
LLC, a Delaware limited liability company, and the CRA (the "Incentive Agreement"), has
generated Full -Time Jobs and Part -Time Jobs (both as defined in the Incentive
Agreement), as more particularly reflected on (i) that Schedule of Retail Phase Full -Time Jobs,
attached hereto as Exhibit "A" ("Full -Time Job Schedule"), and (ii) that Schedule of Retail Phase
Part -Time Jobs, attached hereto as Exhibit "B" ("Part -Time Jobs Schedule").
The undersigned hereby further certifies to the CRA that the information contained in this
certificate and in Exhibits "A" and "B", attached hereto and made a part hereof, is true and
correct in all material respects as of the date hereof.
STATE OF FLORIDA
)ss.
COUNTY OF MIAMI-DADE
The foregoing instrument was
, by , as
Delaware limited liability company, on
or has produced
MIAMI 1678256.3 7652127221
5/13/09
DOWNTOWN MIAMI MALL, LLC,
a Delaware limited liability company
By:
Name:
Title:
acknowledged before me this day of
of Downtown Miami Mall, LLC, a
behalf of the company, who is personally known to me
as identification.
Notary Public, State of
Commission No.:
My Commission Expires:
42
•
o
•
EXHIBIT "A"
FULL-TIME JOB SCHEDULE
NO.
NAME
EMPLOYER
POSITION
HIRE
SALARY
DATE
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
•
EXHIBIT "B"
PART-TIME JOB SCHEDULE
NO.
NAME
EMPLOYER
POSITION
HIRE
DATE
SALARY
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
# 6076539_v1
MIAMI 1678256.3 7652127221
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•
Exhibit "J"
Retail Renovation Costs Certificate
RETAIL RENOVATION COST CERTIFICATE
The undersigned hereby certifies to the OMNI COMMUNITY REDEVELOPMENT
AGENCY, a public agency and body corporate created pursuant to Section 163.356, Florida
Statutes (the "CRA"), that DOWNTOWN MIAMI MALL, LLC, a Delaware limited liability
company ("Mall Owner") has actually paid $ in hard and soft construction costs to third
parties unaffiliated with Mall Owner in connection with the renovation of the Retail Phase, as
defined in the Omni Economic Incentive Agreement dated , 200_ by and between
Downtown Miami Hotel, LLC, a Delaware limited liability company, Mall Owner, and the CRA,
as reflected on (i) AIA Form G702 attached hereto as Exhibit "A" ("Form G702"), (ii) the
Schedule of Soft Costs attached hereto as Exhibit "B" ("Schedule of Soft Costs") and (iii) the
Final Lien Waivers attached hereto as Exhibit "C" (the "Final Lien Waivers"), and that that the
Form G702, the Schedule of Soft Costs, and the Final Lien Waivers are true and correct in all
material respects.
# 5818172_v1
MIAMI 1678256.3 7652127221
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45
DOWNTOWN MIAMI MALL, LLC,
a Delaware limited liability company
By:
Name:
Title:
•
MIAMI 1678256.3 7652127221
5/13/09
Exhibit "K"
SEOPW Redevelopment Area
46
•
Exhibit "L"
First Source Hiring Agreement Office Phase (Construction)
MIAMI 1678256.3 7652127221
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47
•
•
•
FIRST SOURCE HIRING AGREEMENT
COMMUNITY BENEFITS PROGRAM- OFFICE
THIS AGREEMENT is made this day of May, 2009, by and between OMNI
REDEVELOPMENT DISTRICT COMMUNITY REDEVELOPMENT AGENCY, a public
agency and body corporate created pursuant to Section 163.356, Florida Statutes (the "CRA")
and DOWNTOWN MIAMI MALL, LLC a Delaware limited liability company (the
"Developer").
RECITALS
A. The CRA was formed for the purpose of removing slum and blight in the Omni
redevelopment area (the "Redevelopment Area") and to promote redevelopment and employment
within the Redevelopment Area.
B. The Developer is the owner of property located within the Redevelopment Area
which is more particularly described in Exhibit "A" attached hereto and made a part hereof (the
"Property").
C. Developer intends to redevelop a portion of the Property as an office building
containing approximately 350,000 square feet of Class A office space and approximately 16,000
square feet of retail space (the "Project").
D. Simultaneously with the execution of this Agreement, the CRA, together with the
Developer, and Downtown Miami Hotel, LLC, a Delaware limited liability company ("Hotel
Owner") have entered into that Omni Economic Incentive Agreement (the "Incentive
Agreement") pursuant to which the CRA will make tax increment funds available to the
Developer which will be used by the Developer to defray a portion of the costs of development
of the Project.
MIAMI 1678256.3 7652127221
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48
•
•
•
Developer has agreed to enter into this Agreement in order to induce the CRA to enter
into the Incentive Agreement.
NOW THEREFORE, in consideration of ten dollars ($10.00) and other good and
valuable consideration! the receipt and sufficiency of which is hereby acknowledged, the parties
hereby agree as follows:
DEFINITIONS
As used in this Agreement, the following capitalized terms shall have the following
meanings. All definitions include both the singular and plural form. Capitalized terms not
specifically defined herein are as defined in the Incentive Agreement.
"Agency" shall mean the South Florida Work Force, a state and federally funded 501 C3
organization, or a similar agency reasonable acceptable to the CRA. In the event the Agency
ceases to exist, upon request of CRA or the Developer, the Developer shall select a similar entity
capable of handling the responsibilities designated to the Agency hereunder, reasonably
acceptable to the CRA. The Developer may depend on the Agency to determine economic status
(low-income, unemployed, etc.), residency, nationality, and other vital information of applicants
or employees and may rely on all such determinations by the Agency for all purposes hereunder.
"Agreement" shall mean this First Source Hiring Agreement in its entirety.
"City" shall mean the City of Miami, Florida.
"County" shall mean Miami -Dade County, Florida.
"Construction Contract" shall mean a contract with a total contract value of $750,000 or
more related to the construction of the Project or part thereof. "Construction Contract" shall not
include lease agreements or contrasts related to operations of ongoing business at the Project.
MIAMI 1678256.3 7652I27221
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49
•
•
•
"Construction Contractor" shall mean a prime contractor, a subcontractor, or any other
business entering into a Construction Contract.
"Full Time Employee" shall mean an individual employed for a minimum of thirty-five
(35) hours per standard five-day workweek.
"Lease Agreement" shall mean an office or retail Iease agreement for the leasing of space
within the Project.
"Low to Moderate -Income Individual" shall mean an individual whose household income
is no greater than 80% of the median income for the County based on the local Census data or
who is unemployed.
"Qualifying Individuals" are Low to Moderate -Income Individuals or minorities who are
Residents. The Developer may depend on the Agency to determine whether individuals are
Qualifying Individuals, as well as their employment, economic status, residency, nationality, and
other vital information of applicants, or employees and may rely on all such determinations by
the Agency for all purposes hereunder.
"Residents" shall mean residents of the Redevelopment Area, the SEOPW
Redevelopment Area or the City, which may include prior residency with accompanying proof,
reasonably satisfactory to the Agency, of residency within the Redevelopment Area, the SEOPW
Redevelopment Area or the City, as of January 2009 or since.
"Site" or "on -site" shall mean within the boundaries of the Project.
HIRING AND MINORITY EMPLOYMENT PROGRAM
This section is intended to develop reliable resources for community outreach associated
with exceeding a participation goal of 51 % for new job opportunities for Qualifying Individuals
during the construction phase of Project, the prescreening of resumes and operation of training
MIAMI 1678256.3 7652127221
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50
•
•
•
programs that will facilitate the skills and the employment of Qualifying Individuals. This
section aims to accomplish these goals by (i) holding events, at least annually, that provide
adequate notice to Residents of job opportunities, and (ii) collaborating with community -based
organizations and other groups to ensure that appropriate training programs are developed and
offered to Residents to establish (a) a mechanism whereby Qualifying Individuals can receive
job training in the skills requested by employers in the Project, and (b) a system for prompt
reliable pre-screening and referral of applicants to employers as jobs become available.
During the construction phase, the Developer shall utilize the services of the City of
Miami Department of Economic Development, and the Black Business Association for
community outreach in striving to meet and/or exceed a goal of 51% for new job opportunities
for Qualifying Individuals.
For each Construction Contract, Developer shall require the Construction Contractor and
each of the subcontractors retained by the Construction Contractor to provide employment
opportunities generated by the Project to Qualifying Individuals, including, but not limited to,
those who are participants in the Agency's training and employment programs, subject to such
Construction Contractors' obligations pursuant to applicable laws, rules, regulations or orders or
pursuant to any collective bargaining or other employment or labor agreement and such
Contractors' obligations to fill vacancies generated by the Project with (i) such Construction
Contractors' employees from other jobs, and (ii) persons laid off by such Construction Contractor
within the last two (2) years. It is understood that jobs may be offered on the basis of
qualifications. However, should qualifications be equal, Developer shall use commercially
reasonable efforts to cause such Construction Contractors to cause such employment
opportunities to be offered in the following order of priority, subject to the terms and conditions
MIAMI 1678256.3 7652127221
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51
•
above: (a) to Residents of the Redevelopment Area; (b) Residents of the SEOPW
Redevelopment Area; and (c) to Residents of the City.
Provisions Benefiting Residents.
Developer shall use commercially reasonable efforts to cause the Construction
Contractor to collaborate with community -based organizations to ensure that appropriate skills
training programs are established with the objective of training Qualified Individuals for
employment as part of the on -site construction work force for the Project;
For each Construction Contract, the Developer shall use commercially reasonable
efforts to cause the Construction Contractor to notify the Agency in a timely manner, as
necessary and appropriate to develop customized training programs, with the objective of
enabling Qualifying Individuals to qualify for and secure entry level and apprenticeship
construction positions, whether union or non -union. In the event the Agency does not perform in
a timely manner, for each Construction Contract, the Developer shall use commercially
reasonable efforts to cause the Construction Contractor to notify the Agency, with a copy to the
CRA, of such deficiency. If the Agency does not implement steps to cure such deficiency within
fifteen (15) days of such notice, unless modified by the CRA, the Developer shall immediately
identify a new agency reasonably acceptable to the CRA to fill the role of the Agency.
For each Construction Contract, the Developer shall use commercially reasonable
efforts to cause the Construction Contractor to notify the Agency in a timely manner of entry-
level and apprenticeship positions whether union or non -union job openings resulting from the
Construction Contract requirements, including the number of positions needed and the minimum
qualifications required for each position.
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•
•
•
For each Construction Contract, the Developer shall use commercially reasonable
efforts to cause the Construction Contractor to utilize the Agency as the "first source" in
identifying candidates for entry-level, apprenticeship and union and non -union positions.
For each Construction Contract, the Developer shall use commercially reasonable
efforts to cause the Construction Contractor to give preference and first consideration on the
basis of qualifications; however, should qualifications be equal among candidates, the Developer
shall use commercially reasonable efforts to cause Construction Contractor, to the extent
permitted by law and any existent labor agreements, and except as otherwise provided for in
Section 1 hereof, to offer such employment opportunities in the following order of priority (a) to
Residents of the Redevelopment Area; (b) the SEOPW Redevelopment Area; and (c) to
Residents of the City to fill entry-level, apprenticeship, and union and non -union positions.
For each Construction Contract, the Developer shall use commercially reasonable
efforts to cause the Construction Contractor to advertise or cause to be advertised through the
Agency, in local minority media and City TV, the City community television channel, and hold
job fairs seeking to attract Qualifying Individuals to seek training and employment at the Project;
For each Construction Contract, the Developer further agrees to use commercially
reasonable efforts to cause the Construction Contractor to use its commercially reasonable efforts
to ensure that fifty-one percent (51 %) or more of those individuals offered employment are
Qualifying Individuals. It is understood that successful completion of training includes mastery
of many performance, attitude, and team skills. As long as these persons remain employed, their
positions will continue to be counted toward the thresholds of Developer's performance
regardless of any change in their status as a Qualifying Individual. Annual thresholds shall be
pro -rated monthly as required. In the event that the Agency is unable to identify Qualified
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•
•
•
Individuals to fill these positions identified by the Construction Contractor within a reasonable
time frame acceptable to the Developer or Construction Contractor, any unfilled targeted
positions may be filled by any qualified person, irrespective of their status as Qualifying
Individuals.
For each Construction Contract, the Developer shall use commercially reasonable
efforts to cause the Construction Contractor to register a resident apprentice training program
with the local unions in order to involve trained Qualifying Individuals as apprentices and
ultimately as journeypersons for the benefit of the Project;
For each Lease Agreement, the Developer shall use commercially reasonable
efforts to include language that requires the lessee thereunder to use commercially reasonable
efforts to employ Residents and provide the CRA with quarterly reports of their efforts.
The CRA acknowledges that all employees of the Project will be required to have
the necessary employment skills, as well as meeting the requirements of the Project insurance
policy, including, without limitation, requirements for a drug free workplace. In addition, the
CRA acknowledges that various employment opportunities may require union membership, and
may require security clearances consistent with the Project's security policies and procedures.
For purposes of this Agreement, to the extent the Agency provides the above services, the
Developer may rely on the information provided by the Agency for verification purposes.
To the extent that the procedures set forth in this section are in conflict with the
procedures implemented by the Developer or Construction Contractors in order to comply, with
the applicable federal, state and local laws, the Developer and the Construction Contractors may
substitute other procedures, reasonably acceptable to the CRA, in order to accomplish the
purpose and intent of this Agreement;
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to
•
•
REPORTING
Quarterly Reports Analysis: For each Construction Contract, the Developer shall use
commercially reasonable efforts to cause the Construction Contractors to prepare, or cause to be
prepared, detailed quarterly reports on the implementation of all sections of this Agreement
during construction of the Project. These reports will be coordinated and reported by the Agency
or other qualifying entity, as submitted to and reasonably approved by the CRA, upon whom the
Developer may rely, and shall provide, at a minimum, a listing of the individuals, ethnicity,
residency, classification applied for, employer's name, date of hire, status of employment (i.e.
still employed or date terminated), total hours worked for the reporting period, gross monthly
earnings, recruitment' source and percentage of Qualifying Individuals when they were initially
hired for any component of the Project, which status shall continue to be applicable to any
thresholds that are set, no matter of changes in employee status as a Qualifying Individual. These
reports should further provide a comprehensive summary of the above, including, but not limited
to, the following:
• total number of positions hired to -date
• total number of positions held by Qualifying Individuals residing in the Redevelopment
Area, the SEOPW Redevelopment Area and the City, respectively
• total new hires this reporting period
• total new hires from prior reporting period
• total new hires to -date
• total number of individuals referred from each respective recruiting source
• total number of individuals hired and not hired from each respective recruiting source.
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•
•
These reports shall be provided to the CRA, consistent with any security provisions of the
Project. If the report indicates that the percentage threshold requirement is not being met, the
Developer shall use commercially reasonable efforts to cause the Construction Contractors to
include as part of the report a discussion of the reasons why that is the case. Further, in the event
the Agency prepared the report or the initial data on Qualifying individuals, on behalf of the
Developer, the Developer shall be entitled to rely on information provided by the Agency.
IMPLEMENTATION OF FIRST SOURCE HIRING PROGRAM
Inclusion of this Agreement in Construction Contracts:
Construction Contracts: For each Construction Contract, the Developer shall use
commercially reasonable efforts to cause this Agreement, or any amended version
thereof, to be included as a material term of such Construction Contract.
NOTICES
Correspondence: All correspondence shall be in writing and shall be addressed to the
affected parties at the addresses set forth below. A party may change its address by giving notice
in compliance with this Section 5 the addresses of the parties are:
If to the Developer: Downtown Miami Mall, LLC
c/o Argent Ventures, LLC
551 Fifth Avenue, 34th Floor
New York, New York
Fax: 212-681-6096
With a copy to: James Shindell, Esq.
Bilzon Sumberg Baena Price & Axelrod LLP
200 So. Biscayne Blvd., Suite 2500
Miami, FL 33131
Fax: 305-351-2256
If to the CRA: James H. Villacorta, Executive Director
Omni Redevelopment District Community Redevelopment
Agency
49 NW 5th Street, Suite 100
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•
With a copy to:
With copy to:
With a copy to:
Miami, Florida 33128
Department of Economic Development
City of Miami
444 SW 2 Avenue, 3rd Floor
Miami, Florida 33130
Department of Community Development
City of Miami
111 SW 2 Avenue, 2nd Floor
Miami, FL 33130
William R. Bloom, Esq.
Holland & Knight LLP
701 Brickell Avenue, Suite 3000
Miami, Florida 33131
GENERAL PROVISIONS
Severability Clause: If any term, provision, covenant, or condition of this Agreement is
held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of
the provisions shall continue in full force and effect.
Binding on Successors: This Agreement shall be binding upon and inure to the benefit of
the heirs, administrators, executors, successors in interest, and assigns of each of the parties
hereto. Any reference in this Agreement to a specifically named party shall be deemed to apply
to any successor in interest, heir, administrator, executor, or assign of such party.
Intended Beneficiaries: The CRA is an intended third -party beneficiary of contracts and
other agreements, which incorporate this Agreement, with regard to the terms of this Agreement.
The CRA shall therefore have the right to enforce the provisions of this Agreement against all
parties incorporating this Agreement into contracts or other agreements.
Term: This Agreement shall become effective on the date of mutual execution of this
Agreement.
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•
•
•
Waiver: The waiver of any provision or term of this Agreement shall not be deemed as a
waiver of any other provision or term of this Agreement. The mere passage of time, or failure to
act upon a breach, shall not be deemed as a waiver of any provision or terms of this Agreement.
Estoppel: The parties hereto agree to provide each other, within 15 days of request, an
estoppel letter acknowledging that the other party is not in default of this Agreement.
Construction: The parties hereto have been represented by counsel in the negotiation and
drafting of this Agreement. Accordingly, this Agreement shall not be strictly construed against
any party, and the rule of construction that any ambiguities be resolved against the drafting party
shall not apply to this Agreement.
No Termination of Existing Employees: Neither the Developer, nor any Construction
Contractor shall be obligated to terminate any existing employees to comply with the terms and
provisions of this Agreement. Should either of the Developer or any Construction Contractor not
be able to meet the thresholds or objectives of this Agreement due to low employment position
vacancy, the threshold will be based upon the job openings that are available.
Entire Agreement: This Agreement and the Incentive Agreement contain the entire
agreement between the parties with respect to employment during the construction of the Project
and supersede any prior agreements, whether written or oral. This Agreement sets forth the
general framework for a First Source Hiring Policy and may be supplemented by additional
memoranda approved by the Developer and the CRA detailing the procedures and deadlines for
carrying out this policy.
Amendments: This Agreement may not be altered, amended or modified, except by an
instrument in writing signed by the Developer and the CRA.
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•
•
•
Authority of Signatories: The individuals executing this Agreement represent and
warrant that they have the authority to sign on behalf of the respective parties.
Waiver of Jury Trial: The parties hereby knowingly, irrevocable, voluntarily and
intentionally waive any right either may .have to a trial by jury in respect of any action,
proceeding or counterclaim based on this Agreement, or arising out of, under or in connection
with this Agreement or any amendment or modification of this Agreement, or any course of
conduct, course of dealing, statements (whether verbal or written) or actions of any party hereto.
This waiver of jury trial provision is a material inducement of the CRA and Developer entering
into the subject transaction.
Terms: This Agreement shall automatically expire, and the Developer shall have no
further obligations hereunder, upon substantial completion of the Project.
{SIGNATURE PAGES TO FOLLOW]
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•
•
•
IN WITNESS WHEREOF, the CRA and the Developer executed this Agreement the
day and year first above written:
Witnessed: DEVELOPER:
DOWNTOWN MIAMI MALL, LLC, a
Print Name: Delaware limited liability company
Print Name:
Approved for legal sufficiency
HOLLAND & KNIGHT LLP, Special Counsel
ATTEST:
Priscilla A. Thompson, Clerk of the Board
MIAMI 1678256.3 7652127221 60
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By:
Name:
Title:
CRA:
OMNI REDEVELOPMENT DISTRICT
COMMUNITY REDEVELOPMENT
AGENCY, a public agency and body corporate
created pursuant to Section 163.356, Florida
Statutes
B y:
Name: James H. Villacorta
Title: Executive Director
Approved as to Insurance Requirements:
Risk Management Administrator
•
•
•
EXHIBIT 1. ADDITIONAL, AGREED UPON MECHANICS
For each Construction Contract, the Developer will use commercially reasonable efforts
to cause the Construction Contractors to adhere to the following additional procedures:
1. Provide such information reasonably required by the Agency in a timely manner
as required by the Agency in order to provide the requisite training and identification of
Qualifying Individuals for training and employment as contemplated by this Agreement.
2. Establish procedures that will facilitate ease of electronic file, data, and report
transfer.
3. Developer shall work with the Agency, security personnel and any other available
agency reasonably acceptable to the CRA to help the Developer obtain requirements and records
necessary for security clearances.
# 6069566_v6
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•
Exhibit "M"
First Source Hiring Agreement Office Phase (Operations)
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•
FIRST SOURCE HIRING AGREEMENT (OPERATIONS)- OFFICE
THIS AGREEMENT is made this day of May, 2009, by and between OMNI
REDEVELOPMENT DISTRICT COMMUNITY REDEVELOPMENT AGENCY, a public
agency and body corporate created pursuant to Section 163.356, Florida Statutes (the "CRA")
and DOWNTOWN MIAMI MALL, LLC, a Delaware limited liability company
("Developer").
RECITALS
E. The CRA was formed for the purpose of removing slum and blight in the Omni
redevelopment area (the 'Redevelopment Area") and to promote redevelopment and employment
within the Redevelopment Area.
F. The Developer is the owner of property located within the Redevelopment Area
which is more particularly described in Exhibit "A" attached hereto and made a part hereof (the
„Property").
G. Developer intends to redevelop a portion of the Property as an office building
containing approximately 350,000 square feet of Class A office space and approximately 16,000
square feet of retail space (the "Project").
H. Simultaneously with the execution of this Agreement, the CRA, together with the
Developer, and Downtown Miami Hotel, LLC, a Delaware limited liability company (the "Hotel
Owner") have entered into that Omni Development Incentive Agreement (the "Incentive
Agreement") pursuant to which the CRA will make tax increment funds available to the
Developer which will be used by the Developer to defray a portion of the costs of development
of the Project.
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•
•
•
I. Developer has agreed to enter into this Agreement in order to induce the CRA to
enter into the Incentive Agreement.
NOW THEREFORE, in consideration of ten dollars ($10.00) and other good and
valuable consideration! the receipt and sufficiency of which is hereby acknowledged, the parties
hereby agree as follows:
DEFINITIONS
As used in this Agreement, the following capitalized terms shall have the following
meanings. All definitions include both the singular and plural form. Capitalized terms not
specifically defined herein are as defined in the Incentive Agreement.
"Agency" shall mean the South Florida Work Force, a state and federally funded 501 C3
organization, or a similar agency reasonable acceptable to the CRA. In the event the Agency
ceases to exist, upon request of CRA or the Developer, the Developer shall select a similar entity
capable of handling the responsibilities designated to the Agency hereunder, reasonably
acceptable to the CRA. The Developer may depend on the Agency to determine economic status
(low-income, unemployed, etc.), residency, nationality, and other vital information of applicants
or employees and may rely on all such determinations by the Agency for all purposes hereunder.
"Agreement" shall mean this First Source Hiring Agreement in its entirety.
"City" shall mean the City of Miami, Florida.
"County" shall mean Miami -Dade County, Florida.
"Full Time Employee" shall mean an individual employed for a minimum of thirty-five
(35) hours per standard five-day work week.
"Lease Agreement" shall mean a lease agreement for the leasing of space within the
Project.
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•
•
•
"Leased Premises" shall mean the space leased pursuant to a Lease Agreement.
"Low to Moderate -Income Individual" shall mean an individual whose household income
is no greater than 80% of the median income for the County based on the local Census data or
who is unemployed.
"Office Lease Phase" shall mean that time period between the Substantial Completion of
the Project and the Satisfaction of the Office Employment Requirement, as defined in the
Incentive Agreement.
"Qualifying Individuals" are Low to Moderate -Income Individuals or minorities who are
Residents. The Developer may depend on the Agency to determine whether individuals are
Qualifying Individuals, as well as their employment, economic status, residency, nationality, and
other vital information of applicants, or employees and may rely on all such determinations by
the Agency for all purposes hereunder.
"Residents" shall mean residents of the Redevelopment Area, the SEOPW
Redevelopment Area or the City, which may include prior residency with accompanying proof,
reasonably satisfactory to the Agency, of residency within the Redevelopment Area, the SEOPW
Redevelopment Area or the City, as of January 2009 or since.
"Site" or "on -site" shall mean within the boundaries of the Project.
"Substantial Completion" shall mean that the redevelopment of the Property has been
substantially completed in accordance with the plans and specifications for the Project, subject
only to the completion of minor punch list items, and a temporary certificate of occupancy, or its
equivalent, has been issued by the City.
"Tenant" means the lessee under a Lease Agreement.
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•
•
•
I-IIRING AND MINORITY EMPLOYMENT PROGRAM
This section is intended to develop reliable resources for community outreach associated
with exceeding a participation goal of 51% for new job opportunities for Qualifying Individuals
during the operation phase of Project, the prescreening of resumes and operation of training
programs that will facilitate the skills and the employment of Qualifying Individuals. This
section aims to accomplish these goals by (i) holding events, at least annually, that provide
adequate notice to Residents of job opportunities, and (ii) collaborating with community -based
organizations and other groups to ensure that appropriate training programs are developed and
offered to Residents to establish (a) a mechanism whereby Qualifying Individuals can receive
job training in the skills requested by employers in the Project, and (b) a system for prompt
reliable pre-screening and referral of applicants to employers as jobs become available.
Operations Phase.
During the operations phase, the Developer shall utilize the services of the City of
Miami Department of Economic Development and the Black Business Association for
community outreach in striving to meet and/or exceed a goal of 51% for new job opportunities
for Qualifying Individuals.
For each Lease Agreement, Developer shall utilize commercially reasonable
efforts to require each Tenant to provide employment opportunities generated by the Project to
Qualifying Individuals, including, but not limited to, those who are participants in the Agency's
training and employment programs, subject to such Tenant's obligations pursuant to applicable
laws, rules, regulations or orders or pursuant to any collective bargaining or other employment or
labor agreement and such Tenant's obligations to fill vacancies generated at the Leased Premises
with (i) such Tenant's employees from other jobs, and (ii) persons laid off by such Tenant within
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•
•
•
the last two (2) years. It is understood that jobs may be offered on the basis of qualifications.
However, should qualifications be equal, Developer shall use commercially reasonable efforts to
cause such Tenants to cause such employment opportunities to be offered in the following order
of priority, subject to the terms and conditions above: (a) to Residents of the Redevelopment
Area; (b) Residents of the SEOPW Redevelopment Area; and (c) to Residents of the City.
Developer shall use commercially reasonable efforts to cause the Tenants to
collaborate with community -based organizations to ensure that appropriate skills training
programs are established with the objective of training Qualified Individuals for employment as
part of the work force for the Project;
For each Lease Agreement, the Developer shall use commercially reasonable
efforts to cause the Tenant to notify the Agency in a timely manner, as necessary and appropriate
to develop customized training programs, with the objective of enabling Qualifying Individuals
to qualify for and secure entry level and apprenticeship positions, whether union or non -union. In
the event the Agency does not perform in a timely manner, for each Tenant, the Developer shall
use commercially reasonable efforts to cause the Tenant to notify the Agency, with a copy to the
CRA, of such deficiency. If the Agency does not implement steps to cure such deficiency within
fifteen (15) days of such notice, unless modified by the CRA, the Developer shall immediately
identify a new agency reasonably acceptable to the CRA to fill the role of the Agency.
For each Lease Agreement, the Developer shall use commercially reasonable
efforts to cause the Tenant to notify the Agency in a timely manner of entry-level and
apprenticeship positions whether union or non -union job openings, including the number of
positions needed and the minimum qualifications required for each position.
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•
For each Lease Agreement, the Developer shall use commercially reasonable
efforts to cause the Tenant to utilize the Agency as the "first source" in identifying candidates for
entry-level, apprenticeship and union and non -union positions.
For each Lease Agreement, the Developer shall use commercially reasonable
efforts to cause the Tenant to give preference and first consideration on the basis of
qualifications; however, should qualifications be equal among candidates, the Developer shall
use commercially reasonable efforts to cause Tenant, to the extent permitted by law and any
existent labor agreements to offer such employment opportunities in the following order of
priority (a) to Residents of the Redevelopment Area; (b) the SEOPW Redevelopment Area; and
(c) to Residents of the City to fill entry-level, apprenticeship, and union and non -union positions.
For each Lease Agreement, the Developer shall use commercially reasonable
efforts to cause the Tenant to advertise or cause to be advertised through the Agency, in local
minority media and City TV, the City community television channel, and hold job fairs seeking
to attract Qualifying Individuals to seek training and employment at the Project;
For each Lease Agreement, the Developer further agrees to use commercially
reasonable efforts to cause the Tenant to use its commercially reasonable efforts to ensure that
fifty-one percent (51%) or more of those individuals offered employment are Qualifying
Individuals. It is understood that successful completion of training includes mastery of many
performance, attitude, and team skills. As long as these persons remain employed, their positions
will continue to be counted toward the thresholds of Developer's performance regardless of any
change in their status as a Qualifying Individual. Annual thresholds shall be pro -rated monthly as
required. In the event that the Agency is unable to identify Qualified Individuals to fill these
positions identified by the Tenant within a reasonable time frame acceptable to the Developer or
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•
Tenant, any unfilled targeted positions may be filled by any qualified person, irrespective of their
status as Qualifying Individuals.
The CRA acknowledges that all employees of the Project will be required to have
the necessary employment skills. In addition, the CRA acknowledges that various employment
opportunities may require union membership, and may require security clearances consistent
with the Project's security policies and procedures. For purposes of this Agreement, to the extent
the Agency provides the above services, the Developer may rely on the information provided by
the Agency for verification purposes.
To the extent that the procedures set forth in this section are in conflict with the
procedures implemented by the Developer or Tenants in order to comply, with the applicable
federal, state and local laws, the Developer and the Tenants may substitute other procedures,
reasonably acceptable to the CRA, in order to accomplish the purpose and intent of this
Agreement.
REPORTING
Quarterly Reports Analysis: For each Lease Agreement, the Developer shall use
commercially reasonable efforts to cause the Tenants to prepare, or cause to be prepared, detailed
quarterly reports on the implementation of all sections of this Agreement during the term of this
Agreement. These reports will be coordinated and reported by the Agency or other qualifying
entity, as submitted to and reasonably approved by the CRA, upon whom the Developer may
rely, and shall provide, at a minimum, a listing of the individuals, ethnicity, residency,
classification applied for, employer's name, date of hire, status of employment (i.e. still
employed or date terminated), total hours worked for the reporting period, gross monthly
earnings, recruitment' source and percentage of Qualifying Individuals when they were initially
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•
hired, which status shall continue to be applicable to any thresholds that are set, no matter of
changes in employee status as a Qualifying Individual. These reports should further provide a
comprehensive summary of the above, including, but not limited to, the following:
• total number of positions hired to -date
• total number of positions held by Qualifying Individuals residing in the Redevelopment
Area, the SEOPW Redevelopment Area and the City, respectively
• total new hires this reporting period
• total new hires from prior reporting period
• total new hires to -date
• total number of individuals referred from each respective recruiting source
• total number of individuals hired and not hired from each respective recruiting source.
These reports shall be provided to the CRA, consistent with any security provisions of the
Project. If the report indicates that the percentage threshold requirement is not being met, the
Developer shall use commercially reasonable efforts to cause the Tenants to include as part of
the report a discussion of the reasons why that is the case. Further, in the event the Agency
prepared the report or the initial data on Qualifying Individuals, on behalf of the Developer, the
Developer shall be entitled to rely on information provided by the Agency.
IMPLEMENTATION OF FIRST SOURCE HIRING PROGRAM
Inclusion of this Agreement in Lease Agreements:
For each Lease Agreement, the Developer shall use commercially reasonable efforts to
cause this Agreement, or any amended version thereof, to be included as a material term
of such Lease Agreement.
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•
•
•
NOTICES
Correspondence: All correspondence shall be in writing and shall be addressed to the
affected parties at the addresses set forth below. A party may change its address by giving notice
in compliance with this Section 5 the addresses of the parties are:
If to the Developer: Downtown Miami Mall, LLC
c/o Argent Ventures, LLC
551 Fifth Avenue, 34th Floor
New York, New York 10176
Fax: 212-681-6096
With a copy to: James Shindell, Esq.
Bilzon Sumberg Baena Price & Axelrod LLP
200 So. Biscayne Blvd., Suite 2500
Miami, FL 33131
Fax: 305-351-2256
If to the CRA: James H. Villacorta, Executive Director
Omni Redevelopment District Community Redevelopment
Agency
49 NW 5th Street, Suite 100
Miami, Florida 33128
With a copy to: Department of Economic Development
City of Miami
444 SW 2 Avenue, 3rd Floor
Miami, Florida 33130
With copy to:
With a copy to:
MIAMI 1678256.3 7652127221
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Department of Community Development
City of Miami
444 SW 2 Avenue, 2nd Floor
Miami, FL 33130
William R. Bloom, Esq.
Holland & Knight LLP
701 Brickell Avenue, Suite 3000
Miami, Florida 33131
71
•
•
•
GENERAL PROVISIONS
Severability Clause: If any term, provision, covenant, or condition of this Agreement is
held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of
the provisions shall continue in full force and effect.
Binding on Successors: This Agreement shall be binding upon and inure to the benefit of
the heirs, administrators, executors, successors in interest, and assigns of each of the parties
hereto. Any reference in this Agreement to a specifically named party shall be deemed to apply
to any successor in interest, heir, administrator, executor, or assign of such party.
Intended Beneficiaries: The CRA is an intended third -party beneficiary of contracts and
other agreements, which incorporate this Agreement, with regard to the terms of this Agreement.
The CRA shall therefore have the right to enforce the provisions of this Agreement against all
parties incorporating this Agreement into contracts or other agreements.
Term: This Agreement shall become effective on the date of mutual execution of this
Agreement and terminate at the end of the Office Lease Phase.
Waiver: The waiver of any provision or term of this Agreement shall not be deemed as a
waiver of any other provision or term of this Agreement. The mere passage of time, or failure to
act upon a breach, shall not be deemed as a waiver of any provision or terms of this Agreement.
Estoppel: The parties hereto agree to provide each other, within 15 days of request, an
estoppel letter acknowledging that the other party is not in default of this Agreement.
Construction: The parties hereto have been represented by counsel in the negotiation and
drafting of this Agreement. Accordingly, this Agreement shall not be strictly construed against
any party, and the rule of construction that any ambiguities be resolved against the drafting party
shall not apply to this Agreement.
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•
•
•
No Termination of Existing Employees: Neither the Developer, nor any Tenant shall be
obligated to terminate any existing employees to comply with the terms and provisions of this
Agreement. Should either of the Developer or any Tenant not be able to meet the thresholds or
objectives of this Agreement due to low employment position vacancy, the threshold will be
based upon the job openings that are available.
Entire Agreement: This Agreement and the Incentive Agreement contain the entire
agreement between the parties with respect to employment during operations of the Project and
supersede any prior agreements, whether written or oral.
Amendments: This Agreement may not be altered, amended or modified, except by an
instrument in writing signed by the Developer and the CRA.
Authority of Signatories: The individuals executing this Agreement represent and
warrant that they have the authority to sign on behalf of the respective parties.
Waiver of Jury Trial: The parties hereby knowingly, irrevocable, voluntarily and
intentionally waive any right either may .have to a trial by jury in respect of any action,
proceeding or counterclaim based on this Agreement, or arising out of, under or in connection
with this Agreement or any amendment or modification of this Agreement, or any course of
conduct, course of dealing, statements (whether verbal or written) or actions of any party hereto.
This waiver of jury trial provision is a material inducement of the CRA and Developer entering
into the subject transaction.
Terms: This Agreement shall automatically expire, and the Developer shall have no
further obligations hereunder, upon substantial completion of the Project.
[SIGNATURE PAGES TO FOLLOW]
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•
•
•
IN WITNESS WHEREOF, the CRA and the Developer executed this Agreement the
day and year first above written:
Witnessed: DEVELOPER:
DOWNTOWN MIAMI MALL, LLC, a
Print Name: Delaware limited liability company
Print Name:
Approved for legal sufficiency
HOLLAND & KNIGHT LLP, Special Counsel
ATTEST:
Priscilla A. Thompson, Clerk of the Board
# 6069566_v6
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By:
Name:
Title:
CRA:
OMNI REDEVELOPMENT DISTRICT
COMMUNITY REDEVELOPMENT
AGENCY, a public agency and body corporate
created pursuant to Section 163.356, Florida
Statutes
B y:
Name: James H. Villacorta
Title: Executive Director
Approved as to Insurance Requirements:
Risk Management Administrator
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Exhibit "N"
First Source Hiring Agreement Retail Phase (Construction)
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FIRST SOURCE HIRING AGREEMENT
COMMUNITY BENEFITS PROGRAM- RETAIL
THIS AGREEMENT is made this day of May, 2009, by and between OMNI
REDEVELOPMENT DISTRICT COMMUNITY REDEVELOPMENT AGENCY, a public
agency and body corporate created pursuant to Section 163.356, Florida Statutes (the "CRA")
and DOWNTOWN MIAMI MALL, LLC a Delaware limited liability company (the
"Developer").
RECITALS
J. The CRA was formed for the purpose of removing slum and blight in the Omni
redevelopment area (the "Redevelopment Area") and to promote redevelopment and employment
within the Redevelopment Area.
K. The Developer is the owner of property located within the Redevelopment Area
which is more particularly described in Exhibit "A" attached hereto and made a part hereof (the
"Property").
L. Developer intends to redevelop a portion of the Property into approximately
225,000 square feet of big box retail space (the "Project").
M. Simultaneously with the execution of this Agreement, the CRA, together with the
Developer, and Downtown Miami Hotel, LLC, a Delaware limited liability company ("Hotel
Owner") have entered into that Omni Development Incentive Agreement (the "Incentive
Agreement") pursuant to which the CRA will make tax increment funds available to the
Developer which will be used by the Developer to defray a portion of the costs of development
of the Project.
Developer has agreed to enter into this Agreement in order to induce the CRA to enter
into the Incentive Agreement.
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NOW THEREFORE, in consideration of ten dollars ($10.00) and other good and
valuable consideration! the receipt and sufficiency of which is hereby acknowledged, the parties
hereby agree as follows:
DEFINITIONS
As used in this Agreement, the following capitalized terms shall have the following
meanings. All definitions include both the singular and plural form. Capitalized terms not
specifically defined herein are as defined in the Incentive Agreement.
"Agency" shall mean the South Florida Work Force, a state and federally funded 501 C3
organization, or a similar agency reasonable acceptable to the CRA. In the event the Agency
ceases to exist, upon request of CRA or the Developer, the Developer shall select a similar entity
capable of handling the responsibilities designated to the Agency hereunder, reasonably
acceptable to the CRA. The Developer may depend on the Agency to determine economic status
(low-income, unemployed, etc.), residency, nationality, and other vital information of applicants
or employees and may rely on all such determinations by the Agency for all purposes hereunder.
"Agreement" shall mean this First Source Hiring Agreement in its entirety.
"City" shall mean the City of Miami, Florida.
"County" shall mean Miami -Dade County, Florida.
"Construction Contract" shall mean a contract with a total contract value of $750,000 or
more related to the construction of the Project or part thereof. "Construction Contract" shall not
include lease agreements or contrasts related to operations of ongoing business at the Project.
"Construction Contractor" shall mean a prime contractor, a subcontractor, or any other
business entering into a Construction Contract.
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"Full Time Employee" shall mean an individual employed for a minimum of thirty-five
(35) hours per standard five-day workweek.
"Lease Agreement" shall mean a retail lease agreement for the leasing of space within the
Proj ect.
"Low to Moderate -Income Individual" shall mean an individual whose household income
is no greater than 80% of the median income for the County based on the local Census data or
who is unemployed.
"Qualifying Individuals" are Low to Moderate -Income Individuals or minorities who are
Residents. The Developer may depend on the Agency to determine whether individuals are
Qualifying Individuals, as well as their employment, economic status, residency, nationality, and
other vital information of applicants, or employees and may rely on all such determinations by
the Agency for all purposes hereunder.
"Residents" shall mean residents of the Redevelopment Area, the SEOPW
Redevelopment Area or the City, which may include prior residency with accompanying proof,
reasonably satisfactory to the Agency, of residency within the Redevelopment Area, the SEOPW
Redevelopment Area or the City, as of January 2009 or since.
"Site" or "on -site" shall mean within the boundaries of the Project.
HIRING AND MINORITY EMPLOYMENT PROGRAM
This section is intended to develop reliable resources for community outreach associated
with exceeding a participation goal of 51% for new job opportunities for Qualifying Individuals
during the construction phase of Project, the prescreening of resumes and operation of training
programs that will facilitate the skills and the employment of Qualifying Individuals. This
section aims to accomplish these goals by (i) holding events, at least annually, that provide
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adequate notice to Residents of job opportunities, and (ii) collaborating with community -based
organizations and other groups to ensure that appropriate training programs are developed and
offered to Residents to establish (a) a mechanism whereby Qualifying Individuals can receive
job training in the skills requested by employers in the Project, and (b) a system for prompt
reliable pre-screening and referral of applicants to employers as jobs become available.
During the construction phase, the Developer shall utilize the services of the City of
Miami Department of Economic Development, and the Black Business Association for
community outreach in striving to meet and/or exceed a goal of 51% for new job opportunities
for Qualifying Individuals.
For each Construction Contract, Developer shall require the Construction Contractor and
each of the subcontractors retained by the Construction Contractor to provide employment
opportunities generated by the Project to Qualifying Individuals, including, but not limited to,
those who are participants in the Agency's training and employment programs, subject to such
Construction Contractors' obligations pursuant to applicable laws, rules, regulations or orders or
pursuant to any collective bargaining or other employment or labor agreement and such
Contractors' obligations to fill vacancies generated by the Project with (i) such Construction
Contractors' employees from other jobs, and (ii) persons laid off by such Construction Contractor
within the last two (2) years. It is understood that jobs may be offered on the basis of
qualifications. However, should qualifications be equal, Developer shall use commercially
reasonable efforts to cause such Construction Contractors to cause such employment
opportunities to be offered in the following order of priority, subject to the terms and conditions
above: (a) to Residents of the Redevelopment Area; (b) Residents of the SEOPW
Redevelopment Area; and (c) to Residents of the City.
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Provisions Benefiting Residents.
Developer shall use commercially reasonable efforts to cause the Construction
Contractor to collaborate with community -based organizations to ensure that appropriate skills
training programs are established with the objective of training Qualified Individuals for
employment as part of the on -site construction work force for the Project;
For each Construction Contract, the Developer shall use commercially reasonable
efforts to cause the Construction Contractor to notify the Agency in a timely manner, as
necessary and appropriate to develop customized training programs, with the objective of
enabling Qualifying Individuals to qualify for and secure entry level and apprenticeship
construction positions, whether union or non -union. In the event the Agency does not perform in
a timely manner, for each Construction Contract, the Developer shall use commercially
reasonable efforts to cause the Construction Contractor to notify the Agency, with a copy to the
CRA, of such deficiency. If the Agency does not implement steps to cure such deficiency within
fifteen (15) days of such notice, unless modified by the CRA, the Developer shall immediately
identify a new agency reasonably acceptable to the CRA to fill the role of the Agency.
For each Construction Contract, the Developer shall use commercially reasonable
efforts to cause the Construction Contractor to notify the Agency in a timely manner of entry-
level and apprenticeship positions whether union or non -union job openings resulting from the
Construction Contract requirements, including the number of positions needed and the minimum
qualifications required for each position.
For each Construction Contract, the Developer shall use commercially reasonable
efforts to cause the Construction Contractor to utilize the Agency as the "first source" in
identifying candidates for entry-level, apprenticeship and union and non -union positions.
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For each Construction Contract, the Developer shall use commercially reasonable
efforts to cause the Construction Contractor to give preference and first consideration on the
basis of qualifications; however, should qualifications be equal among candidates, the Developer
shall use commercially reasonable efforts to cause Construction Contractor, to the extent
permitted by law and any existent labor agreements, and except as otherwise provided for in
Section 1 hereof, to offer such employment opportunities in the following order of priority (a) to
Residents of the Redevelopment Area; (b) the SEOPW Redevelopment Area; and (c) to
Residents of the City to fill entry-level, apprenticeship, and union and non -union positions.
For each Construction Contract, the Developer shall use commercially reasonable
efforts to cause the Construction Contractor to advertise or cause to be advertised through the
Agency, in local minority media and City TV, the City community television channel, and hold
job fairs seeking to attract Qualifying Individuals to seek training and employment at the Project;
For each Construction Contract, the Developer further agrees to use commercially
reasonable efforts to cause the Construction Contractor to use its commercially reasonable efforts
to ensure that fifty-one percent (51 %) or more of those individuals offered employment are
Qualifying Individuals. It is understood that successful completion of training includes mastery
of many performance, attitude, and team skills. As long as these persons remain employed, their
positions will continue to be counted toward the thresholds of Developer's performance
regardless of any change in their status as a Qualifying Individual. Annual thresholds shall be
pro -rated monthly as required. In the event that the Agency is unable to identify Qualified
Individuals to fill these positions identified by the Construction Contractor within a reasonable
time frame acceptable to the Developer or Construction Contractor, any unfilled targeted
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positions may be filled by any qualified person, irrespective of their status as Qualifying
Individuals.
For each Construction Contract, the Developer shall use commercially reasonable
efforts to cause the Construction Contractor to register a resident apprentice training program
with the local unions in order to involve trained Qualifying Individuals as apprentices and
ultimately as journeypersons for the benefit of the Project;
For each Lease Agreement, the Developer shall use commercially reasonable
efforts to include language that requires the lessee thereunder to use commercially reasonable
efforts to employ Residents and provide the CRA with quarterly reports of their efforts.
The CRA acknowledges that all employees of the Project will be required to have
the necessary employment skills, as well as meeting the requirements of the Project insurance
policy, including, without limitation, requirements for a drug free workplace. In addition, the
CRA acknowledges that various employment opportunities may require union membership, and
may require security clearances consistent with the Project's security policies and procedures.
For purposes of this Agreement, to the extent the Agency provides the above services, the
Developer may rely on the information provided by the Agency for verification purposes.
To the extent that the procedures set forth in this section are in conflict with the
procedures implemented by the Developer or Construction Contractors in order to comply, with
the applicable federal, state and local laws, the Developer and the Construction Contractors may
substitute other procedures, reasonably acceptable to the CRA, in order to accomplish the
purpose and intent of this Agreement;
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REPORTING
Quarterly Reports Analysis: For each Construction Contract, the Developer shall use
commercially reasonable efforts to cause the Construction Contractors to prepare, or cause to be
prepared, detailed quarterly reports on the implementation of all sections of this Agreement
during construction of the Project. These reports will be coordinated and reported by the Agency
or other qualifying entity, as submitted to and reasonably approved by the CRA, upon whom the
Developer may rely, and shall provide, at a minimum, a listing of the individuals, ethnicity,
residency, classification applied for, employer's name, date of hire, status of employment (i.e.
still employed or date terminated), total hours worked for the reporting period, gross monthly
earnings, recruitment' source and percentage of Qualifying Individuals when they were initially
hired for any component of the Project, which status shall continue to be applicable to any
thresholds that are set, no matter of changes in employee status as a Qualifying Individual. These
reports should further provide a comprehensive summary of the above, including, but not limited
to, the following:
• total number of positions hired to -date
• total number of positions held by Qualifying Individuals residing in the Redevelopment
Area, the SEOPW Redevelopment Area and the City, respectively
• total new hires this reporting period
• total new hires from prior reporting period
• total new hires to -date
• total number of individuals referred from each respective recruiting source
• total number of individuals hired and not hired from each respective recruiting source.
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These reports shall be provided to the CRA, consistent with any security provisions of the
Project. If the report indicates that the percentage threshold requirement is not being met, the
Developer shall use commercially reasonable efforts to cause the Construction Contractors to
include as part of the report a discussion of the reasons why that is the case. Further, in the event
the Agency prepared the report or the initial data on Qualifying Individuals, on behalf of the
Developer, the Developer shall be entitled to rely on information provided by the Agency.
IMPLEMENTATION OF FIRST SOURCE HIRING PROGRAM
Inclusion of this Agreement in Construction Contracts:
Construction Contracts: For each Construction Contract, the Developer shall use
commercially reasonable efforts to cause this Agreement, or any amended version
thereof, to be included as a material term of such Construction Contract.
NOTICES
Correspondence: All correspondence shall be in writing and shall be addressed to the
affected parties at the addresses set forth below. A party may change its address by giving notice
in compliance with this Section 5 the addresses of the parties are:
If to the Developer:
With a copy to:
If to the CRA:
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Downtown Miami Mall, LLC
c/o Argent Ventures, LLC
551 Fifth Avenue, 34th Floor
New York, New York
Fax: 212-681-6096
James Shindell, Esq.
Bilzon Sumberg Baena Price & Axelrod LLP
200 So. Biscayne Blvd., Suite 2500
Miami, FL 33131
Fax: 305-351-2256
James H. Villacorta, Executive Director
Omni Redevelopment District Community Redevelopment
Agency
49 NW 5th Street, Suite 100
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With a copy to:
With copy to:
With a copy to:
Miami, Florida 33128
Department of Economic Development
City of Miami
444 SW 2 Avenue, 3rd Floor
Miami, Florida 33130
Department of Community Development
City of Miami
444 SW 2 Avenue, 2nd Floor
Miami, FL 33130
William R. Bloom, Esq.
Holland & Knight LLP
701 Brickell Avenue, Suite 3000
Miami, Florida 33131
GENERAL PROVISIONS
Severabilitv Clause: If any term, provision, covenant, or condition of this Agreement is
held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of
the provisions shall continue in full force and effect.
Binding on Successors: This Agreement shall be binding upon and inure to the benefit of
the heirs, administrators, executors, successors in interest, and assigns of each of the parties
hereto. Any reference in this Agreement to a specifically named party shall be deemed to apply
to any successor in interest, heir, administrator, executor, or assign of such party.
Intended Beneficiaries: The CRA is an intended third -party beneficiary of contracts and
other agreements, which incorporate this Agreement, with regard to the terms of this Agreement.
The CRA shall therefore have the right to enforce the provisions of this Agreement against all
parties incorporating this Agreement into contracts or other agreements.
Term: This Agreement shall become effective on the date of mutual execution of this
Agreement.
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Waiver: The waiver of any provision or term of this Agreement shall not be deemed as a
waiver of any other provision or term of this Agreement. The mere passage of time, or failure to
act upon a breach, shall not be deemed as a waiver of any provision or terms of this Agreement.
Estoppel: The parties hereto agree to provide each other, within 15 days of request, an
estoppel letter acknowledging that the other party is not in default of this Agreement.
Construction: The parties hereto have been represented by counsel in the negotiation and
drafting of this Agreement. Accordingly, this Agreement shall not be strictly construed against
any party, and the rule of construction that any ambiguities be resolved against the drafting party
shall not apply to this Agreement.
No Termination of Existing Employees: Neither the Developer, nor any Construction
Contractor shall be obligated to terminate any existing employees to comply with the terms and
provisions of this Agreement. Should either of the Developer or any Construction Contractor not
be able to meet the thresholds or objectives of this Agreement due to low employment position
vacancy, the threshold will be based upon the job openings that are available.
Entire Agreement: This Agreement and the Incentive Agreement contain the entire
agreement between the parties with respect to employment during the construction of the Project
and supersede any prior agreements, whether written or oral. This Agreement sets forth the
general framework for a First Source Hiring Policy and may be supplemented by additional
memoranda approved by the Developer and the CRA detailing the procedures and deadlines for
carrying out this policy.
Amendments: This Agreement may not be altered, amended or modified, except by an
instrument in writing signed by the Developer and the CRA.
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Authority of Signatories: The individuals executing this Agreement represent and
warrant that they have the authority to sign on behalf of the respective parties.
Waiver of Jury Trial: The parties hereby knowingly, irrevocable, voluntarily and
intentionally waive any right either may .have to a trial by jury in respect of any action,
proceeding or counterclaim based on this Agreement, or arising out of, under or in connection
with this Agreement or any amendment or modification of this Agreement, or any course of
conduct, course of dealing, statements (whether verbal or written) or actions of any party hereto.
This waiver of jury trial provision is a material inducement of the CRA and Developer entering
into the subject transaction.
Terms: This Agreement shall automatically expire, and the Developer shall have no
further obligations hereunder, upon substantial completion of the Project.
[SIGNATURE PAGES TO FOLLOW]
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IN WITNESS WHEREOF, the CRA and the Developer executed this Agreement the
day and year first above written:
Witnessed: DEVELOPER:
DOWNTOWN MIAMI MALL, LLC, a
Print Name: Delaware limited liability company
Print Name:
Approved for legal sufficiency
HOLLAND & KNIGHT LLP, Special Counsel
ATTEST:
Priscilla A. Thompson, Clerk of the Board
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By:
Name:
Title:
CRA:
OMNI REDEVELOPMENT DISTRICT
COMMUNITY REDEVELOPMENT
AGENCY, a public agency and body corporate
created pursuant to Section 163.356, Florida
Statutes
By:
Name: James H. Villacorta
Title: Executive Director
Approved as to Insurance Requirements:
Risk Management Administrator
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EXHIBIT 1. ADDITIONAL, AGREED UPON MECHANICS
For each Construction Contract, the Developer will use commercially reasonable efforts
to cause the Construction Contractors to adhere to the following additional procedures:
1. Provide such information reasonably required by the Agency in a timely manner
as required by the Agency in order to provide the requisite training and identification of
Qualifying Individuals for training and employment as contemplated by this Agreement.
2. Establish procedures that will facilitate ease of electronic file, data, and report
transfer.
3. Developer shall work with the Agency, security personnel and any other available
agency reasonably acceptable to the CRA to help the Developer obtain requirements and records
necessary for security clearances.
# 6069566_v6
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Exhibit "O"
First Source Hiring Agreement Retail Phase (Operations)
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FIRST SOURCE HIRING AGREEMENT (OPERATIONS)- RETAIL
THIS AGREEMENT is made this day of May, 2009, by and between OMNI
REDEVELOPMENT DISTRICT COMMUNITY REDEVELOPMENT AGENCY, a public
agency and body corporate created pursuant to Section 163.356, Florida Statutes (the "CRA")
and DOWNTOWN MIAMI MALL, LLC, a Delaware limited liability company
("Developer").
RECITALS
N. The CRA was formed for the purpose of removing slum and blight in the Omni
redevelopment area (the "Redevelopment Area") and to promote redevelopment and employment
within the Redevelopment Area.
O. The Developer is the owner of property located within the Redevelopment Area
which is more particularly described in Exhibit "A" attached hereto and made a part hereof (the
"Property").
P. Developer intends to redevelop a portion of the Property into approximately
225,000 square feet of big box retail space (the "Project").
Q.
Simultaneously with the execution of this Agreement, the CRA, together with the
Developer, and Downtown Miami Hotel, LLC, a Delaware limited liability company (the "Hotel
Owner") have entered into that Omni Development Incentive Agreement (the "Incentive
Agreement") pursuant to which the CRA will make tax increment funds available to the
Developer which will be used by the Developer to defray a portion of the costs of development
of the Project.
R. Developer has agreed to enter into this Agreement in order to induce the CRA to
enter into the Incentive Agreement.
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NOW THEREFORE, in consideration of ten dollars ($10.00) and other good and
valuable consideration! the receipt and sufficiency of which is hereby acknowledged, the parties
hereby agree as follows:
DEFINITIONS
As used in this Agreement, the following capitalized terms shall have the following
meanings. All definitions include both the singular and plural form. Capitalized terms not
specifically defined herein are as defined in the Incentive Agreement.
"Agency" shall mean the South Florida Work Force, a state and federally funded 501 C3
organization, or a similar agency reasonable acceptable to the CRA. In the event the Agency
ceases to exist, upon request of CRA or the Developer, the Developer shall select a similar entity
capable of handling the responsibilities designated to the Agency hereunder, reasonably
acceptable to the CRA. The Developer may depend on the Agency to determine economic status
(low-income, unemployed, etc.), residency, nationality, and other vital information of applicants
or employees and may rely on all such determinations by the Agency for all purposes hereunder.
"Agreement" shall mean this First Source Hiring Agreement in its entirety.
"City" shall mean the City of Miami, Florida.
"County" shall mean Miami -Dade County, Florida.
"Full Time Employee" shall mean an individual employed for a minimum of thirty-five
(35) hours per standard five-day work week.
"Lease Agreement" shall mean a lease agreement for the leasing of space within the
Project.
"Leased Premises" shall mean the space leased pursuant to a Lease Agreement.
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"Low to Moderate -Income Individual" shall mean an individual whose household income
is no greater than 80% of the median income for the County based on the local Census data or
who is unemployed.
"Qualifying individuals" are Low to Moderate -Income Individuals or minorities who are
Residents. The Developer may depend on the Agency to determine whether individuals are
Qualifying Individuals, as well as their employment, economic status, residency, nationality, and
other vital information of applicants, or employees and may rely on all such determinations by
the Agency for all purposes hereunder.
"Residents" shall mean residents of the Redevelopment Area, the SEOPW
Redevelopment Area or the City, which may include prior residency with accompanying proof,
reasonably satisfactory to the Agency, of residency within the Redevelopment Area, the SEOPW
Redevelopment Area or the City, as of January 2009 or since.
"Retail Lease Phase" shall mean that time period between the Substantial Completion of
the Project and the Satisfaction of the Retail Employment Requirement, as defined in the
Incentive Agreement.
"Site" or "on -site" shall mean within the boundaries of the Project.
"Substantial Completion" shall mean that the redevelopment of the Property has been
substantially completed in accordance with the plans and specifications for the Project, subject
only to the completion of minor punch list items, and a temporary certificate of occupancy, or its
equivalent, has been issued by the City.
"Tenant" means the lessee under a Lease Agreement.
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HIRING AND MINORITY EMPLOYMENT PROGRAM
This section is intended to develop reliable resources for community outreach associated
with exceeding a participation goal of 51% for new job opportunities for Qualifying Individuals
during the operation phase of Project, the prescreening of resumes and operation of training
programs that will facilitate the skills and the employment of Qualifying Individuals. This
section aims to accomplish these goals by (i) holding events, at least annually, that provide
adequate notice to Residents of job opportunities, and (ii) collaborating with community -based
organizations and other groups to ensure that appropriate training programs are developed and
offered to Residents to establish (a) a mechanism whereby Qualifying Individuals can receive
job training in the skills requested by employers in the Project, and (b) a system for prompt
reliable pre-screening and referral of applicants to employers as jobs become available_
Operations Phase.
During the operations phase, the Developer shall utilize the services of the City of
Miami Department of Economic Development and the Black Business Association for
community outreach in striving to meet and/or exceed a goal of 51% for new job opportunities
for Qualifying Individuals.
For each Lease Agreement, Developer shall utilize commercially reasonable
efforts to require each Tenant to provide employment opportunities generated by the Project to
Qualifying Individuals, including, but not limited to, those who are participants in the Agency's
training and employment programs, subject to such Tenant's obligations pursuant to applicable
laws, rules, regulations or orders or pursuant to any collective bargaining or other employment or
labor agreement and such Tenant's obligations to fill vacancies generated at the Leased Premises
with (i) such Tenant's employees from other jobs, and (ii) persons laid off by such Tenant within
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the last two (2) years. It is understood that jobs may be offered on the basis of qualifications.
However, should qualifications be equal, Developer shall use commercially reasonable efforts to
cause such Tenants to cause such employment opportunities to be offered in the following order
of priority, subject to the terms and conditions above: (a) to Residents of the Redevelopment
Area; (b) Residents of the SEOPW Redevelopment Area; and (c) to Residents of the City.
Developer shall use commercially reasonable efforts to cause the Tenants to
collaborate with community -based organizations to ensure that appropriate skills training
programs are established with the objective of training Qualified Individuals for employment as
part of the work force for the Project;
For each Lease Agreement, the Developer shall use commercially reasonable
efforts to cause the Tenant to notify the Agency in a timely manner, as necessary and appropriate
to develop customized training programs, with the objective of enabling Qualifying Individuals
to qualify for and secure entry level and apprenticeship positions, whether union or non -union. In
the event the Agency does not perform in a timely manner, for each Tenant, the Developer shall
use commercially reasonable efforts to cause the Tenant to notify the Agency, with a copy to the
CRA, of such deficiency. If the Agency does not implement steps to cure such deficiency within
fifteen (15) days of such notice, unless modified by the CRA, the Developer shall immediately
identify a new agency reasonably acceptable to the CRA to fill the role of the Agency.
For each Lease Agreement, the Developer shall use commercially reasonable
efforts to cause the Tenant to notify the Agency in a timely manner of entry-level and
apprenticeship positions whether union or non -union job openings, including the number of
positions needed and the minimum qualifications required for each position.
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For each Lease Agreement, the Developer shall use commercially reasonable
efforts to cause the Tenant to utilize the Agency as the "first source" in identifying candidates for
entry-level, apprenticeship and union and non -union positions.
For each Lease Agreement, the Developer shall use commercially reasonable
efforts to cause the Tenant to give preference and first consideration on the basis of
qualifications; however, should qualifications be equal among candidates, the Developer shall
use commercially reasonable efforts to cause Tenant, to the extent permitted by law and any
existent labor agreements to offer such employment opportunities in the following order of
priority (a) to Residents of the Redevelopment Area; (b) the SEOPW Redevelopment Area; and
(c) to Residents of the City to fill entry-level, apprenticeship, and union and non -union positions.
For each Lease Agreement, the Developer shall use commercially reasonable
efforts to cause the Tenant to advertise or cause to be advertised through the Agency, in local
minority media and City TV, the City community television channel, and hold job fairs seeking
to attract Qualifying Individuals to seek training and employment at the Project;
For each Lease Agreement, the Developer further agrees to use commercially
reasonable efforts to cause the Tenant to use its commercially reasonable efforts to ensure that
fifty-one percent (51%) or more of those individuals offered employment are Qualifying
Individuals. It is understood that successful completion of training includes mastery of many
performance, attitude, and team skills. As long as these persons remain employed, their positions
will continue to be counted toward the thresholds of Developers performance regardless of any
change in their status as a Qualifying Individual. Annual thresholds shall be pro -rated monthly as
required. In the event that the Agency is unable to identify Qualified Individuals to fill these
positions identified by the Tenant within a reasonable time frame acceptable to the Developer or
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Tenant, any unfilled targeted positions may be filled by any qualified person, irrespective of their
status as Qualifying Individuals.
The CRA acknowledges that all employees of the Project will be required to have
the necessary employment skills. In addition, the CRA acknowledges that various employment
opportunities may require union membership, and may require security clearances consistent
with the Project's security policies and procedures. For purposes of this Agreement, to the extent
the Agency provides the above services, the Developer may rely on the information provided by
the Agency for verification purposes.
To the extent that the procedures set forth in this section are in conflict with the
procedures implemented by the Developer or Tenants in order to comply, with the applicable
federal, state and local laws, the Developer and the Tenants may substitute other procedures,
reasonably acceptable to the CRA, in order to accomplish the purpose and intent of this
Agreement.
REPORTING
Quarterly Reports Analysis: For each Lease Agreement, the Developer shall use
commercially reasonable efforts to cause the Tenants to prepare, or cause to be prepared, detailed
quarterly reports on the implementation of all sections of this Agreement during the term of this
Agreement. These reports will be coordinated and reported by the Agency or other qualifying
entity, as submitted to and reasonably approved by the CRA, upon whom the Developer may
rely, and shall provide, at a minimum, a listing of the individuals, ethnicity, residency,
classification applied for, employer's name, date of hire, status of employment (i.e. still
employed or date terminated), total hours worked for the reporting period, gross monthly
earnings, recruitment' source and percentage of Qualifying Individuals when they were initially
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hired, which status shall continue to be applicable to any thresholds that are set, no matter of
changes in employee status as a Qualifying Individual. These reports should further provide a
comprehensive summary of the above, including, but not limited to, the following:
• total number of positions hired to -date
• total number of positions held by Qualifying Individuals residing in the Redevelopment
Area, the SEOPW Redevelopment Area and the City, respectively
• total new hires this reporting period
• total new hires from prior reporting period
• total new hires to -date
• total number of individuals referred from each respective recruiting source
• total number of individuals hired and not hired from each respective recruiting source.
These reports shall be provided to the CRA, consistent with any security provisions of the
Project. If the report indicates that the percentage threshold requirement is not being met, the
Developer shall use commercially reasonable efforts to cause the Tenants to include as part of
the report a discussion of the reasons why that is the case. Further, in the event the Agency
prepared the report or the initial data on Qualifying Individuals, on behalf of the Developer, the
Developer shall be entitled to rely on information provided by the Agency.
IMPLEMENTATION OF FIRST SOURCE HIRING PROGRAM
Inclusion of this Agreement in Lease Agreements:
For each Lease Agreement, the Developer shall use commercially reasonable efforts to
cause this Agreement, or any amended version thereof, to be included as a material term
of such Lease Agreement.
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NOTICES
Correspondence: All correspondence shall be in writing and shall be addressed to the
affected parties at the addresses set forth below. A party may change its address by giving notice
in compliance with this Section 5 the addresses of the parties are:
If to the Developer:
With a copy to:
If to the CRA:
With a copy to:
With copy to:
With a copy to:
MIAMI 1678256.3 7652127221
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Downtown Miami Mall, LLC
c/o Argent Ventures, LLC
551 Fifth Avenue, 34th Floor
New York, New York 10176
Fax: 212-681-6096
James Shindell, Esq.
Bilzon Sumberg Baena Price & Axelrod LLP
200 So. Biscayne Blvd., Suite 2500
Miami, FL 33131
Fax: 305-351-2256
James H. Villacorta, Executive Director
Omni Redevelopment District Community Redevelopment
Agency
49 NW 5th Street, Suite 100
Miami, Florida 33128
Department of Economic Development
City of Miami
444 SW 2 Avenue, 3`d Floor
Miami, Florida 33130
Department of Community Development
City of Miami
444 SW 2 Avenue, 2nd Floor
Miami, FL 33130
William R Bloom, Esq.
Holland & Knight LLP
701 Brickell Avenue, Suite 3000
Miami, Florida 33131
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GENERAL PROVISIONS
Severability Clause: If any term, provision, covenant, or condition of this Agreement is
held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of
the provisions shall continue in full force and effect.
Binding on Successors: This Agreement shall be binding upon and inure to the benefit of
the heirs, administrators, executors, successors in interest, and assigns of each of the parties
hereto. Any reference in this Agreement to a specifically named party shall be deemed to apply
to any successor in interest, heir, administrator, executor, or assign of such party.
Intended Beneficiaries: The CRA is an intended third -party beneficiary of contracts and
other agreements, which incorporate this Agreement, with regard to the terms of this Agreement.
The CRA shall therefore have the right to enforce the provisions of this Agreement against all
parties incorporating this Agreement into contracts or other agreements.
Term: This Agreement shall become effective on the date of mutual execution of this
Agreement and terminate at the end of the Retail Lease Phase.
Waiver: The waiver of any provision or term of this Agreement shall not be deemed as a
waiver of any other provision or term of this Agreement. The mere passage of time, or failure to
act upon a breach, shall not be deemed as a waiver of any provision or terms of this Agreement.
Estoppel: The parties hereto agree to provide each other, within 15 days of request, an
estoppel letter acknowledging that the other party is not in default of this Agreement.
Construction: The parties hereto have been represented by counsel in the negotiation and
drafting of this Agreement. Accordingly, this Agreement shall not be strictly construed against
any party, and the rule of construction that any ambiguities be resolved against the drafting party
shall not apply to this Agreement.
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No Termination of Existing Employees: Neither the Developer, nor any Tenant shall be
obligated to terminate any existing employees to comply with the terms and provisions of this
Agreement. Should either of the Developer or any Tenant not be able to meet the thresholds or
objectives of this Agreement due to low employment position vacancy, the threshold will be
based upon the job openings that are available.
Entire Agreement: This Agreement and the Incentive Agreement contain the entire
agreement between the parties with respect to employment during operations of the Project and
supersede any prior agreements, whether written or oral.
Amendments: This Agreement may not be altered, amended or modified, except by an
instrument in writing signed by the Developer and the CRA.
Authority of Signatories: The individuals executing this Agreement represent and
warrant that they have the authority to sign on behalf of the respective parties.
Waiver of Jury Trial: The parties hereby knowingly, irrevocable, voluntarily and
intentionally waive any right either may .have to a trial by jury in respect of any action,
proceeding or counterclaim based on this Agreement, or arising out of, under or in connection
with this Agreement or any amendment or modification of this Agreement, or any course of
conduct, course of dealing, statements (whether verbal or written) or actions of any party hereto.
This waiver of jury trial provision is a material inducement of the CRA and Developer entering
into the subject transaction.
Terms: This Agreement shall automatically expire, and the Developer shall have no
further obligations hereunder, upon substantial completion of the Project.
[SIGNATURE PAGES TO FOLLOW]
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IN WITNESS WHEREOF, the CRA and the Developer executed this Agreement the
day and year first above written:
Witnessed: DEVELOPER:
DOWNTOWN MIAMI MALL, LLC, a
Print Name: Delaware limited liability company
B y:
Print Name: Name:
Title:
Approved for legal sufficiency
HOLLAND & KNIGHT LLP, Special Counsel
ATTEST:
Priscilla A. Thompson, Clerk of the Board
# 6069566_v6
MIAMI 1678256.3 7652127221
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CRA:
OMNI REDEVELOPMENT DISTRICT
COMMUNITY REDEVELOPMENT
AGENCY, a public agency and body corporate
created pursuant to Section 163356, Florida
Statutes
By:
Name: James H. Villacorta
Title: Executive Director
Approved as to Insurance Requirements:
Risk Management Administrator
102
Exhibit "P"
First Source Hiring Agreement Hotel Phase (Operations)
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FIRST SOURCE HIRING AGREEMENT (OPERATIONS)- HOTEL
THIS AGREEMENT is made this day of May, 2009, by and between OMNI
REDEVELOPMENT DISTRICT COMMUNITY REDEVELOPMENT AGENCY, a public
agency and body corporate created pursuant to Section 163.356, Florida Statutes (the "CRA")
and DOWNTOWN MIAMI HOTEL, LLC, a Delaware limited Iiability company
("Developer").
RECITALS
S. The CRA was formed for the purpose of removing slum and blight in the Omni
redevelopment area (the "Redevelopment Area") and to promote redevelopment and employment
within the Redevelopment Area.
T. The Developer is the owner of property located within the Redevelopment Area
which is more particularly described in Exhibit "A" attached hereto and made a part hereof (the
"Property").
U. Developer currently operates a 527 room hotel on the Property (the "Hotel"), and
intends to renovate the Hotel (the "Project").
V. Simultaneously with the execution of this Agreement, the CRA, together with the
Developer, and Downtown Miami Mall, LLC, a Delaware limited liability company (the "Mall
Owner") have entered into that Omni Development Incentive Agreement (the "Incentive
Agreement") pursuant to which the CRA will make tax increment funds available to the
Developer which will be used by the Developer to defray a portion of the costs of development
of the Project.
W. Developer has agreed to enter into this Agreement in order to induce the CRA to
enter into the Incentive Agreement.
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NOW THEREFORE, in consideration of ten dollars ($10.00) and other good and
valuable consideration! the receipt and sufficiency of which is hereby acknowledged, the parties
hereby agree as follows:
DEFINITIONS
As used in this Agreement, the following capitalized terms shall have the following
meanings. All definitions include both the singular and plural form. Capitalized terms not
specifically defined herein are as defined in the Incentive Agreement.
"Agency" shall mean the South Florida Work Force, a state and federally funded 501 C3
organization, or a similar agency reasonable acceptable to the CRA. In the event the Agency
ceases to exist, upon request of CRA or the Developer, the Developer shall select a similar entity
capable of handling the responsibilities designated to the Agency hereunder, reasonably
acceptable to the CRA. The Developer may depend on the Agency to determine economic status
(low-income, unemployed, etc.), residency, nationality, and other vital information of applicants
or employees and may rely on all such determinations by the Agency for all purposes hereunder.
"Agreement" shall mean this First Source Hiring Agreement in its entirety.
"City" shall mean the City of Miami, Florida.
"County" shall mean Miami -Dade County, Florida.
"Full Time Employee" shall mean an individual employed for a minimum of thirty-five
(35) hours per standard five-day work week.
"Hotel Lease Phase" shall mean that time period between the Substantial Completion of
the Project and the Satisfaction of the Hotel Employment Requirement, as defined in the
Incentive Agreement.
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"Lease Agreement" shall mean a lease agreement for the leasing of space within the
Project.
"Leased Premises" shall mean the space leased pursuant to a Lease Agreement.
"Low to Moderate -Income Individual" shall mean an individual whose household income
is no greater than 80% of the median income for the County based on the local Census data or
who is unemployed.
"Qualifying Individuals" are Low to Moderate -Income Individuals or minorities who are
Residents. The Developer may depend on the Agency to determine whether individuals are
Qualifying Individuals, as well as their employment, economic status, residency, nationality, and
other vital information of applicants, or employees and may rely on all such determinations by
the Agency for all purposes hereunder.
"Residents" shall mean residents of the Redevelopment Area, the SEOPW
Redevelopment Area or the City, which may include prior residency with accompanying proof,
reasonably satisfactory to the Agency, of residency within the Redevelopment Area, the SEOPW
Redevelopment Area or the City, as of January 2009 or since.
"Site" or "on -site" shall mean within the boundaries of the Project.
"Substantial Completion" shall mean that the redevelopment of the Property has been
substantially completed in accordance with the plans and specifications for the Project, subject
only to the completion of minor punch list items, and a temporary certificate of occupancy, or its
equivalent, has been issued by the City.
"Tenant" means the lessee under a Lease Agreement.
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HIRING AND MINORITY EMPLOYMENT PROGRAM
This section is intended to develop reliable resources for community outreach associated
with exceeding a participation goal of 51% for new job opportunities for Qualifying Individuals
during the operation phase of Project, the prescreening of resumes and operation of training
programs that will facilitate the skills and the employment of Qualifying Individuals. This
section aims to accomplish these goals by (i) holding events, at least annually, that provide
adequate notice to Residents of job opportunities, and (ii) collaborating with community -based
organizations and other groups to ensure that appropriate training programs are developed and
offered to Residents to establish (a) a mechanism whereby Qualifying Individuals can receive
job training in the skills requested by employers in the Project, and (b) a system for prompt
reliable pre-screening and referral of applicants to employers as jobs become available.
Operations Phase.
During the operations phase, the Developer shall utilize the services of the City of
Miami Department of Economic Development and the Black Business Association for
community outreach in striving to meet and/or exceed a goal of 51% for new job opportunities
for Qualifying Individuals.
For each Lease Agreement, Developer shall utilize commercially reasonable
efforts to require each Tenant to provide employment opportunities generated by the Project to
Qualifying Individuals, including, but not limited to, those who are participants in the Agency's
training and employment programs, subject to such Tenant's obligations pursuant to applicable
laws, rules, regulations or orders or pursuant to any collective bargaining or other employment or
labor agreement and such Tenant's obligations to fill vacancies generated at the Leased Premises
with (i) such Tenant's employees from other jobs, and (ii) persons laid off by such Tenant within
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the last two (2) years. It is understood that jobs may be offered on the basis of qualifications.
However, should qualifications be equal, Developer shall use commercially reasonable efforts to
cause such Tenants to cause such employment opportunities to be offered in the following order
of priority, subject to the terms and conditions above: (a) to Residents of the Redevelopment
Area; (b) Residents of the SEOPW Redevelopment Area; and (c) to Residents of the City.
Developer shall use commercially reasonable efforts to cause the Tenants to
collaborate with community -based organizations to ensure that appropriate skills training
programs are established with the objective of training Qualified Individuals for employment as
part of the work force for the Project;
For each Lease Agreement, the Developer shall use commercially reasonable
efforts to cause the Tenant to notify the Agency in a timely manner, as necessary and appropriate
to develop customized training programs, with the objective of enabling Qualifying Individuals
to qualify for and secure entry level and apprenticeship positions, whether union or non -union. In
the event the Agency does not perform in a timely manner, for each Tenant, the Developer shall
use commercially reasonable efforts to cause the Tenant to notify the Agency, with a copy to the
CRA, of such deficiency. If the Agency does not implement steps to cure such deficiency within
fifteen (15) days of such notice, unless modified by the CRA, the Developer shall immediately
identify a new agency reasonably acceptable to the CRA to fill the role of the Agency.
For each Lease Agreement, the Developer shall use commercially reasonable
efforts to cause the Tenant to notify the Agency in a timely manner of entry-level and
apprenticeship positions whether union or non -union job openings, including the number of
positions needed and the minimum qualifications required for each position.
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For each Lease Agreement, the Developer shall use commercially reasonable
efforts to cause the Tenant to utilize the Agency as the "first source" in identifying candidates for
entry-level, apprenticeship and union and non -union positions.
For each Lease Agreement, the Developer shall use commercially reasonable
efforts to cause the Tenant to give preference and first consideration on the basis of
qualifications; however, should qualifications be equal among candidates, the Developer shall
use commercially reasonable efforts to cause Tenant, to the extent permitted by law and any
existent labor agreements to offer such employment opportunities in the following order of
priority (a) to Residents of the Redevelopment Area; (b) the SEOPW Redevelopment Area; and
(c) to Residents of the City to fill entry-level, apprenticeship, and union and non -union positions.
For each Lease Agreement, the Developer shall use commercially reasonable
efforts to cause the Tenant to advertise or cause to be advertised through the Agency, in local
minority media and City TV, the City community television channel, and hold job fairs seeking
to attract Qualifying Individuals to seek training and employment at the Project;
For each Lease Agreement, the Developer further agrees to use commercially
reasonable efforts to cause the Tenant to use its commercially reasonable efforts to ensure that
fifty-one percent (51%) or more of those individuals offered employment are Qualifying
Individuals. It is understood that successful completion of training includes mastery of many
performance, attitude, and team skills. As long as these persons remain employed, their positions
will continue to be counted toward the thresholds of Developer's performance regardless of any
change in their status as a Qualifying Individual. Annual thresholds shall be pro -rated monthly as
required. In the event that the Agency is unable to identify Qualified Individuals to fill these
positions identified by the Tenant within a reasonable time frame acceptable to the Developer or
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Tenant, any unfilled targeted positions may be filled by any qualified person, irrespective of their
status as Qualifying Individuals.
The CRA acknowledges that all employees of the Project will be required to have
the necessary employment skills. In addition, the CRA acknowledges that various employment
opportunities may require union membership, and may require security clearances consistent
with the Project's security policies and procedures. For purposes of this Agreement, to the extent
the Agency provides the above services, the Developer may rely on the information provided by
the Agency for verification purposes.
To the extent that the procedures set forth in this section are in conflict with the
procedures implemented by the Developer or Tenants in order to comply, with the applicable
federal, state and local laws, the Developer and the Tenants may substitute other procedures,
reasonably acceptable to the CRA, in order to accomplish the purpose and intent of this
Agreement.
REPORTING
Quarterly Reports Analysis: For each Lease Agreement, the Developer shall use
commercially reasonable efforts to cause the Tenants to prepare, or cause to be prepared, detailed
quarterly reports on the implementation of all sections of this Agreement during the term of this
Agreement. These reports will be coordinated and reported by the Agency or other qualifying
entity, as submitted to and reasonably approved by the CRA, upon whom the Developer may
rely, and shall provide, at a minimum, a listing of the individuals, ethnicity, residency,
classification applied for, employer's name, date of hire, status of employment (i.e. still
employed or date terminated), total hours worked for the reporting period, gross monthly
earnings, recruitment' source and percentage of Qualifying Individuals when they were initially
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hired, which status shall continue to be applicable to any thresholds that are set, no matter of
changes in employee status as a Qualifying Individual. These reports should further provide a
comprehensive summary of the above, including, but not limited to, the following:
• total number of positions hired to -date
• total number of positions held by Qualifying Individuals residing in the Redevelopment
Area, the SEOPW Redevelopment Area and the City, respectively
• total new hires this reporting period
• total new hires from prior reporting period
• total new hires to -date
• total number of individuals referred from each respective recruiting source
• total number of individuals hired and not hired from each respective recruiting source.
These reports shall be provided to the CRA, consistent with any security provisions of the
Project. If the report indicates that the percentage threshold requirement is not being met, the
Developer shall use commercially reasonable efforts to cause the Tenants to include as part of
the report a discussion of the reasons why that is the case. Further, in the event the Agency
prepared the report or the initial data on Qualifying Individuals, on behalf of the Developer, the
Developer shall be entitled to rely on information provided by the Agency.
IMPLEMENTATION OF FIRST SOURCE HIRING PROGRAM
Inclusion of this Agreement in Lease Agreements:
For each Lease Agreement, the Developer shall use commercially reasonable efforts to
cause this Agreement, or any amended version thereof, to be included as a material term
of such Lease Agreement.
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NOTICES
Correspondence: All correspondence shall be in writing and shall be addressed to the
affected parties at the addresses set forth below. A party may change its address by giving notice
in compliance with this Section 5 the addresses of the parties are:
If to the Developer: Downtown Miami Hotel, LLC
c/o Argent Ventures, LLC
551 Fifth Avenue, 34th Floor
New York, New York 10176
Fax: 212-681-6096
With a copy to: James Shindell, Esq.
Bilzon Sumberg Baena Price & Axelrod LLP
200 So. Biscayne Blvd., Suite 2500
Miami, FL 33131
Fax: 305-351-2256
If to the CRA: James H. Villacorta, Executive Director
Omni Redevelopment District Community Redevelopment
Agency
49 NW 5th Street, Suite 100
Miami, Florida 33128
With a copy to: Department of Economic Development
City of Miami
444 SW 2 Avenue, 3rd Floor
Miami, Florida 33130
With copy to:
With a copy to:
MIAMI 1678256.3 7652127221
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Department of Community Development
City of Miami
444 SW 2 Avenue, 2nd Floor
Miami, FL 33130
William R. Bloom, Esq.
Holland & Knight LLP
701 Brickell Avenue, Suite 3000
Miami, Florida 33131
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GENERAL PROVISIONS
Severabilitv Clause: If any term, provision, covenant, or condition of this Agreement is
held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of
the provisions shall continue in full force and effect.
Binding on Successors: This Agreement shall be binding upon and inure to the benefit of
the heirs, administrators, executors, successors in interest, and assigns of each of the parties
hereto. Any reference in this Agreement to a specifically named party shall be deemed to apply
to any successor in interest, heir, administrator, executor, or assign of such party.
Intended Beneficiaries: The CRA is an intended third -party beneficiary of contracts and
other agreements, which incorporate this Agreement, with regard to the terms of this Agreement.
The CRA shall therefore have the right to enforce the provisions of this Agreement against all
parties incorporating this Agreement into contracts or other agreements.
Term: This Agreement shall become effective on the date of mutual execution of this
Agreement and terminate at the end of the Hotel Lease Phase.
Waiver: The waiver of any provision or term of this Agreement shall not be deemed as a
waiver of any other provision or term of this Agreement. The mere passage of time, or failure to
act upon a breach, shall not be deemed as a waiver of any provision or terms of this Agreement.
Estoppel: The parties hereto agree to provide each other, within 15 days of request, an
estoppel letter acknowledging that the other party is not in default of this Agreement.
Construction: The parties hereto have been represented by counsel in the negotiation and
drafting of this Agreement. Accordingly, this Agreement shall not be strictly construed against
any party, and the rule of construction that any ambiguities be resolved against the drafting party
shall not apply to this Agreement.
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No Termination of Existing Employees: Neither the Developer, nor any Tenant shall be
obligated to terminate any existing employees to comply with the terms and provisions of this
Agreement. Should either of the Developer or any Tenant not be able to meet the thresholds or
objectives of this Agreement due to low employment position vacancy, the threshold will be
based upon the job openings that are available.
Entire Agreement: This Agreement and the Incentive Agreement contain the entire
agreement between the parties with respect to employment during operations of the Project and
supersede any prior agreements, whether written or oral.
Amendments: This Agreement may not be altered, amended or modified, except by an
instrument in writing signed by the Developer and the CRA.
Authority of Signatories: The individuals executing this Agreement represent and
warrant that they have the authority to sign on behalf of the respective parties.
Waiver of Jury Trial: The parties hereby knowingly, irrevocable, voluntarily and
intentionally waive any right either may .have to a trial by jury in respect of any action,
proceeding or counterclaim based on this Agreement, or arising out of, under or in connection
with this Agreement or any amendment or modification of this Agreement, or any course of
conduct, course of dealing, statements (whether verbal or written) or actions of any party hereto.
This waiver of jury trial provision is a material inducement of the CRA and Developer entering
into the subject transaction.
Terms: This Agreement shall automatically expire, and the Developer shall have no
further obligations hereunder, upon substantial completion of the Project.
[SIGNATURE PAGES TO FOLLOW]
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IN WITNESS WHEREOF, the CRA and the Developer executed this Agreement the
day and year first above written:
Witnessed: DEVELOPER:
DOWNTOWN MIAMI MALL, LLC, a
Print Name: Delaware limited liability company
By:
Print Name: Name:
Title:
Approved for legal sufficiency
HOLLAND & KNIGHT LLP, Special Counsel
ATTEST:
Priscilla A. Thompson, Clerk of the Board
# 6069566_1/6
# 6069566_v6
MIAMI 1678256.3 7652127221
5/13/09
CRA:
OMNI REDEVELOPMENT DISTRICT
COMMUNITY REDEVELOPMENT
AGENCY, a public agency and body corporate
created pursuant to Section 163.356, Florida
Statutes
By:
Name: James H. Villacorta
Title: Executive Director
Approved as to Insurance Requirements:
Risk Management Administrator
115
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