HomeMy WebLinkAbout09-00527 legislation•
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City of Miami
Legislation
CRA Resolution
City Hall
3500 Pan American
Drive
Miami, FL 33133
www.miamigov.com
File Number: 09-00527 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 HOTEL DE
L'OPERA, LLC FOR DEVELOPMENT OF THE MIKADO 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, Hotel De L'Opera, LLC owns property at N.E. 17th Terrace and N.E. 4th Avenue,
and intends to develop "Mikado Towers," a mixed use development consisting of an approximately
250-room hotel, 119 residential units, approximately 45,000 square feet of retail and office space, and
a 6-level parking facility ("Project"); and
WHEREAS, Hotel De L'Opera, LLC has requested funding assistance, in an amount not to
exceed $16,000,000, from the CRA for the development and construction of the Project; and
WHEREAS, the GRA and Hotel De L'Opera, LLC have negotiated an economic incentive
agreement that requires Hotel De L'Opera, LLC to expend approximately $107,000,000 and create
approximately 295 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 economic
incentive agreement with Hotel De L'Opera, LLC;
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
0 adopted by reference and incorporated herein as if fully set forth in this Section.
City of Miami
Page 1 of 2 Printed On: 5/13/2009
File Number: 09-00527
Section 2. Execution of an economic incentive agreement, in substantially the attached
form, with Hotel De L'Opera, LLC for development of the Mikado project is authorized.
Section 3. This Resolution shall become effective immediately upon its adoption.
APPROVED AS TO FORM AND CQRRECTNESS:
JULIE O. BRU
GENERAL COUNSEL
Cits• of Mia!ni Page 2 of 2 Printed On: 5/13/2009
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THE MIKADO ECONOMIC INCENTIVE AGREEMENT
THIS THE MIKADO ECONOMIC INCENTIVE AGREEMENT (the "Agreement") is
made as of the — day of , 2009 by and between HOTEL DE L'OPERA, LLC, a
Florida limited liability company (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. Owner is the owner of that certain real property located in the Redevelopment
Area as more particularly described and identified on Exhibit "A" attached hereto and made a
part hereof (the "Property").
C. Owner intends to develop the Property as more particularly described on
Exhibit "B" attached hereto and made a part hereof (collectively, the "Project").
D. The Owner has requested that the CRA provide economic incentives to the
Owner to assist in the redevelopment of the Project and the job creation that will result from
the construction, development and operation of the Project.
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 names
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.
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2.2 "Auditor means an independent third party auditor, who may be retained
on any given year by the CRA, at the sole cost and expense of Owner, in accordance with
Section 4.
2.3 "Base Year" with respect to the Project, shall mean the earlier to occur of
(i) 2012; or (ii) the year prior to the tax rolls for that Project reflecting an increase in the assessed
value of the Project as a result of the Project being Substantially Completed
2.4 "City" means the City of Miami, a municipal corporation of the State of
Florida.
2.5 "Completion" means Substantial Completion of the Project, including
completion of all punch list items.
2.6 "County" means Miami -Dade County, a political subdivision of the State
of Florida.
2.7 "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
Owner of the Incremental TIF contemplated to be paid in accordance with the terms of this
Agreement.
2.8 "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 TIF contemplated to be paid in accordance with the terms of this Agreement.
2.9 "CRA Board" means the board of commissioners of the CRA.
2.10 "CRA Board Obligations" has the meaning ascribed to such term in
Section 6.
2.11 "CRA Budget" means the annual budget for the operation of the CRA
approved by the CRA Board.
2.12 "Development Costs" means the hard and soft costs actually incurred by
Owner in connection with the design and construction of the Project through Completion,
excluding Property acquisition costs, costs paid to any Affiliates, and costs of tenant
improvements to the office and retail space of the Project above the base building improvements
but including all fixtures, furnishings and equipment for tenant improvements for all portions of
the Project under the control of the operator of the Hotel and the Short Term Stay Units, as the
same may be certified by an independent third party accounting firm retained by Owner and as
further certified by Owner in the Development Costs Certificate.
2.13 "Development Certificate" means the certificate from Owner of the
Development Costs, in substantially the form of Exhibit "D", which certificate shall have
appropriate backup, reasonably acceptable to the Executive Director, to substantiate the
Development Costs, certified as being true and correct by Owner.
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2.14 "Development Incremental TIF" has the meaning ascribed to such term in
Section 3.1.1.
2.15 "Employment Certificate" means a statement, broken down in reasonable
detail, for each tenant, reflecting the number of Full -Time Jobs and Part -Time Jobs created by
the Project, in substantially the form of Exhibit "E" attached hereto and made a part hereof,
prepared by Owner, and certified as being true and correct by Owner.
2.16 "Executive Director" means the executive director of the CRA.
2.17 "Employment Incremental TIF" has the meaning ascribed to such term in
Section 3.2.1.
2.18 "Full -Time Job" means the full time employment of an individual of not
less than thirty-five (35) hours per week at the Project or by a business operated within the
Project, 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 employee for fifty-
two (52) weeks in a calendar year. For purposes of calculating economic incentives in
accordance with this Agreement, (i) if an employee works 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.
2.19 "Hotel" has the meaning ascribed to such term in Exhibit "B".
2.20 "Incremental TIF" shall mean the tax increment funds, if any, actually
received by the CRA from the County and City generated from the Project 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 Project.
2.21 "Offices" has the meaning ascribed to such term in Exhibit "B".
2.22 "Part -Time Job" means the part-time employment of an individual of
twenty (20) hours per week or more by a business operated within the Project for fifty-two (52)
weeks in a calendar year. For purposes of calculating economic incentives in accordance with
this Agreement, if an employee works 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.
2.23 "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.
2.24 "Project" has the meaning ascribed to such term in the Recitals.
2.25 "Property" has the meaning ascribed to such term in the Recitals.
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2.26 "Short Term Stay Units" has the meaning ascribed to such term in Exhibit
2.27 "Substantially Completed" or "Substantial Completion" means that the
construction and development of the Project has 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.
2.28 "Targeted Full -Time Jobs" has the meaning ascribed to such term in
Section 3.2.1.
3. DEVELOPMENT OF PROJECT AND EMPLOYMENT.
3.1 Development of Project. Owner hereby represents and warrants to the
CRA that Owner will expend approximately One Hundred Seven Million and No/100 Dollars
($107,000,000.00) in Development Costs in connection with the development of the Project. As
an inducement to Owner to undertake the development of the Project, the CRA agrees to pay to
Owner a percentage of the Incremental TIF actually generated from the Project as follows:
3.1.1 Development Incremental TIF Adjustment. If the Owner expends
not less than One Hundred Seven Million Dollars ($107,000,000.00) in
Development Costs in connection with the Development of the Project, the CRA
shall pay to the Owner twenty-five percent (25%) of the Incremental TIF
generated from the Project above the Base Year for a period commencing with the
first tax year after the Base Year (the "Development Incremental TIF"), subject to
the County Approval and the CRA Approval of the CRA Budget being obtained
on an annual basis and terminating upon the expiration of the CRA in 2027. If
Owner expends less than One Hundred Seven Million Dollars ($107,000,000.00)
in Development Costs to complete the Development of the Project, then in such
event, the percentage of Development Incremental TIF which will be payable to
the Owner shall be reduced by the percentage the Development Costs are less
than One Hundred Seven Million Dollars ($107,000,000.00). For example,
should the Development Costs equal $80,250,000, based upon the Development
Costs Certificate, the percentage of the Development Incremental TIF which the
CRA will be obligated to pay to the Owner shall be reduced by 25%. Owner shall
not receive any additional percentage of Development Incremental TIF for
expending more than One Hundred Seven Million Dollars ($107,000,000.00).
3.1.2 Development Costs Certificate. Within sixty (60) days of the
Completion of the Project, the Owner shall submit to the CRA the Development
Costs Certificate (certified as being true and correct by the Owner). The
Development Costs Certification shall be utilized by the CRA to calculate the
percentage of the Development Incremental TIF which will be payable to Owner
absent manifest error. If requested by the Executive Director of the CRA, the
Owner shall provide reasonable additional back up documentation for the
Development Costs Certification. Owner shall not be entitled to any of the
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Development Incremental TIF pursuant to Section 3.1.1 until Owner provides the
Development Costs Certificate.
3.1.3 Disputes. In the event of a dispute between the Executive Director
and Owner as to the Development Costs, the Executive Director and 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 of the
expiration of such thirty (30) day period or such longer period as may be agreed
to by the parties to this Agreement. The CRA Board's decision shall be deemed
final and binding on the parties.
3.1.4 Payment of Development Incremental TIF. Subject to County
Approval and CRA Approval of the CRA Budget, on an annual basis, and subject
to Owner complying with Section 3.1.2, for each year after the Base Year, the
CRA shall pay to the Owner the applicable percentage of the Incremental TIF due
pursuant to Section 3.1.1, within the latter of (i) sixty (60) days after the CRA's
receipt of the Development Costs Certificate from Owner as required by Section
3.1.2; or (ii) thirty (30) days after the CRA's receipt of the Incremental TIF from
the County and the City.
3.1.5 COMPLETION OF PROJECT. The Owner acknowledges that the
prompt development of the Project by the Owner is a material inducement for the
CRA to enter into this Agreement. In the event that the Base Year is after 2015,
then for each year the Base Year occurs after 2015, the maximum amount of
Incremental TIF that the CRA shall pay to the Owner pursuant to Section 3.1.1
shall be reduced by ten percent (10%) per year. In addition, if the Base Year has
not occurred prior to 2017, this Agreement shall be of no further force and effect.
3.2 EMPLOYMENT. The Project is currently anticipated to be completed by
December 31, 2011. Commencing the calendar year in which the Project obtains Substantial
Completion and for a period terminating upon the expiration of the CRA in 2027, subject to the
County Approval and the CRA Approval of the CRA Budget being obtained annually, the CRA
will pay to the Owner annually a portion of the Incremental TIF generated from the Project based
upon Owner achieving the employment objectives each calendar year as follows:
3.2.1 Base Job Full -Time Incremental TIF. The Project is anticipated to
generate a total of two hundred ninety-five (295) Full -Time Jobs upon full
occupancy and operation. The Project is expected to go through a ramp -up
period, generating additional Full -Time Jobs over a period of time. The Project is
anticipated to generate one hundred seventy-five (175) Full -Time Jobs during the
first year after Substantial Completion, two hundred thirty-five (235) Full -Time
Jobs during the second year after Substantial Completion, and two hundred
ninety-five (295) Full -Time Jobs during the third year after Substantial
Completion and in each year thereafter (the number of Project Full -Time Jobs in
the applicable calendar year is the "Targeted Full -Time Jobs"). If no less than the
number of Targeted Full -Time Jobs are generated by the Project during the
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applicable calendar year, subject to the County Approval and CRA Approval of
the CRA Budget, the CRA shall pay to Owner twenty percent (20%) of the
Incremental TIF generated by the Project (the "Employment Incremental TIF").
For purposes of the calculation of Targeted Full -Time Jobs, two Part -Time Jobs
shall equal one (1) Full -Time Job. If the number of Full -Time Jobs generated by
the Project during the applicable calendar year is less than the number of Targeted
Full -Time Jobs, then the percentage of Employment Incremental TIF payable to
Owner for the generation of Full -Time Jobs 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 Full -Time Jobs is achieved in a given year, then the
percentage of Employment Incremental TIF which will be payable to Owner,
pursuant to this Section 3.2.1, shall be reduced by 25%.
3.2.2 Employment Certificate. On an annual basis, Owner shall submit
to the CRA a statement, broken down in reasonable detail, Project reflecting the
number of Full -Time Jobs and Part -Time Jobs created by the Project certified as
being true and correct by the Owner (the "Employment Certificate"). The
Employment Certificate shall be utilized by the CRA to calculate the percentage
of the Employment Incremental TIF which will be payable to the Owner, absent
manifest error. If requested by the Executive Director of the CRA, the Owner
shall provide reasonable additional back up documentation for the Employment
Certificate. Owner shall not be entitled to any of the Employment Incremental
TIF pursuant to Section 3.2.1.
3.2.3 Disputes. In the event of a dispute between the Executive Director
and Owner as to the Employment Certificate, the Executive Director and 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 of the expiration of such thirty (30) day period or such longer period as may
be agreed to by the parties to this Agreement. The CRA Board's decision shall be
deemed final and binding on the parties.
3.2.4 Payment of Employment Incremental TIF. Subject to County
Approval and CRA Approval of the CRA Budget, on an annual basis, after the
Base Year, and subject to the Owner complying with Section 3.2.2, for each year
after the Base Year, the CRA shall pay to the Owner the applicable percentage of
the Incremental TIF, due pursuant to Section 3.2.1, within the latter of (i) sixty
(60) days after the CRA's receipt of the Employment Certificate from the Owner
as required by Section 3.2.2; or (ii) thirty (30) days after the CRA's receipt of the
Incremental TIF from the County and the City.
4. 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
Development Costs Certificate and Employment Certificate, provided that the annual cost paid
by Owner to Auditor for services in connection with this Agreement shall not exceed Fifteen
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Thousand and 00/100 Dollars ($15,000.00). In the event the CRA elects to retain Auditor,
Owner shall provide or make available to the Auditor all necessary back-up information or
documentation that is requested by Auditor in order to certify the information contained in the
Certificates as being true and correct.
5. INCREMENTAL TIF PAYMENTS AFTER SALE. Notwithstanding Owner's
sale, lease or other disposition of all or any portion of the Project, except as provided for in
Exhibit "B," Owner shall continue to receive both the Development Incremental TIF and the
Employment Incremental TIF payable to Owner set forth in this Agreement for the term of this
Agreement.
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 existing obligations of the CRA as of the date of this Agreement to pay debt service with
respect to any bonds issued 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 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. 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. The CRA covenants and
agrees not to pledge any Incremental TIF generated by the Project in connection with any bonds
issued by the CRA or the City on behalf of the CRA while this Agreement is in full force and
effect.
7. CHALLENGES.
7.1 No Liability. 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 Duty to Defend. In the event of any challenge to this Agreement, Owner,
at its sole cost and expense, may defend any such challenge. The CRA shall cooperate with
Owner and, if necessary, participate in the defense of such challenge provided Owner pays the
costs of such defense.
7.3 Waiver of Claim. Owner waives any and all claims which Owner now has
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.
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8. REPRESENTATIONS OF OWNER. Owner makes the following representations
to the CRA as follows:
8.1 Owner is a limited liability company, duly organized and validly existing
under the laws of the State of Florida and has 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.
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:
OWNER:
Hotel De L'Opera, LLC
c/o Florida East Coast Realty, Inc.
100 South Biscayne Boulevard
Suite 900
Miami, Florida 33131
Attention: Tibor Rollo, Managing Member
Fax: (305) 358-1619
Copy to:
Holland & Knight LLP
701 Brickell Avenue
Suite 3000
Miami, Florida 33131
Attention: Mark I. Aronson, Esq.
Fax: (305) 789-7799
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CRA:
Omni Redevelopment District Community Redevelopment Agency
49 NW 5th Street, Suite 100
Miami, FL 33128
Attention: James H. Villacorta, Executive Director
Fax: (305) 679-6835
Copy to:
Office of the City Attorney
/l11 S.W. 2nd Avenue, 9th Floor
Miami, Florida 33130
Attention: Gail A. Dotson, Esq.
Fax: (305) 416-1801
10. STATUS OF LAW. Owner acknowledges that no voter approval was obtained in
connection with this Agreement and that the County has no 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 Owner arising under this Agreement. Owner acknowledges that this provision is a
material inducement for the CRA to enter into this Agreement.
11. COUNTY APPROVAL. This Agreement does not require approval of the County
Attorney. Owner, therefore, 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, once the
CRA Budget is approved by the CRA Board. The CRA shall have no liability to the Owner in
the event the CRA is not permitted by the County to make the payments contemplated by this
Agreement.
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 Development Cost Certificates or Employment Certificates, or any other failure to
access the Incremental TIF, as described in Section 3, shall only constitute a breach of its
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obligations for that calendar year, and shall not constitute a default in future years under this
Agreement.
14. CONSULTANT AND PROFESSIONAL COMPENSATION. Owner may retain
consultants and professionals to assist Owner 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 such consultant or professional in any
form that would be deemed a "bonus," "success fee" or "finder's fee" in exchange for the Board's
approval of this Agreement, and subsequent receipt of the Incremental TIF.
15. 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.
16. 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 Property 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.
17. INTENTIONALLY DELETED.
18. 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 Sixteen Million and No/100 Dollars
($16,000,000.00).
19. CRA MEETINGS. Owner covenants and agrees to encourage the operator of the
Hotel to make its meeting facilities within the Hotel 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.
20. 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.
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21. DUTIES OF OWNER. As further inducement for the CRA to enter into this
Agreement, the Owner and the CRA have agreed to enter into a first source hiring agreement
with respect to employment during construction of the Project in the form of Exhibit "E"
attached hereto, and a first source hiring agreement with respect to employment during operation
of the Project in the form of Exhibit "F" attached hereto.
22. MISCELLANEOUS.
22.1 All of the parties to this Agreement have participated fully in the
negotiation and preparation hereof, and, accordingly, this Agreement shall not be more strictly
construed against any one of the parties hereto.
22.2 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.
22.3 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.
22.4 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.
22.5 All of the exhibits attached to this Agreement are incorporated in, and
made a part of, this Agreement.
Agreement.
22.6 Time shall be of the essence for each and every provision of this
22.7 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.
22.8 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.
22.9 This Agreement may not be recorded in the Public Records of Miami -
Dade County.
22.10 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.
23. 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
11
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•
agreements, representations or warranties other than as set forth herein. This Agreement shall be
binding upon the parties hereto and their respective successors and permitted assigns.
[SIGNATURE PAGE TO FOLLOW]
12
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IN WITNESS hereof the parties have executed this Agreement as of the date first above
written.
OWNER:
Hotel De L'Opera, LLC, a Florida
Witness: limited liability company
Print Name:
Print Name:
ATTEST:
By:
Name:
Title:
CRA:
Omni Community Redevelopment Agency,
a public agency and body corporate created
pursuant to Section 163.356, Florida
Statutes
By: By:
Priscilla A. Thompson James H. Villacorta
Clerk of the Board Executive Director
APPROVED AS TO INSURANCE APPROVED AS TO FORM AND
REQUIREMENTS CORRECTNESS:
By: By:
LeeAnn Brehm, Director Julie O. Bru
Risk Management CRA General Counsel
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Exhibit "A"
Legal Description of Property
Lots 6, 7, 10 and 11 of Miramar" according to the Plat thereof as
recorded in Plat Book 5, Page 4 of the Public Records of Miami -Dade
County, Florida.
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Exhibit "B
The Project
The MIKADO is mixed use development that includes (i) an approximately 250
key hotel including meeting, banquet, restaurant, function, recreation and spa
facilities; (ii) approximately 45,000 square feet of office, retail (including
restaurant) and commercial space; and (iii) a six (6) level parking garage.
The Owner is also expected to construct 119 residential units. The Incremental
TIF actually generated from each of the 119 residential units may only be
included in the percentage of Incremental TIF paid to Owner in accordance with
Sections 3.1.1 and 3.2.1, provided that the unit is owned by the Owner, and
occupied, at least 200 days per year, as a short-term stay unit operated by the
Hotel operator. In the event Owner sells, transfers, or otherwise disposes of unit
to a third party, the Incremental TIF generated by that unit shall not be included in
the percentage of Incremental TIF paid to Owner in accordance with Sections
3.1.1 and 3.2.1.
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Exhibit "C"
Development Costs Certificate
DEVELOPMENT COST CERTIFICATE
The undersigned hereby certifies to the OMNI REDEVELOPMENT DISTRICT
COMMUNITY REDEVELOPMENT AGENCY, a public agency and body corporate created
pursuant to Section 163.356, Florida Statutes (the "CRA"), that HOTEL DE L'OPERA„ LLC, a
Florida limited liability company ("Owner") has actually paid $ in hard and soft
costs to third parties unaffiliated with Owner in connection with the development of the Project,
as defined in the Mikado Economic Incentive Agreement dated , 200_ by
and between 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 the Form G702, the Schedule of Soft Costs, and the Final Lien Waivers are
true and correct in all material respects.
HOTEL DE L' OPERA, LLC, a Florida
limited liability company
By:
Name:
Title:
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Exhibit "D"
Employment Costs Certificate
EMPLOYMENT CERTIFICATE
The undersigned hereby certifies to the OMNI REDEVELOPMENT DISTRICT
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
, 200_ and ending , 200_ the Project, as defined
in the Mikado Economic Incentive Agreement dated , 200_ by and between the
CRA and Owner (the "Incentive Agreement"), as more particularly reflected on that Schedule of
Jobs, attached hereto as Exhibit "A" ("Number of Jobs Schedule").
The undersigned hereby further certifies to the CRA that the information contained in this
certificate and in Exhibit "A," 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
HOTEL DE L'OPERA, LLC, a Florida
limited liability company
By:
Name:
Title:
The foregoing instrument was acknowledged before me this day of
by , as of Hotel De L' Opera, LLC, a Florida limited liability
company, on behalf of the company, who is personally known to me or has produced
as identification.
Notary Public, State of:
Commission No.:
My Commission Expires:
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EXHIBIT "A"
NUMBER OF JOBS SCHEDULE
NO.
NAME
POSITION
HIRE
SALARY
FULL-TIME OR
PART-TIME
DATE
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.
18
o
39.
40.
41.
42.
43.
44.
45.
46.
47.
48.
49.
50.
51.
52.
53.
1
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.
19
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•
84.
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.
127.
•
1
20
•
•
•
129.
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.
,
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174.
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.
22
•
•
•
219.
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.
246.
247.
248.
249.
250.
251.
252.
253.
254.
255.
256.
257.
258.
259.
260.
261.
262.
263.
23
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•
264.
265.
266.
267.
268.
269.
270.
271.
272.
273.
274.
275.
276.
277.
278.
279.
280.
281.
282.
283.
284.
285.
286.
287.
288.
289.
290.
291.
292.
293.
294.
295.
296.
297.
298.
299.
300.
24
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Exhibit "E"
First Source Hiring Agreement XConstruction)
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THE MIKADO
FIRST SOURCE HIRING AGREEMENT (CONSTRUCTION)
THIS AGREEMENT is made this day of , 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 HOTEL DE L'OPERA, LLC, a Florida 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 develop the Property as more particularly described on
Exhibit "B" attached hereto and made a part hereof (collectively, the "Project").
D. Simultaneously with the execution of this Agreement, the CRA and the Developer
have entered into The Mikado 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.
E. 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:
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SECTION 1. 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(c)(3) organization, or a similar community -based organization reasonably 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, 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 contracts 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.
"Construction Phase" shall mean the period of time beginning with the commencement of
construction of the Project and ending upon the issuance of a certificate of completion.
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"Full Time Employee" shall mean an individual employed for a minimum of thirty-five
(35) hours per standard five-day work week, receiving all of the employee benefits offered by the
respective employer to other similarly employed individuals.
"Lease Agreement" shall mean a retail lease agreement for the leasing of space within the
Project.
"Low to Moderate -Income Individual" shall mean (i) an individual whose household
income is no greater than 80% of the median income for the County based on the local Census
data, or (ii) an individual who is unemployed.
"Qualifying Individuals" are Low to Moderate -Income Individuals 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, 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.
"SEOPW Redevelopment Area" shall mean the Southeast Overtown/Park West
Redevelopment Area.
"Site" or "on -site" shall mean within the boundaries of the Project.
SECTION 2. HIRING AND MINORITY EMPLOYMENT PROGRAM
2.1 Community Outreach. This section is intended to develop reliable resources for
community outreach associated with exceeding a participation goal of twenty-five percent (25%)
3
for new job opportunities for Qualifying Individuals during the Construction Phase of the Project,
including the prescreening of resumes and the operation of training programs that will develop the
necessary skills to facilitate 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.
2.2 Construction Phase.
2.2.1 During the Construction Phase, the Developer shall utilize the services of
the Agency for community outreach in striving to meet and/or exceed a goal of twenty-five
percent (25%) for new job opportunities for Qualifying Individuals.
2.2.2 For each Construction Contract, Developer shall use commercially
reasonable efforts to 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 Contractor's or subcontractors'
obligations pursuant to applicable laws, rules, regulations or orders or pursuant to any collective
bargaining or other employment or labor agreement and such Construction Contractor's
obligations to fill vacancies generated by the Project with (i) such Construction Contractor's
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.
4
However, should qualifications be equal, Developer shall use commercially reasonable efforts to
cause such Construction Contractor 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.
2.2.3 Developer shall use commercially reasonable efforts to cause each
Construction Contractor to collaborate with the Agency 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;
2.2.4 For each Construction Contract, the Developer shall use commercially
reasonable efforts to cause the Construction Contractor to notify the Agency on a monthly basis
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.
2.2.5 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.
2.2.6 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)
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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.
2.2.7 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 media and , the City community television channel and hold job
fairs seeking to attract Qualifying individuals for training and employment at the Project;
2.2.8 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 twenty-five percent (25%) or more of those individuals offered
employment are Qualifying Individuals. 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, any unfilled targeted
positions may be filled by any qualified person, irrespective of their status as Qualifying
Individuals.
2.2.9 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.
2.2.10 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.
SECTION 3. REPORTING
3.1 Quarterly Reports Analysis: 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 the Construction Phase. These
reports will be coordinated with and reported by the Agency or other qualifying entity, as
submitted to and reasonably approved by the CRA. These reports should include, but not be
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; and
• total number of individuals 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 Construction Contractor 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.
SECTION 4. IMPLEMENTATION OF FIRST SOURCE HIRING PROGRAM
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.
SECTION 5. 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:
If to the Developer:
Hotel De L'Opera, LLC
c/o Florida East Coast Realty, Inc.
100 South Biscayne Boulevard
Suite 900
Miami, Florida 33131
Attention: Tibor Hollo, Managing Member
Fax: (305) 358-1619
8
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With a copy to:
If to the CRA:
With copy to:
With a copy to:
Holland & Knight LLP
701 Brickell Avenue
Suite 3000
Miami, Florida 33131
Attention: Mark I. Aronson, Esq.
Fax: (305) 789-7799
James H. Villacorta, Executive Director
Omni Redevelopment District
Community Redevelopment Agency
49 NW 5th Street, Suite 100
Miami, Florida 33128
Fax: (305) 679-6835
Department of Community Development
City of Miami
444 SW 2 Avenue, 2nd Floor
Miami, FL 33130
Office of the City Attorney
11,1 S.W. 2nd Avenue, 9th Floor
Miami, Florida 33130
Attention: Gail A. Dotson, Esq.
Fax: (305) 416-1801
SECTION 6. GENERAL PROVISIONS
6.1 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.
6.2 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.
9
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6.3 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.
6.4 Term: This Agreement shall become effective on the date of mutual execution of
this Agreement. This Agreement shall automatically expire, and the Developer shall have no
further obligations hereunder, upon substantial completion of the Project.
6.5 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.
6.6 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.
6.7 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.
6.8 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.
10
6.9 Entire Agreement: This Agreement and the Incentive Agreement contain the entire
agreement between the parties with respect to construction of the Project and supersedes any prior
agreements, whether written or oral.
6.10 Amendments: This Agreement may not be altered, amended or modified, except
by an instrument in writing signed by the Developer and the CRA.
6.11 Authority of Signatories: The individuals executing this Agreement represent and
warrant that they have the authority to sign on behalf of the respective parties.
6.12 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.
[SIGNATURE PAGES TO FOLLOW]
11
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IN WITNESS WHEREOF, the CRA and the Developer executed this Agreement the
day and year first above written:
Witnessed: DEVELOPER:
HOTEL DE L'OPERA, LLC, a Florida limited
Print Name: liability company
Print Name:
ATTEST:
Priscilla A. Thompson, Clerk of the Board
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 FORM AND CORRECTNESS:
JULIE O. BRU
CRA GENERAL COUNSEL
# 6221882_v2
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Exhibit "F"
First Source Hiring Agreement (Operations)
26
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THE MIKADO
FIRST SOURCE HIRING AGREEMENT (OPERATIONS)
THIS AGREEMENT is made this day of , 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 HOTEL DE L'OPERA, LLC a Florida 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 develop the Property as more particularly described on
Exhibit "B" attached hereto and made a part hereof (collectively, the "Project").
D. Simultaneously with the execution of this Agreement, the CRA and the Developer
have entered into The Mikado 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.
E. 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:
•
•
SECTION 1. 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(c)(3) organization, or a similar community -based organization reasonably 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, 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.
"Low to Moderate -Income Individual" shall mean (i) an individual whose household
income is no greater than 80% of the median income for the County based on the local Census
data or (ii) an individual who is unemployed.
"Operations Phase" shall mean that time period between the Substantial Completion of
the Project as defined in the Incentive Agreement and the attainment of the of the required
number of Project Full -Time Jobs as required by the terms of the Incentive Agreement.
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"Qualifying Individuals" are Low to Moderate -Income Individuals 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, 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.
"SEOPW Redevelopment Area" shall mean the Southeast Overtown/Park West
Redevelopment Area.
"Site" or "on -site" shall mean within the boundaries of the Project.
SECTION 2. HIRING AND MINORITY EMPLOYMENT PROGRAM
2.1 Community Outreach. This section is intended to develop reliable resources for
community outreach associated with exceeding a participation goal of twenty-five percent (25%)
for new job opportunities for Qualifying Individuals during the Operations Phase of Project,
including the prescreening of resumes and the operation of training programs that will develop
the necessary skills to facilitate the employment of Qualifying Individuals. This section aims to
accomplish these goals by holding quarterly job training workshops that (i) provide adequate
notice to Residents of job opportunities, (ii) involve the collaboration of employers within the
Project, community -based organizations and other groups to ensure that appropriate training
programs are developed and offered to Residents, (iii) establish a mechanism whereby
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Qualifying Individuals can receive job training in the skills requested by employers within
Project, and (iv) establish a system for prompt reliable pre-screening and referral of applicants to
employers as jobs become available (each, a "Job Training Workshop", and collectively, the "Job
Training Workshops").
2.2 Operations Phase.
2.2.1 During the Operations Phase, the Developer shall utilize the services of
the Agency in striving to meet and/or exceed a goal of twenty-five percent (25%) new job
opportunities for Qualifying Individuals.
2.2.2 During the Operations Phase, Developer shall organize and conduct no
less than four (4) Job Training Workshops, each of which shall be geared toward attracting and
employing Qualifying Individuals who seek training and employment at the Project. In
organizing and conducting such Job Training Workshops, Developer may work with or through
such institutions or organizations such as Miami Dade College or other educational or
community based organizations.
2.2.3 For each Job Training Workshop, Developer shall use commercially
reasonable efforts to require each employer within the Project to participate in such Job Training
Workshop and to collaborate with community -based organizations to ensure that appropriate
skills training programs are established with the objective of training Qualified Individuals for
employment at the Project .
2.2.4 For each Job Training Workshop, the Developer shall use commercially
reasonable efforts to cause employers within the Project to identify any available entry-level and
apprenticeship positions, whether union or non -union job openings, including the minimum
qualifications required for each position.
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2.2.5 For each Job Training Workshop, the Developer shall advertise the time
and location of such Job Training Workshop, in local media and the City community relevision
channel . Developer shall begin such advertisement no less than two (2) weeks prior to the
scheduled date of such Job Training Workshop, and it shall run continuously until the date of
such Job Training Workshop.
SECTION 3.REPORTING
3.1 Quarterly Reports Analysis: During the Operations Phase, the Developer shall
use commercially reasonable efforts to cause employers within the Project to prepare, or cause to
be prepared, detailed quarterly reports on the implementation of all sections of this Agreement
during the Operations Phase. These reports will be coordinated and reported by the Agency or
other qualifying entity, as submitted to and reasonably approved by the CRA. These reports
should include, but not be 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; and
• total number of individuals hired from each respective recruiting source.
SECTION 4.IMPLEMENTATION OF FIRST SOURCE HIRING PROGRAM
4.1 Inclusion of this Agreement in Lease Agreements:
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For each lease, contract for sale or management agreement entered into by the Developer
at the Project, 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 document.
SECTION 5. 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:
If to the Developer:
With a copy to:
If to the CRA:
Hotel De L`Opera, LLC
c/o Florida East Coast Realty, Inc.
100 South Biscayne Boulevard
Suite 900
Miami, Florida 33131
Attention: Tibor Hollo, Managing Member
Fax: (305) 358-1619
Holland & Knight LLP
701 Brickell Avenue
Suite 3000
Miami, Florida 33131
Attention: Mark I. Aronson, Esq.
Fax: (305) 789-7799
James H. Villacorta, Executive Director
Omni Redevelopment District
Community Redevelopment Agency
49 NW 5th Street, Suite 100
Miami, Florida 33128
Fax: (305) 679-6835
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With copy to:
With a copy to:
Department of Community Development
City of Miami
'144 SW 2 Avenue, 2nd Floor
Miami, FL 33130
Office of the City Attorney
444 S.W. 2nd Avenue, 9th Floor
Miami, Florida 33130
Attention: Gail A. Dotson, Esq.
Fax: (305) 416-1801
SECTION 6. GENERAL PROVISIONS
6.1 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.
6.2 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.
6.3 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.
6.4 Term: This Agreement shall become effective on the date of mutual execution of
this Agreement and terminate at the end of the Operations Phase.
6.5 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.
6.6 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.
6.7 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.
6.8 No Termination of Existing Employees: Neither the Developer, nor any
employer within the Project 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 employer
within the Project 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.
6.9 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 supersedes any prior agreements, whether written or oral.
6.10 Amendments: This Agreement may not be altered, amended or modified, except
by an instrument in writing signed by the Developer and the CRA.
6.11 Authority of Signatories: The individuals executing this Agreement represent
and warrant that they have the authority to sign on behalf of the respective parties.
6.12 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,
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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.
IN WITNESS WHEREOF, the CRA and the Developer executed this Agreement the
day and year first above written:
Witnessed: DEVELOPER:
Hotel DE L'OPERA, LLC, a Florida limited
Print Name: liability company
Print Name:
By:
Name:
Title:
A IhST: CRA:
Priscilla A. Thompson, Clerk of the Board
APPROVED AS TO FORM
AND CORRECTNESS:
JULIE O. BRU
CRA GENERAL COUNSEL
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