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HomeMy WebLinkAboutBack-Up DocumentsCity of Miami Resolution R-18-0177 Legislation City Hall 3500 Pan American Drive Miami, FL 33133 www.miamigov.com File Number: 3958 Final Action Date: 5/10/2018 A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), AUTHORIZING THE ALLOCATION OF COMMUNITY DEVELOPMENT BLOCK GRANT ("CDBG") FUNDS IN THE AMOUNT OF $1,530,000.00 FROM 2017- 2018 UNALLOCATED CDBG FUNDS, DE -OBLIGATED FUNDS FROM PRIOR YEARS ACTIVITIES, AND UNALLOCATED PROGRAM INCOME TO THE DEPARTMENT OF REAL ESTATE AND ASSET MANAGEMENT FOR THE PURCHASE OF THE CARVER THEATER LOCATED AT 6016 NORTHWEST 7TH AVENUE, MIAMI, FLORIDA ("THEATER"), FOR COMMUNITY ACTIVITIES; AUTHORIZING THE CITY MANAGER TO EXECUTE A PURCHASE AND SALE AGREEMENT ("AGREEMENT"), IN SUBSTANTIALLY THE ATTACHED FORM, BETWEEN THE CITY OF MIAMI ("CITY"), AS PURCHASER, AND GATOR CARVER THEATER LLC ("GATOR"), AS SELLER, FOR THE ACQUISITION OF SAID THEATER; ALLOCATING THE ABOVE DESCRIBED FUNDS TO COVER THE COST OF SAID ACQUISITION, INCLUSIVE OF THE COST OF A SURVEY, ENVIRONMENTAL REPORT, TITLE INSURANCE, SECURING THE PROPERTY, AND RELATED CLOSING COSTS ASSOCIATED WITH SAID ACQUISITION IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE AGREEMENT; FURTHER AUTHORIZING THE CITY MANAGER TO NEGOTIATE AND EXECUTE ANY AND ALL OTHER DOCUMENTS, IN A FORM ACCEPTABLE TO THE CITY ATTORNEY, INCLUDING AMENDMENTS, RENEWALS, EXTENSIONS, AND MODIFICATIONS, AS MAY BE NECESSARY FOR SAID PURPOSE, SUBJECT TO ALL FEDERAL, STATE, AND LOCAL LAWS THAT REGULATE THE USE OF SUCH FUNDS. WHEREAS, on April 12, 2018, pursuant to Resolution No.18-0138, the City Commission approved an allocation of $968,204.00 in Community Development Block Grant ("CDBG") funds for economic development activities, which included an amount of $858,204.00 that has yet to be allocated to direct activities, to the Office of Capital Improvements ("OCI") Program for Street and Park improvements; and WHEREAS, the amount of $858,204.00 represents the economic development funds earmarked for Districts 3 and 5 that are required to be allocated and spent so the City of Miami ("City") can meet its CDBG timeliness test on August 1, 2018; and WHEREAS, on May 10, 2018, pursuant to Resolution No.18-0184, the City Commission approved the de -obligation of $98,977.57 from various prior year activities; and WHEREAS, since September 8, 2016, the City has allocated $1,246,984.51 in CDBG Program Income to eligible CDBG housing and economic development activities, of which an City of Miami Page 1 of 2 File ID: 3958 (Revision: A) Printed On: 6/12/2023 File ID: 3958 Enactment Number: R-18-0177 amount of $670,578.00 has been allocated, which leaves an unallocated balance of $576,406.41; and WHEREAS, the Liberty City Community needs additional community space for community events and the restoration of a marquee Liberty City historic theatre; and WHEREAS, the City Administration recommends the allocation of CDBG funds to the Department of Real Estate and Asset Management ("DREAM") in the amount of $1,530,000.00 for the purchase of Carver Theater located at 6016 Northwest 7th Avenue, Miami, Florida ("Theater"), for community activities; NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The recitals and findings contained in the Preamble to this Resolution are adopted by reference and incorporated as if fully set forth in this Section. Section 2. The allocation of CDBG funds in the amount of $1,530,000.00 from 2017- 2018 unallocated CDBG funds, de -obligated funds from prior years activities, and unallocated program income to DREAM for the purchase of the Theater for community activities, is authorized.' Section 2. The City Manager is authorized' to execute a Purchase and Sale Agreement ("Agreement"), in substantially the attached form, between the City, as purchaser, and Gator Carver Theater LLC ("Gator"), as seller, for the acquisition of said Theater, allocating the funds described in Section 2 to cover the cost of said acquisition, inclusive of the cost of a survey, environmental report, title insurance, securing the property, and related closing costs associated with said acquisition, in accordance with the terms and conditions of the Agreement Section 3. The City Manager is further authorized' to negotiate and execute any and all other documents, in a form acceptable to the City Attorney, including amendments, renewals, extensions, and modifications, as may be necessary for said purpose, subject to all federal, state, and local laws that regulate the use of such funds. Section 4. This Resolution shall become effective immediately upon its adoption and signature of the Mayor.2 APPROVED AS TO FORM AND CORRECTNESS: ndez, City 'ttar ey 6/4/2018 1 The herein authorization is further subject to compliance with all requirements that may be imposed by the City Attorney, including but not limited to, those prescribed by applicable City Charter and City Code provisions. 2 If the Mayor does not sign this Resolution, it shall become effective at the end of ten (10) calendar days from the date it was passed and adopted. If the Mayor vetoes this Resolution, it shall become effective immediately upon override of the veto by the City Commission. City of Miami Page 2 of 2 File ID: 3958 (Revision: A) Printed on: 6/12/2023 City of Miami Resolution R-19-0249 Legislation City Hall 3500 Pan American Drive Miami, FL 33133 www.miamigov.com File Number: 5945 Final Action Date: 6/27/2019 A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), PURSUANT TO SECTION 29-B(A) OF THE CHARTER OF THE CITY OF MIAMI, FLORIDA, AS AMENDED ("CITY CHARTER"), AUTHORIZING THE CITY MANAGER TO TRANSFER, WITH ELIGIBLE COMMUNITY DEVELOPMENT BLOCK GRANT ("CDBG") PROGRAM ACTIVITY RESTRICTIONS AND AUTOMATIC REVERTER PROVISIONS, THE CITY OF MIAMI OWNED PARCEL OF LAND AND ALL IMPROVEMENTS THEREON LOCATED AT 6016 NORTHWEST 7TH AVENUE, MIAMI, FLORIDA, AS MORE PARTICULARLY DESCRIBED IN ATTACHMENT "A," ATTACHED AND INCORPORATED, ALSO KNOWN AS THE CARVER THEATER ("PARCEL"), TO MARTIN LUTHER KING ECONOMIC DEVELOPMENT CORPORATION, A FLORIDA NOT FOR PROFIT CORPORATION ("DEVELOPER"), FOR THE REDEVELOPMENT OF THE PARCEL FOR HOUSING, SUBJECT TO CDBG PROGRAM RESTRICTIONS AND/OR OTHER ELIGIBLE CDBG ACTIVITIES; FURTHER AUTHORIZING THE CITY MANAGER TO NEGOTIATE AND EXECUTE AN AGREEMENT AND ANY AND ALL OTHER NECESSARY DOCUMENTS, ALL IN A FORM ACCEPTABLE TO THE CITY ATTORNEY, TO TRANSFER THE PARCEL TO THE DEVELOPER. SPONSOR(S): Commissioner Keon Hardemon WHEREAS, on May 10, 2018, pursuant to Resolution No. 18-0177, the City Commission authorized, by extraordinary vote, the purchase of the Carver Theater located at 6016 Northwest 7th Avenue, Miami, Florida, as legally described in Attachment "A," attached and incorporated ("Parcel"), in the amount of $1,530,000.00 in Community Development Block Grant ("CDBG") funds ("Funds") for community activities; and WHEREAS, the City Commission now wishes to consider a proposed redevelopment of the Parcel which will provide housing, subject to CDBG program restrictions and/or other eligible CDBG activities for low to moderate income persons; and WHEREAS, the City of Miami ("City") Administration recommends transferring with CDBG activity restrictions and automatic reverter provisions the City -owned Parcel to the Developer in "as is" and "where is" condition; and WHEREAS, because the City acquired the Parcel with CDBG Funds, the Developer and the City must comply with all federal regulations that regulate the use of such Funds; and WHEREAS, the CDBG activity restrictions and automatic reverter provisions contained in the conveying instruments shall require the Parcel to automatically revert to the City if (i) the Parcel is used for any non-CDBG eligible activity and/or (ii) the Parcel is encumbered or transferred without the approval of the City; and City of Miami Page 1 of 2 File ID: 5945 (Revision:) Printed On: 6/12/2023 File ID: 5945 Enactment Number: R-19-0249 WHEREAS, the Parcel shall be redeveloped as housing, subject to CDBG program restrictions and/or for an eligible CDBG activity serving low to moderate income residents in accordance with Section 29-B(a) of the Charter of the City of Miami, Florida, as amended ("City Charter"); and WHEREAS, Section 29-B(a) of the City Charter states that competitive bidding shall not apply to properties that are conveyed to implement housing programs or projects which are intended to benefit persons or households with low and/or moderate income; and WHEREAS, the City shall require the following in order to convey the Parcel to the Developer: (i) evidence satisfactory to the Director of the Department of Housing and Community Development ("Director") that financial commitments from the lender or lenders have been received; (ii) any mortgages obtained by the Developer on the Parcel will be subject to the approval of the Director; and (iii) the closing of the Parcel occurs simultaneously with the closing of the construction financing by the lender(s), if any; and WHEREAS, the Parcel shall be conveyed through an agreement ("Agreement") and any and all other necessary documents, all in form(s) acceptable to the City Attorney; NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The recitals and findings contained in the Preamble to this Resolution are adopted by reference and incorporated as if fully set forth in this Section. Section 2. Pursuant to Section 29-B(a) of the City Charter the City Manager is authorized' to transfer, with CDBG program restrictions and automatic reverter provisions, the City -owned Parcel to the Developer for the redevelopment of the Parcel for housing, subject to CDBG program restrictions and/or for other eligible CDBG activities. Section 3. The City Manager is further authorized to negotiate and execute an Agreement and any and all other necessary documents, all in a form acceptable to the City Attorney, to transfer the Parcel to the Developer. Section 4. This Resolution shall become effective immediately upon its adoption and signature of the Mayor.2 APPROVED AS TO FORM AND CORRECTNESS: Barnaby L. Min, Deputy City Attorney 6/18/2019 1 The herein authorization is further subject to compliance with all requirements that may be imposed by the City Attorney, including but not limited to, those prescribed by applicable City Charter and City Code provisions. 2 If the Mayor does not sign this Resolution, it shall become effective at the end of ten (10) calendar days from the date it was passed and adopted. If the Mayor vetoes this Resolution, it shall become effective immediately upon override of the veto by the City Commission. City of Miami Page 2 of 2 File ID: 5945 (Revision:) Printed on: 6/12/2023 PURCHASE AND SALE AGREEMENT THIS PURCHASE AND SALE AGREEMENT ("Agreement") is made and entered into this day of , 2023, by and between the CITY OF MIAMI, a municipal corporation of the State of Florida, with offices at 444 SW 2 Avenue, Miami, Florida 33130 (the "Seller" or "City"), and MARTIN LUTHER KING ECONOMIC DEVELOPMENT CORPORATION, a Florida not for profit corporation, with offices at 6114 Northwest 7 Avenue Miami, Florida 33127 (the "Purchaser"). (The Seller and the Purchaser are hereinafter jointly referred to as the "Parties" and individually may be referred to as a "Party") Recitals A. The Seller agrees to convey the property located at 6016 Northwest 7 Avenue, Miami, FL 33127, as more particularly herein described ("Property"), to the Purchaser pursuant to Resolution No. 23- (a copy of which is attached hereto and incorporated herein as Attachment 1), duly adopted by the Miami City Commission on , 2023, in accordance with Section 29-B(a) of the Charter of the City of Miami, Florida, as amended ("City Charter"), for the purpose of constructing affordable rental housing, and a performing arts center in substantial compliance with the Authorized Proposal, attached hereto and incorporated herein as Exhibit "A" ("Authorized Proposal"), on the Property, as described herein (collectively, "Project" or "Improvements"). B. Accordingly, Seller agrees to sell the Property to Purchaser in reliance on Purchaser's covenant that Purchaser will: (i) within twenty-five (25) months following the Effective Date, as defined herein, commence the construction of the Project, as described herein, as evidenced by issuance of the required building permits from the City of Miami's Building Depaituient, (ii) construct the Project in substantial compliance with the Authorized Proposal, this Agreement, and the City of Miami's building requirements (iii) continue diligently with the construction of the Project, including but not limited to the construction of the Improvements on the Property, to completion, as evidenced by the issuance of a Certificate of Occupancy, Certificate of Completion, or Temporary Certificate of Use (as applicable) from the City of Miami's Building Department, by no later than forty-eight (48) months from the date of Closing, and (iv) for the avoidance of doubt, complete the Project's construction, which will result in one (1) building erected on the Property, which shall include a minimum of forty (40) affordable one- bedroom/one-bathroom residential rental units, that must be occupied by eligible residents whose annual income is at or below eighty percent (80%) of area median income ("AMI") as published annually by the United States Department of Housing and Urban Development ("HUD")("Eligible Residents" or "Low Income Persons") for a period of no less than thirty (30) years from the date that all forty (40) one -bedroom residential rental units are fully leased to and occupied by Eligible Residents ("Affordability Period"), in accordance with Section 29-B of the City Charter and as stated in Attachment 1, attached hereto and incorporated herein by this reference, all in accordance with the restrictions, terms, and covenants set forth herein. C. The Purchaser desires to acquire the Property from the Seller in accordance with the terms and conditions of this Agreement. 1 Now, therefore, the Parties hereto hereby agree that the Seller shall sell and the Purchaser shall purchase the following properties, hereinafter collectively referred to as the "Property," upon the following terms and conditions: 1. LEGAL DESCRIPTION OF THE PROPERTY 6016 NW 7 AVE 33127 Lots 1, 2, 3, and 4, Block 2, Bayami Park, according to the Plat thereof, as recorded in Plat Book 13, at Page 68, of the Public Records of Miami -Dade County, Florida. Property Folio No. 01-3114-037-0140 2. PURCHASE PRICE AND PAYMENT The Purchaser agrees to pay and the Seller agrees to accept for the Property the sum of One Thousand and 00/100 Dollars ($1,000.00) (the "Purchase Price"). At Closing, the Purchase Price (increased or decreased by adjustments, credits, prorations, and expenses as set forth in the provisions of this Agreement) shall be paid by the Purchaser to the Seller in the form of cashier's check, certified check, official bank check, or wire transfer. 3. ENVIRONMENTAL MATTERS A. Definitions. For purposes of this Agreement: The term "Hazardous Materials" shall mean and include without limitation, any substance, which is or contains (A) any "hazardous substance" as now or hereafter defined in the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C., Section 9601 et seq.) ("CERCLA") or any regulations promulgated under or pursuant to CERCLA; (B) any "hazardous waste" as now or hereafter defined in the Resource Conservation and Recovery Act (42 U.S.C., Section 6901 et seq.); (C) any substance regulated by the Toxic Substances Control Act (15 U.S.C., Section 2601 et. Seq.); (D) gasoline, diesel fuel, or other petroleum hydrocarbons; (E) asbestos and asbestos containing materials, in any form, whether friable or non -friable; (F) polychlorinated biphenyls; and (G) any additional substances or material which: (i) is now or hereafter classified or considered to be hazardous or toxic under Environmental Requirements as hereinafter defined; (ii) causes or threatens to cause a nuisance on the Property or adjacent property or poses or threatens to pose a hazard to the health or safety of persons on the Property or adjacent property; or (iii) would constitute a trespass if it emanated or migrated from the Property. The term "Environmental Requirements" shall mean all laws, ordinances, statutes, codes, rules, regulations, agreements, judgments, orders and decrees, now or hereafter enacted, promulgated, or amended of the United States, the states, the counties, the cities, or any other political subdivision, agency or instrumentality exercising jurisdiction over Seller or 2 Purchaser, the Property, or the use of the Property, relating to pollution, the protection or regulation of human health, natural resources, or the environment, or the emission, discharge, release or threatened release of pollutants, contaminants, chemicals, or industrial, toxic or hazardous substances or waste or Hazardous Materials into the environment (including, without limitation, ambient air, surface water, groundwater, land or soil). B. Disclaimer as to Environmental Matters. The Property is being sold in "AS IS" condition. Purchaser acknowledges and agrees that Seller has not made, does not make and specifically negates and disclaims any representations, warranties, promises, covenants, agreements or guaranties of any kind or character whatsoever, whether express or implied, oral or written, (past, present, or future) of, as to, concerning or with respect to environmental matters with reference to the Property, including, but not limited to: (a) the value, nature, quality or condition of the Property, including, without limitation, the water, minerals, soil and geology, (b) the compliance of or by the Property or its operation with any Environmental Requirements, (c) any representations regarding compliance with any environmental protection, pollution or land use, zoning or development of regional impact laws, rules, regulations, orders or requirements, including the existence in or on the Property of Hazardous Materials. Purchaser further acknowledges and agrees that it is being given the opportunity to inspect the Property, and all relevant documents and records of Seller as they relate to the Property, and other documents that may exist in the public records of the state, county and/or city relating to the environmental condition of the Property as part of this Agreement and that Purchaser is not relying upon any documents or representations made by or on behalf of Seller, but that Purchaser is responsible to conduct its own investigation(s) of the Property. Purchaser further acknowledges and agrees that any information provided or to be provided by Seller with respect to the Property was obtained from a variety of sources, and that Seller has not made an independent investigation or verification of such information and makes no representations as to the accuracy or completeness of such information. Seller is not liable or bound in any regard by any verbal or written statements, representations or information pertaining to the Property, or the operation thereof, furnished by any agent, employee, servant or other person. C. Environmental Inspection. Purchaser, its employees, agents, consultants and contractors shall have a period of ninety (90) calendar days from the Effective Date (the "Environmental Inspection Period") in which to undertake at Purchaser's expense, such physical inspections and other investigations of and concerning the Property including surveys, soil borings, percolation, engineering studies ("Engineering Studies"), environmental tests and studies and other tests as Purchaser considers necessary for Purchaser and its consultants to review and evaluate the physical characteristics of the Property (the "Environmental Inspection") after giving the Seller reasonable notice of twenty-four (24) hours prior to each test performed. 3 Purchaser agrees to bear any and all cost and expense associated with producing the Environmental Inspection. The Seller, at its sole option, may extend the Environmental Inspection Period for an additional twenty-five (25) calendar days if based upon the results of the testing, additional testing is warranted. For the purpose of conducting the Environmental Inspection, Seller hereby grants to Purchaser and its consultants and agents, full right of entry upon the Property during the Environmental Inspection Period through the Closing Date, as set forth herein. The right of access herein granted shall be exercised and used by Purchaser, its employees, agents, representatives and contractors in such a manner as not to cause any material damage or destruction of any nature whatsoever to the Property and any improvements thereon, or interruption of the use of the Property by the Seller, its employees, officers, agents and tenants. D. Inspection Indemnity, Insurance and Releases. Notwithstanding anything contained in this Agreement to the contrary, as consideration for the Purchase Price for the Property, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and for the Seller granting a continuing right of entry, the Purchaser hereby specifically agrees to: (i) immediately pay or cause to be removed any liens or encumbrances filed against the Property as a result of any actions taken by or on behalf of Purchaser in connection with the inspection of the Property; (ii) immediately repair and restore the Property to its condition existing immediately prior to the Environmental Inspection; and (iii) indemnify, defend and hold harmless Seller, its employees, officers and agents, from and against all claims, damages and losses incurred to the Property, and anyone on the Property as a result of the actions taken by the Purchaser, its employees, agents, representatives and contractors, and anyone directly or indirectly employed by any of them or anyone for whose acts they may be liable regardless of whether or not such claim, demand, cause of action, damage, liability, loss or expense is caused in part by Seller, its employees, officers and agents, provided, however, Purchaser shall not be liable for the gross negligence or intentional misconduct of Seller, its employees, officers and agents. Nothing herein shall be deemed to abridge the rights, if any, of the Seller to seek contribution where appropriate. The provisions of this indemnification shall survive the Closing and the termination of this Agreement. Prior to Purchaser entering upon the Property for purposes of commencement of the Environmental Inspection, Purchaser shall furnish to Seller the policy or policies of insurance and/or certificates of insurance in form and such reasonable amounts approved by the City of Miami's Risk Management Department, attached hereto and incorporated herein as Attachment 3, protecting the Seller, during the course of such testing, against all claims for personal injury and property damage arising out of or related to the activities undertaken by the Purchaser, its agents, employees, consultants and contractors, and/or anyone directly or indirectly employed by any of them and/or anyone for whose acts they may be liable, upon the Property or in connection with the Environmental Inspection. 4 Purchaser hereby voluntarily, intentionally and knowingly waives any and all claims against the Seller for personal injury or property damage sustained by the Purchaser, its employees, agents, contractors, and consultants arising out of or related to the activities undertaken by the Purchaser, its agents, employees, consultants and contractors upon the Property or in connection with the Environmental Inspection and releases the Seller and its employees, officers and agents from any claims in connection therewith. E. Remedies/Right of Termination. If Purchaser discovers, during the Environmental Inspection Period, the presence of Hazardous Materials on the Property in levels or concentrations which exceed the standards set forth by the Miami Dade County Department of Environmental Resources Management ("DERM"), the State of Florida Department of Environmental Protection, the United States Environmental Protection Agency, or the Environmental Requirements, as defined herein, by any other federal, state or local regulatory body with jurisdiction for environmental matters prior to the end of the Environmental Inspection Period, Purchaser shall notify Seller in writing and deliver to Seller copies of all written reports concerning such Hazardous Materials (the "Environmental Notice"). The Purchaser and Seller shall have seven (7) business days from the date the Seller receives the Environmental Notice to negotiate a mutually agreeable remediation protocol. In the event the Purchaser and Seller are unable to reach agreement with respect thereto within the seven (7) business day period provided herein, the Parties shall have the option within two (2) calendar days of the expiration of the seven (7) business day period to cancel this Agreement by written notice to the other Party whereupon (i) all property data and all studies, analysis, reports and plans respecting the Property delivered by Seller to Purchaser or prepared by or on behalf of the Purchaser shall be delivered by Purchaser to the Seller; and then (ii) except as otherwise provided in this Agreement, the Parties shall thereupon be relieved of any and all further responsibility hereunder and neither Party shall have any further obligation on behalf of the other. F. Waiver and Release. In the event that Purchaser does not elect to cancel this Agreement, Purchaser acknowledges and agrees that to the maximum extent permitted by law, the sale of the Property as provided for herein is made on an "AS IS" condition and basis with all faults. Purchaser on behalf of itself and its successors and assigns voluntarily, knowingly, and intentionally waives, releases, acquits, and forever discharges Seller, its heirs, and the successors and assigns of any of the preceding, of and from any and all claims, actions, causes of action, demands, rights, damages, costs, expenses or compensation whatsoever, direct or indirect, known or unknown, foreseen or unforeseen, which Purchaser or any of its successors or assigns now has or which may arise in the future on account of or in any way related to or in connection with any past, present, or future physical characteristic or condition of the Property including, without limitation, any Hazardous Materials in, at, on, under or related to the Property, or any violation or potential violation or any Environmental Requirement applicable thereto. In addition, Purchaser thereafter 5 specifically waives all current and future claims and causes of action against Seller arising under CERCLA, RCRA, Chapters 376 and 402, Florida Statutes, and any other federal or state law or county regulation relating to Hazardous Materials in, on, or under the Property. Notwithstanding anything to the contrary set forth herein, this release shall survive the Closing and termination of this Agreement. 4. TITLE EVIDENCE Purchaser, at its sole cost and expense, shall be responsible for obtaining all title documents, including but not limited to title policy or policies, title commitments, abstract of title, or other evidence of title, which Purchaser requires in order to ascertain the status of title. Purchaser agrees to forward a copy of the aforementioned title documents to Seller immediately upon Purchaser's receipt thereof. Purchaser shall be responsible for obtaining, at its sole cost, (i) a commitment for title insurance, from a recognized title insurance company authorized to issue title insurance in the State of Florida, agreeing to insure Purchaser's title, free of all exceptions, except those that may be accepted by Purchaser, together with all corresponding title documents, and (ii) a survey of the Property showing the Property to be free of encroachments or conditions that would affect its proposed use of the Property. In the event the Purchaser's examination of title, which examination shall include, without limitation, Purchaser's examination of a survey to be ordered at Purchaser's sole cost and expense and shall be completed within thirty (30) calendar days of the Effective Date, reflects any condition which renders the title unmarketable, in accordance with the standards of the Florida Bar, or otherwise makes it impractical for the Purchaser to develop the Improvements, as defined herein (the "Title Defect"), the Purchaser shall allow the Seller thirty (30) calendar days within which to use reasonable diligence to cure the Title Defect. Seller shall use good faith efforts to cure any Title Defect, provided however, Seller shall not be required to bring any action or to incur any expense to cure any Title Defect or objection. If Seller shall be unable to convey title to the Property according to provisions of this Agreement, Purchaser may: (i) elect to accept such title that Seller may be able to convey, with no reduction in Purchase Price; or (ii) terminate this Agreement, upon such termination, this Agreement shall be null and void and the Parties shall be relieved of all further obligation and liability, and neither Party shall have any further claims against the other, except as to Purchaser's liability, if any, arising out the Inspection Indemnity pursuant to Section 3 hereof, arising out the indemnification pursuant to Section 15 hereof, and arising out the indemnification pursuant to Section 31(v) hereof. In such event, the Purchaser shall notify the Seller in writing of the cancellation of this Agreement, whereupon all abstracts of title, property data, and all studies, analysis, reports and plans respecting the Property delivered by the Seller to the Purchaser or prepared by or on behalf of the Purchaser shall be delivered by the Purchaser to the Seller. In the event that the Purchaser does not elect to cancel this Agreement as permitted hereby, the Purchaser acknowledges and agrees that the sale of the Property as provided 6 for herein shall be made on an "AS IS" condition and basis without any representations and warranties made by Seller. 5. DISCLAIMER OF WARRANTIES AS TO PROPERTY; "AS IS" CONVEYANCE. A. The Purchaser acknowledges and agrees that the Purchaser is purchasing the Property in an "AS IS" condition and specifically and expressly without any warranties, representations or guaranties, either express or implied, of any kind, nature, or type whatsoever from or on behalf of the Seller. Without in any way limiting the generality of the immediately preceding sentence, and in addition to the specific disclaimers set forth in Section 3 of this Agreement with respect to Environmental Matters, the Purchaser and the Seller further acknowledge and agree that in entering into this Agreement and purchasing the Property: (1) Purchaser hereby acknowledges that Seller has not made, will not make and does not make any warranties or representations, whether express or implied, with respect to the Property, its condition, the value, profitability, or marketability thereof; (2) Purchaser acknowledges that with respect to the Property, Seller has not made, does not make, and will not make any warranties, whether express or implied, of merchantability, habitability or fitness for a particular use or suitability of the Property for any and all activities and uses which Purchaser may conduct thereon; (3) Purchaser acknowledges that Seller has not made, will not make, and does not make any representations, whether express or implied, with respect to compliance with any land use, zoning or development of regional impact laws, developer impact fees or assessments, rules, regulations, orders or requirements; (4) Purchaser acknowledges that Purchaser has made and/or shall be given an adequate opportunity to make such legal, factual and other inquiries and investigations as Purchaser deems necessary, desirable or appropriate with respect to the Property, the value or marketability thereof and of the appurtenances thereto. Such inquiries and investigations of Purchaser shall be deemed to include, but shall not be limited to, the condition of all portions of the Property and such state of facts as an accurate abstract of title would show; (5) Purchaser acknowledges that Purchaser has not relied, and is not relying, upon any information, document, projection, proforma, statement, representation, guaranty or warranty (whether express or implied, or oral or written or material or immaterial) that may have been given by or made by or on behalf of Seller; (6) The Purchaser acknowledges that, as to any personalty on the Property, the Seller has not made, will not make and does not make, any warranties or representations, whether express or implied, and specifically disclaims any WARRANTY OF MERCHANTABILITY. As to personal property, if any, it shall be conveyed to the Seller on an "AS IS" condition and basis with all faults B. The provisions of this Section 5 shall survive the Closing. 6. RESTRICTIONS, EASEMENTS AND LINIITATIONS The Purchaser further agrees it shall take title subject to: zoning, restrictions, prohibitions, and other requirements imposed by governmental authority; restrictions and matters appearing on the public records, including, but not limited to, deed restrictions and reversionary interests, and all recorded and unrecorded easements and any matters that would be disclosed on a survey of the Property. 7. CONDITIONS PRECEDENT (i) Seller's obligation to sell and Purchaser's obligation to purchase shall be subject to the satisfaction of the following conditions on or before thirty (30) calendar days prior to Closing: a. The Purchaser shall submit evidence, satisfactory to the Seller's Director of Housing and Community Development Depaitiuent, of the necessary financial commitments to construct the Improvements from all other lenders. b. The Purchaser shall submit to the Seller a copy of the construction contract for the construction of the Improvements. c. The Purchaser shall submit to the Seller evidence that it is ready to commence and complete construction of the Improvements within the times and in compliance with the requirements set forth in Attachment 2, attached hereto and incorporated herein. 8. DEED RESTRICTIONS The Seller shall convey title to the Property by City Deed (which shall be a quit claim deed containing an automatic reverter provision, henceforth known as the "Deed"), subject to certain deed restrictions pertaining to the use of the Property imposed in accordance with applicable requirements, if any, of the City Charter and Code, the City Commission, the funding source for the City's acquisition of the Property and the following agreements between the Purchaser and the Seller: i) The Property being conveyed to the Purchaser for the development of at least forty (40) residential rental units at 6016 Northwest 7 Ave 33127 affordable Units to be occupied by eligible Low Income Persons, whose annual income is at or below eighty percent (80%) of AMI as published annually by HUD, must remain affordable rental housing for eligible Low Income Persons, in compliance with the terms and restrictions in Attachment 2, attached hereto and incorporated herein, throughout the duration of the Affordability Period. 8 ii) Any mortgages or other encumbrances obtained by Purchaser on the Property, during the Affordability Period, inclusive of qualified end -buyer acquisition mortgages, will be subject to the prior written approval of the Seller's Director of Housing and Community Development. iii) Purchaser must complete construction of the Improvements in accordance with the benchmarks in Attachment 2. iv) Notwithstanding any other provisions in this Agreement, Purchaser may not transfer or attempt to transfer the Property or any interest therein without Seller's prior written authorization, except for the sale of units to qualified end -buyers. v) Notwithstanding anything in this Agreement to the contrary, the parties agree that the Deed Restrictions shall be those identified in Attachment "2," attached hereto and incorporated herein by this reference. 9. CLOSING DATE Closing shall take place no later than 25 months from the Effective Date, at a mutually agreeable time (the "Closing" or "Closing Date") at the City of Miami, Department of City Attorney's Office at 444 SW 2 Avenue, 9th Floor, Miami, Florida. The Parties may, subject to mutual agreement, establish an earlier date and location for Closing. Purchaser has the right to extend Closing for sixty (60) calendar days once. Purchaser may extend Closing for two (2) additional sixty (60) calendar day periods with expressed written consent from Seller. Seller's consent shall not be unreasonably withheld. The Parties acknowledge and agree that Purchaser will be applying for construction financing from one or more public or private lenders (the "Financing"). Purchaser's right and obligation to acquire the Property hereunder is subject to it successfully obtaining such Financing. In the event that Purchaser does not secure such Financing, either Party may terminate this Agreement, and this Agreement shall be null and void and the Parties hereto shall be relieved of all further obligation and liability, and neither Party shall have any further claims against the other, except as to Purchaser's liability, if any, arising out the Inspection Indemnity pursuant to Section 3 hereof, arising out the indemnification pursuant to Section 15 hereof, and arising out the indemnification pursuant to Section 31(v) hereof. At such time as Purchaser obtains the same it will notify the Seller of its intention to acquire the Property, provided, however, that the Closing of the sale of the Property shall take place in compliance with the terms of this Agreement. 10. COVENANTS A. The Purchaser represents and warrants to the Seller that no demolition whatsoever shall occur on the Property until after Closing. B. The Purchaser represents and warrants to the Seller that, throughout the duration of the Affordability Period, the Property will be used to provide affordable housing for Low Income Persons based on criteria established by the Seller. The Seller has relied on the Purchaser's representations in entering into this Agreement pursuant to the provisions of Section 29-B of the Charter of the City of Miami, which exempts from the competitive bidding requirements established therein "conveying property to implement housing programs or projects which are intended to benefit Low Income Persons, the criteria of 9 which to be provided for by federal and/or state law, the City of Miami's Depailment of Housing and Community Development, and/or by the City commission." The Purchaser's representations and warranties contained in this Section 10 shall constitute a covenant running with the land, which touches, covenants, and concerns the land and will bind the Purchaser and its authorized assigns and heirs throughout the Affordability Period. The Purchaser's representations and warranties contained in this Section 10 shall be enforceable by the Seller as a covenant running with the land, which shall also be recorded in a separate document at Closing. The Purchaser represents and warrants to the Seller that the Property will be developed for the benefit of Low Income Persons as set forth herein. The Purchaser further agrees to construct at least forty (40) one-bedroom/one-bathroom rental apartments that are to be occupied by persons earning the area median incomes set forth in Attachment 2, attached hereto and incorporated herein (the "Affordable Units" or "Units") on the Property. Further, Purchaser acknowledges, covenants, and agrees that the Project shall include and a performing arts center in substantial compliance with the Authorized Proposal. For the avoidance of doubt, the Purchaser agrees that the theater on the Property will be fully renovated to completion, as evidenced by the issuance of a Certificate of Occupancy, Certificate of Completion, or Temporary Certificate of Use (as applicable) from the City of Miami's Building Depai intent, by no later than forty-eight (48) months from the date of Closing. Upon the conveyance of the Property to the Purchaser, the Purchaser shall continue diligently with the construction of the Improvements to completion. Purchaser agrees to make reasonable and best efforts to secure additional financing to provide additional affordable housing units in addition to the minimum forty (40) affordable rental units the Purchaser has agreed to construct. The Purchaser shall make best efforts to secure appropriate and adequate financing to construct the performing arts center in substantial compliance with the Authorized Proposal. If the Purchaser and Seller agree in writing that appropriate and adequate financing is unavailable for the construction of the performing arts center in substantial compliance with the Authorized Proposal, then the Purchaser and Seller may agree in writing to substitute the construction of the performing arts center with other CDBG eligible project activities. C. The Purchaser agrees that concurrently with the conveyance of the Property, at Closing, the Purchaser shall furnish a covenant which will run with the land and shall be binding on the Purchaser, its successors, heirs and assignees, in favor of the Seller and enforceable by Seller, to be recorded in the public records of Miami -Dade County. D. The Purchaser's representations and warranties contained in this Section 10 shall be embodied in a restrictive covenant recorded in the Public Records of Miami -Dade County. E. The provisions of this Section 10 shall survive the Closing. 11. CLOSING DOCUMENTS A) At Closing, Seller shall execute and/or deliver to Purchaser the following: 10 (1) The Deed subject to conditions, restrictions, easements and limitations of record, any conditions and/or restrictions imposed by the City Commission and/or the funding source for the acquisition of the Property, and such other conditions as are described in this Agreement; (2) A Closing Statement; (3) A Seller's Title Affidavit sufficient to delete the title standards in Purchaser's title policy and a Non -Foreign Affidavit, as applicable; (4) Such documents as are necessary to fully authorize the sale of the Property by Seller and the execution of all closing documents; and (5) Any other documents reasonably necessary or advisable to consummate the transaction contemplated hereby. B) At Closing, Purchaser shall execute and/or deliver to Seller the following: (1) Closing Statement; (2) Such documents as are necessary to fully authorize the purchase of the Property by Purchaser and the execution of all closing documents; (3) Any other documents required by the Seller that are reasonably necessary or advisable to consummate the transaction contemplated hereby; and (4) Purchaser shall pay to Seller the balance of the Purchase Price as provided for in Section 2 hereof. (5) Any documents and/or information, including financial information and proof of construction financing, requested by the Seller pertaining to the development of the proposed Project (6) All documents required by the City Commission Resolution attached as Attachment 1, attached hereto and incorporated herein, and by Attachment 2, attached hereto and incorporated herein. (7) A Declaration of Restrictive Covenants in a form acceptable to Seller. 12. CLOSING COSTS AND ADJUSTMENTS At Closing, the following items shall be borne, adjusted, prorated and/or assumed by and between Seller and Purchaser as follows: A. Adjustments and Prorations 11 1) Real Estate Taxes: All ad valorem taxes shall be pro -rated through the Closing Date based on the most current tax bill. The Seller shall be responsible for all taxes prior to the Closing Date and Purchaser shall be responsible for all pro -rated taxes subsequent to the Closing Date. 2) Certified/Pending Liens: Certified, confirmed, and ratified governmental liens, and any and all pending liens, as of the Closing Date shall be paid/assumed by the Purchaser. Notwithstanding the foregoing, to the extent permitted by Section 2-817(h) of the City Code, the Seller agrees to release, or cause to be released, any liens created or imposed by the Seller that are currently encumbering the Property. 3) Other Taxes, Expenses, Interest, Etc.: Taxes, assessments, water and sewer charges, waste fee and fire protection charges, if applicable, shall be paid by the Purchaser. 4) Usual and Customary: Such other items that are usually and customarily pro -rated between purchasers and sellers of properties in Miami -Dade County as of the Closing Date shall be paid by the Purchaser. B. Closing Costs (1) Each Party shall be responsible for its own attorney's fees incurred in connection with the Closing. (2) Purchaser shall pay all other Closing and recording costs incurred in connection with the sale and purchase of the Property described in this Agreement, including, but not limited to: 13. DEFAULT (i) all inspection and environmental testing costs; (ii) documentary stamps and surtax on the deed; (iii) all recording charges, filing fees payable in connection with the transfer of the Property hereunder; (iv) the Seller's costs incurred in connection with the public solicitation process related to the sale of the Property, which costs shall not exceed five thousand dollars ($5,000); (v) any Project fees, including, but not limited to, signage fees, advertising costs and fees for Property security. 12 A) If this transaction does not close as a result of default by Seller, Purchaser as and for its sole and exclusive remedies shall be entitled to: (i) elect to terminate this Agreement; or (ii) elect to waive any such conditions or defaults and to consummate the transactions contemplated by this Agreement in the same manner as if there had been no conditions or defaults and without any reduction in the Purchase Price and without any further claim against Seller. However, notwithstanding anything contained herein to the contrary, in no event shall Seller be liable to Purchaser for any actual, punitive, incidental, speculative or consequential damages, costs or fees of any nature whatsoever. The limitation on Seller's liability set forth herein shall survive Closing. B) Neither Party shall be entitled to exercise any remedy for a default by the other Party until (i) such Party has delivered to the other notice of the default, and, (ii) a period of ten (10) calendar days from and after delivery of such notice has expired with the other Party having failed to cure the default or diligently pursued remedy of the default. Upon such failure of the Purchaser, this Agreement shall automatically and immediately terminate. 14. RISK OF LOSS The Purchaser assumes all risk of loss or damage to the Property by fire or other casualty, or acts of God, as of the Effective Date. 15. RELEASE AND INDEMNIFICATION Purchaser and anyone claiming by, through or under Purchaser hereby fully and irrevocably releases Seller, its employees, officers, directors, representatives, agents, successors and assigns (collectively the "Seller") from any and all claims that it may now have or hereafter acquire against the Seller for any cost, loss, liability, damage, expense, demand, action or cause of action arising from or related to any defects, errors, omissions or other conditions, including, but not limited to, environmental matters, title to the Property, condition of the Property, personal injury or property damage arising from the use or occupancy of the Property, or any other matter affecting the Property, or any portion thereof. This release shall survive cancellation, Closing, and full performance of this Agreement, as applicable. In consideration of the Purchaser's purchase of the Property, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by both the Parties, the Purchaser, and its heirs, agents, representatives, successors and assigns do hereby agree to indemnify, hold and save harmless and defend the Seller, its officials, employees, officers, directors, representatives, agents, successors and assigns from any claim, demand or liability for commissions, alleged statutory or regulatory violations, breaches of contract or any other claim, demand or litigation arising from and relating to this Agreement, inclusive of court costs, principal and interest made on behalf of any broker, tenant(s), third party beneficiary(ies) or other persons or entities. This 13 indemnification shall survive cancellation, Closing, and full performance of this Agreement, as applicable. 16. DESIGNATION OF REPRESENTATIVES Purchaser and Seller acknowledge that proper communication between Purchaser and Seller, and between Purchaser and any governmental authorities having jurisdiction over environmental matters, is to be an important component of the Purchaser's Environmental Inspection Period and title examination. Accordingly, to facilitate such communication, the Purchaser and Seller have appointed the following persons on their respective behalf to be their environmental and title representatives, to wit: On behalf of Seller: On behalf of Purchaser: City of Miami Department of Housing and Community Development Attn: George Mensah, Director 14 NE 1st Ave, Second Floor Miami, FL 33132 Telephone No.: (305) 416-1978 17. NOTICES Martin Luther King Economic Development Corporation 6114 NW 7th Avenue Miami, FL 33127 Attn: Amina M. McNeil, Esq. Telephone No.: (305)757-7652 All notices or other communications, which may be given pursuant to this Agreement shall be in writing and shall be deemed properly served if delivered by personal service or by certified mail addressed to Seller and Purchaser at the address indicated herein. Such notice shall be deemed given on the day on which personally served; or if by certified mail, on the fifth day after being posted or the date of actual receipt, whichever is earlier: Seller: Purchaser: Arthur Noriega V, City Manager City of Miami 444 SW 2 Avenue, loth Floor Miami, FL 33130 Copies To: City of Miami Depailuient of Housing and Community Development George Mensah, Director 14 NE 1st Ave, Second Floor Miami, FL 33132 14 Amina M. McNeil, Esq. Martin Luther King Economic Development Corporation 6114 NW 7th Avenue Miami, FL 33127 Copies To: Billy Hardemon Martin Luther King Economic Development Corporation 6114 NW 7th Avenue Miami, FL 33127 and to: Victoria Mendez City Attorney 444 SW 2 Avenue, Suite 945 Miami, FL 33130 18. CAPTIONS AND HEADINGS and to: Kenneth Naylor Atlantic Pacific Communities, LLC 161 NW 6th Street, Suite 1020 Miami, FL 33136 The Section headings or captions appearing in this Agreement are for convenience only, are not part of this Agreement, and are not to be considered in interpreting this Agreement. 19. BINDING EFFECT This Agreement shall bind and inure to the benefit of the Parties hereto and their successors in interest. Purchaser may assign or pledge this Agreement, or convey any parcel under this Agreement, only with the prior written consent of the City Manager whose consent may be withheld for any or no reason whatsoever. Notwithstanding the foregoing or anything else herein to the contrary, Seller agrees that Purchaser may assign its interest in this Agreement to Carver Theater, Ltd., a Florida limited partnership, the majority general partnership interest of which is owned by an affiliate of Purchaser. Prior to Closing, Carver Theater, Ltd. shall have the right to assign its interest under the Agreement back to Purchaser or a wholly owned subsidiary of Purchaser, whereupon Purchaser (or such affiliate) shall enter into a 99-year ground lease with Carver Theater, Ltd. to develop and operate the Property in accordance with the requirements of this Agreement. 20. GOVERNING LAW This Agreement shall be governed according to the laws of the State of Florida and venue shall be in Miami -Dade County, Florida. 21. COUNTERPARTS This Agreement may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, and such counterparts shall together constitute but one and the same Agreement. The Parties shall be entitled to sign and transmit an electronic signature of this Agreement (whether by facsimile, PDF or other email transmission), which signature shall be binding on the Party whose name is contained therein. Any Party providing an electronic signature agrees to promptly execute and deliver to the other Parties an original signed Agreement upon request. 22. ATTORNEY'S COSTS 15 In the event litigation, arbitration, or mediation, between the Parties hereto, arises out of the terms of this Agreement, each Party shall be responsible for its own attorney's fees, costs, charges, and expenses through the conclusion of all appellate proceedings, and including any final settlement or judgment. 23. WAIVERS No waiver by either Party of any failure or refusal to comply with its obligations shall be deemed a waiver of any other or subsequent failure or refusal to comply. All remedies, rights, undertaking, obligations and agreement contained herein shall be cumulative and not mutually exclusive. 24. WAIVER OF TRIAL BY JURY; VENUE The Parties hereby knowingly, voluntarily, intentionally, and irrevocably waive any right they may have to a trial by jury and/or to claim attorneys' fees from the other Party in respect to any litigation arising out of, under or in connection with this Agreement, or any course of conduct, course of dealing, statements (whether oral or written) or actions in connection with the transactions contemplated hereby. This provision is a material inducement for the Purchaser and the Seller entering into this Agreement. Venue in any litigation shall be in Miami -Dade County, Florida. 25. ENTIRE AGREEMENT This Agreement contains the entire agreement between the Parties. There are no promises, agreements, undertakings, warranties or representations, oral or written, express or implied, between the Parties other than as herein set forth. No amendment or modification of this Agreement shall be valid unless the same is in writing and signed by the City Manager on behalf of the Seller, and by the Purchaser. The recitals set forth in this Agreement are, by this reference, incorporated into and deemed a part of this Agreement. 26. TIME OF THE ESSENCE Time is of the essence of this Agreement and in the performance of all conditions and covenants to be performed or satisfied by either Party hereto. Whenever a date specified herein shall fall on a Saturday, Sunday or legal holiday, the date shall be extended to the next succeeding business day. 27. EFFECTIVE DATE/TIME OF ACCEPTANCE The Effective Date of this Agreement shall be the date on which the attestation of the City Clerk is affixed to this Agreement (the "Effective Date"). 28. TERMINATION A. Termination by the Purchaser. 16 Seller and Purchaser acknowledge and confirm that Seller has delivered to Purchaser copies of all property data and all studies, analysis, reports and plans respecting the Property in Seller's possession or control. Notwithstanding any provision of this Agreement to the contrary, the Purchaser shall have the option to terminate this Agreement for any reason not otherwise provided for in this Agreement, within ninety (90) calendar days from the Effective Date ("Due Diligence Period"). In such event, the Purchaser shall notify the Seller in writing of the cancellation of this Agreement, whereupon: (i) all property data and all studies, analysis, reports and plans respecting the Property delivered by the Seller to the Purchaser or prepared by or on behalf of the Purchaser shall be delivered by the Purchaser to the Seller; and then (ii) except as otherwise provided in this Agreement, the Parties hereto shall thereupon be relieved of any and all further responsibility hereunder and neither Party shall have any further obligation on behalf of the other. B. Other. (i) Notwithstanding any provision of this Agreement to the contrary, this Agreement shall automatically and immediately terminate in the event that on or before thirty (30) days prior to Closing, subject to extensions granted by Seller, the Purchaser has not provided proof of all financing needed for the construction of the Improvements in the form of commitment letters subject to credit underwriting. (ii) Notwithstanding any provision of this Agreement to the contrary, this Agreement shall automatically and immediately terminate in the event that on or before twenty-four (24) months from the Effective Date, the Closing of the sale of the Property to the Purchaser has not occurred. (iii) In the event that the Purchaser does not pay to the Seller at the Closing the amount of the City costs related to the Project and/or the Property, as determined by the Seller, or comply with the material terms of this Agreement, in the Seller's reasonable discretion, and in the event that Purchase fails to cure or commence cure of such failure as provided in Section 13.B. hereof, then this Agreement may be terminated by the Seller upon written notice to the Purchaser given in accordance with the notice requirements of this Agreement upon such termination. In such an event, this Agreement shall be null and void and the Parties shall be relieved of all further obligation and liability, and neither Party shall have any further claims against the other, except as to Purchaser's liability, if any, arising out the Inspection Indemnity pursuant to Section 3 hereof, arising out the indemnification pursuant to Section 15 hereof, and arising out the indemnification pursuant to Section 31(v) hereof. 29. PARTIAL INVALIDITY In the event that any provision of this Agreement shall be unenforceable in whole or in part, such provision shall be limited to the extent necessary to render the same valid, or shall be excised from this Agreement as the circumstances require, and this Agreement shall be construed as if said provision had been incorporated herein as so limited, or as if said provision had not been included herein, as the case may be. 30. REQUESTED DOCUMENTS 17 The Purchaser shall, within thirty (30) calendar days from the date of the Seller's written request for the same, provide to the Seller: (i) any document(s) requested by the Seller, in its sole but reasonable judgment, pertaining to the development of the proposed Project, including but not limited to the financing of the construction thereof, and, (ii) any other documents required by the Seller, in its sole but reasonable judgment, relating to the Project, the Property and/or this Agreement. 31. MISCELLANEOUS (i) Purchaser explicitly agrees to comply with City of Miami Ordinance No. 13491, adopted November 20, 2014, and Ordinance No. 13645, adopted on October 27, 2016. (ii) Pursuant to Code of the City of Miami, Florida, as amended Section 18-176 through 18-182, all costs incurred by the Seller in the transfer of the Property, including the Seller's cost of conducting the Request for Proposals, issued on November 21, 2016, shall be paid by the Purchaser by cashier's check or certified check at Closing. (iii) If either Party shall be unable to timely perform any of its obligations under this Agreement as a result of Force Majeure (as hereinafter defined), such Party shall not be liable for loss or damage for such failure and the other Party shall not be released from any of its obligations under this Agreement. If either Party is delayed or prevented from performing any of its obligations as a result of Force Majeure, the period of such delay or prevention shall be added to the time herein provided to the performance of any such obligation. "Force Majeure" shall mean any period of delay which arises from or through acts of God; strikes, lockouts, or labor difficulty; explosion, sabotage, accident, riot or civil commotion; pandemic; embargoes, shortages of materials (including, without limitation, petroleum products), accidents or sabotage; acts of terrorism or war; or any other circumstances or conditions for which it is not responsible and are not within its control. (iv) The Project shall be limited to a maximum height as allowed by Ordinance No. 13114, the Zoning Ordinance of the City of Miami, Florida, as amended, or any successor Zoning Code as may be adopted by the City of Miami. (v) Notwithstanding anything to the contrary contained herein or in any other agreement between City and Purchaser, the City grants to Purchaser, its agents, representatives, employees, contractors, sub -contractors, and consultants (for the purposes of this Section 31(v) of this Agreement, collectively, referred to as "Purchaser"), temporary access rights to enter upon, subject to the conditions, terms, and limitations herein contained and solely for the term of this Agreement, the Property for the limited purposes of securing the Property so that it is free from vandalism and vagrancy, maintaining a fence on the Property, and removing and disposing of debris and other foreign objects placed on the Property by third parties (collectively "Securing the Property, Fence Repair, and Debris Removal"), subject to Purchaser providing the City's Housing and Community Development Director at 14 NE 1st Ave, Second Floor, Miami, FL 33132, with at least (12) hours advance written notice of when (dates and times) site access is required by Purchaser. 18 After the Effective Date of this Agreement and until Closing, unless this Agreement is terminated, cancelled, or expires, Purchaser agrees to maintain the fence on the Property, to secure the Property so that it is free from vandalism and vagrancy, and to remove debris and other foreign objects placed on the Property by third parties, in manners deemed acceptable to the City in its reasonable discretion. Purchaser explicitly agrees to maintain the fence on the Property, to secure the Property so that it is free from vandalism and vagrancy, and to remove debris and other foreign objects placed on the Property by third parties within ten (10) days after receiving a written request from the City, at Purchaser's sole cost and expense. The right of access granted in this Section 31(v) in this Agreement shall be exercised and used by Purchaser in such a manner as not to cause any material damage or destruction whatsoever to the Property and any improvements or structures thereon, and not to cause interruption of the use of the Property by the City, its employees, officers, and agents. After the Effective Date of this Agreement and until Closing, the Purchaser agrees to repair any damages to the Property caused by the Purchaser, its employees, representatives and subcontractors, to the Property's original state or better. Notwithstanding anything contained in this Agreement to the contrary, as consideration for the City granting a continuing right of entry, the Purchaser hereby specifically agrees to immediately pay and/or cause to be removed any liens or encumbrances filed against the Property as a result of any actions taken by or on behalf of Purchaser in connection with the Securing the Property, Fence Repair, and Debris Removal on the Property. As lawful consideration for the permission granted by the C ity of Miami to enter upon the Property for purposes of Securing the Property, Fence Repair, and Debris Removal on the Property, the Purchaser hereby releases, waives, discharges, saves and holds harmless, indemnifies, agrees to defend at its sole cost and expense, and covenants not to sue the City, its officials, employees, o f f i c e r s, depai intents, instrumentalities, an d agents and representatives (hereinafter collectively referred to as the "CITY"), from all liability for any and all loss or damage, and any claims, suits, causes of action, actions, liabilities, or demands therefor on account of injury, wrongful death, to person or damage, loss, destruction or alteration of property or resulting in death, injury, loss, damage, destruction or alteration of persons and/or property or attributable or related to the access granted to Purchaser and its contractors, sub -contractors, employees, consultants, agents, or representatives through the acts, errors, negligence, or omissions of Purchaser while the Purchaser is in, or upon the Property, regardless of whether or not such claim, demand, cause of action, suits, damage, liability, or loss is caused or alleged to be caused in part by City, its employees, officers, instrumentalities, depai intents, officials, representatives, and agents. Nothing herein shall be deemed to abridge the rights, if any, of the City to seek contribution where appropriate. The provisions of this indemnification, release, and covenant not to sue shall survive the cancellation, expiration, full performance, Closing, or termination of this Agreement. [Signatures appear on the following page] 19 IN WITNESS WHEREOF, the Parties hereto have duly executed this Agreement, as of the day and year first above written. ATTEST: Print Name Date Print Name Date MARTIN LUTHER KING ECONOMIC DEVELOPMENT CORPORATION, a Florida not for profit corporation: By: Print Name: Title: Date: ATTEST: CITY OF MIAMI, a municipal corporation of the State of Florida: Todd B. Hannon, City Clerk By: Date: Arthur Noriega V, City Manager Approved As To Form And Correctness: Victoria Mendez City Attorney 20 Approved by Risk Management Department: Ann -Marie Sharpe Director 21 EXHIBIT "A" AUTHORIZED PROPOSAL Purchaser will effectuate a redevelopment of the site to include the following: Demolition of all existing structures on site and construction of: 1. Performing arts center • Fixed stage with moveable/stackable seating, no orchestra pit or balcony/mezzanine level, will need A/V control room/area • Adaptable for approx. 400-person seated events (e.g., banquet hall) — targeting approximately 6,000 SF • Storage for seating, tables and room dividers • Kitchen facilities: catering kitchen to receive food and keep warm/cold (i.e., no grease trap/ventilation for commercial kitchen) • The Purchaser shall make best efforts to secure appropriate and adequate financing to construct the performing arts center in substantial compliance with the Authorized Proposal. If the Purchaser and Seller agree in writing that appropriate and adequate financing is unavailable for the construction of the performing arts center in substantial compliance with the Authorized Proposal, then the Purchaser and Seller may agree in writing to substitute the construction of the performing arts center with other CDBG eligible project activities. 2. Housing • 100% affordable housing (residents' income will average to 60% AMI, but will range between 30-80% AMI) • Minimum of 40one-bedroom units • Beautiful amenities • Purchaser agrees to make reasonable and best efforts to secure additional financing to provide additional affordable housing units in addition to the minimum forty (40) affordable rental units the Purchaser has agreed to construct. 3. Other • Ground floor commercial as required by code • Parking per code (including reductions) • Proposed design of the building will incorporate a reference to the current facade of the Carver Theater Attachment 1 Resolution No. 23- Attachment 2 Performance Requirements and Restrictions* The following Performance Requirements will apply: Property Conveyance/Benchmarks 1. The construction of the Project must commence within twenty-five (25) months from the Effective Date. The Project must be completed (all Affordable Units constructed and a performing arts center [i.e., the theater on the Property] constructed all in substantial compliance with the Authorized Proposal, Certificates of Occupancy/Completion or Temporary Certificate of Use issued) no later than forty-eight (48) months from the Closing Date subject to Force Majeure as defined in Section 31(iii) of the Purchase and Sale Agreement. The Property will automatically revert back to the Seller to the extent provided in the Deed. 2. Any developer mortgages or other encumbrances on the Property will be subject to approval by the City of Miami, Department of Housing and Community Development as and to the extent provided in the Deed. 3. The Closing will take place simultaneously with closing of any and all construction financing. 4. As set forth above, evidence of the financial commitments from the lender(s) for full project financing must be provided to the Seller prior to the Closing. Project Restrictions: 1. In accordance with Section 29-B(A) of the Charter of the City of Miami, Florida, as amended ("City Charter"), a minimum of forty (40) one -bedroom residential rental Units must be constructed on the Property and maintained as affordable housing and occupied by Eligible Residents, in accordance with the provisions of this Agreement, for a period of no less than thirty (30) years from the date that all forty (40) one - bedroom residential rental Units (and any additional Units provided in addition to the minimum forty (40) Units) are fully leased to and occupied by Eligible Residents. The Property will automatically revert to the City to the extent provided in the Deed. 2. Units on the Property must be rented to Eligible Residents as follows (the Property will automatically revert back to the Seller to the extent provided in the Deed): a. During the Affordability Period, the Affordable Units must be rented by Eligible Residents whose annual income is equal to or less than eighty percent (80%) of AMI as published annually by the HUD. 3. Deed will be restricted as an affordable rental property, as described herein, during the Affordability Period with reverter provisions that will last throughout the Affordability Period. The Affordability Period for each Unit shall commence on the date that all Affordable Units are rented to Low Income Persons, and shall expire thirty (30) years thereafter. A restrictive covenant will be placed on the land, insuring thirty (30) years of affordability for the eighteen forty (40) Units (and any additional Units provided in addition to the minimum forty (40) Units) described herein for Low Income Persons. Attachment 3 INSURANCE REQUIREMENTS FOR A CERTIFICATE OF INSURANCE- PURCHASE AND SALE AGREEMENT MARTIN LUTHER KING ECONOMIC DEVELOPMENT CORPORATION L Commercial General Liability A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $1,000,000 General Aggregate Limit $ 2,000,000 Products/Completed Operations $ 1,000,000 Personal and Advertising Injury $1,000,000 B. Endorsements Required City of Miami listed as an additional insured Contingent and Contractual Liability Premises and Operations Liability Explosion, Collapse and Underground Hazard Primary Insurance Clause Endorsement IL Business Automobile Liability A. Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Any Auto Including Hired, Borrowed or Non -Owned Autos Any One Accident $ 1,000,000 B. Endorsements Required City of Miami listed as an additional insured III. Worker's Compensation Limits of Liability Statutory -State of Florida Waiver of subrogation Employer's Liability A. Limits of Liability $1,000,000 for bodily injury caused by an accident, each accident. $1,000,000 for bodily injury caused by disease, each employee $1,000,000 for bodily injury caused by disease, policy limit The above policies shall provide the City of Miami with written notice of cancellation or material change from the insurer not less than (30) days prior to any such cancellation or material change, or in accordance to policy provisions. Companies authorized to do business in the State of Florida, with the following qualifications, shall issue all insurance policies required above: The company must be rated no less than "A-" as to management, and no less than "Class V" as to Financial Strength, by the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent. All policies and /or certificates of insurance are subject to review and verification by Risk Management prior to insurance approval. INSURANCE REQUIREMENTS FOR A CERTIFICATE OF INSURANCE -CONSTRUCTION REQUIREMENTS MARTIN LUTHER KING ECONOMIC DEVELOPMENT CORPORATION PURCHASE AND SALE AGREEMENT: L Commercial General Liability A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $1,000,000 General Aggregate Limit $ 2,000,000 Products/Completed Operations $ 1,000,000 Personal and Advertising Injury $1,000,000 B. Endorsements Required City of Miami listed as an additional insured Contingent and Contractual Liability Premises and Operations Liability Explosion, Collapse and Underground Hazard Primary Insurance Clause Endorsement IV. Business Automobile Liability A. Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Any Auto Including Hired, Borrowed or Non -Owned Autos Any One Accident $ 1,000,000 B. Endorsements Required City of Miami listed as an additional insured V. Worker's Compensation A. Limits of Liability Statutory -State of Florida Waiver of subrogation Employer's Liability B. Limits of Liability $1,000,000 for bodily injury caused by an accident, each accident. $1,000,000 for bodily injury caused by disease, each employee $1,000,000 for bodily injury caused by disease, policy limit IV. Umbrella Policy (Excess Follow Form) A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $ 2,000,000 Aggregate $ 2,000,000 City of Miami listed as an additional insured. Coverage is excess follow form over the general liability and auto policies. V. Payment and Performance Bond City of Miami listed as an Obligee VI. Builders' Risk $ TBD Causes of Loss: All Risk -Specific Coverage Project Location Valuation: Replacement Cost Deductible: $10,000 All other Perils 5% maximum on Wind/Hail and Flood City of Miami listed as loss payees The above policies shall provide the City of Miami with written notice of cancellation or material change from the insurer not less than (30) days prior to any such cancellation or material change, or in accordance to policy provisions. Companies authorized to do business in the State of Florida, with the following qualifications, shall issue all insurance policies required above: The company must be rated no less than "A-" as to management, and no less than "Class V" as to Financial Strength, by the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent. All policies and /or certificates of insurance are subject to review and verification by Risk Management prior to insurance approval.