HomeMy WebLinkAboutCRA-R-17-0005 Exhibit - MSDG Development Agreement920 NW 2nd Avenue
DEVELOPMENT AGREEMENT
By and Between
MARCUS SAMUELSSON DEVELOPMENT GROUP, LLC
and
SOUTHEAST OVERTOWN/PARK WEST
COMMUNITY REDEVELOPMENT AGENCY
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LIST OF EXHIBITS
A. Legal Description of Subject Property
B. Insurance Requirements
C. Criminal Back Ground Standards
D. Terms for Restrictive Covenant
E. Special Warranty Deed
F. Affidavit
G. Guaranty of Completion
H. Organizational Documents
I. Organizational Chart
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DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (the "Agreement") is dated as of the day of February,
2017, by and between Marcus Samuelsson Development Group, LLC, a Florida limited liability company
(the "MSDG"), and the SOUTHEAST OVERTOWN/PARK WEST COMMUNITY REDEVELOPMENT
AGENCY, a public agency and body corporate created pursuant to Section 163.356, Florida Statutes (the
RECITALS
A. The Southeast Overtown/Park West Project area was designated as a community
redevelopment area (the "Redevelopment Area") by Miami -Dade County, a political subdivision of the
State of Florida (the "County"). A redevelopment plan was approved by the Commissioners of the City
of Miami and the Commissioners of Miami -Dade County with certain redevelopment authority granted
by the County to the City for project implementation. The City assigned to the CRA the redevelopment
authority granted by the County to the City.
B. The CRA issued a request for qualifications (the "RFQ") for the development of that
certain real property located within the Redevelopment Area which is more particularly described on
Exhibit "A" (the "Property") together with other property.
C. In response to the RFQ, MSDG submitted a proposal for the development of the Property,
as more particularly described in the proposal submitted by MSDG (the "Proposal") together with other
property.
D. Based upon the evaluation of the Proposal by the selection committee appointed by the
executive director of the CRA (the "Executive Director") and subsequent negotiations between the
Executive Director and MSDG, the Executive Director has recommended to the Board of Commissioners
of the CRA (the "CRA Board") that the CRA enter into this Agreement with MSDG.
E. Pursuant to CRA Resolution Number CRA-R-17-xxxx, the CRA Board authorized the
CRA to enter into this Agreement.
F. The CRA desires to convey the Property to MSDG subject to the terms and provisions of
this Agreement and MSDG desires to acquire the Property from the CRA for the development of the
Project, as hereinafter defined, subject to the terms and provisions of this Agreement.
NOW THEREFORE, for and in consideration of the $10.00 and other good and valuable
consideration and of the covenants and agreements hereafter set forth, the parties agree as follows:
1. RECITALS. The Recitals to this Agreement are true and correct and are incorporated
herein by reference and made a part hereof.
2. PROPERTY. The property to be conveyed by the CRA to MSDG pursuant to the terms
of this Agreement consists of the Property and all appurtenances belonging thereto, including any and all
rights, privileges and easements in any way pertaining thereto, and all right, title and interest of the CRA
in permits and approvals issued by the applicable governmental authorities relating to the use and
development of the Property.
3. DEPOSIT. Within two (2) business days of the Effective Date of this Agreement, MSDG
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shall deliver to Holland & Knight LLP, as escrow agent (the "Escrow Agent"), the sum of Seventy Five
Thousand and No/100 Dollars ($75,000.00) (the "Deposit"). Upon receipt of MSDG's tax identification
number, the Escrow Agent shall invest the Deposit in an interest -bearing account, certificate of deposit, or
repurchase agreement. All interest accrued or earned thereon shall be paid or credited to MSDG except in
the event of default of MSDG, in which event the interest shall be disbursed to the CRA, together with the
Deposit, as liquidated damages.
4. PURCHASE PRICE.
4.1 The consideration for the conveyance of the Property is One Million Five
Hundred Thousand and No/100 Dollars ($1,500,000.00) (the "Cash Purchase Price"), subject to
adjustments and prorations, as hereinafter provided, to be paid by wire transfer of federal funds on the
Closing Date, as hereafter defined.
5. INSPECTION PERIOD.
5.1 Inspections. MSDG shall have until 5 p.m. on the thirtieth (30th) day after the
Effective Date, as hereinafter defined, (the "Inspection Period") to perform, at MSDG's sole cost and
expense, such investigations and inspections of the Property MSDG, in MSDG's sole and absolute
discretion deems appropriate, including, without limitation, zoning investigations, utility availability and
environmental assessments (collectively the "Inspections") to determine whether the Property is
acceptable to MSDG, in its sole discretion. Prior to performing any on -site Inspections, MSDG shall
provide at least one (1) business day's prior written notice to the Executive Director (which may be
delivered by email) at 819 NW 2nd Avenue, 3rd Floor, Miami, Florida 33136, Phone: 305-679-6800;
Facsimile: 305-679-6835; email: cwoods@miamigov.com (or such other CRA representatives as
designated by the Executive Director), which written notice shall provide reasonable detail regarding the
type and scope of Inspection(s) to be performed and the scheduled date and time for such Inspection(s)
and provide the Executive Director the opportunity to have a representative from the CRA present at any
such Inspection(s). MSDG shall conduct such Inspection in a manner so as to not unreasonably interfere
with the current use of the Property.
5.2 Restoration. Following any such Inspections, MSDG shall promptly restore the
Property to the condition existing immediately prior to such Inspections. The Inspections shall be
conducted in accordance with all applicable laws and by licensed and insured professionals, and MSDG
shall cause its inspectors to obtain, at MSDG's sole cost and expense, any and all licenses and permits
required to conduct the Inspections, as applicable.
5.3 Disclosure. MSDG agrees that in the event the need arises to notify, under
applicable laws, any federal, state or local public agencies of any conditions at the Property as a result of
the Inspections performed by MSDG, its agents, employees, contractors and/or representatives, MSDG
shall provide the Executive Director with copies of any pertinent reports, written material, or other
evidence of the condition requiring such disclosure, if any. Any required disclosures shall be made
directly by the CRA, and not MSDG, to any such public agencies, unless MSDG is required to make such
disclosures by applicable law, and the CRA fails to timely make such disclosures.
5.4 Indemnification. MSDG shall assume all risks associated with the Inspections
and agrees to indemnify, defend, and hold harmless the CRA and the City of Miami of, from and against
any and all costs, losses, claims, damages, liabilities, expenses and other obligations (including, without
limitation reasonable attorney's fees and court costs) arising from, out of or in connection with or
otherwise relating to the Inspections, including, without limitation, the entry by any one or more of
MSDG's agents, employees, contractors and other representatives in or upon the Property for the purpose
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of the Inspections. The foregoing indemnification obligations of MSDG shall survive the expiration or
termination of this Agreement.
5.5 Insurance. MSDG shall, prior to entering the Property and performing any
Inspections, provide to the CRA evidence of insurance by MSDG and its contractors, as applicable, as
specified on Exhibit "B" attached hereto, insuring against any liability by any one or more of MSDG, its
agents, employees, contractors or other representatives arising from, out of or in connection with or
otherwise relating to the entry by any one or more of MSDG, its agents, employees, contractors or other
representatives in or upon the Property for the purpose of the Inspections. MSDG shall provide the CRA
with a certificate of insurance evidencing such insurance coverage, naming the CRA and the City of
Miami as an additional insured thereon and which insurance coverage shall be kept in force until the
expiration or early termination of this Agreement.
5.6 Acceptance of Property. If for any reason whatsoever MSDG, in its sole
discretion, determines during the Inspection Period that it does not wish to proceed with the transaction
contemplated by this Agreement, MSDG shall have the absolute right to terminate this Agreement by
giving written notice of such termination to the CRA prior to the expiration of the Inspection Period.
Upon the CRA's receipt of such notice prior to the end of the Inspection Period, this Agreement shall be
deemed terminated and of no further force and effect. Escrow Agent shall promptly return the Deposit
together with any interest accrued thereon to MSDG and the parties shall be released and relieved from
any liability or obligations hereunder, except for those obligations and this Section 5 which expressly
survive the termination of this Agreement. If MSDG does not terminate this Agreement prior to the
expiration of the Inspection Period, then it shall be presumed conclusively that MSDG has had adequate
opportunity to review and inspect all portions of the Property, including, without limitation, the
environmental condition of the Property and, MSDG has determined that the condition of all portions of
the Property are satisfactory to MSDG and MSDG has accepted every portion of the Property in its "AS
IS, WHERE IS, WITH ALL FAULTS" condition.
5.7 No Lien. MSDG shall not create or permit to be created any mechanic's liens
upon the Property, or any part thereof, as a result of the Inspections. If any lien shall at any time be filed
against the Property, or any part thereof in connection with the Inspections, MSDG shall cause same to be
discharged or transferred to bond in accordance with applicable laws within thirty (30) days after MSDG
first becomes aware that such lien has been recorded against the Property. This provision shall survive
the expiration or termination of this Agreement.
5.8 CRA Deliveries. Prior to the date of this Agreement, the CRA has provided to
MSDG copies of all surveys, plans, drawings, reports and environmental studies which the CRA has been
able to locate with respect to the Property (collectively the "CRA Deliveries"). Any reliance upon the
CRA Deliveries is at the sole risk of MSDG and the CRA makes no representations or warranties, express
or implied, with respect to the accuracy or completeness of the CRA Deliveries, and any reliance upon
same is at the sole risk of MSDG.
5.9 Disclaimer of Representations by MSDG. MSDG hereby expressly
acknowledges and agrees that, except as specifically provided in this Agreement:
5.9.1 The CRA makes and has made no warranty or representation whatsoever
as to the condition or suitability of the Property for the Project, as hereinafter defined.
5.9.2 The CRA makes and has made no warranty, express or implied, with
regard to the accuracy or completeness of any information furnished to MSDG, and the CRA shall not be
bound by any statement of any broker, employee, agent or other representative of the CRA.
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5.9.3 The CRA has made no representations, warranties or promises to MSDG
not explicitly set forth in this Agreement.
5.9.4 The CRA has made no representations or warranties, express or implied,
with regard to the neighborhood, that the Redevelopment Area will be developed, or as to the precise type
or quality of improvements that will be constructed within the Redevelopment Area or the timing thereof.
5.9.5 The CRA makes and has made no representation or warranty, express or
implied, concerning any portion of the Property, its condition or other things or matters directly or
indirectly relating thereto or hereto, including, without limitation, no warranty as to merchantability or
fitness for any particular purpose or relating to the absence of latent or other defects.
5.9.6 Removal of Slum and Blight. MSDG specifically acknowledges that the
transaction contemplated by this Agreement and the time frame for performance by MSDG under this
Agreement is not contingent upon the redevelopment of the Redevelopment Area, the removal of slum or
blight from the Redevelopment Area, the reduction of crime in the Redevelopment Area, or the status of
any other projects in the Redevelopment Area.
5.9.7 Copies of Reports. MSDG shall provide the CRA with copies of any
third party reports prepared for MSDG regarding the physical condition of the Property within ten (10)
days of termination of this Agreement.
6. AS -IS, WHERE IS, AND WITH ALL FAULTS CONDITION.
6.1 MSDG does hereby acknowledge, represent, warrant and agree, to and with
CRA, that, (i) MSDG is acquiring the Property in an "AS IS, WHERE IS, AND WITH ALL FAULTS"
condition with respect to any facts, circumstances, conditions, and defects of all kinds; (ii) CRA has no
obligation to repair or correct any such facts, circumstances, conditions or defects or compensate MSDG
for same; (iii) MSDG is and will be relying strictly and solely upon the advice and counsel of its own
agents and representatives and such physical inspections, examinations and tests of the Property as
MSDG deems necessary or appropriate under the circumstances; (iv) MSDG has had and will have,
pursuant to this Agreement, an adequate opportunity to make such legal, factual, and other inquiries and
investigations as MSDG deems necessary, desirable or appropriate with respect to the Property; (v) the
CRA is not making and has not made any warranty or representation, express or implied, with respect to
the Property as an inducement to MSDG to enter into this Agreement, or for any other purpose; and (vi)
by reason of all of the foregoing, from and after the respective closing, MSDG shall assume the full risk
of any loss or damage occasioned by any fact, circumstance, condition or defect pertaining to the physical
and other conditions of the Property, regardless of whether the same is capable of being observed or
ascertained.
6.2 THE CRA HAS NOT, DOES NOT AND WILL NOT, WITH RESPECT TO
THE PROPERTY, MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED,
OR ARISING BY OPERATION OF LAW, INCLUDING, BUT IN NO WAY LIMITED TO, ANY
WARRANTY OF CONDITION OR MERCHANTABILITY, OR WITH RESPECT TO THE VALUE,
PROFIT ABILITY OR OPERA TING POTENTIAL OF THE PROPERTY.
6.3 MSDG hereby releases the CRA from any liability, claims, damages, penalties,
costs, fees, charges, losses, causes of action, demands, expenses of any kind or nature or any other claim
it has or may have against the CRA resulting from the presence, removal or other remediation of
"Hazardous Materials" (as hereinafter defined) on or under the Property or which has migrated from
adjacent lands to the Property or from the Property to adjacent lands.
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6.4 The term "Hazardous Materials" shall mean asbestos, any petroleum fuel and any
hazardous or toxic substance, material or waste which is or becomes regulated by any local governmental
authority, the state where the Property is located or the United States Government, including, but not
limited to, any material or substance defined as a "hazardous waste," "extremely hazardous waste,"
"restricted hazardous waste," "hazardous substance," "hazardous material" or "toxic pollutant" under
state law and/or under the Comprehensive Environmental Response, Compensation, and Liability Act, 42
U.S.C. § 9601, et seq.
6.5 The provisions of this Section 6 shall survive any termination of this Agreement
and shall survive Closing and the delivery of the Special Warranty Deed at Closing.
7. TITLE AND SURVEY.
7.1 MSDG shall obtain a title insurance commitment (the "Commitment") and a
survey (the "Survey") of the Property, at MSDG's sole cost and expense. The Commitment and the
Survey shall show the CRA to be vested in good and marketable lien free fee simple title to the Property,
subject only to the following (the "Permitted Exceptions"):
7.1.1 Ad valorem real estate taxes and assessments for the year of closing and
subsequent years.
7.1.2 All applicable laws, ordinances and governmental regulations, including,
but not limited to, all applicable building, zoning, land use, environmental ordinances and regulations.
7.1.3 Any matters arising by, through, or under MSDG.
7.2 MSDG shall have until 5:00 p.m. thirty (30) days after the Effective Date (the
"Title Review Period") to obtain and examine the Commitment and the Survey. MSDG shall promptly
provide the CRA with a copy of the Commitment and the Survey upon MSDG's receipt of same. The
survey shall be certified to MSDG and the CRA. If the Commitment and Survey reveals any particular
condition of title other than the Permitted Exceptions, MSDG shall, no later than the expiration of the
Title Review Period, notify the CRA in writing of the defect(s). If MSDG fails to give the CRA written
notice of the defect(s) prior to the end of the Title Review Period, the defect(s) shown in the Commitment
and the Survey shall be deemed to be waived as title objections and same shall be deemed to constitute
Permitted Exceptions for all purposes under this Agreement. If MSDG has given CRA written notice of
defect(s) rendering title unmarketable prior to the end of the Title Review Period other than the Permitted
Exceptions, the CRA shall elect within ten (10) days after receipt of written notice of the title defect(s)
whether the CRA will elect to attempt to cure the title defect(s). If the CRA does not elect to cure the title
defect(s), MSDG shall have the option, at its sole discretion and to be exercised within ten (10) days after
MSDG receives written notice from the CRA that the CRA has elected not to cure the title defect(s), of
either (i) waiving the defect(s), in which event the defect(s) shall be deemed to constitute a Permitted
Exception under this Agreement, or (ii) terminating this Agreement, in which event Escrow Agent shall
return the Deposit, together with interest accrued thereon, to MSDG and the parties shall be released from
any further obligations under this Agreement, except for those obligations that expressly survive the
termination of this Agreement. If the CRA elects to attempt to cure the title defect(s), the CRA shall have
sixty (60) days from receipt of the written notice of defect(s) to use commercially reasonable efforts to
cure same (the "Cure Period"). If the CRA elects to cure the title defect(s), the CRA shall discharge any
lien(s), judgment(s) or other matters affecting title to the Property in a liquidated amount. The CRA shall
not be required to commence litigation to resolve any matters. In the event the CRA attempts to cure the
title defects and the CRA is not able to cure the defect(s) prior to the end of the Cure Period, MSDG shall
have the option, to be exercised within ten (10) days after the end of the Cure Period, of either (i) waiving
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the defect(s), in which event the defect(s) shall be deemed to constitute a Permitted Exception under this
Agreement, or (ii) terminating this Agreement, whereupon Escrow Agent shall return the Deposit,
together with interest accrued thereon, to MSDG and the parties shall be released from any further
obligations under this Agreement, except for those obligations that expressly survive the termination of
this Agreement.
7.3 In the event of any new title defect(s) arising from and after the effective date of
the Commitment and prior to the Closing Date, the CRA shall use commercially reasonable efforts to cure
such title defect(s) prior to the Closing Date. The CRA shall discharge any lien(s), judgment(s) or other
matters affecting title to the Property that are in a liquidated amount. The CRA shall not be required to
bring any lawsuit(s) to cure any title defect(s) or expend any funds to cure any title defect(s) not in a
liquidated amount. In the event that the CRA is unable to cure the title defect(s) prior to the Closing Date
after using commercially reasonable efforts, MSDG shall have the option on the Closing Date of: (i)
waiving the title defect(s) and accepting title "as is" whereupon the title defect(s) will be deemed to
constitute a Permitted Exception under this Agreement; or (ii) terminating this Agreement, whereupon
Escrow Agent shall return the Deposit to MSDG and the parties shall be released from all further
obligations under this Agreement, except for those obligations that expressly survive the termination of
this Agreement.
8. PROJECT.
8.1 Description of the Project. The project shall consist of the build out of a high -
end restaurant and lounge which will be a premier dining and entertainment destination, embracing and
inspired by the history of Overtown as described in the RFQ (the "Project").
8.2 Schematic Documents. Within 60 days after the Effective Date, MSDG shall
submit to the Executive Director for its review and approval the schematic design documents for the
Project consisting of drawings and other documents (such as an architectural site plan and floor plans)
illustrating design of Project components (the "Schematic Documents"). The Schematic Documents shall
be subject to the approval of the Executive Director, which approval shall not be unreasonably withheld
and which approval shall be given if the Schematic Documents are consistent with the Proposal. MSDG
agrees to utilize its good faith efforts to make modifications to the Schematic Documents to satisfy the
requirements of the Executive Director if the Schematic Documents are inconsistent with Proposal.
MSDG shall provide to the Executive Director such additional back-up information as the Executive
Director may reasonably request to enable the Executive Director to analyze the Schematic Documents.
The Executive Director shall have fifteen (15) days from the receipt of the Schematic Documents to
approve or disapprove same. If the Executive Director fails to respond within said fifteen (15) day period,
the Schematic Documents shall be deemed approved. In the event of disapproval, the Executive Director
shall specify the reason for such disapproval. In the event of disapproval, MSDG shall modify the
Schematic Documents, as appropriate, to address the comments and concerns of the Executive Director to
Schematic Documents to be consistent with the Proposal. Any resubmission shall be subject to the
approval of the Executive Director in accordance with the procedure outlined above for the original
submission until same is approved or deemed approved by the Executive Director. The Executive
Director and the MSDG shall make commercially reasonable efforts to resolve any disputes regarding the
Schematic Documents. If the Executive Director has rejected the Schematic Documents two (2) times,
then, following the second rejection, MSDG may elect to submit such dispute regarding the approval of
the Schematic Documents to the CRA Board, or at the option of MSDG, to Arbitration, as hereinafter
defined, for resolution which resolution shall be binding on the parties. The Schematic Documents as
approved or deemed approved by the Executive Director shall mean the "Approved Schematic
Documents".
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8.3 Design Development Documents. Within 90 days after the approval or deemed
approval of the Approved Schematic Documents, MSDG shall submit to the Executive Director for its
review and approval the design development documents for the Project (the "Design Development
Documents"). The Design Development Documents shall be subject to the approval of the Executive
Director, which approval shall not be unreasonably withheld and which approval shall be given if the
Design Development Documents are consistent with the Approved Schematic Documents. MSDG agrees
to utilize its good faith efforts to make modifications to the Design Development Documents to satisfy the
requirements of the Executive Director if the Design Development Documents are inconsistent with
Approved Schematic Documents. MSDG shall provide to the Executive Director such additional back-up
information as the Executive Director may reasonably request to enable the Executive Director to analyze
the Design Development Documents. The Executive Director shall have fifteen (15) days from the receipt
of the Design Development Documents to approve or disapprove same. If the Executive Director fails to
respond within said fifteen (15) day period, the Design Development Documents shall be deemed
approved. In the event of disapproval, the Executive Director shall specify the reason for such
disapproval. In the event of disapproval, MSDG shall modify the Design Development Documents, as
appropriate, to address the comments and concerns of the Executive Director to cause the Design
Development Documents to be consistent with the Approved Schematic Documents. Any resubmission
shall be subject to the approval of the Executive Director in accordance with the procedure outlined above
for the original submission until same is approved or deemed approved by the Executive Director. The
Executive Director and MSDG shall make commercially reasonable efforts to resolve any disputes
regarding the Design Development Documents. If the Executive Director has rejected the Design
Development Documents two (2) times, MSDG may elect to submit such dispute regarding the approval
of the Design Development Documents to the CRA Board, or at the option of MSDG, to Arbitration for
resolution which resolution shall be binding on the parties. The Design Development Documents as
approved or deemed approved by the Executive Director shall mean the "Design Documents".
8.4 Construction Documents. MSDG shall use commercially reasonable efforts to
submit to the Executive Director for its review and approval MSDG's plans and specifications for the
construction of the Project, which shall be of sufficient detail to allow MSDG to apply for a building
permit for the Project (the "Plans and Specifications") within 90 days after the approval or deemed
approval of the Design Documents but no later than the time MSDG submits the Plans and Specifications
in connection with its application for a building permit for the Project. The Plans and Specifications shall
be subject to the approval of the Executive Director, which approval shall not be unreasonably withheld
and which approval shall be given if the Plans and Specifications are consistent with the Design
Documents in all material respects. MSDG agrees to utilize its good faith efforts to make modifications
to the Plans and Specifications to satisfy the requirements of the Executive Director if the Plans and
Specifications are inconsistent with Design Documents in any material respects. MSDG shall provide to
the Executive Director such additional back-up information as the Executive Director may reasonably
request to enable the Executive Director to analyze the Plans and Specifications. The Executive Director
shall have fifteen (15) days from the receipt of the Plans and Specifications to approve or disapprove
same. If the Executive Director fails to respond in such fifteen (15) days period, the Plans and
Specifications shall be deemed approved. In the event of disapproval, the Executive Director shall
specify the reason for such disapproval. In the event of disapproval, MSDG shall modify the Plans and
Specifications, as appropriate, to address the comments and concerns of the Executive Director to cause
the Plans and Specifications to be consistent with the Design Documents in all material respects. Any
resubmission shall be subject to the approval of the Executive Director in accordance with the procedure
outlined above for the original submission until same is approved or deemed approved by the Executive
Director. The Executive Director and MSDG shall in good faith, attempt to resolve any disputes regarding
the Plans and Specifications. If the Executive Director has rejected the Plans and Specifications two (2)
times, MSDG may elect to submit such dispute regarding the approval of the Plans and Specifications to
the CRA Board, or, at the option of MSDG to Arbitration for resolution, which resolution shall be binding
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on the parties. The Plans and Specifications as approved or deemed approved by the Executive Director
shall mean the "Plans".
8.5 Development Requirements. MSDG shall be required to develop the Project
substantially in accordance with the Plans. Any material variation to the plans, other than those changes
required by the City in connection with the issuance of the building permit to comply with applicable
laws, shall require the approval of the Executive Director, which approval shall not be unreasonably
withheld or delayed provided that same is in accordance with the spirit and intent of Plans and this
Agreement.
9. DEVELOPMENT TIMEFRAME.
9.1.1 Land Use and Zoning Approvals for the Project. MSDG represents to
the CRA that to the best of MSDG's knowledge, the Property is appropriately zoned for the development
of the Project in accordance with the Proposal and no land use and zoning changes are required for the
development of the Project.
9.1.2 Failure to Comply with Commencement of Construction. If MSDG has
not commence construction within ten (10) days after the Closing Date, in addition to the remedies that
the CRA may have under the Guaranty and the Payment and Performance Bond as such terms are
hereafter defined, the Developer shall pay to the CRA, as liquidated damages, Two Hundred and Fifty
and No/100 ($250.00) Dollars per day for each day until MSDG commences construction. Said amount
shall be due and payable within thirty (30) days of the Completion.
9.1.3 Failure to Complete the Project. If MSDG has not achieved Completion
prior to the Completion Date, MSDG shall pay to the CRA, as liquidated damages, Two Hundred and
Fifty and No/100 ($250.00) Dollars per day for each day until Completion. Said amount shall be due and
payable within thirty (30) days of the Completion.
10. DEVELOPMENT AND FINANCIAL APPROVALS.
10.1 Development of Project. As soon as available after the Effective Date, MSDG
shall submit to the Executive Director for review and approval, which approval shall not be unreasonably
withheld, conditioned or delayed the following:
10.2 Construction Contract. MSDG shall deliver to the Executive Director or make
available to the Executive Director for its review at a mutually acceptable location the Construction
Contract that requires compliance with provisions 11.2.1 and 11.2.2 (the "Construction Contract"),
together with the "schedule of values" for the Project, which Construction Contract shall include the
obligation of the general contractor to comply with the participation requirements set forth in Section
11.2.1 and 11.2.2 of this Agreement. The approval of the Executive Director shall be limited to the issue
of whether the Construction Contract includes the obligation of the general contractor to comply with the
participation requirements set forth in Section 11.2.1 and 11.2.2 of this Agreement.
10.3 Source of Funds. MSDG shall deliver to the Executive Director or make
available to the Executive Director for its review at a mutually acceptable location a loan commitment
from a qualified lender or financial institution (the "Loan Commitment") or sufficient documentation
evidencing that MSDG has obtained funding for the development of the Project (the "Source of Funds")
which shall be reasonably acceptable to the Executive Director. The Executive Director will not have
approval rights over the loan terms or equity investment terms. The approval of the Executive Director
shall be limited to the issue of whether the Source of Funds reflects that funds will be available for
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construction of the Project and the amount of funds that will be made available for construction provides
the funds required under the Budget (as hereinafter defined).
10.4 Budget. The line item budget for the Project reflecting all hard and soft costs
anticipated to be incurred by MSDG in connection with the Project (the "Budget"). If MSDG has
provided a Loan Commitment, the Budget shall be deemed approved by the Executive Director if
approved by the lender as reflected in the Loan Commitment.
10.5 Project Schedule. The detailed project schedule for the construction of Project
(the "Project Schedule") must reflect that MSDG will achieve Completion prior to the Completion Date.
If MSDG has provided a Loan Commitment, the Executive Director will approve the Project Schedule if
the Project Schedule is the same as utilized by the lender for the Loan Commitment and if the Project
Schedule reflects that MSDG will achieve Completion prior to the Completion Date.
10.6 Approval Required by Section 10.1. If the Executive Director fails to provide its
approval or its disapproval, to items submitted to the Executive Director in accordance with Section 10.1,
within fifteen (15) days from receipt of a request for approval from MSDG, the item shall be deemed
approved. If the Executive Director disapproves any item, the Executive Director shall describe in its
disapproval notice the reason for such disapproval with reasonable specificity.
11. MINORITY AND WOMEN'S PARTICIPATION AND EQUAL EMPLOYMENT
OPPORTUNITY AND COMMUNITY BENEFITS.
11.1 Minority and Women Participation and Equal Opportunity. In connection with
the Project, MSDG agrees that it will and that MSDG will require its general contractor to:
(a) Take definitive action in the recruitment, advertising and to attract and retain
minority and female contractors and subcontractors;
(b) Provide a reasonable opportunity in the recruitment, advertising and hiring of
professionals, contractors and subcontractors residing within the Redevelopment
Area and within the City of Miami;
(c) Take reasonable definitive action in retaining employees regardless of race,
color, place of birth, religion, national origin, sex, age, marital status, veterans
and disability status;
(d) Maintain equitable principles in the recruitment, advertising, hiring, upgrading,
transfer, layoff, termination, compensation and all other terms, conditions and
privileges of employment;
(e) Monitor and review all personnel practices to guarantee that equal opportunities
are being provided to all employees regardless of race, color, place of birth,
religion, national origin, sex, age, marital status, veterans and disability status;
(f)
Post in conspicuous places, availability to employees and applicants for
employment, notices in a form to be provided to the Executive Director, setting
forth the non-discrimination clauses of this Section 11;
(g) In all solicitations and advertisements for employment placed by or on behalf of
MSDG, state that all applicants will receive consideration for employment
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without regard to race, creed, color or national origin.
11.2 Participation Requirements During Construction. MSDG agrees to comply with
the following subcontractor participation requirements and laborer participation requirements (the
"Participation Requirements") with respect to the Project:
11.2.1 Subcontractor Participation. MSDG shall require its general contractor to
hire not less than twenty percent (20%) of the subcontractors for the construction of the Project utilizing
companies that have their principal place of business within Miami -Dade County, Florida, giving first
priority to subcontractors who principal place of business is in the Redevelopment Area, second priority
to subcontractors whose principal place of business is in Overtown, third priority to subcontractors whose
principal place of business is within District 5 of the City of Miami, fourth priority to subcontractors
whose principal place of business is in the City of Miami and last priority to subcontractors whose
principal place of business is in Miami -Dade County, Florida. For purpose of calculating the twenty
percent (20%) subcontractor participation, the twenty percent (20%) participation shall be calculated
based upon the numerator being the dollar value of all subcontracts given to subcontractors whose
principal place of business is in Miami -Dade County, Florida and the denominator being the total dollar
value of all subcontracts entered into by the general contract over the entire course of the Project
("Subcontractor Participation Requirement").
11.2.2 Laborer Participation. MSDG shall require its general contractor and all
subcontractors to hire forty percent (40%) of the unskilled labor for the construction of the Project
("Laborer Participation Requirement") from workers residing in Miami -Dade County, Florida giving first
priority to workers residing in the Redevelopment Area, second priority to workers residing in Overtown,
third priority to workers residing in District 5 of the City of Miami, fourth priority to workers residing in
the City of Miami with last priority to workers residing in Miami -Dade County, Florida.
11.2.3 Disputes. In the event of any disputes between the Executive Director
and MSDG as to whether any subcontractor has its principal place of business in Miami -Dade County,
Florida or whether any laborer resides in Miami -Dade County, Florida and whether MSDG complied with
the priority requirements, MSDG and the Executive Director shall proceed in good faith to resolve the
dispute. In the event the dispute is not resolved within ten (10) days either party may submit the dispute
to the CRA Board or, at the option of MSDG, to Arbitration for resolution which resolution shall be
binding on the parties.
11.2.4 Construction Reporting Requirements. MSDG shall be required to
submit to the Executive Director (i) on a quarterly basis commencing thirty (30) days after the end of the
first quarter after the commencement of construction of the Project until thirty days following
Completion, detailed reports of performance against the Subcontractor Participation Requirement during
the prior quarter and (ii) on a monthly basis commencing thirty (30) days after the commencement of
construction of the Project until thirty days following Completion, detailed reports of performance against
the Laborer Participation Requirement during the prior month ("Construction Participation Reports"). The
Construction Participation Reports shall contain such information as the Executive Director may
reasonably require to enable the Executive Director to determine whether MSDG is in compliance with
the Subcontractor Participation Requirement and the Laborer Participation Requirement with respect to
the Project. MSDG and the Executive Director shall utilize their good faith efforts to agree on the form
for the Construction Participation Reports during the Inspection Period.
12. COMMUNITY BENEFITS.
12.1 Permanent Employment Hiring Requirement. MSDG shall require work
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performed by Full -Time and Part -Time Employees in connection with the operation of the Project to be
performed by individuals who reside within the Miami -Dade County. This requirement shall be deemed
satisfied if Full -Time and Part -Time Employees working in connection with the operation of the Project
satisfy the following requirements (the "Employee Participation Requirement"):
Not less than twenty percent (20%) of the employees working at the Project are City
residents living within the Redevelopment Area or in the Overtown community;
Not less than forty percent (40%) of the employees working at the Project are residents of
the City of Miami; and
Not less than eighty percent (80%) of the employees working at the Project are residents
of the Miami -Dade County.
Compliance with the Employee Participation Requirement shall be calculated annually
based upon the total number of hours worked by employees in each of the respective categories listed
above and the total number of hours worked by all employees at the Project. The place of residence shall
be determined as of January 1 of each year. Employees who on their original hire date were residents of
either the Redevelopment Area or Overtown and following commencement of their employment at the
Project establish their personal residence outside such aforementioned areas shall, for purposes of
satisfying the Employment Participation Requirement, retain their original characterization as a resident
of either the Redevelopment Area and Overtown for a period of not more than three (3) years following
the date of said employees' move upon submittal of documentation confirming residence within the
Redevelopment Area and Overtown for a period of not less than one (1) year prior to the commencement
of their employment at the Project. The Employee Participation Requirement shall not be deemed or
construed to require the hiring of employees who do not comply with the hiring requirements, including
mandatory drug testing; however, neither MSDG or its agents shall solicit from prospective employees
information regarding their past criminal record at the time of initial application and any evidence of past
criminal acts committed by such prospective employee of which MSDG or its agents become apprised
thereafter shall not automatically disqualify such prospective employee from employment at the Project,
but shall be considered on a case -by -case basis in accordance with the standards set forth in Exhibit "C".
Any aforementioned hiring requirements of MSDG shall not relieve MSDG from its obligation to comply
with the Employee Participation Requirement.
12.2 Job Fairs & Employment Advertisements.
12.2.1 Construction Job Opportunities. MSDG shall broadly disseminate
information regarding job opportunities for local area residents and businesses within the Redevelopment
Area to allow them to participate in construction of the Project, including, without limitation, hosting at
least two (2) job fairs within the Redevelopment Area prior to the commencement of the Project.
12.2.2 Permanent Job Opportunities. MSDG shall broadly disseminate
information regarding job opportunities for local residents and businesses within the Redevelopment Area
post -construction, including newly generated trade and service related jobs upon completion of the
Project, including, without limitation, hosting at least one (2) job fair within the Redevelopment Area
upon completion of the Project.
12.2.3 Employment Advertisement & Notice. MSDG shall:
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(i) Electronically post job opportunities in established job
outreach websites and organizations, including, without limitation, CareerSource South Florida, and
similar programs in order to attract as many eligible applicants for such jobs as possible;
(ii) Place a full -page weekly advertisement in the Miami Times
newspaper to inform residents of available job opportunities and any upcoming job fairs not less than
three (3) weeks prior to said job fair. This shall be in addition to any advertisements done through other
job outreach websites, organizations, and efforts referenced hereinabove; and
(iii) Place weekly radio commercials on WMBM and either Hot
105 or 99JAMZ to inform residents of available job opportunities and upcoming job fairs not less than
three (3) days prior to said job fair.
12.3 Local Partnerships, Job Training, & Career Development Partnerships.
12.3.1 Local Partnerships. MSDG shall execute an M.O.U.'s with following
local community organizations, including but not limited to Miami -Dade Hospitality & Culinary Institute,
Overtown Youth Initiates, the Historic Lyric Theater, South Beach Food and Wine Festival, and the Perez
Art Museum.
12.3.2 Small Business Services. MSDG shall work with local community
organizations to provide marketing related services, laundry services, and valet services for the Project.
12.3.3 Training Programs & Career Partnership Development. MSDG shall
develop training programs designed to train residents of the CRA for job opportunities at the Project,
including without limitation, coordinating with local partners, such as . MSDG shall place
graduates of any such training programs in permanent jobs at the Project following its construction.
(OPEN)
12.3.4 Student Internship Opportunities. MSDG shall establish and maintain a
paid academic year and summer internship program to benefit students attending Booker T. Washington
Senior High School and Theodore Gibson Charter School.
13. CRA CONDITIONS PRECEDENT.
13.1 The obligations of the CRA to close the transaction contemplated by this
Agreement with respect to the Project is subject to the satisfaction or waiver of the following conditions
precedent (the "CRA Conditions Precedent"):
13.1.1 The Plans and Specifications have been approved or deemed approved
by the Executive Director in accordance with Section 8.4.
13.1.2 The Executive Director shall have approved the project budget and
Source of Funds.
13.1.3 The Lender under the Loan Commitment is prepared to close the
construction loan with respect to the Project substantially in accordance with terms of the Loan
Commitment, if applicable.
13.1.4 MSDG or its contractor shall have provided to the Executive Director a
payment and performance bonds in the form of AIA Document 312 (2010 Edition), in form and substance
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satisfactory to the CRA, in an amount equal to one hundred percent (100%) of the hard construction costs
for the Project as reflected in the Budget, which shall be issued by a surety having a credit rating of "A"
or higher with a financial size category rating of VII or higher in the latest edition of Best's Insurance
Guide, published by A.M. Best Company, Oldwick, New Jersey (the "Payment and Performance Bond")
listing the CRA and the City of Miami as dual obligees.
13.1.5 MSDG has obtained a building permit for the Project to enable MSDG to
construct the Project in accordance with the Plans, or provided the Executive Director with evidence that
a building permit for the construction of the Project in accordance with the Plans is ready to be issued
subject only to the payment of the building permit fees and impact fees.
13.1.6 In the event the CRA Conditions Precedent are not satisfied or waived by
the CRA on or before the Closing Date, as hereinafter defined, and provided delays in completion are
caused by MSDG and by no other factor, then the CRA may either (i) terminate this Agreement in which
the Escrow Agent shall deliver the Deposit to the CRA, as liquidated damages and the parties shall be
released from all further obligations under this Agreement except for the obligations under this
Agreement which expressly survive the termination, or (ii) waive the condition and proceed in accordance
with this Agreement.
14. CLOSING DATE.
14.1 Closing. The closing of the transaction contemplated by this Agreement (the
"Closing Date") shall occur on the earlier of (a) ten (10) days after all the CRA Conditions Precedent to
closing have been either satisfied or waived by the CRA or (b) 21 months after the Effective Date, time
being of the essence. On the Closing Date the following shall occur provided all of the CRA Conditions
Precedent have been satisfied or waived:
14.1.1 CRA Deliveries. The CRA shall deliver to MSDG at Closing:
14.1.1.1 A special warranty deed in the form of Exhibit "E" attached
hereto and made a part hereof (the "Deed") with respect to that portion of the Property.
14.1.1.2 A certified copy of the resolution authorizing the conveyance
by the CRA and the execution and delivery of the documents contemplated by this Agreement.
14.1.1.3 A no lien and possession affidavit in the form of Exhibit "F"
attached hereto (the "No Lien Affidavit").
14.1.1.4 A FIRPTA affidavit.
14.1.1.5 A restrictive covenant in the form of Exhibit "D" attached
hereto and made a part hereof (the "Restrictive Covenant") executed by the CRA, including the condition
that the CRA shall have the right of first refusal to purchase the Property at appraised value in the event
that MSDG decided to sell the Property within the first 10 years of purchase.
14.1.1.6 The CRA shall deliver to Escrow Agent the amount of the
Grant by wire transfer of federal funds.
request.
14.1.1.7 Such other documents as the title company may reasonably
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14.2 MSDG Deliveries. MSDG shall deliver to the CRA or cause to be delivered to
the CRA at closing:
14.2.1 Evidence of authority to close the transaction and execute and deliver the
appropriate closing documents.
14.2.2 Payment and Performance Bond.
14.2.3 A guaranty (the "Guaranty") of the lien free completion of the Project
executed by MSDG. The Guaranty shall be in the form of Exhibit "G" attached hereto. The Guaranty
shall not be required provided the Payment and Performance Bond is modified to (i) require the surety to
achieve Completion notwithstanding the failure of the Owner to pay the amount due under the
Construction Contract and (ii) the failure of the Owner to pay all soft cost associated with the Project.
14.2.4 The Restrictive Covenant executed by MSDG.
14.2.5 Pay to the CRA One Million Five Hundred Thousand and No/100
Dollars ($1,500,000.00) by wire transfer of federal funds.
14.2.6 Such other documents as the title company may reasonably request.
14.2.7 The Deposit shall be utilized at closing to pay a portion of the amount
due the CRA on the Closing Date.
14.3 Recording Costs. The documentary stamp tax and surtax to be affixed to the
Deed and the cost for recording the Deed and the Restrictive Covenant shall be paid by MSDG. Each
party shall bear the cost of the fees of their own respective attorneys and other professionals and the cost
of their own respective performance under this Agreement.
14.4 Adjustments and Prorations. MSDG and the CRA acknowledge that Property is
currently exempt for ad valorem real estate taxes and assessments and therefore taxes and assessments
shall not be prorated.
14.5 Parties in Possession. On the Closing Date the CRA shall provide Property to
MSDG free and clear of all parties in possession.
15. INDEMNIFICATION. MSDG agrees to indemnify, defend, protect and hold harmless
the CRA and the City of Miami from and against all loss, costs, penalties, fines, damages, claims,
expenses (including attorney's fees) or liabilities (collectively referred to as "liabilities") for reason of any
injury to or death of any person or damage to or destruction or loss of any property arising out of,
resulting from or in connection with: (i) the performance or non-performance of the services, supplies,
materials and equipment contemplated by this Agreement or the Project, whether directly or indirectly
caused, in whole or in part, by any act, omission, default, professional errors or omissions, or negligence
(whether active or passive) of the MSDG or its employees, agents or subcontractors (collectively referred
to as "MSDG"), regardless of whether it is, or is alleged to be, caused in whole or part (whether joint,
concurrent or contributing) by any act, omission, default, breach, or negligence (whether active or
passive) of the CRA, unless such injuries or damages are ultimately proven to be the result of grossly
negligent or willful acts or omissions on the part of the CRA; or (ii) the failures of the MSDG to comply
with any of the paragraphs provisions herein; or (iii) the failure of the MSDG, to conform to statutes,
ordinances, or other regulations or requirements of any governmental authority, federal, state, county, or
city in connection with the granting or performance of this Agreement, or any Amendment to this
14
Agreement. MSDG expressly agrees to indemnify and hold harmless the CRA, from and against all
liabilities which may be asserted by an employee or former employee of MSDG, any of subcontractors, or
participants in the Program, as provided above, for which the MSDG's liability to such employee, former
employee, subcontractor, or participant would otherwise be limited to payments under state Worker's
Compensation or similar laws.
16. REPRESENTATIONS OF CRA.
16.1 The CRA makes the following representations:
16.1.1 The CRA is duly organized and validly existing under the laws of the
State of Florida and has full power and capacity to own its properties, to carry on its business as presently
conducted by the CRA, and to perform its obligations under this Agreement.
16.1.2 The CRA's execution, delivery and performance of this Agreement have
been duly authorized by all necessary legal actions and does not and shall not conflict with or constitute a
default under any indenture, agreement or instrument to which the CRA is a party or by which the CRA
or CRA's property may be bound or affected, except for such approvals required by this Agreement.
16.1.3 This Agreement constitutes the valid and binding obligation of the CRA,
enforceable against the CRA, and its successors and assigns, in accordance with their respective terms,
subject to bankruptcy, insolvency and other similar laws affecting the rights of creditors generally.
16.1.4 Survival of Representations. All of the representations of the CRA set
forth in this Agreement shall be true upon the execution of this Agreement, shall be deemed to be
repeated and as of the Closing Date, respectively, and shall be true as of such Closing Date. All of the
representations, warranties and agreements of the CRA set forth in this Agreement shall not survive the
respective closings.
17. MSDG's REPRESENTATIONS.
17.1 MSDG makes the following representations to the CRA as follows:
17.1.1 MSDG is a limited liability company duly organized and validly existing
under the laws of the State of Florida, and have full power and capacity to own the Property, to carry on
its business as presently conducted, and to enter into the transactions contemplated by this Agreement.
17.1.2 Copies of the articles of organization for MSDG are attached hereto as
Exhibit "H" (the "Organizational Documents"). The organizational chart of MSDG and a list of members
of MSDG is attached hereto as Exhibit "I" and made a part hereof (the "Organizational Chart").
17.1.3 MSDG'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 it is a party or by which it may
be bound or affected.
17.1.4 This Agreement constitutes the valid and binding obligation of MSDG,
enforceable against MSDG and its successors and assigns, in accordance with its respective terms, subject
to bankruptcy, insolvency and other similar laws affecting the rights of creditors generally.
17.1.5 Survival of Representations. All of the representations of MSDG set
15
forth in this Agreement shall in all material respects be true upon the execution of this Agreement, shall
be deemed to be repeated and as of the Closing Date, and shall be true in all material respects as of each
respective closing date. All of the representations, warranties and agreements of MSDG set forth in this
Agreement shall not survive the Closing.
18. DEFAULT.
18.1 MSDG Failure to Perform.
18.1.1 If the CRA Conditions Precedent have not been satisfied, deemed
satisfied or waived on or before 15 months after the Effective Date, MSDG shall be in default under this
Agreement and the CRA may terminate this Agreement in which event the Escrow Agent shall deliver the
Deposit to the CRA as liquidated damages and the parties will be relieved from any further obligations
under this Agreement except for the obligations that expressly survive termination.
18.1.2 In the event the CRA becomes aware of any material misrepresentations
by MSDG set forth in Section 17 of this Agreement prior to Closing, and MSDG fails to cure such breach
within thirty (30) days of its receipt of written notice from the CRA delivered pursuant to Section 21
hereof, the CRA, as its sole and exclusive remedy, may terminate this Agreement, in which event the
Escrow Agent shall deliver the Deposit to the CRA as liquidated damages and the parties shall be released
from all further obligations under this Agreement except for the obligations that expressly survive
termination.
18.1.3 In the event MSDG breaches any other terms and provisions of this
Agreement not addressed in Sections 18.1.1, 18.1.2 or Section 9, which is not cured within thirty (30)
days of written notice of default from the CRA delivered pursuant to Section 21 below, the CRA may
pursue all remedies available at law or in equity, including specific performance, as a result of such
breach; provided however, the CRA shall not have the right to terminate this Agreement with respect to a
breach other than as expressly addressed in Sections 18.1.1, 18.1.2, and Section 9.
18.1.4 In the event of a default by the CRA under this Agreement (other than an
intentional default) which is not cured within ten (10) days of written notice from MSDG, without any
default on the part of MSDG, MSDG, as its sole and exclusive remedy, shall be entitled to (i) terminate
this Agreement in which event the Escrow Agent shall return the Deposit to Developer and parties shall
be released from all further obligations under this Agreement except for the obligations that expressly
survive the termination, or (ii) sue for specific performance to enforce the terms of this Agreement.
MSDG waives any other remedies it may have against the CRA -at law or in equity as a result of a breach
of this Agreement except if the CRA conveys the Property to another party prior to the termination of this
Agreement, ill which event MSDG may pursue all remedies available at law or in equity as a result of
such breach as a result of the remedy of specific performance not being available.
19. BROKERS. The parties each represent and warrant to the other that there are no real
estate broker(s), salesman (salesmen) or finder(s) involved in this transaction. If a claim for commissions
in connection with this transaction is made by any broker, salesman or finder claiming to have dealt
through or on behalf of one of the parties hereto ("Indemnitor"), Indemnitor shall indemnify, defend and
hold harmless the other party hereunder ("Indemnitee"), and Indemnitee's officers, directors, agents and
representatives, from and against all liabilities, damages, claims, costs, fees and expenses whatsoever
(including reasonable attorney's fees and court costs at trial and all appellate levels) with respect to said
claim for commissions. Notwithstanding anything to the contrary contained in this Agreement, the
provisions of this Paragraph shall survive the respective closings.
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20. ASSIGNABILITY. This Agreement may not be assigned without the approval of the
Executive Director, which approval shall not be unreasonably withheld or delayed. For the purpose of
this Section 21, each of the following events shall be deemed an assignment requiring the approval of the
Executive Director, which approval shall not be unreasonably withheld or delayed by the Executive
Director.
21. NOTICES. Any notices required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been given if delivered by hand, sent by recognized overnight
courier (such as Federal Express), sent by fax and another method provided herein or mailed by certified
or registered mail, return receipt requested, in a postage prepaid envelope, and addressed as follows:
If to MSDG:
Marcus Samuelsson
Marcus Samuelsson Development Group, LLC
273 Lenox Avenue
New York, NY 10026
Fax:
Email: Marcus@Samuelssongroup.com
Derek Fleming
Marcus Samuelsson Development Group, LLC
114 West 118th Street
New York, NY 10026
Fax:
Email: Derekfleming@gmail.com
With a copy to:
Adam Zwecker, Esq.
Akerman LLP
Three Brickell City Centre
98 SE 7th St
Miami, FL 33131
Fax: 305-374-5095
Email: adam.zwecker@akerman.com
If to CRA:
Clarence E. Woods, III, Executive Director
Southeast Overtown/Park West Community Redevelopment Agency
819 N.W. 2nd Avenue, 3rd Floor
Miami, FL 33136
Fax: 305-679-6835
Email: cwoods@miamigov.com
With a copy to:
William R. Bloom, Esq.
Holland & Knight, LLP
701 Brickell Avenue
Miami, FL 33131 Suite 3000
Fax: 305-789-7799
Email: william.bloom@hklaw com
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And with a copy to:
Staff Counsel
Southeast Overtown/Park West Community Redevelopment Agency
819 N.W. 2nd Avenue, 3rd Floor
Miami, FL 33136
Fax: 305-679-6835
Email: rjadusingh@miamigov.com
Notices personally delivered or sent by fax shall be deemed given on the date of delivery and notices
mailed in accordance with the foregoing shall be deemed given upon receipt or the date delivery is
refused.
22. CHALLENGES. MSDG acknowledges and agrees that the CRA shall have no liability
whatsoever to MSDG in connection with any challenge to this Agreement and the transaction
contemplated by this Agreement and MSDG hereby forever waives and releases the CRA from any
liability whatsoever, now or hereafter arising in connection with any challenge and covenant and agree
not to initiate any legal proceedings against the CRA in connection with any challenges to this Agreement
by any third parties.
23. REAL ESTATE TAXES.
It is the intention of the CRA and MSDG that upon conveyance of the Property to MSDG that the
Project shall be fully taxable for the purposes of ad valorem real estate taxes and that MSDG and its
successors or assigns not take advantage of any tax exemptions which may allow MSDG or its successors
or assigns not to be required to pay any ad valorem real estate taxes with respect to the Project.
24. CRA GRANT.
24.1 Subject to the terms and conditions set forth herein and MSDG's compliance
with all of its obligations hereunder, the CRA hereby agrees to make available to MSDG a Grant for the
Project build out cost up to One Million and No/100 Dollars ($1,000,000.00) (the "Grant") to be utilized
by MSDG to pay costs and expenses incurred by MSDG in connection with the Project which constitute
permitted expenses under applicable law for utilization of Tax Increment Funds. The Grant shall be paid
by the CRA to MSDG in a series of draws (each, a "Draw Payment") within twenty (20) business days
after the CRA's receipt of a draw request from MSDG or its contractor (on an AIA form or such other
form reasonably approved by the CRA) accompanied by the delivery of notarized partial lien waivers
from all applicable contractors, subcontractors, material men and suppliers and a certification from the
CRA's architect (on an AIA form or such other form reasonably approved by the CRA) that the
improvements and materials subject to the draw request have been completed and/or delivered to the
Property, as applicable. MSDG shall not make a draw request more than once a month. The final
disbursement of the Grant shall be made when MSDG provides to the CRA: (i) final lien waivers from all
applicable contractors, subcontractors, materialmen, architects and engineers; (ii) certificates of
completion are provided by each of MSDG's architect and general contractor; and (iii) a final certificate
of occupancy for the Property. Any and all costs for the improvements above the Grant as reflected in the
construction budget for the improvement shall be paid by MSDG to the applicable contractors,
subcontractors, and materialmen and suppliers. For example, if the total estimated cost of the
improvement is $120,000 and the Grant is $100,000 MSDG shall fund the $20,000 shortfall. If the CRA
disburses the entire Grant and unpaid costs or expenses remain, MSDG shall be fully responsible for and
promptly pay when due.
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24.2 In the event that MSDG sells the Property within the first seven (7) years after
closing, MSDG shall repay 100% of the Grant funding to the CRA. In the event that MSDG sells the
Property within eight (8) to ten (10) ten years after closing, MSDG shall repay 50% of the Grant funding
to the CRA.
25. MISCELLANEOUS.
25.1 This Agreement shall be construed and governed in accordance with the laws of
the State of Florida. Venue shall be in Miami -Dade County, Florida. All of the parties to this Agreement
have participated fully in the negotiation and preparation hereof, and, accordingly, this Agreement shall
not be more strictly construed against any one of the parties hereto.
25.2 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.
25.3 In the event of any litigation between the parties under this Agreement, the
prevailing party shall be entitled to reasonable attorney's fees and court costs at all trial and appellate
levels.
25.4 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.
25.5 All of the exhibits attached to this Agreement are incorporated in, and made a
part of, this Agreement.
25.6 Time shall be of the essence for each and every provision of this Agreement.
25.7 This Agreement may not be recorded in the Public Records of Miami -Dade
County.
25.8 The "Effective Date" shall mean the date this Agreement is last executed by
MSDG and the CRA and this Agreement is approved by all necessary governmental bodies, including the
expiration of all applicable appeal periods.
26. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and
understanding between the parties with respect to the subject matter hereof and there are no other
agreements, representations or warranties other than as set forth herein. This Agreement may not be
changed, altered or modified except by an instrument in writing signed by the party against whom
enforcement of such change would be sought. This Agreement shall be binding upon the parties hereto
and their respective successors and permitted assigns.
27. ESCROW AGENT. The Deposit shall be held by Escrow Agent in trust, on the terms
hereinafter set forth:
Agreement.
27.1 The Escrow Agent shall deliver the Deposit in accordance with the terms of this
27.2 It is agreed that the duties of the Escrow Agent are only as herein specifically
19
provided and purely ministerial in nature, and the Escrow Agent shall incur no liability whatsoever except
for willful misconduct or gross negligence, as long as the Escrow Agent has acted in good faith. The CRA
and MSDG each release the Escrow Agent from any act done or omitted to be done by the Escrow Agent
in good faith in the performance of its duties hereunder.
27.3 The Escrow. Agent is acting as stakeholder only with respect to the Deposit. If
there is any valid dispute as to whether the Escrow Agent is obligated to deliver the Deposit, the Escrow
Agent shall not make any delivery, but in such event, the Escrow Agent shall hold same until receipt by it
of an authorization in writing, signed by all parties having interest in such dispute directing the
disposition of same; or in the absence of such authorization, the Escrow Agent shall hold the Deposit until
final determination of the- rights of the parties in the appropriate proceedings. If such written
authorization is not given or proceedings for such determination are not begun within thirty (30) days of
written notice to the Escrow Agent of the existence of a dispute with respect to the Deposit and diligently
continued, the Escrow Agent may bring an appropriate action or proceeding to interplead the Deposit.
The Escrow Agent shall be reimbursed for all costs and expenses of such action or proceeding, including,
without limitation, reasonable attorneys' fees and disbursements, by the party determined not to be
entitled to the Deposit. Upon making delivery of the Deposit, the Escrow Agent shall have no further
liability unless such delivery constituted willful misconduct or gross negligence. MSDG acknowledges
that the Escrow Agent is counsel to the CRA, and can represent the CRA hereunder in the event of any
dispute hereunder, concerning the Deposit, and MSDG waives any right to object to same.
[SIGNATURE PAGES TO FOLLOW]
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IN WITNESS hereof the parties have executed this Agreement as of the date first above written.
THE DEVELOPER:
MARCUS SAMUELSSON DEVELOPMENT GROUP, LLC,
a Florida limited liability company
By:
Name: Marcus Samuelsson
Title: Authorized Member
By:
Name: Derek Fleming
Title: Member
CRA:
SOUTHEAST OVERTOWN / PARK WEST
COMMUNITY REDEVELOPMENT AGENCY
By:
Clarence E. Woods, III, Executive Director
ATTEST:
Clerk of the Board
Approved for legal sufficiency
By:
William R. Bloom, Esq.
Holland & Knight, LLP
Special Counsel to CRA
21
Street Address:
Folio No.:
Legal Description:
EXHIBIT "A"
Legal Description of Subject Property
920 NW 2nd Avenue, Miami, FL 33136
01-0102-060-1160
Lots 25, 32 and the North 15.62 feet of Lot 33, Block 26 of P.W. White's
Resubdivision of Blocks No. 16-26 and 36 North of the City of Miami, as
recorded in Plat Book B, Page 34, of the Public Records of Miami -Dade County,
Florida, together with an undivided interest in the common elements thereof in
accordance with said Declaration; together with an undivided interest in the
common elements thereto.
22
EXHIBIT `B"
INSURANCE REQUIREMENTS (Review)
L Commercial General Liability (Primary & Non Contributory)
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 and Southeast Overtown/Park West Community Redevelopment Agency as an Additional
Insured (CG 2010 11/85 or its equivalent)
Contingent Liability & Contractual Liability
Premises & Operations Liability
Explosion, Collapse and Underground Hazard
II. Business Automobile Liability
A. Limits of Liability
Bodily Injury and Property Damage Liability
Combined Single Limit
Any Auto/Owned Autos/Scheduled
Including Hired, Borrowed or Non -Owned Autos
Any One Accident $ 1,000,000
B. Endorsements Required
City of Miami & Southeast Overtown/Park West Community
Redevelopment Agency 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
IV. Umbrella Policy/Excess Liability (Excess Follow Form)
23
A. Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence $3,000,000
Aggregate $3,000,000
B. Endorsements Required
City of Miami & Southeast Overtown/Park West Community Redevelopment Agency listed as an
additional insured
V. Owner's & Contractor's Protective
Limits of Liability
Each Occurrence $1,000,000
Policy Aggregate $1,000,000
City of Miami and Southeast Overtown/Park West Community Redevelopment Agency as Named
Insured
VI. Builders' Risk
Causes of Loss: All Risk -Specific Coverage Project Location
Valuation: Replacement Cost
Deductible: $25,000 All other Perils
5% maximum on Wind
City of Miami and Southeast Overtown/Park West Community Redevelopment Agency listed as an
Additional Insured
A. Limit/Value at Location or Site - Full Replacement
B. Coverage Extensions as provided by insurer
The above policies shall provide the City of Miami and Southeast Overtown/Park West Community
Redevelopment Agency 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
Size Category, 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.
24
EXHIBIT "C"
CRIMINAL BACKGROUND STANDARDS
Evidence of the following offenses in the criminal record of a candidate for employment at the Project,
whether as part of the Project's construction or its operations post -construction, shall constitute sufficient
grounds for the denial of employment without further cause:
• Aggravated Assault, as defined in §784.021, Fla. Statutes (2015)
• Aggravated Battery, as defined in §784.03, 784.041 and 784.045, Fla. Statutes (2015)
• Homicide, as defined in Chapter 782, Fla. Statutes (2015)
• Kidnapping or False Imprisonment, as defined in Chapter 787, Fla. Statutes (2015)
• Sexual Battery, as defined in Chapter 794, Fla. Statutes (2015)
• Robbery, as defined in §812.13, et seq., Fla. Statutes (2015)
• Abuse, neglect or exploitation of an Elderly Person(s) or Disabled Person(s), as defined in
Chapter 827, Fla. Statutes (2015)
• Abuse of Children, as defined in §827.03(2)(a) and 827.03(2)(b), Fla. Statutes (2015)
• Affray, Riots, as defined in Chapter 870, Fla. Statutes (2015)
• Grand Theft (within 5 years of the date of application for employment), as defined in §812.014,
Fla. Statutes (2015)
• Felony Petit Theft (within 2 years of the date of application for employment), as defined in
§812.014, Fla. Statutes (2015)
Evidence of all other criminal wrongdoing in the record of a potential candidate for employment may not
be used as the sole and exclusive basis for denying said candidate employment at the Project.
25
EXHIBIT "D"
RESTRICTIVE COVENANT
The parties shall negotiate the terms of the Restrictive Covenant prior to the end of the Inspection
Period. The Restrictive Covenant shall incorporate the following provisions of the Development
Agreement which survive the Closing Date for a period of 60 months and after such time shall be null and
void:
1. Section 8.4 requiring Project to be developed substantially in accordance with the Plans.
2. Section 9.1.2, 9.1.3, 9.1.4 requiring MSDG to comply with the Construction
Commencement Deadline and Completion Deadline.
3. Section 11 regarding equal opportunity.
4. Section 12 regarding community benefits.
5. Section 23 regarding real estate taxes.
6. The Property must remain as a restaurant for at least 15 years.
7. The CRA shall have the right of first refusal to purchase the Property at appraised value
in the event that MSDG decided to sell the Property within the first 10 years of purchase.
8. The Property must be available to CRA for events, at no cost, up to three times per year
for the life of the CRA, cost of food and beverage at standard rates.
9. The Project branding must reflect history of Overtown.
26
EXHIBIT "E"
DEED
THIS INSTRUMENT WAS PREPARED BY:
William R. Bloom, Esquire
Holland & Knight LLP
701 Brickell Ave., Suite 3000
Miami, Florida 33131
Folio Number:
SPECIAL WARRANTY DEED
THIS DEED, made this day of , 201 , between SOUTHEAST OVERTOWN/PARK
WEST COMMUNITY REDEVELOPMENT AGENCY, a body corporate and politic of the State of
Florida ("Grantor") and MARCUS SAMUELSSON DEVELOPMENT GROUP, LLC, a Florida
limited liability company ("Grantee").
Wherever used herein, the terms "Grantor" and "Grantee" shall include singular and plural, heirs,
legal representatives, assigns of individuals, and the successors and assigns of corporations, wherever the
context so admits or requires.
WITNESETH:
THAT, for and in consideration of the sum of Ten and No/100 Dollars ($10.00), and other good
and valuable consideration, the receipt and sufficiency of which is acknowledged by Grantor, Grantor
hereby grants, bargains, and sells unto Grantee, the following described property located in Miami -Dade
County, Florida ("the Property"):
TOGETHER WITH all the tenements, hereditaments and appurtenances thereto belonging or in
any way appertaining.
TO HAVE AND TO HOLD the same unto Grantee in fee simple, forever.
THIS CONVEYANCE IS SUBJECT TO:
1. Ad valorem real estate taxes and assessments for the year of closing and subsequent
years.
2. All applicable laws, ordinances and governmental regulations, including, but not limited
to, all applicable building, zoning, land use, environmental ordinances and regulations.
3. Conditions, restrictions, reservations, and easements of record; however, reference
thereto shall not serve to reimpose same.
4. Restrictive Covenant Agreement between Grantor and Grantee of even date herewith.
27
TO HAVE AND TO HOLD, the same in fee simple forever.
AND Grantor has good right and lawful authority to sell and convey the property, the Grantor
hereby fully warrants the title to said land and will defend the same against the lawful claims of all
persons claiming by, through and under Grantor and none other.
SIGNATURES FOLLOW ON NEXT PAGE
28
IN WITNESS WHEREOF, Grantor has caused this special warranty deed to be executed as of the
day and year first above written.
Signed, sealed and delivered
in our presence:
WITNESSES: GRANTOR:
SOUTHEAST OVERTOWN/PARK WEST
Name: COMMUNITY REDEVELOPMENT
AGENCY, a body corporate and politic of the
State of Florida
Name:
Approved for legal sufficiency
By:
William R. Bloom, Esq.
Holland & Knight LLP
Special Counsel to the CRA
STATE OF FLORIDA
)
)
COUNTY OF MIAMI-DADE )
By:
Name: Clarence E. Woods III
Title: Executive Director
The foregoing instrument was acknowledged before me this day of , 201 ,
by Clarence E. Woods III, as Executive Director of SOUTHEAST OVERTOWN/PARK WEST
COMMUNITY REDEVELOPMENT AGENCY, a body corporate and politic of the State of Florida, on
behalf of the Agency, who is personally known to me or has produced as
identification.
Notary Public, State of Florida
My Commission Expires:
29
EXHIBIT "F"
AFFIDAVIT
STATE OF FLORIDA )
) ss
COUNTY OF MIAMI-DADE )
BEFORE ME, personally appeared Clarence E. Woods, III (the "Affiant") who by me being first
duly sworn, on oath, depose and state:
1. That the Affiant is the Executive Director of SOUTHEAST OVERTOWN/PARK WEST
COMMUNITY REDEVELOPMENT AGENCY, a public agency and body corporate created pursuant to
Section 163.356, Florida Statutes ("Transferor") and this affidavit is given with respect to the following
described property, located in Miami -Dade County, Florida, to -wit:
SEE ATTACHED EXHIBIT "A" (the "Property")
2. That Affiant has knowledge of the affairs of the Transferor.
3. That to the best of Affiant's knowledge, there are no matters pending against the
Transferor that could give rise to a lien that might attach to the Property, from and after [insert date of
current title search] at 11:00 p.m. and the recording of the special warranty deed to Marcus Samuelsson
Development Group, LLC, a Florida limited liability company (the "Transferee") and that said
Transferor has not and will not execute any instruments that would adversely affect the title thereto.
4. That within the past 90 days there have been no improvements, alterations, or repairs to
the aforesaid property performed at the request of Transferor for which the costs thereof remain unpaid
and there have been no claims for worker or material furnished for repairing or improving the Property
performed at the request of Transferor which remain unpaid.
5. That Transferor's title to and possession and enjoyment of the Property has been open,
notorious, peaceable and undisturbed, and that, Transferor is in exclusive possession of the Property.
6. That this Affidavit is made to induce Transferee to purchase the Property and to induce
Title Insurance Company and , as its agent, to insure title
to the Property.
30
7. That this Affidavit is made and given by the Affiant with full knowledge of applicable
laws of the State of Florida regarding sworn statements, affidavits, and the penalties and liabilities
resulting from false statements and misrepresentations therein.
SOUTHEAST OVERTOWN/PARK WEST
COMMUNITY REDEVELOPMENT AGENCY
By:
Clarence E. Woods, III, Executive Director
APPROVED AS TO FORM AND
CORRECTNESS:
Holland & Knight LLP
CRA Special Counsel
SWORN TO AND SUBSCRIBED BEFORE ME, this day of , 201 , by Clarence E.
Woods, III, Executive Director of the Southeast Overtown/Park West Community Redevelopment
Agency. He is personally known to me or has produced as identification and did
not take an oath.
My Commission Expires
Notary Public
Name:
31
EXHIBIT "A"
LEGAL DESCRIPTION
32
EXHIBIT "G"
GUARANTY OF COMPLETION
THIS GUARANTY of Completion (the "Guaranty") is executed and delivered, jointly and
severally, as of the day of , 20 by , an individual, and Marcus Samuelsson
Development Group, LLC, a Florida limited liability company (each a "Guarantor", and collectively, the
"Guarantors") in favor of SOUTHEAST OVERTOWN/PARK WEST COMMUNITY
REDEVELOPMENT AGENCY, a public agency and body corporate created pursuant to Section
163.356, Florida Statutes (the "CRA").
WITNESETH:
A. Marcus Samuelsson Development Group, LLC, a Florida limited liability company (the
"Developer") convey the property described on Exhibit "A" attached hereto and made a part hereof (the
"Property") pursuant to the terms and conditions of that Development Agreement dated as of
, 2017, by and between Developer and the CRA as same may be amended from time to time,
(the "Development Agreement"). All terms not otherwise defined herein shall have the meanings set
forth in the Development Agreement.
B. Guarantors will benefit from the transaction contemplated by the Development Agreement.
C. The CRA would not enter into the Development Agreement with Developer unless
Guarantors agreed to unconditionally guaranty completion of Project in accordance with the Plans and the
Project Schedule.
NOW, THEREFORE, in consideration of the CRA's conveying the Property to the Developer
pursuant to the Development Agreement, which it is acknowledged and agreed that CRA is doing in full
reliance hereon, and as an inducement to CRA to do so, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, each Guarantor hereby irrevocably
covenants, warrants and agrees as follows:
1. That notwithstanding any provision in the Development Agreement or in any other agreement
or document executed in connection therewith, each Guarantor hereby unconditionally and irrevocably
guarantees to CRA the following:
a. One hundred percent (100%) lien free completion in accordance with the
Development Agreement and substantially in accordance with the Plans, as evidenced by (i) the issuance
of a final certificate of occupancy and use (or the equivalent) by the proper governmental authority; and
(ii) the delivery by the design/supervising architect of a certificate of completion of Project substantially
in accordance with the Plans approved by CRA; (completion of Project shall include, but not be limited to
completion of grading, landscaping, all necessary and appropriate utilities, streets, sidewalks, drainage
and all on -site and off -site improvements as reflected on the Plans); and
b. Full and punctual payment and discharge of all costs and expenses of any nature
relating to the construction and the completion of Project as the same become due and payable, and
payment and discharge of all claims and demands for worker and/or materials used in the construction
and the completion of Project substantially in accordance with the Plans which are or, if unpaid, may
become liens, claims or encumbrances on Property.
33
2. Without limiting the generality of the preceding paragraph 1, each Guarantor hereby agrees:
a. To perform, complete and pay for the construction of Project within the time period
allotted therefor in the Project Schedule and to pay all costs and expenses of said construction and
completion of Project and all costs associated therewith, and each Guarantor hereby indemnifies and
agrees to save harmless CRA and the City of Miami from all costs and expenses which CRA and the City
of Miami suffers as a result of Project not being completed and paid for in the manner required and within
the time period allotted therefor as set forth in the Development Agreement and the Project Schedule.
b. In the event any mechanic's or materialman's liens should be filed, or should attach,
with respect to the Property, to cause the removal of such liens or the posting of security against the
consequences of their possible foreclosure within thirty (30) days of the filing of such liens;
c. To pay the costs and fees of all architects and engineers employed by Developer in
connection with Project;
d. To pay within fifteen (15) days of written demand all of CRA's costs and expenses,
including reasonable attorneys' fees and costs, incurred in the enforcement of this Guaranty.
e. That it may be impossible to accurately measure the damages to CRA resulting from
a breach of Guarantors' covenant to complete or to cause the completion of the construction and
equipping of Project, and that such a breach will cause irreparable injury to CRA, and that CRA may not
have an adequate remedy at law in respect of such breach and, as a consequence, each Guarantor agrees
that such covenant shall be specifically enforceable against it and each Guarantor hereby waives and
agrees not to assert any defense against an action for specific performance of such covenant other than the
defense that completion has been achieved. The preceding sentence shall not prejudice CRA's rights to
assert any and all claims for damages incurred as a result of Guarantors' default hereunder (beyond any
applicable notice and cure periods), and CRA may, hold any Guarantor liable for all losses and damages
sustained and expenses incurred by reason of the Developer or any Guarantor failing to construct,
complete and equip Project in accordance with the Plans, the Development Agreement and the Project
Schedule.
3. Each Guarantor hereby acknowledges and consents to the Plans, the disbursement schedule
and the other terms and conditions of the Development Agreement and related documents governing the
construction.
4. Each Guarantor hereby waives any and all requirements that CRA institute any action or
proceeding, at law or in equity, against the Developer or against any other party or parties with respect to
the Development Agreement or any related document as a condition precedent to bringing any action
against any Guarantor upon this Guaranty. All remedies afforded to CRA by reason of this Guaranty are
separate and cumulative remedies and no one of such remedies, whether waived by CRA or not, shall be
deemed to be an exclusion of any one of the other remedies available to CRA and shall not in any way
limit or prejudice any other legal or equitable remedy which CRA may have.
5. Each Guarantor further agrees that Guarantors shall not be released from any obligations
hereunder by reason of any amendment to or alteration of the terms and conditions of the Development
Agreement or of any related document, nor shall Guarantors' obligations hereunder be altered or impaired
by any delay by CRA in enforcing the terms and obligations of the Development Agreement by any
waiver of any default by CRA under the Development Agreement or any related document, it being the
intention that each Guarantor shall remain fully liable hereunder, notwithstanding any such event.
34
6. No extension of the time of payment or performance of any obligation hereunder guaranteed,
or the renewal thereof, nor delay in the enforcement thereof or of this Guaranty, or the taking,
exchanging, surrender or release of other security therefor or the release or compromise of any liability of
any party shall affect the liability of or in any manner release the Guarantors, and this Guaranty shall be a
continuing one and remain in full force and effect until each and every obligation hereby guaranteed shall
have been fully paid and performed.
7. That until Project is fully erected, equipped and completed as aforesaid, and until each and all
of the terms, covenants and conditions of this Guaranty are fully performed, Guarantors shall not be
released by any act or thing which might, but for this provision of this Guaranty, be deemed a legal or
equitable discharge of any Guarantor, or by reason of any waiver, extension, modification, forbearance or
delay by CRA and Guarantors hereby expressly waive and surrender any defense to Guarantors' liability
hereunder based upon any of the foregoing acts, things, agreements or waivers. Guarantors shall be
released from this Guaranty upon the earlier to occur of (i) completion of Project, lien -free and otherwise
in accordance with the requirements of the Development Agreement and substantially in accordance with
the Plans.
8. Except as otherwise set forth herein, CRA shall not be required to give any notice to any
Guarantor hereunder in order to preserve or enforce CRA's rights hereunder (including, without
limitation, notice of any default under or amendment to the Development Agreement), any such notice
being expressly waived by Guarantors.
9. Guarantors agree that Guarantors shall make no claim or set-off, defense, recoupment or
counterclaim of any sort whatsoever, nor shall Guarantors seek to impair, limit or defeat in any way their
obligations hereunder. Guarantors hereby waive any right to such a claim in limitation of their
obligations hereunder.
10. This Guaranty is assignable by CRA and shall bind the heirs, devisees, personal
representatives, successors and assigns of the parties hereto and shall inure to the benefit of any successor
or assign of CRA.
11. This Guaranty shall, in all respects, be governed by and construed in accordance with the
laws of the State of Florida, including all matters of construction, validity and performance.
12. In the event that any provision of this Guaranty is held to be void or unenforceable, all other
provisions shall remain unaffected and be enforceable.
13. Except as otherwise set forth herein, each Guarantor hereby waives notice of acceptance of
this Guaranty by CRA and of presentment, demand, protest, notice of protest and of dishonor, notice of
default and all other notices relative to this Guaranty of every kind and description now or hereafter
provided by any agreement between Developer and CRA or any statute or rule of law, except only any
notices expressly required hereunder.
14. Any notice, demand or request by CRA to any Guarantor or from any Guarantor to CRA shall
be in writing and shall be deemed to have been duly given or made if either delivered personally or if
mailed by certified or registered mail, addressed to the address set forth below (or at the correct address of
any assignee of CRA), except that mailed written notices shall not be deemed given or served until three
days after the date of mailing thereof:
a. If to CRA:
35
SOUTHEAST OVERTOWN / PARK WEST
COMMUNITY REDEVELOPMENT AGENCY
Attention: Clarence E. Woods, III, Executive Director
819 NW 2nd Avenue
Miami, FL 33136
Fax: 305-679-6835
b. If to Guarantors:
and
EACH GUARANTOR HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES
THE RIGHTS EACH MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THE NOTE, THIS
GUARANTY AND ANY DOCUMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION
HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN), OR ACTION OF ANY GUARANTOR, DEVELOPER OR
CRA.
[Signature Pages to Follow]
36
IN WITNESS WHEREOF, Guarantors have executed this Guaranty as of the day and year first
above written.
WITNESSES:
Print Name:
Print Name:
By:
Name:
Title:
Print Name: , individually
Print Name:
Print Name: , individually
Print Name:
37
STATE OF FLORIDA )
): ss.
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this day of , 201_, by
as of , a , on behalf of
. He is personally known to me or has produced as
identification.
Notary Public
Name of Notary Printed:
(NOTARY SEAL)
My commission expires:
My commission number is:
STATE OF FLORIDA
): ss.
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this day of , 201_, by ,
as of a , on behalf of
. He is personally known to me or has produced as
identification.
My commission expires:
My commission number is:
Notary Public
Name of Notary Printed:
(NOTARY SEAL)
38
EXHIBIT "H"
ORGANIZATIONAL DOCUMENTS
39
;Authentication Code: 917A00001625-012617-L17000019017-1/1
850-617-6381
1/26/2017 8:50:34 AM PAGE 1/002 Fax Server
flrpartmPnt of *IMP
l certify the attached is a true and correct copy of the Articles of
Organization of MARCUS SAMUELLSON DEVELOPMENT GROUP, LLC, a limited
liability company organized under the laws of the state of Florida, filed
on January 25, 2017, as shown by the records of this office.
2 further certify the document was electronically received under FAX audit
number 817000022657. This certificate is issued in accordance with
section 15.16, Florida Statutes, and authenticated by the code noted below
The document number of this limited liability company is L17000012017.
y:
c' 7c
xill
kft
F
Given under my hand and the
Great Seal of the State of Florida,
at Tallahassee, the Capital, this the
Twenty-sixth day of January, 2017
p
den Atetpner
bent tarp of Assure
40
(((H17000022657 3)))
ARTICLES OF ORGANIZATION
OF
MARCUS SAMUELLSON DEVELOPMENT GROUP, LLC
ARTICLE 1: - Name
The name of the Limited Liability Company is:
MARCUS SAMUELLSON DEVELOPMENT GROUP, LLC
ARTICLE II: - Address
The mailing address and street address of the principal office of the Limited. Liability Company
is:
1.14 West 1181° Street
New York, New York 10026
ARTICLE III: - Registered Agent, Registered Office, & Registered Agent's Signature
The name and the Florida street address of the registered agent are:
Corporation Service Company
1201 hays Street
Tallahassee, Florida 32301
Having been named as registered agent and to accept service of process fin' the above stated
limited liability company al the place designated in this certificate, 1 hereby accept the
appointment as registered agent and agree to act in this capacity, I further agree to comply with
the pro visions of all statutes relating to the proper and complete perforinance of my dnties, and 1
am familiar with and accept the obligations of my position as registered agent as provided, fir in
Chapter 605, F.S.
1405.12887;l}
Corporation Service Company, Inc., Registered Agent
By: N
Name:
Title:
Sane S. Kraj' r, ,Assiut VP
(((H17000022657 3)))
41
(((H17000022657 3)))
ARTICLE IV: - Management
The name and address of the person authorized to manage and control the limited liability
company is as follows:
Title: Name and Address:
MGR
Derek .Fle.ming
114 West 118th Street
New York, NY 10026
IN WITNESS WHERE OF, the undersigned has executed these Articles of Organization.
on January 24, 2017,
Derek Fleming, AuthorizedJSigner
(In accordance with section 605.0203{1)(b), Florida Statutes, the execution of this document
constitutes an affirmation under the penalties of perjury that the facts stated herein are true..1 ant
aware that any false information submitted in a document to the Department of State constitutes
a thirddegree felony as provided for i,n Section 817.155, Florida Statutes.)
Derek Fleminrit
Typed or printed name of signee
140542587;1 }
(((H 17000022657 3)))
42
EXHIBIT "I"
ORGANIZATIONAL CHART
Marcus Samuelsson Development Group, LLC
Derek Fleming
Marcus Samuelsson