HomeMy WebLinkAboutCRA-R-17-0018 Exhibit ADEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (the "Agreement") is made as of the day of
March, 2017, by and between , a
limited liability company (the "Developer"), and the SOUTHEAST
OVERTOWN/PARK WEST COMMUNITY REDEVELOPMENT AGENCY, a public agency
and body corporate created pursuant to Section 163.356, Florida Statutes (the "CRA").
RECITALS
A. The 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 proposals (the "RFP") 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 RFP, Developer submitted a proposal for the development of the
Property, as more particularly described in the proposal submitted by the Developer (the
"Proposal").
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 the Developer, the Executive Director has recommended to the Board
of Commissioners of the CRA (the "CRA Board") that the CRA enter into this Agreement with
the Developer for the development of the Property.
E. Pursuant to CRA Resolution Number CRA-R-17-
authorized the CRA to enter into this Agreement.
, the CRA Board
F. The CRA desires to convey a leasehold interest (or fee simple interest) in the
Property to the Developer subject to the terms and provisions of this Agreement and the Developer
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 sum of $10.00 and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and of the
covenants and agreements hereafter set forth, the parties agree as follows:
1. RECITALS. The recitals to this Agreement are true and correct and are
incorporated herein by reference and made a part hereof.
2. PROPERTY. The property to be leased or sold by the CRA to Developer pursuant
to the terms of this Agreement consists of the Property and all appurtenances belonging thereto,
including any and all rights, privileges and easements in any way pertaining thereto, all right, title
and interest of the CRA in and to any adjoining sidewalk and in and to any adjoining street or alley
and all right, title and interest of the CRA in permits and approvals issued by the applicable
governmental authorities relating to the use and development of the Property.
3. DEPOSIT. Within two (2) business days of the Effective Date of this Agreement,
Developer shall deliver to Holland & Knight LLP, as escrow agent (the "Escrow Agent"), the sum
of Thousand and No/100 Dollars ($ ,000.00) (the "Initial
Deposit"). (The Initial Deposit and the Additional Deposit, as hereinafter defined, together with
all interest accrued thereon, are collectively referred to as the "Deposit"). The Escrow Agent shall
hold the Deposit in a non -interest -bearing account.
4. INSPECTION PERIOD.
4.1 Inspections. Developer shall have until 5 p.m. on the ninetieth (90th) day
after the Effective Date, as hereinafter defined, (the "Inspection Period") to perform, at
Developer's sole cost and expense, such investigations and inspections of the Property the
Developer, in Developer's sole and absolute discretion deems appropriate, including, without
limitation, soil tests, zoning investigations, utility availability and environmental matters
(collectively the "Inspections") to determine whether the Property is acceptable to Developer, in
its sole discretion. Prior to performing any on -site Inspections, Developer 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). Developer shall conduct such Inspection(s) in a manner so as to not
unreasonably interfere with the current use of the Property.
4.2 Restoration. Following any such Inspections, Developer 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 Developer shall cause its inspectors to obtain, at Developer's sole cost and
expense, any and all licenses and permits required to conduct the Inspections, as applicable.
4.3 Disclosure. Developer 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 Developer, its agents, employees, contractors and/or
representatives, Developer shall provide the Executive Director with 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 Developer, to any such public agencies,
unless the Developer is required to make such disclosures by applicable law, and the CRA fails to
timely make such disclosures.
4.4 Indemnification. Developer shall assume all risks associated with the
Inspections and agrees to indemnify, defend and hold harmless the CRA of, from and against any
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and all costs, losses, claims, damages, liabilities, expenses and other obligations (including,
without limitation reasonable attorney's fees and court costs) to the extent 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 Developer's agents, employees, contractors and other representatives in or
upon the Property for the purpose of the Inspections; provided, however, that the foregoing
indemnification obligation of Developer shall not apply to the mere discovery of any adverse
findings relative to the Property by Developer or any of its agents, representatives or independent
contractors. The foregoing indemnification obligations of Developer shall survive the expiration
or termination of this Agreement.
4.5 Insurance. Developer shall, prior to entering the Property and performing
any Inspections, provide to the CRA evidence of insurance by Developer or its contractors, as
applicable, as specified in items I and IV on Exhibit "B" attached hereto, insuring against any
liability by any one or more of Developer, its agents, employees, contractors or other
representatives to the extent arising from, out of or in connection with or otherwise relating to the
entry by any one or more of Developer, its agents, employees, contractors or other representatives
in or upon the Property for the purpose of the Inspections. Developer shall provide the CRA with
a certificate of insurance evidencing such insurance coverage, identifying the CRA as an additional
insured thereon and which insurance coverage shall be kept in force until the expiration or early
termination of this Agreement.
4.6 Acceptance of Property. If for any reason whatsoever Developer, in its sole
discretion, determines during the Inspection Period that it does not wish to proceed with the
transaction contemplated by this Agreement, Developer 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 and the
Escrow Agent shall promptly return the Initial Deposit together with any interest accrued thereon
to Developer, whereupon the parties shall be released and relieved from any liability or obligations
hereunder, except for those obligations which expressly survive the termination of this Agreement.
If Developer does not terminate this Agreement prior to the expiration of the Inspection Period,
then it shall be presumed conclusively that Developer has had adequate opportunity to review and
inspect all portions of the Property, including, without limitation, the environmental condition of
the Property and, Developer has determined that the condition of all portions of the Property are
satisfactory to Developer and Developer has accepted every portion of the Property in its "AS IS,
WHERE IS, WITH ALL FAULTS" condition.
4.7 No Lien. Developer 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, Developer
shall cause same to be discharged or transferred to bond in accordance with applicable laws within
thirty (30) days after Developer first becomes aware that such lien has been recorded against the
Property. This provision shall survive the expiration or termination of this Agreement.
4.8 CRA Deliveries. Prior to the date of this Agreement, the CRA has provided
to Developer copies of all surveys, title policies and environmental studies which the CRA has
been able to locate with respect to the Property (collectively the "CRA Deliveries"). Any reliance
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upon the CRA Deliveries is at the sole risk of Developer 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 Developer.
4.9 Disclaimer of Representations by Developer. Developer hereby expressly
acknowledges and agrees that, except as specifically provided in this Agreement:
4.9.1 The CRA makes and has made no warranty or representation
whatsoever as to the condition or suitability of the Property for the Project.
4.9.2 The CRA makes and has made no warranty, express or implied, with
regard to the accuracy or completeness of any information furnished to Developer, and the CRA
shall not be bound by any statement of any broker, employee, agent or other representative of the
CRA.
4.9.3 The CRA has made no representations, warranties or promises to
Developer not explicitly set forth in this Agreement.
4.9.4 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.
4.9.5 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.
4.10 Developer specifically acknowledges that the transaction contemplated by
this Agreement and the time frame for performance by Developer 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.
4.11 Copies of Reports. Developer shall provide the CRA with copies of any
third party reports prepared for Developer regarding the physical condition of the Property within
ten (10) days of Developer obtaining the final reports from such third party. This provision shall
survive termination.
4.12 Additional Deposit. If Developer fails to terminate this Agreement prior to
the end of the Inspection Period, Developer shall deliver to Escrow Agent an additional deposit in
the amount of Thousand and No/100 Dollars ($ ,000.00) (the
"Additional Deposit") by wire transfer of federal funds within one (1) business day after the
expiration of the Inspection Period. The failure of Developer to make the Additional Deposit shall
result in the automatic termination of this Agreement in which event the Escrow Agent shall
promptly return the Initial Deposit to Developer and the parties shall be relieved from any liability
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or obligations hereunder except for those obligations under this Agreement which expressly
survive termination.
5. AS -IS, WHERE IS, AND WITH ALL FAULTS CONDITION.
5.1 Developer does hereby acknowledge, represent, warrant and agree, to and
with CRA, that, (i) Developer 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 have no obligation to repair or correct any such facts, circumstances, conditions
or defects or compensate Developer for same; (iii) Developer 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 Developer deems necessary or appropriate
under the circumstances; (iv) Developer has had and will have, pursuant to this Agreement, an
adequate opportunity to make such legal, factual and other inquiries and investigations as
Developer 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 the Developer to enter into this Agreement, or for any other
purpose, except as expressly set forth herein; and (vi) by reason of all of the foregoing, from and
after the Closing (as hereinafter defined), Developer 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.
5.2 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, PROFITABILITY OR OPERATING POTENTIAL OF THE
PROPERTY.
5.3 Developer 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 owned by third parties to the Property or from the Property to
adjacent lands, except to the extent the presence of the Hazardous Materials was known to the
Executive Director and the Executive Director failed to notify Developer of the presence of the
same.
5.4 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.
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5.5 The provisions of this Section 5 shall survive any termination of this
Agreement and shall survive Closing.
6. TITLE AND SURVEY.
6.1 Developer shall obtain a title insurance commitment (the "Commitment")
and a survey (the "Survey") of the Property, at the Developer's sole cost and expense. The
Commitment and the Survey shall show the CRA to be vested in good and marketable fee simple
title to the Property, subj ect only to the following (the "Permitted Exceptions"):
6.1.1 Ad valorem real estate taxes and assessments for the year of Closing
and subsequent years.
6.1.2 All applicable laws, ordinances and governmental regulations,
including, but not limited to, all applicable building, zoning, land use, environmental ordinances
and regulations.
6.1.3 Any matters arising by, through, or under Developer.
6.1.4 Those matters listed on Exhibit "C" attached hereto and made a part
hereof.
6.2 Developer shall have until 5:00 p.m. on the ninetieth (90th) day following
the Effective Date (the "Title Review Period") to obtain and examine the Commitment and the
Survey. Developer shall promptly provide the CRA with a copy of the Commitment and the
Survey upon Developer's receipt of same. The survey shall be certified to Developer and the CRA.
If the Commitment and Survey reveals any particular condition of title other than the Permitted
Exceptions, Developer shall, no later than the expiration of the Title Review Period, notify the
CRA in writing of the defect(s). If Developer 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 Developer has given CRA written notice of
defect(s) 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). Failure of the CRA to respond within the ten (10)
day period shall be deemed the election of the CRA not to cure the title defect(s). If the CRA does
not elect to cure the title defect(s), Developer shall have the option, to be exercised within ten (10)
days after Developer 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) canceling this Agreement, in
which event Escrow Agent shall return the Deposit paid to date, together with interest accrued
thereon, to Developer 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
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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) after using commercially
reasonable efforts prior to the end of the Cure Period, Developer shall have the option, to be
exercised within ten (10) days after the end of the Cure Period, 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) canceling this Agreement, whereupon Escrow Agent shall return the Deposit
paid to date to Developer 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.
6.3 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 (as hereinafter defined), 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 agrees not to enter into any amendment to the Declaration, or the
Declaration Amendment, without the written approval of the Developer, which approval shall not
be unreasonably withheld, conditioned or delayed. 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, Developer 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) canceling this
Agreement, whereupon Escrow Agent shall return the Deposit to Developer 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.
7. ZONING APPROVALS. As of the Effective Date of this Agreement, the CRA
shall execute any documents and/or applications reasonably required by the Developer, which
documents must be executed by the record owner of the Property in connection with any zoning
or land use approvals or permit applications (the "Zoning Approvals") required to be obtained by
the Developer for the Project, to enable the Project to be developed in accordance with the
Proposal, provided such documents and applications do not impose any financial obligations or
liability upon the CRA. If Developer elects to terminate this Agreement during either the Title
Review Period or Inspection Period the Developer shall promptly withdraw the Property from any
applications for Zoning Approvals.
8. FINANCING. Developer shall ( ) days from the Effective Date (the
"Financing Period") to obtain either an award of 9% tax credits for the Project from the Florida
Housing Corp. in an amount of not less than and no/100 Dollars ($ ) (the
"Tax Credits") or a loan for the Project in the amount not less than $ (the
"Loan"). If Developer does not obtain the award of the Tax Credits or obtain a commitment for
the Loan by the end of the Financing Period, Developer may terminate this Agreement in which
event the Escrow Agent shall return the Deposit to the Developer in which event the parties shall
be released from all further obligations under this Agreement except for the obligations that
survive termination.
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9. PROJECT.
9.1 Description of the Project. The project (the "Project") shall consist of (i)
not less than sixty (60) residential units as described in the Proposal, and (ii) a sufficient number
of parking spaces to comply with the applicable codes plus the Additional Parking Spaces, as
hereinafter defined.
9.2 Design of the Project. The Project shall be developed substantially in
accordance with the conceptual design documents attached hereto as Exhibit "D" (the "Conceptual
Design Documents").
9.3 Schematic Documents. Within ( ) days of the Effective
Date, the Developer 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, floor plans and building elevations) illustrating the scale and relationship
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 Conceptual
Design Documents. The Developer 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 Conceptual Design Documents. The Developer 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,
Developer shall modify the Schematic Documents, as appropriate, to address the comments and
concerns of the Executive Director to cause the Schematic Documents to be consistent with the
Conceptual Design 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 the Developer shall, in good faith, attempt 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, the Developer may elect to submit such dispute regarding the
approval of the Schematic Documents to the CRA Board for resolution. The Schematic
Documents as approved or deemed approved by the Executive Director shall mean the "Approved
Schematic Documents".
9.4 Design Development Documents. Within ( ) days of
the approval or deemed approval of the Approved Schematic Documents, the Developer shall
submit to the Executive Director for its review and approval the design development documents
for the Project consisting of building massing and elevations, exterior materials and color schemes,
fenestrations and a detailed description of all building systems 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
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Documents. The Developer 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. The
Developer 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, Developer 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 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 the Developer shall in good faith, attempt
to resolve any disputes regarding the Design Development Documents. If the Executive Director
has rejected the Design Development Documents two (2) times, the Developer may elect to submit
such dispute regarding the approval of the Design Development Documents to the CRA Board for
resolution. The Design Development Documents as approved or deemed approved by the
Executive Director shall mean the "Design Documents".
9.5 Construction Documents. Developer shall use commercially reasonable
efforts to submit to the Executive Director for its review and approval Developer's plans and
specifications for the construction of the Project, which shall be of sufficient detail to allow the
Developer to apply for a building permit for the Project (the "Plans and Specifications") within
( ) days of the approval or deemed approval of the Design Documents but no
later than the time Developer 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. The Developer 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.
The Developer 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, Developer 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 the Developer 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, the Developer may elect to submit such dispute regarding the
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approval of the Plans and Specifications to the CRA Board for resolution. The Plans and
Specifications as approved or deemed approved by the Executive Director shall mean the "Plans".
9.6 Development Requirements. Developer 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.
9.7 Development Timeframe.
9.7.1 Land Use and Zoning Approvals for the Project. Developer shall
obtain all applicable land use and zoning approvals for the Project including with respect to the
Additional parking (the "Approvals") on or before the Closing Date, time being of the essence.
9.7.2 Commencement and Completion of Construction. Developer must
commence construction of the Project in accordance with the plans on the Property within twenty
(20) days of the Closing Date. The Project must be substantially completed as evidenced by one
or more temporary or permanent certificates of occupancy (or their equivalent) for all units
comprising the Project as reflected on the Plans ("Completion") within months of the
commencement of construction (the "Completion Date"). The Completion Date shall
automatically be extended one day for each day of Unavoidable Delays provided the Executive
Director concurs with the Developer that an Unavoidable Delay has occurred. The term
"Unavoidable Delay" means delays due to area wide strikes, acts of God, floods, hurricanes,
casualties, fire, acts of the public enemy and governmental moratoriums. The term Unavoidable
Delay shall not include any delays caused by any other source, including, but not limited to, any
governmental entity acting in its proprietary or regulatory capacity or delay caused by lack of
funds.
9.7.3 Failure to Complete the Project. If Developer has not achieved
Completion prior to the Completion Date, as same shall automatically be extended one day for
each day of Unavoidable Delays provided the Executive Director concurs with the Developer that
an Unavoidable Delay has occurred, the Developer shall pay to the CRA, as liquidated damages,
Two Thousand Five Hundred and No/100 Dollars ($2,500.00) per day for each day between the
Completion Date, as same may be extended by Unavoidable Delay 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 the Project. As soon as available after the Effective Date,
Developer shall submit to the Executive Director for review and approval, which approval shall
not be unreasonably withheld the following:
10.1.1 Construction Contract. The construction contract for the Project
(the "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
Executive Director will not have approval rights over the terms of the Construction Contract. The
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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 10.2.1 and 10.2.2 of this Agreement.
10.1.2 Loan Commitment. A loan commitment from a financial institution
(the "Lender") evidencing that Developer has obtained a construction loan commitment for the
development of the Project (the "Loan Commitment") 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 Loan Commitment reflects that funds will be available for construction of the Project
and the amount of funds that will be made available for construction together with the Equity (as
hereinafter defined) provides the funds required under the Budget (as hereinafter defined).
10.1.3 Project Equity. Evidence reasonably satisfactory to the Executive
Director that Developer has sufficient equity available to meet the equity requirement of the Loan
Commitment with respect to the Project (the "Equity").
10.1.4 Budget. The line item budget for the Project reflecting all hard and
soft costs anticipated to be incurred by the Developer in connection with the Project (the
`Budget"). If the Developer 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.
10.1.5 Project Schedule. The detailed project schedule for the construction
of the Project (the "Project Schedule"). The Project Schedule must reflect that the Developer will
achieve Completion prior to the Completion Date. The Executive Director will approve the Project
Schedule if same has been approved by the Lender as reflected in the Loan Commitment and/or if
the Project Schedule reflects that the Developer will achieve Completion prior to the Completion
Date.
10.2 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 Developer,
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.
11.1 Minority and Women Participation and Equal Opportunity. In connection
with the Project, the Developer agrees that it and its general contractor will:
i) Take definitive action in the recruitment, advertising and to attract
and retain minority and female contractors and subcontractors;
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ii) 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;
iii) 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;
iv) Maintain equitable principles in the recruitment, advertising, hiring,
upgrading, transfer, layoff, termination, compensation and all other
terms, conditions and privileges of employment;
v) 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;
vi) 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
10.
vii) In all solicitations and advertisements for employment placed by or
on behalf of Developer, state that all applicants will receive
consideration for employment without regard to race, creed, color
or national origin.
11.2 Participation Requirements. Developer agrees to comply with, or shall
cause its general contractor 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. The Developer shall cause 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, with it being understood that Developer shall not be required to engage any
subcontractor that fails to meet the requisite requirements for the Project established by the general
contractor which will apply to all subcontractors uniformly such as drug free work force. For
purpose of calculating the twenty percent (20%) subcontractor participation, the twenty percent
(20%) participation shall be calculated based upon the dollar value of each subcontract given to
subcontractors whose principal place of business is in Miami -Dade County, Florida and the total
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dollar value of all subcontracts entered into by the general contract for the respective Phase
("Subcontractor Participation Requirement").
11.2.2 Laborer Participation. Developer agrees to cause its general
contractor and all subcontractors to employ forty percent (40%) of the labor for the construction
of the Project ("Laborer Participation Requirement") from workers residing in either the 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 the Developer as to whether any subcontractor has its principal place of business in
Miami -Dade County, Florida or whether any laborer resides in Miami -Dade County, Florida and
whether the Developer complied with the priority requirements, the Developer and the Executive
Director shall proceed in good faith to resolve the dispute. In the event the dispute is not resolved
within ten (10) days either party may submit the dispute to the CRA Board for resolution which
shall be binding on the parties.
11.3 Report Requirements. The Developer shall be required to submit to the
Executive Director (i) on a quarterly basis commencing thirty (30) days after the end of the first
quarter after the commencement of the Project until thirty days following Completion, detailed
reports evidencing compliance with the Subcontractor Participation Requirements 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 evidencing
compliance with the Laborer Participation Requirements during the prior month ("Participation
Reports"). The Participation Reports shall contain such information as the Executive Director may
reasonably require to enable the Executive Director to determine whether the Developer is in
compliance with the Subcontractor Participation Requirements and the Laborer Participation
Requirements with respect to the Project.
11.3.1 Penalties for Non -Compliance with Subcontractor Participation
Requirements. To the extent Developer fails to comply with the Subcontractor Participation
Requirements, with respect to the Project, Developer shall pay to the CRA as a one-time penalty
for such non-compliance Two Thousand Five Hundred and No/100 Dollars ($2,500.00) for each
percentage point below the Subcontractor Participation Requirement (the "Subcontractor Non -
Compliance Funds") with respect to the Project. The Subcontractor Non -Compliance Funds shall
be calculated by the Executive Director after Completion and shall be due and payable within
thirty (30) days from the date of Developer's receipt of written statement from the Executive
Director stating the amount of Subcontractor Non -Compliance Funds due with respect to the
Project. To the extent of any dispute between the Executive Director and the Developer with
respect to the compliance with the Subcontractor Participation Requirements, such dispute shall
be submitted to the CRA Board for resolution. The decision of the CRA Board shall be binding
on the parties.
11.3.2 Penalties for Non Compliance with Laborer Participation
Requirements. To the extent Developer fails to comply with the applicable Laborer Participation
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Requirements, with respect to the Project, Developer shall pay to the CRA as a one-time penalty
for such noncompliance One Thousand and No/100 Dollars ($1,000.00) for each percentage point
below the Laborer Participation Requirements (the "Laborer Non -Compliance Fund") with respect
to the Project. The Laborer Non -Compliance Funds shall be calculated by the Executive Director
after Completion and shall be due within thirty (30) from Developer's receipt of written statement
from the Executive Director stating the amount of Laborer Non -Compliance Funds due. To the
extent of any dispute between the Executive Director and the Developer with respect to the
compliance with the Laborer Participation Requirements, such dispute shall be submitted to the
CRA Board for resolution, which action shall be binding upon the parties.
11.4 Job Fair.
11.4.1 Construction Job Opportunities. Developer shall broadly
disseminate information regarding job opportunities for local area residents and businesses 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.
11.4.2 Permanent Job Opportunities. Developer shall broadly disseminate
information regarding job opportunities for local residents and businesses post -construction, with
respect to the Project, including newly generated trade and service related jobs upon completion,
including, without limitation, hosting at least one (1) job fair within the Redevelopment Area upon
Completion.
11.4.3 Employment Advertisements & Notice. Developer shall:
11.4.3.1 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;
11.4.3.2 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
11.4.3.3 Place weekly radio commercials on WMBM and either
Hot 105 or 99JAMZ to inform residents for available job opportunities and upcoming job fairs not
less than three (3) days prior to said job fair.
12. CRA CONDITIONS PRECEDENT.
12.1 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"):
12.1.1 The Executive Director shall have approved the Plans pursuant to
Section 9.5 of this Agreement or the Plans shall have been deemed approved in accordance with
Section 9.5 of this Agreement.
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12.1.2 The Executive Director shall have approved the Construction
Contract pursuant to Section 10.1.1 of this Agreement or the Construction Contract shall have been
deemed approved pursuant to Section 10.2 of this Agreement.
12.1.3 The Executive Director shall have approved the Project Schedule
pursuant to Section 10.1.5 of this Agreement or the Project Schedule shall have been deemed
approved pursuant to Section 10.2 of this Agreement.
12.1.4 The Executive Director shall have approved the Loan Commitment
pursuant to Section 10.1.2 of this Agreement or the Loan Commitment shall have been deemed
approved pursuant to Section 10.2 of this Agreement.
12.1.5 The Executive Director shall have approved the Budget pursuant to
Section 10.1.3 of this Agreement or the Budget shall have been deemed approved pursuant to
Section 10.2 of this Agreement.
12.1.6 The Executive Director shall have confirmed that Developer has
sufficient equity to meet the requirements for the construction of the Project pursuant to Section
10.1.3 of this Agreement or that shall have been deemed approved pursuant to Section 10.2 of this
Agreement.
12.1.7 The Lender under the Loan Commitment is prepared to close the
construction loan with respect to the Project in accordance with terms of the Loan Commitment or
the Developer has sufficient equity to meet the requirements for the construction of the Project to
the reasonable satisfaction of the Executive Director.
12.1.8 Developer or its contractor shall have provided to the Executive
Director a payment and performance bond based on AIA Document 312 (2010 Edition), with
changes in form and substance mutually satisfactory to the CRA and Developer in their reasonable
discretion, 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 strength of X or higher (the " Payment and Performance Bond").
12.1.9 The Developer has obtained a building permit for the Project to
enable the Developer 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.
12.2 In the event the CRA Conditions Precedent are not satisfied or waived by
the CRA on or before , , 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.
13. CLOSING DATE.
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13.1 Closing. The closing of the transaction (the "Closing") contemplated by
this Agreement shall occur on the earlier of the following (the "Closing Date") (a) ten (10) days
after all the CRA Conditions Precedent to closing have been either satisfied or waived by the CRA
or (b) , , 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:
13.1.1 CRA Deliveries. The CRA shall deliver to Developer at Closing:
13.1.1.1 A ground lease in the form of Exhibit "E" attached
hereto and made a part hereof (the "Ground Lease"). [Alternatively based upon the Proposal the
CRA shall convey fee simple title to the Property to Developer by special warranty deed subject
to a declaration of restrictions incorporating the various provisions of this Agreement which deed
will contain a reverter provision if Developer fails to comply.]
13.1.1.2 A certified copy of the resolution authorizing the
conveyance by the CRA and the execution and delivery of the documents contemplated by this
Agreement.
13.1.1.3 A no lien and possession affidavit.
13.1.1.4 A FIRPTA affidavit.
13.1.1.5 Memorandum of the Ground Lease (the
"Memorandum").
13.1.1.6 Such other documents as the title company may
reasonably request.
13.2 Developer Deliveries. Developer shall deliver to the CRA or cause to be
delivered to the CRA at Closing:
13.2.1 The Ground Lease.
13.2.2 Evidence of authority to close the transaction and execute and
deliver the appropriate closing documents.
13.2.3 The Memorandum.
13.2.4 Payment and Performance Bond.
13.2.5 A guaranty (the "Guaranty") of the lien free completion of the
Project in the form of Exhibit "F" attached executed by Developer and
(the "Guarantor").
13.2.6 Such other documents as the title company may reasonably request.
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13.3 Recording Costs. The cost for recording the Memorandum shall be paid by
Developer. 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.
13.4 Adjustments and Prorations. Ad valorem real estate taxes and assessments
and other taxes and assessments shall be prorated as of the Closing Date.
13.5 Parties in Possession. On the Closing Date the CRA shall provide the
Property to the Developer free and clear of all parties in possession.
13.6 Deposit. The Deposit shall be delivered by Escrow Agent to the Developer
simultaneously with the consummation of the Closing.
14. PARKING.
14.1 Parking for Overtown Shopping Center. Developer acknowledges the
parking needs for Overtown Shopping Center. Developer shall provide to the CRA for use in
connection with the Overtown Shopping Center the number of space lost to the Overtown Shipping
Center in connection with the Project as provided in the Ground Lease (the "Additional Parking
Spaces"). [The Additional Parking will be reserved in the deed if the Property is conveyed by the
CRA.]
15. REPRESENTATIONS OF CRA.
15.1 The CRA makes the following representations:
15.1.1 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.
15.1.2 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.
15.1.3 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.
15.1.4 The CRA is not a party to any outstanding contracts or options to
purchase the Property or any portion thereof in favor of any third party. Other than alleged claims
that may be asserted by persons intended to be indemnified against by the Indemnification
Agreement (as defined in the Settlement Agreement) and by the Longshoremen's Union and Black
Archives with respect to parking on the Property, no person, corporation or other entity has or on
the Closing Date shall have any right or option to purchase the Property or any portion of the
Property.
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15.1.5 The CRA will not take any action to affect title to the Property prior
to the conveyance of the Property to the Developer contemplated herein, including, without
limitation, executing any leases or agreement which are not terminable upon thirty (30) days
written notice with no penalty.
15.2 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 and shall be true as of the Closing Date. All of the
representations, warranties and agreements of the CRA set forth in this Agreement shall not
survive the Closing.
16. DEVELOPER'S REPRESENTATIONS.
16.1 Developer makes the following representations to the CRA as follows:
16.1.1 Developer is a duly organized and validly
existing under the laws of the State of , 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.
16.1.2 Copies of the articles of organization and the operating agreement
for Developer are attached hereto as Exhibit "G" (the "Organizational Documents"). The
organizational chart of Developer and a list of members of Developer is attached hereto as Exhibit
"H" and made a part hereof (the "Organizational Chart").
16.1.3 Developer'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.
16.1.4 This Agreement constitutes the valid and binding obligation of
Developer, enforceable against Developer 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.
16.2 Survival of Representations. All of the representations of the Developer 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 and shall be true as of the Closing Date. All of the
representations, warranties and agreements of the Developer set forth in this Agreement shall
survive the Closing for a period of two (2) years..
17. DEFAULT.
17.1 Developer Failure to Perform.
17.1.1 If the CRA Conditions Precedent have not been satisfied, deemed
satisfied or waived on or before , , Developer shall be in default under this
Agreement and the CRA may terminate this Agreement in which event the Escrow Agent shall
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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.
17.1.2 In the event the CRA becomes aware of any material
misrepresentations by the Developer set forth in Section 16 of this Agreement prior to Closing,
and the Developer fails to cure such breach within ten (10) days of its receipt of written notice
from the CRA delivered pursuant to Section 20 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.
17.1.3 In the event the Developer breaches any other terms and provisions
of this Agreement not addressed in Sections 17.1.1 or 19.1.2, which is not cured within thirty (30)
days of written notice of default from the CRA delivered pursuant to Section 20 below, the CRA
may pursue all remedies available at law or in equity, including specific performance, as a result
of such breach.
17.2 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 Developer,
without any default on the part of Developer, Developer, as its sole and exclusive remedy, shall be
entitled to (i) terminate this Agreement in which event the Escrow Agent shall promptly return the
Deposit to Developer, whereupon the 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. Developer 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,
in which event the Developer 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.
18. 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 Closing.
19. ASSIGNABILITY. Prior to Completion, this Agreement may not be assigned
without the approval of the CRA, which approval may be granted or withheld by the CRA, in its
sole discretion. After Completion, the Developer may assign this Agreement without the consent
of the CRA. Notwithstanding the foregoing, Developer may collaterally assign its interest in this
Agreement to a lender in connection with financing for the Project.
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20. 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 or mailed by
certified or registered mail, return receipt requested, in a postage prepaid envelope, and addressed
as follows:
If to Developer:
With a copy to:
If to CRA:
SOUTHEAST OVERTOWN / PARK WEST
COMMUNITY REDEVELOPMENT AGENCY
Attention: Clarence E. Woods, III., Executive Director
819 NW 2nd Avenue
3rd Floor
Miami, FL 33136
Fax: 305-679-6836
With a copy to:
William R. Bloom, Esq.
Holland & Knight, LLP
Suite 3300
701 Brickell Avenue
Miami, FL 33131
Fax: 305-789-7799
And with a copy to:
Staff Counsel
Southeast Overtown/Park West
Community Redevelopment Agency
1490 NW Third Avenue
Suite 105
Miami, FL 33136
Fax: 305-679-6836
20
Notices hand delivered shall be deemed given on the date of delivery or the date delivery is refused
and notices mailed in accordance with the foregoing, shall be deemed delivered upon the date the
return receipt is executed or the date delivery is refused.
21. CHALLENGES. Developer acknowledges and agrees that the CRA shall have no
liability whatsoever to Developer in connection with any challenge by a third party to the CRA's
right to enter into this Agreement and the transaction contemplated by this Agreement and
Developer hereby forever waives and releases the CRA from any liability whatsoever, now or
hereafter arising, in connection with any such challenge by a third party and covenants and agrees
not to initiate any legal proceedings against the CRA in connection with any such challenges to
this Agreement by any third parties; provided, however, that nothing contained in this Agreement,
is, nor shall it be deemed, a limitation or waiver of Developer's rights (a) as to any fraud,
misrepresentation, other illegal, or tortious acts committed by the CRA, (b) to comply with
applicable law, or (c) to enforce any rights or remedies pursuant to this Agreement.
22. REAL ESTATE TAXES. It is the intention of the CRA and the Developer that
upon conveyance of the Property to the Developer that the Project shall be fully taxable for the
purposes of ad valorem real estate taxes to the extent payable by the land owners within the City
of Miami and that the Developer and its successors or assigns not take advantage of any tax
exemptions which may allow the Developer or its successors or assigns not to be required to pay
ad valorem real estate taxes with respect to the Project. In the event for any reason the Project or
any portion thereof is not subject to ad valorem real estate taxes that would otherwise be payable
by a land owner in the City of Miami as a result of an exemption, then the Developer shall pay to
the CRA a payment in lieu of such taxes (a "PILOT") on or before December 31 of each year in
the amount of ad valorem real estate taxes that would have been due with respect to the Project or
any portion thereof if the Project had not been exempt in whole or in part from the payment of ad
valorem real estate taxes.
22.1 The obligation of the Developer to make the PILOT shall constitute a
covenant running with the Property and shall constitute a first lien on the Property senior to all
other liens and encumbrances and shall be binding upon the Developer and its successors and
assigns through end of the existence of the CRA.
23. MISCELLANEOUS.
23.1 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.
23.2 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.
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23.3 In the event of any litigation between the parties under this Agreement, the
prevailing party shall be entitled to reasonable attomey's fees and court costs at all trial and
appellate levels.
23.4 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.
23.5 All of the exhibits attached to this Agreement are incorporated in, and made
a part of, this Agreement.
23.6 Time shall be of the essence for each and every provision of this Agreement.
23.7 This Agreement may not be recorded in the Public Records of Miami -Dade
County.
23.8 The "Effective Date" shall mean the date this Agreement is last executed by
Developer and the CRA.
23.9 Developer acknowledges and agrees that the Developer shall not be entitled
to any tax increment funds generated by the Project. Developer waives any claims regarding the
tax increment funds generated by the Project.
23.10 The term "day" shall be understood to refer to a calendar day, unless
expressly provided otherwise to refer to a "business" day, which, when used, refers to a day other
than a Saturday or Sunday upon which national banks are open for business in Miami -Dade
County, Florida.
24. 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.
25. ESCROW AGENT. The Deposit shall be held by Escrow Agent in trust, on the
terms hereinafter set forth:
25.1 The Escrow Agent shall deliver the Deposit in accordance with the terms of
this Agreement.
25.2 It is agreed that the duties of the Escrow Agent are only as herein
specifically provided and purely ministerial in nature, and the Escrow Agent shall incur no liability
whatsoever except for willful misconduct or gross negligence, as long as the Escrow Agent has
acted in good faith. The CRA and the Developer each release the Escrow Agent from any act done
or omitted to be done by the Escrow Agent in good faith in the performance of its duties hereunder.
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25.3 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. The Developer 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 Developer waives any right to object to same.
Agreement.
25.4 The provisions of this Section 25 shall survive the termination of this
[SIGNATURE PAGES TO FOLLOW]
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IN WITNESS hereof the parties have executed this Agreement as of the date first above
written.
DEVELOPER:
By:
Name:
Title:
CRA:
SOUTHEAST OVERTOWN / PARK WEST
COMMUNITY REDEVELOPMENT AGENCY
By:
Clarence E. Woods, III., Executive Director
ATTEST:
Clerk of the Board
Approved for legal sufficiency
By:
William R. Bloom, Esq.
Holland & Knight LLP,
Special Counsel to CRA
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Schedule of Exhibits
A. Legal Description
B. Insurance Requirements
C. Permitted Exceptions
D. Conceptual Documents
E. Ground Lease
F. Guaranty of Completion
G. Organizational Documents of Developer
H. Organizational Chart of Developer
25
EXHIBIT A
Legal Description
EXHIBIT B
INSURANCE REQUIREMENTS
I. 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 Aggregate $ 2,000,000
Personal and Advertising Injury $1,000,000
B. Coverage/Endorsements Required
City of Miami and Southeast Overtown/Park West Community Redevelopment
Agency as an Additional Insured (CG 2010 11/85 or its equivalent)
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
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$1,000,000 for bodily injury caused by disease, policy limit
IV. Umbrella Policy/Excess Liability (Excess Follow Form)
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 Liability
Required only in the event that the CGL policy is not provided on a "per project" basis.
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: Completed Value Builders Risk Form
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:
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The company must be rated no less than "A-" as to management, and no less than "Class
V" as to Financial Strength, by the latest edition of Best's Insurance Guide, published by
A.M. Best Company, Oldwick, New Jersey, or its equivalent. All policies and /or
certificates of insurance are subject to review and verification by Risk Management prior
to insurance approval.
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EXHIBIT C
Additional Permitted Exceptions
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EXHIBIT D
Conceptual Design Documents
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EXHIBIT E
GROUND LEASE
Developer and the Executive Director shall finalize the terms of the Ground Lease incorporating
the terms of this Agreement and the Proposal prior to the end of the Approval Period. If Developer
and the Executive Director cannot agree on the terms of the Ground Lease prior to the end of the
Approval Period, this Agreement will automatically terminate and the Deposit shall be returned to
the Developer and the parties released from all obligations under the Agreement except for the
obligations that expressly survive termination.
If the Developer includes in the Proposal that Developer is acquiring fee simple title to the Property
the Developer and the Executive Director shall finalize the form of deed an the applicable
restrictions and reverter provision which shall apply prior to the end of the Approval Period. If
Developer and the Executive Director cannot agree on the terms of the Ground Lease prior to the
end of the Approval Period, this Agreement will automatically terminate and the Deposit shall be
returned to the Developer and the parties released from all obligations under the Agreement except
for the obligations that expressly survive termination.
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EXHIBIT F
GUARANTY OF COMPLETION
THIS GUARANTY OF COMPLETION (the "Guaranty") is executed and delivered,
jointly and severally, as of the day of , 20 by
(the "Guarantor") 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").
WITNESSETH:
A. On or about the date hereof, the CRA conveyed to
(the "Developer"), 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 has been and/or 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. Guarantor will benefit from the transaction contemplated by the Development
Agreement (the "Transaction").
C. The CRA would not close on the Transaction pursuant to the Development
Agreement unless Guarantor agreed to unconditionally guaranty completion of the 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 are hereby acknowledged,
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, Guarantor hereby unconditionally and
irrevocably guarantees to CRA the following (collectively, the "Guaranties Obligations"):
a. One hundred percent (100%) lien free completion of the Project 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 (or the equivalent) by the proper
governmental authority as to the Project to be constructed on the Property; and (ii) the delivery by
the design/supervising architect of a certificate of completion of the Project substantially in
accordance with the Plans approved by CRA. Completion of the 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, all 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 the Project as the same become due and
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payable, and payment and discharge of all claims and demands for labor and/or materials used in
the construction and the completion of the Project substantially in accordance with the Plans which
are or, if unpaid, may become liens, claims or encumbrances on the Property.
c. To perform, complete and pay for the construction of the Project within the
time period allotted therefor in the Project Schedule (as same may be amended, modified and/or
extended in accordance with the terms of the Development Agreement or pursuant to a written
agreement by the CRA and the Developer) and to pay all costs and expenses of said construction
and completion of the Project in accordance with the Plans and all costs associated therewith.
d. 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 Guarantor having
actual knowledge of the filing of such liens;
e. To pay the costs and fees of all architects and engineers employed by
Developer in connection with the Project; and
f. 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, subject to the terms of Section 13 below.
2. Guarantor hereby acknowledges and consents to the Plans, the disbursement
schedule of the Lender, if any, and the other terms and conditions of the Development Agreement
and related documents governing the construction of the Project.
3. 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 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.
4. Guarantor further agrees that Guarantor 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 Guarantor's 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 Guarantor shall remain fully liable hereunder,
notwithstanding any such event.
5. 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 Guarantor, and
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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.
6. That until the 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,
Guarantor 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 Guarantor, or by reason of any waiver,
extension, modification, forbearance or delay by CRA, and Guarantor hereby expressly waives
and surrenders any defense to Guarantor's liability hereunder based upon any of the foregoing acts,
things, agreements or waivers. Guarantor shall be automatically released from this Guaranty upon
the satisfaction of the Guarantied Obligations, without any further need for CRA to execute a
release instrument (though, CRA shall promptly deliver the original of this Guaranty to Guarantor).
7. Except as otherwise set forth herein, CRA shall not be required to give any notice
to 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 Guarantor.
8. This Guaranty is assignable by CRA, but only upon and to the assignee of the
CRA's rights under the Development Agreement. This Guaranty shall bind the heirs, devisees,
personal representatives, successors and assigns of the parties hereto and shall inure to the benefit
of any permitted successor or assign of CRA.
9. 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.
10. 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.
11. In the event of any litigation between the parties under this Guaranty, the prevailing
party shall be entitled to reasonable attorney's fees and court costs at all trial and appellate levels
and in any bankruptcy proceedings.
12. Except as otherwise set forth herein, 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.
13. Any notice, demand or request by CRA to Guarantor or from 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:
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SOUTHEAST OVERTOWN / PARK WEST
COMMUNITY REDEVELOPMENT AGENCY
Attention: Clarence E. Woods, III, Executive Director
1490 NW Third Avenue
Suite 105
Miami, FL 33136
Fax: 305-679-6836
b. If to Guarantor:
and
EACH OF CRA (BY REASON OF ITS ACCEPTANCE OF THIS GUARANTY) AND
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 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
GUARANTOR, DEVELOPER OR CRA.
IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the day and year
first above written.
WITNESSES:
Print Name: By:
Name:
Title:
Print Name:
STATE OF FLORIDA )
): ss.
COUNTY OF MIAMI-DADE )
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The foregoing instnunent 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:
37
Notary Public
Name of Notary Printed:
(NOTARY SEAL)
#49970406_v5
EXHIBIT G
Organization Documents of Developer
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EXHIBIT H
Organizational Chart of Developer
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