HomeMy WebLinkAboutCRA-R-18-0031 Exhibit APrepared by:
William R. Bloom, Esq.
Holland & Knight LLP
701 Brickell Avenue, Suite 3300
Miami, FL 33131
AMENDED AND RESTATED COVENANT
THIS AMENDED AND RESTATED COVENANT (this "Covenant") is made as of the
1st day of July, 2018 (the "Effective Date") by and among SAWYER'S WALK, LTD., a Florida
limited partnership ("Sawyer's Walk"); POINCIANA VILLAGE OF MIAMI, LTD., a Florida
limited partnership ("Poinciana"; together with Sawyer's Walk, collectively, 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", together with the Developer, each a "Party" and collectively, the "Parties").
RECITALS
A. The CRA and Developer entered into that Covenant dated as of April 8, 2014 and
recorded April 9, 2014 in Official Records Book 29102, at Page 4177 of the Public Records of
Miami -Dade County, Florida as amended by the First Amendment to Covenant, by and between
the CRA and the Developer dated April 1, 2017 and recorded June 30, 2017 in Official Records
Book 30596 at Page 37 of the Public Records of Miami -Dade County, Florida (collectively, the
"Original Covenant").
B. Developer and the CRA desire to amend and restate the Original Covenant in its
entirety as hereinafter set forth.
NOW, THEREFORE, for and in consideration of $10.00 and other good and valuable
consideration, the sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Recitals. The Recitals to this Covenant are true and correct and hereby incorporated
by reference and made a part hereof.
2. Project.
2.1 Description of the Project. The project (the "Project") to be developed by
Developer on the property described on Exhibit "A" attached hereto (the "Property") shall
consist of no more than three hundred seventy (370) residential units of which forty (40) shall be
Affordable Rental Units, as hereinafter defined, in a building not to exceed eighteen stories in
height (plus a basement and mezzanine level) with not less than 10,000 square feet of ground floor
commercial space, recreational facilities and amenities which will service the residential units,
together with sufficient parking to comply with the applicable zoning code as of the date of
submission of the application for a building permit for the Project. For the avoidance of any doubt,
the Project shall not exceed eighteen (18) stories in height calculated in accordance with the Miami
21 Zoning Code, in effect as of the date of submission of the application for a building permit for
the Project.
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2.2 Design of the Project. The Project shall be developed substantially in
accordance with the conceptual design documents for Soleste Grand Central Planning and Zoning
Submittal dated June 1, 2018 prepared by Carmen. T. Diaz of Caymant Design, Inc. described on
Exhibit "B" attached hereto (the "Conceptual Design Documents").
2.3 Urban Development Review Board. Developer utilizing commercially
reasonable efforts, shall diligently pursue obtaining approval ("UDRB Approval") from the City
of Miami Urban Development Review Board ("UDRB") for the Project.
2.4 Building Permit. Upon obtaining UDRB Approval, Developer utilizing
commercially reasonable efforts, shall diligently pursue obtaining a building permit for the Project.
2.5 Development. Developer covenants and agrees to develop the Project
substantially in accordance with the Conceptual Design Documents, subject to any modifications
required by the City of Miami in connection with the issuance of the building permit for the Project.
Developer shall submit any material variation to the Conceptual Design Documents to the
Executive Director of the CRA (the "Executive Director") for approval, which approval shall not
be unreasonably withheld or delayed and which approval shall be given if the variations to the
Conceptual Design Documents are in accordance with the spirit and intent of the Conceptual
Design Documents. The Executive Director may only disapprove any proposed material variations
to the Conceptual Design Documents if such proposed variations are not in accordance with the
spirit and intent of the Conceptual Design Documents. The Executive Director shall have ten (10)
days from the receipt of the request for approval for any material variation to the Conceptual
Design Documents to approve or disapprove the same. If the Executive Director fails to provide
a written response within such ten (10) day period, the material variations to the Conceptual Design
Documents shall be deemed approved. In the event of disapproval, the Executive Director shall
specify the reason for disapproval in writing and in reasonable detail. In the event of any such
disapproval, the Executive Director and Developer shall in good faith, attempt to resolve any
disputes regarding the proposed variations. If the Developer and the Executive Director do not
resolve their disagreement over the nature of the proposed variations to the Conceptual Design
Documents, either the Developer or the CRA may submit the dispute to Arbitration, as hereinafter
defined for resolution, which Arbitration shall be binding on the Parties.
2.6 Certificate Evidencing Compliance. Upon Developer obtaining a building
permit for the Project based upon plans and specifications substantially in accordance with the
Conceptual Design Documents, as same may be modified as permitted pursuant to Section 2.5, at
the request of the Developer, the Executive Director shall execute a certificate in recordable form
confirming that the plans and specifications comply with the requirements of this Covenant.
3. DEVELOPMENT TIMEFRAME.
3.1 Commencement of Construction. Subject to extension for Unavoidable
Delay and/or extension pursuant to Section 3.2, Developer must commence Vertical Construction
of the Project on or before two (2) years from the Effective Date, time being of the essence (the
"Commencement of Construction Deadline"). The term "Vertical Construction" shall mean
that Developer has (i) obtained either a foundation permit or a building permit for the construction
of the Project in accordance with the plans and specifications complying with the requirements of
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Section 2.5 to enable Developer to commence construction of the Project; (ii) obtained or caused
its general contractor to obtain payment and performance bonds in the form of AIA Document 312
(2010 Edition), in an amount equal to one hundred percent (100%) of the amount of the general
contract for construction of the entire Project, 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"); or Robert Suris and The Estates Companies, a Florida corporation or
one of its affiliates or related companies, such as Estate Investments Group, LLC, a Florida limited
liability company, provided such entity has a liquid net worth of not less than $2,000,000.00, have
executed and delivered to the Executive Director a guaranty completion of the Project substantially
in accordance with the plans and specifications in favor of the CRA substantially in the form of
Exhibit "C" attached thereto (the "Guaranty"); and (iii) commenced Vertical Construction. The
Project must be substantially completed within thirty-six (36) months after commencement of
Vertical Construction of the Project (the "Completion Date"), as evidenced by one or more
temporary or permanent certificates of occupancy (or their equivalent) for all of the residential
units comprising the Project and a certificate of completion (or its equivalent) for all of the
commercial space (collectively, "Completion"). For the avoidance of any doubt, the shell of the
commercial space must be completed, however it is not required that the commercial space be built
out so that it be ready to be occupied by a commercial tenant. The Commencement of Construction
Deadline and the Completion Date shall automatically be extended one day for each day of
Unavoidable Delay. The term "Unavoidable Delay" means delays due to area wide strikes, area
wide unavailability of materials, acts of God, floods, hurricanes, casualties, fire, acts of the public
enemy and governmental imposed moratorium. The term Unavoidable Delay shall not include
any delays caused by any other source, including, but not limited to, delay caused by lack of funds
or any governmental entity acting in its proprietary or regulatory capacity (other than governmental
delays in such capacity caused by Acts of God, floods, hurricanes, fire, acts of the public enemy,
governmental moratoriums or other casualties). To the extent that the Developer believes an
Unavoidable Delay has occurred, the Developer shall provide written notice to the Executive
Director within ten (10) days after the date the Developer first becomes aware of such claimed
Unavoidable Delay and the anticipated duration Developer shall also advise Executive Director,
in writing, when Developer claims the claimed Unavoidable Delay has ended. If Developer and
the Executive Director disagree as to whether an Unavoidable Delay has occurred or the length of
any Unavoidable Delay and the Parties are not able to agree with thirty (30) days of the first
occurrence of such dispute either party may submit the dispute to Arbitration, as hereinafter
defined, for resolution, which Arbitration shall be binding on the Parties.
3.2 Extension of Vertical Construction Deadline. Developer shall have the
right to extend the Commencement of Construction Deadline, as extended for Unavoidable Delay,
for up to thirty-six (36) months by paying to the CRA Ten Thousand and No/100 Dollars
($10,000.00) per month for each monthly extension on or before the than Commencement of
Construction Deadline, as same may be extended as a result of Unavoidable Delay, for the first
twelve (12) monthly extensions of the Commencement of Construction Deadline, Twenty
Thousand and No/100 Dollars ($20,000.00) for each monthly extension thereafter before the then
Commencement of Construction Deadline for the next twelve (12) monthly extensions and Thirty
Thousand and No/100 Dollars ($30,000.00) for each monthly extension thereafter before the then
Construction Completion Date, for a total of thirty-six (36) monthly extensions. For the avoidance
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of doubt, the Developer shall not have any obligation to pay the CRA for any extension of the
Commencement of Construction Deadline caused by Unavoidable Delay.
3.3 Extension of Completion Date. Developer shall have the right to extend the
Completion Date, as same may be extended as a result of Unavoidable Delay, for six (6) periods
of thirty (30) days each by paying to the CRA Ten Thousand and No/100 Dollars ($10,000.00) for
each such thirty (30) day extension on or before the then Completion Date as same may have been
extended as a result of Unavoidable Delay. For the avoidance of doubt, the Developer shall have
no obligation to pay the CRA for any extension of the Completion Date caused by Unavoidable
Delay.
3.4 Failure to Comply with Commencement of Construction Deadline. If
Developer fails to commence Vertical Construction on or before the Commencement of
Construction Deadline as same may be extended for Unavoidable Delay and/or as same may be
extended pursuant to Section 3.2, for any reason or no reason, title to the Property shall
automatically revert to the CRA, free and clear of any and all claims by the Developer and parties
claiming by, through and under the Developer. In such event, at the request of the Executive
Director, the Developer shall deliver a quit claim deed conveying the Property to the CRA. If
Developer commences Vertical Construction on or before the Commencement of Construction
Deadline as same may be extended for Unavoidable Delay and/or as same may be extended
pursuant to Section 3.2, and Developer has delivered to the Executive Director the Guaranty
complying with the requirements of Section 3.1, the CRA shall promptly execute and deliver to
the Developer a recordable document releasing the reverter provisions of this Section 3.4 in form
and substance reasonably acceptable to the Developer.
3.5 Failure to Complete the Project. If Developer fails to achieve Completion
prior to the Completion Date, as same may be extended as a result of Unavoidable Delay and as
same may be extended pursuant to the terms of Section 3.3, Developer shall pay to the CRA One
Thousand and No/100 Dollars ($1,000.00) per day for each day between the Completion Date, as
same may be extended as a result of Unavoidable Delay and as same may be extended pursuant to
the terms of Section 3.3, until Completion. Said amount shall be due and payable within thirty
(30) days after the Completion. Upon payment of any amount due pursuant to this Section 3.5, at
the request of the Developer, the CRA shall promptly execute and deliver to the Developer a
recordable instrument reflecting the Developer is released from its obligations under this Section
3.5 in form and substance reasonably acceptable to the Developer.
3.6 Certificate Evidencing Completion. Upon Developer achieving Completion
and complying with all the requirements of this Section 3, the Executive Director shall execute
and deliver to the Developer a certificate in recordable form confirming that Developer has
complied with the Commencement of Construction Deadline and completed the Project in
accordance with the requirements of Section 2.5 on or before the Completion Date, as same may
be extended as a result of Unavoidable Delay and as same may be extended pursuant to the terms
of Section 3.3.
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4. MINORITY AND WOMEN'S PARTICIPATION AND EQUAL
EMPLOYMENT OPPORTUNITY.
4.1 Minority and Women Participation and Equal Opportunity. In connection
with the Project, the Developer agrees that it will:
1. Take definitive action in the recruitment, advertising and to attract
and retain minority and female contractors and subcontractors;
2. Provide a reasonable opportunity in the recruitment, advertising and
hiring of professionals, contractors and subcontractors residing
within the Redevelopment Area, as hereinafter defined, and within
the City of Miami;
3. 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;
4. Maintain equitable principles in the recruitment, advertising, hiring,
upgrading, transfer, layoff, termination, compensation and all other
terms, conditions and privileges of employment;
5. Monitor and review all personnel practices to utilize commercially
reasonable efforts 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;
6. Post in conspicuous places, accessible 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
4; and
7 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.
4.2 Participation Requirements. Developer agrees to comply with the following
subcontractor participation requirements and laborer participation requirements (the
"Participation Requirements") with respect to the Project:
4.2.1 Subcontractor Participation. The Developer shall require its general
contractor to hire not less than twenty percent (20%) of the subcontractors for the construction of
the Project ("Subcontractor Participation Requirement") utilizing companies that have their
principal place of business within Miami -Dade County, Florida, giving first priority to
subcontractors whose principal place of business is in the Southeast Overtown/Park West
Community Redevelopment Area (the "Redevelopment Area"), second priority to subcontractors
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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. The percentage of subcontractor
participation for purposes of evaluating the Developer's compliance with the Subcontractor
Participation Requirement shall be calculated by dividing: (i) the total dollar value of each
subcontract entered into by the general contractor for the Project given to subcontractors whose
principal place of business is in Miami -Dade County, Florida by (ii) the total dollar value of all
subcontracts entered into by the general contractor for the Project.
4.2.2 Laborer Participation. The Developer 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 and last priority to
workers residing in Miami -Dade County, Florida. The percentage of laborer participation for
purposes of evaluating the Developer's compliance with the Laborer Participation Requirement
shall be calculated by dividing: (i) the total number of unskilled laborers hired by the general
contractor and all subcontractors for the Project who reside in Miami -Dade County, Florida by (ii)
the total number of unskilled laborers hired by the general contractor and all subcontractors for the
Project.
4.2.3 Disputes. In the event of any disputes between the Executive
Director and the Developer as to where any subcontractor has its principal place of business or
where any laborer resides 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 thirty (30) days either party may submit the dispute to
Arbitration for resolution, which Arbitration shall be binding on the Parties.
4.3 Report Requirements. The Developer shall be required to submit to the
Executive Director on a quarterly basis commencing ninety (90) days after commencement of
Vertical Construction of the Project, detailed reports evidencing compliance with the
Subcontractor Participation Requirement and the Laborer Participation Requirement during the
prior ninety (90) day period ("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
Requirement and the Laborer Participation Requirement with respect to the Project.
4.3.1 Penalties for Non -Compliance with Subcontractor Participation
Requirement. To the extent Developer fails to comply with the Subcontractor Participation
Requirement, with respect to the Project, Developer shall pay to the CRA, as a 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 of the Project and shall be due and
payable within thirty (30) days after the date of Developer's receipt of written statement from the
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Executive Director stating the amount of Subcontractor Non -Compliance Funds due with respect
to the Project. By way of example, upon completion of the Project, if the total dollar value of all
subcontracts entered into by the general contractor with subcontractors whose principal place of
business is in Miami -Dade County, Florida is $15,000 and the total dollar value of all subcontracts
entered into by the general contractor with subcontractors for the Project is $100,000, then the
Subcontractor Non -Compliance Funds due to the CRA shall be $12,500 (i.e. 20% -
($15,000/$100,000) = 5% x 100 = 5 x $2,500 = $12,500). To the extent of any dispute between
the Executive Director and the Developer with respect to the compliance with the Subcontractor
Participation Requirement, such dispute may be submitted to by either Party to Arbitration for
resolution, which Arbitration shall be binding on the Parties.
4.3.2 Penalties for Non Compliance with Laborer Participation
Requirement. To the extent Developer fails to comply with the applicable Laborer Participation
Requirement, with respect to the Project, Developer shall pay to the CRA as a penalty for such
non-compliance, One Thousand and No/100 Dollars ($1,000.00) for each percentage point below
the Laborer Participation Requirement (the "Laborer Non -Compliance Fund") with respect to
the Project. The Laborer Non -Compliance Funds shall be calculated by the Executive Director
after completion of the Project 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. By way of example, upon completion of the Project, if the total number of unskilled
laborers hired by the general contractor and all subcontractors for the Project who reside in Miami -
Dade County, Florida is 30 and the total number of all unskilled laborers hired by the general
contractor and all subcontractors for the Project is 100 then the Laborer Non -Compliance Funds
due to the CRA shall be $10,000 (i.e., 40% - (30/100) = 10% x 100 = 10 x $1,000 = $10,000). To
the extent of any dispute between the Executive Director and the Developer with respect to
compliance with the Laborer Participation Requirements, such dispute may be submitted by either
Party to Arbitration for resolution, which Arbitration shall be binding upon the Parties.
4.4 Job Fair.
4.4.1 Construction Job Opportunities. Developer shall 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.
4.4.2 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
of the Project, including, without limitation, hosting at least one (1) job fair within the
Redevelopment Area within a reasonable period of time after Completion of the Project.
4.5 Release of Obligations under Section 4. Upon Completion of the Project
and payment to the CRA of any amounts due pursuant to Sections 4.3.1 and 4.3.2, Developer shall
have no further obligations to comply with, and shall be automatically released from, the
provisions of this Section 4 and at the request of the Developer the CRA shall execute and deliver
to the Developer a recordable instrument reflecting that Developer is released from its obligations
under this Section 4 in form and substance reasonably acceptable to the Developer.
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4.6 Compliance Monitoring Contract. Executive Director shall select and
retain, prior to the issuance of any construction permits for the Project, a firm to review the
Participation Reports submitted by the Developer and audit the same, as well as audit Developer's
compliance with this Agreement (the "Compliance Monitoring Contract"). The Developer shall
reimburse the CRA on a quarterly basis for the actual, out-of-pocket third party costs incurred by
the CRA under the Compliance Monitoring Contract, which shall not exceed Fifteen Thousand
and No/100 Dollars ($15,000.00) quarterly. The Compliance Monitoring Contract shall
commence within ten (10) days after the commencement of Vertical Construction of the Project.
5. RENTAL HOUSING REQUIREMENTS.
5.1 Housing Restrictions.
(a) The CRA and the Developer agree that with respect to forty (40)
residential units (the "Affordable Rental Units"): (i) ten (10) of the Affordable Rental Units shall
be made available for individuals and/or families earning up to eighty percent (80%) of AMI; (ii)
fifteen (15) of the Affordable Rental Units shall be made available for individuals and/or families
earning more than eighty percent (80%) of AMI up to one hundred percent (100%) of AMI; and
(iii) fifteen (15) of the Affordable Rental Units shall be made available for individuals and/or
families earning more than one hundred percent (100%) of AMI and up to one hundred twenty
percent (120%) of AMI.
(b) "AMI" shall mean the then applicable median family income for
Miami -Dade County as published annually by the U.S. Depailiiient of Housing and Urban
Development.
(c) In the event that Developer exceeds the requirements in Section
5.1(a)(i), same will reduce the requirement with respect to Section 5.1(a)(ii).
(d) In the event Developer exceeds the requirements in Section 5.1(a)(i)
and 5.1(a)(ii), in the aggregate, same will reduce the requirements in Section 5.1(a)(iii).
(e) The forty (40) Affordable Rental Units shall consist of up to fifteen
(15) studio units with a minimum size of 375 square feet, up to fourteen (14) one bedroom one
bath units with a minimum size of five hundred (500) square feet and a minimum of eleven (11)
two bedroom two bath units with a minimum size of seven hundred and fifty (750) square feet.
Not all units in the Project will have balconies, provided that the number of units of the Project
that have balconies will be distributed throughout the Project so that the Affordable Rental Units
with balconies will be proportionate to the total number of units in the Project that have balconies.
(f) The Affordable Rental Units shall be equitable distributed
throughout the Project below the eleventh (11th) floor of the Project.
(g) The unit mix established by the Developer pursuant to Section 5.1(e)
of studio, one bedroom and two bedroom units shall be proportionately leased to Lower -Income
Tenants, Modest -Income Tenants and Moderate -Income Tenants, as those terms are hereinafter
defined. For example if there are fourteen (14) studio units, fourteen (14) one bedroom units and
twelve (12) two bedrooms two bath units, then four (4) studio units would be leased to Lower-
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Income Tenants, three (3) one bedroom units would be leased to Lower -Income Tenants and three
(3) two bedroom two bath units would be leased to Lower -Income Tenants.
(h) For the purpose of this Section 5.1, a unit occupied by an individual
or family who at the commencement of the occupancy of such unit is a Lower -Income Tenant, a
Moderate -Income Tenant or a Modest -Income Tenant such unit shall be counted as occupied by a
Lower -Income Tenant, a Moderate -Income Tenant or a Modest -Income Tenant, as the case may
be, during such individual's or family's tenancy in such unit, even though such individual or family
ceases to be a Lower -Income Tenant, a Moderate -Income Tenant or a Modest -Income Tenant, as
the case may be. In addition, a vacant unit that was occupied by a Lower -Income Tenant, a
Moderate -Income Tenant or a Modest -Income Tenant shall be counted as occupied by a Lower -
Income Tenant, a Moderate -Income Tenant or a Modest -Income Tenant, as the case may be, for a
temporary period of not more than thirty-one (31) days after they vacate such unit, at which time
the unit shall be considered to be occupied by a Lower -Income Tenant, a Moderate -Income Tenant
or a Modest -Income Tenant only if the individual or family then occupying the unit satisfies the
definition of a Lower -Income Tenant, a Moderate -Income Tenant or a Modest -Income Tenant, as
the case may be. Notwithstanding anything contained in this Covenant to the contrary, the
Developer shall have the right (at its sole and absolute discretion) from time -to -time, but not
obligation, to perform renovations and maintenance to and in any residential unit in the Project,
including, without limitation any Affordable Rental Units ("Optional Unit Renovations"), and to
the extent any Optional Unit Renovations are being performed on any Affordable Rental Unit that
was occupied by a Lower -Income Tenant, a Moderate -Income Tenant or a Modest -Income Tenant,
as the case may be, at least six (6) months prior to commencement of such Optional Unit
Renovations, then such Affordable Rental Unit shall be counted as occupied by a Lower -Income
Tenant, a Moderate -Income Tenant or a Modest -Income Tenant, as the case may be, until the
earlier of (i) the completion of such Optional Unit Renovations and (ii) the date that is six (6)
months after commencement of such Optional Unit Renovations.
5.2 Definitions and Interpretation Applicable to Affordable Rental Units.
(a) The following terms shall have the respective meanings set forth
below:
"Applicable Income Limit" means, with respect to Lower -Income Tenants, the applicable
income limit set forth in the definition of "Lower -Income Tenants" herein, with respect to
"Modest -Income Tenants" the applicable income limit set forth in the definition section of
"Modest -Income Tenant" herein, and with respect to Moderate -Income Tenants, the applicable
income limit set forth in the definition of "Moderate -Income Tenants" herein.
"Available Units" means Affordable Rental Units in the Project that are actually occupied
and Affordable Rental Units in the Project that are unoccupied and have been leased at least once
after becoming available for occupancy.
"Certificate of Continuing Program Compliance" means the certificate required to be
delivered by the Developer to the CRA pursuant to Section 5.3(d) of this Covenant.
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"Code" means the Internal Revenue Code of 1986, as amended. Any reference to a Code
section shall include any successor provision; provided that if the Internal Revenue Code is
amended to eliminate corresponding provisions in connection with low income housing tax credits,
then reference shall be to such provision of the Code immediately prior to such amendment.
"County" means Miami -Dade County, Florida.
"FHFC" means the Florida Housing Finance Corporation.
"HUD" means the United States Depat tment of Housing and Urban Development or any
successor agency.
"Income Certification" means a tenant income certificate in a form acceptable to the CRA
(the CRA agrees that a tenant income certificate that is in a form acceptable to HUD or FHFC will
be acceptable to the CRA).
"Lower -Income Tenants" means one or more natural persons or a family, whose income,
determined in a manner consistent with Section 42(g)(1) of the Code, does not exceed eighty
percent (80%) of the then current median family income for Miami -Dade County, Florida,
Standard Metropolitan Statistical Area, determined in a manner consistent with Section 42(g)(1)
of the Code, including adjustments for family size.
"Manager" means any agent hired by or on behalf of the Developer to operate and manage
the Affordable Rental Units.
"Moderate -Income Tenants" means one or more natural persons or a family, whose
income, determined in a manner consistent with Section 42(g)(1) of the Code, does not exceed one
hundred twenty percent (120%) of the then current median family income for Miami -Dade County,
Florida, Standard Metropolitan Statistical Area, determined in a manner consistent with Section
42(g)(1) of the Code, including adjustments for family size.
"Modest —Income Tenants" means one or more natural persons or a family, whose
income, determined in a manner consistent with Section 42(g)(1) of the Code, does not exceed one
hundred percent (100%) of the then current median family income for Miami -Dade County,
Florida, Standard Metropolitan Statistical Area, determined in a manner consistent with Section
42(g)(1) of the Code, including adjustments for family size.
"Qualified Project Period" means the 30-year period beginning on the first day after
Completion.
"State" means the State of Florida.
(b) Unless the context clearly requires otherwise, as used in this
Covenant, words of the masculine, feminine or neuter gender shall be construed to include any
other gender when appropriate and words of the singular number shall be construed to include the
plural number, and vice versa, when appropriate. This Covenant and all the terms and provisions
hereof shall be construed to effectuate the purposes set forth herein and to sustain the validity
hereof during the Qualified Period.
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(c) The titles and headings of the sections of this Covenant have been
inserted for convenience of reference only, and are not to be considered a part hereof and shall not
in any way modify or restrict any of the terms or provisions hereof or be considered or given any
effect in construing this Covenant or any provisions hereof or in ascertaining intent, if any question
of intent shall arise.
5.3 Affordable Rental Units. The Developer hereby represents, covenants,
warrants and agrees that, during the term of Qualified Project Period:
(a) The Developer, its successors and assigns will acquire, construct,
own and operate the Affordable Rental Units for the purpose of providing a multifamily residential
rental project, and the Affordable Rental Units shall be continually owned, managed and operated
as multifamily residential rental properties during the Qualified Period.
(b) Each Affordable Rental Unit in the Project shall be contained in one
or more buildings or structures located on the Property and shall be similarly designed, appointed
and constructed as the other residential units in the Project (except as to number of bedrooms and
bathrooms), each of which will contain complete facilities for living, sleeping, eating, cooking and
sanitation for an individual or a family, including a living area, a sleeping area (which living and
sleeping area will be combined for studio units), bathing and sanitation facilities and cooking
facilities equipped with a cooking range, refrigerator and sink, all of which are separate and distinct
from the other units.
(c) None of the Affordable Rental Units in the Project will at any time
be (1) utilized on a transient basis, (2) used as a hotel, motel, dormitory, fraternity or sorority
house, rooming house, nursing home, hospital, sanitarium, rest home, trailer court or park, or (3)
rented for initial lease periods of less than six months.
(d) All of the Affordable Rental Units will be rented or available for
rent on a continuous basis, except during renovations, to members of the general public, and the
Developer will not give preference to any particular class or group of persons in renting the
Affordable Rental Units, except to the extent that units are required to be leased or rented to Lower -
Income Tenants, Modest -Income Tenants, or Moderate -Income Tenants. Lower -Income Tenants,
Modest -Income Tenants and Moderate -Income Tenants will have equal access to and enjoyment
of all common facilities of the Project. Notwithstanding any of the requirements set forth herein
to the contrary, all tenants of the Affordable Rental Units shall be required to comply with the
rules and regulations of the Project which shall be enforced in a non-discriminatory manner The
Developer will not discriminate against children of any age when renting the Affordable Rental
Units. For the avoidance of doubt, as a condition of occupancy or leasing, all tenants of the Project,
including, but not limited to, Lower -Income Tenants, Modest -Income Tenants, or Moderate -
Income Tenants, must prepay one month's rent and a security deposit; provided, that the security
deposit for any Affordable Rental Unit shall not exceed one additional month's rent and all tenants
must obtain renter's insurance in amounts (including applicable deductibles) reasonably required
by the Developer.
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(e) The Developer shall maintain "all risk" property insurance on the
Project at 100% of replacement cost, with deductible amounts which are commercially reasonably
consistent with other similar properties.
5.4 Reporting Requirements. During the term of this Qualified Project Period,
the following shall apply to each of the Affordable Rental Units:
(a) Income Certifications shall be obtained from each occupant (i) no
less than one day prior to the time of initial occupancy of the unit by such occupant, and (ii) no
less frequently than once each year thereafter.
(b) The Developer shall maintain on file at the Project copies of the
Income Certifications specified in Section 5.4(a) hereof for a period of time of six (6) years, and
shall provide copies thereof to the CRA promptly upon request.
(c) The Developer shall maintain at the Project complete and accurate
records pertaining to the incomes of (as of the date of initial occupancy of each tenant and not less
than annually thereafter) and rentals charged to Lower -Income Tenants, Modest -Income Tenants,
and Moderate -Income Tenants residing in the Affordable Rental Units, and shall permit during
normal business hours and upon five business days' prior written notice to the Developer, any duly
authorized representative of the CRA to inspect, at the Project, the books and records of the
Developer pertaining to the incomes of and rentals charged to all tenants residing in the Affordable
Rental Units.
(d) The Developer shall prepare and submit to the CRA at the beginning
of the Qualified Project Period, and on or before the tenth day of each January (and if the tenth of
January falls on a weekend or holiday, submission must be made the day before) thereafter, a
Certificate of Continuing Program Compliance in the form attached hereto as Exhibit "D,"
executed by the Developer stating (i) the percentage of Affordable Rental Units that were occupied
by Lower -Income Tenants and the unit mix of rental units that were occupied by Lower -Income
Tenants; (ii) the percentage of Affordable Rental Units that were occupied by Modest -Income
Tenants and the unit mix of rental units that were occupied by Modest -Income Tenants, (iii) the
percentage of Affordable Rental Units that were occupied by Moderate -Income Tenants and the
unit mix of rental units that were occupied by Moderate -Income Tenants; (iv) the percentage of
Affordable Rental Units that were vacant and (v) that at all times during the previous year, all of
the Affordable Rental Units were occupied (or deemed occupied) by Lower -Income Tenants,
Modest -Income Tenants, or Moderate -Income Tenants (as determined in accordance with this
Section 5) and of, to the Developer's knowledge, no default has occurred under this Covenant or,
if the units failed to be so occupied, or such a default has occurred, the nature of such failure or
default and the steps, if any, the Developer has taken or proposes to take to correct such failure or
default. If any such report indicates that the vacancy rate at the Affordable Rental Units is 10% or
higher, the CRA shall be permitted during normal business hours and upon five business days'
notice to the Developer, to inspect all or some of the vacant units to determine to its reasonable
satisfaction that such vacant units are ready and available for rental.
(e) No later than one hundred twenty (120) days after the end of each
year, the Developer shall submit to the CRA a certification by an independent compliance agency
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which is selected by the Developer and reasonably acceptable to the CRA (the CRA hereby
approves any independent compliance agency selected by the Developer which is then currently
engaged by FHFC as the independent compliance agency for the Project), evidencing compliance
or non-compliance with Section 5.1 and 5.3 hereof.
(f) In the event that the Developer fails to submit to the CRA the items
which the Developer is required to submit under paragraphs (d) and (e) above on or before the date
required, the Developer shall be liable for the payment to the CRA of a late fee of $100.00 per day
which shall be payable within ten business days of written notification from the CRA of the amount
of such late fee.
(g) If the certificate prepared by the independent compliance agency in
accordance with Section 5.4(e) provides that the Developer has failed to comply with the
requirements of Section 5.1, or 5.3, as applicable, then in such event, the Developer shall pay to
the CRA, as a penalty for non-compliance with such requirements, the sum of (i) $1,000 for the
initial unit which is not in compliance, (ii) $2,500 for a second unit which is not in compliance,
and (iii) $5,000 for each additional unit which is not in compliance, all determined on an annual
basis, based upon such certificate. Amounts, if any, due from the Developer in accordance with
this Section 5.4(g) shall be calculated annually as of each January 1 and paid by the Developer
within thirty (30) days of issuance of the certificate in accordance with Section 5.4(e). The failure
of the Developer to timely pay the amount due under this Section 5.4(g) shall constitute a default
under this Covenant and shall bear interest at twelve percent (12%) per annum until paid.
5.5 Fair Housing Laws. The Developer will comply with all applicable fair
housing laws, rules, regulations or orders applicable to the Project and shall not discriminate on
the basis of race, color, sex, religion, familial status, handicap/disability, or national origin in the
lease, use or occupancy of the Project or in connection with the employment or application for
employment of persons for the operation and management of the Project.
5.6 Tenant Lists. All tenants lists, applications, and waiting lists (if any)
relating to the Affordable Rental Units shall at all times be kept separate and identifiable from any
other business of the Developer which is unrelated to the Project, and shall be maintained, as
reasonably required by the CRA from time to time, in a reasonable condition for proper audit and
subject to examination during business hours by representatives of the CRA. Failure to keep such
lists and applications or to make them available to the CRA will be a default hereunder unless
cured by the Developer within thirty (30) days from the date of the Developer's receipt of written
notice of such breach from the CRA.
5.7 Tenant Lease Restrictions. All tenant leases with respect to the Affordable
Rental Units shall contain clauses, among others, wherein each individual lessee:
(a) Certifies the accuracy of the statements made in the Income
Certification;
(b) Agrees that the family income, family composition and other
eligibility requirements shall be deemed substantial and material obligations of such lessee's
tenancy; that such lessee will comply promptly with all requests for information with respect
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thereto from the Developer or the CRA, and that such lessee's failure to provide accurate
information in the Income Certification or refusal to comply with a request for information with
respect thereto shall be deemed a violation of a substantial obligation of such lessee's tenancy; and
(c) Agrees not to sublease to any person or family who does not execute,
and deliver to the Developer or the CRA, an Income Certification.
5.8 Force Majeure. Notwithstanding anything contained this Section 5 to the
contrary, in the event the Developer shall be delayed or hindered in or prevented from the
performance of any act required under this Section 5 by reason of strikes, acts of God, floods,
hurricanes, casualties, fore, acts of the public enemy, lockouts, labor troubles, inability to procure
materials, failure of power, restrictive laws, riots, insurrection, terrorist acts, war or other reason
beyond the reasonable control of and not the fault of the Developer (collectively, "Force
Majeure"), then performance of such act shall be excused for the period of the delay, and the
period for the performance of any such act shall be extended for a period equivalent to the period
of such Force Majeure delay. For the avoidance of any doubt, this definition of Force Majeure
only applies with respect to this Section 5.
6. PAYMENTS TO CRA AND REVERSION OF TITLE.
6.1 In consideration of the CRA agreeing to enter into this Covenant the
Developer covenants and agrees to pay to the CRA Three Million and no/100 Dollars
($3,000,000.00) payable as follows:
6.1.1 Within two (2) business days after the Effective Date Developer
shall deliver written confirmation from Cozen O'Connor, P.C., a Pennsylvania professional
corporation ("Escrow Agent") confirming that Developer has deposited Two Hundred Fifty
Thousand and no/100 Dollars ($250,000.00) (the "Escrow Deposit") into such Escrow Agent's
trust account. The Escrow Deposit shall be paid by Escrow Agent as provided in Section 6.3. If
Escrow Agent does not confirm, in writing, that Developer has deposited the Escrow Deposit
within the two (2) business day period, for any reason or no reason, title to the Property will
automatically revert to the CRA, free and clear of any and all claims by the Developer and any
parties claiming by, through or under the Developer. In such event, at the request of the Executive
Director, the Developer shall execute and deliver to the Executive Director a quit claim deed
conveying the Property to the CRA.
6.1.2 If this Covenant is not terminated by the Developer pursuant to
Section 6.3.1, on or prior to December 31, 2018 (as may be extended, the "Final Balance Due
Date"), Developer shall pay to the CRA Two Million Seven Hundred Fifty Thousand and No/100
Dollars ($2,750,000.00) less any amounts paid by Developer to the CRA pursuant to Section 6.2
(the "Final Balance"). Developer may extend the Final Balance Due Date for up to three (3)
months by paying to the CRA Twenty -Five Thousand and No/100 Dollars ($25,000.00) per month
for each monthly extension on or before the then Final Balance Due Date. Such monthly extension
payments shall not be credited against the Final Balance.
6.2 Commencing on July 1, 2018, and on the first day of each and every month
thereafter through the earlier to occur of (i) the date upon which the Developer receives all
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documents, signatures, approvals, consents, waivers and other authorizations, which Developer,
in its sole and absolute discretion, deems necessary or advisable to terminate the Shared Amenities
Agreement between Developer and Poinciana Village Association dated March 31, 2014 and
recorded April 9, 2014 in Official Records Book 29102, at Page 4204 of the Public Records of
Miami -Dade County, Florida (the "Termination of the Shared Facilities Agreement") and
otherwise enter into, or receive any agreements, easements, rights of egress and ingress,
authorizations, approvals, consents, waivers, authorizations and other documents from the
Poinciana Village Association, the respective unit owners, and other related parties in the
Developer's sole discretion necessary or advisable for the construction, completion and operation
of the Project, each in form and substance satisfactory to the Developer (together with the
Termination of the Shared Facilities Agreement, the "Poinciana Village Approvals") and (ii)
October 31, 2018, Developer shall pay to the CRA Twelve Thousand Five Hundred and No/100
Dollars ($12,500.00). The Developer shall give the Executive Director and Escrow Agent written
notice of the date of the Developer obtaining the Poinciana Village Approvals.
6.3 Reversion of Title to the Property.
6.3.1 Developer acknowledges and agrees that if the Poinciana Village
Approvals, in form and substance acceptable to the Developer, in Developer's sole discretion, are
not obtained on or before October 31, 2018, Developer may terminate this Covenant by written
notice to the Executive Director and Escrow Agent on or before October 31, 2018 in which event
Escrow Agent shall promptly deliver the Escrow Deposit to the Developer and title to the Property
shall automatically revert to the CRA, free and clear of any and all claims by the Developer and
any parties claiming by, through and under the Developer. In such event, at the request of the
Executive Director, the Developer shall deliver to the Executive Director a quit claim deed
conveying the Property to the CRA. If Developer does not terminate this Agreement on or before
October 31, 2018 or if Developer has provided written notice to the Executive Director and the
Escrow Agent that the Poinciana Village Approvals have been obtained prior to October 31, 2018,
then Escrow Agent shall promptly pay the Escrow Deposit to the CRA which shall be non-
refundable.
6.3.2 If Developer does not pay to the CRA the Final Balance on or before
the Final Balance Due Date as same may be extended, for any reason or no reason title to the
Property shall automatically revert to the CRA, free and clear of any and all claims by the
Developer and any parties claiming by, through and under the Developer. In such event, at the
request of the Executive Director, the Developer shall deliver to the Executive Director a quit
claim deed conveying the Property to the CRA.
7. REAL ESTATE TAXES.
7.1 It is the intention of the CRA and the Developer that, except with respect to
the Affordable Units, the Property and the Project shall be taxable (other than homestead,
widowers, veterans or similar exemptions authorized under Article VII, Section 3(g) and Article
VII, Section 6 of the Florida Constitution) for the purposes of ad valorem real estate taxes and that
the Developer and its successors or assigns shall not take advantage of any tax exemptions (other
than homestead, widowers, veterans or similar exemptions authorized under Article VII, Section
3(g) and Article VII, Section 6 of the Florida Constitution and exemptions available with respect
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to the Affordable Units) which may allow the Developer or its successors or assigns not to be
required to pay any ad valorem real estate taxes with respect to the Property and the Project. In
the event, for any reason, the Property and the Project is not subject to ad valorem real estate taxes
as a result of an exemption (other than homestead, widowers, veterans or similar exemptions
authorized under Article VII, Section 3(g) and Article VII, Section 6 of the Florida Constitution
and exemptions available with respect to the Affordable Units), then the Developer shall pay to
the CRA with respect to the Property and the Project for which the property appraiser has given
an assessed value which is subject to an exemption (other than homestead, widowers, veterans or
similar exemptions authorized under Article VII, Section 3(g) and Article VII, Section 6 of the
Florida Constitution and exemptions available with respect to the Affordable Units) a payment in
lieu of 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 Property and the Project if the
Property and the Project had not been exempt from the payment of ad valorem real estate taxes
(other than homestead, widowers, veterans or similar exemptions authorized under Article VII,
Section 3(g) and Article VII, Section 6 of the Florida Constitution and exemptions available with
respect to the Affordable Units).
7.2 The obligation of the Developer, and Developer's successors or assigns
with respect to any portion of the Property and the Project the Developer conveys, to make the
PILOT shall constitute a covenant running with the land and shall constitute a first lien on the
Property and the Project senior to all other liens and encumbrances and shall be binding upon the
Developer and Developer's successors or assigns with respect to any portion of the Property and
the Project the Developer conveys through December 31, 2029. At the request of the Developer
or Developer's successors or assigns the CRA shall execute a recordable instrument reflecting that
this Section 7 is released with respect to all, or the applicable portion, of the Property and the
Project, after all amounts due hereunder through December 31, 2029 have been paid.
8. RELEASE.
8.1 In consideration of entering into this Covenant and for other good and
valuable consideration, the receipt and sufficiency of which is hereby acknowledged, each Party,
on behalf of itself and its successors, assigns, and other legal representatives, hereby absolutely,
unconditionally and irrevocably releases, remises and forever discharges the other Party, and its
successors and assigns, and its present and former commissions, officers, attorneys, employees,
agents and other representatives (collectively, the "Releasees" and individually as a "Releasee"),
of and from all demands, actions, causes of action, suits, covenants, contracts, controversies,
agreements, promises, sums of money, accounts, bills, reckonings, damages and any and all other
claims, counterclaims, defenses, rights of set-off, demands and liabilities whatsoever of every
name and nature, known or unknown, suspected or unsuspected, both at law and in equity, which
such releasing Party or any of its successors, assigns, or other legal representatives, may now or
hereafter own, hold, have or claim to have against the Releasees or any of them for, upon, or by
reason of any circumstance, action, cause or thing whatsoever which arose or has arisen at any
time on or prior to the day and date of this Covenant with respect to the Property and the Original
Covenant (individually, a "Claim" and collectively, "Claims").
8.2 Each Party understands, acknowledges and agrees that the release set forth
above may be pleaded as a full and complete defense and may be used as a basis for an injunction
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against any action, suit or other proceeding which may be instituted, prosecuted or attempted in
breach of the provision of such release.
8.3 Each Party agrees that no fact, event, circumstance, evidence or transaction
which could now be asserted or which may hereafter be discovered shall affect in any manner the
final, absolute and unconditional nature of the release set forth above.
8.4 Each Party acknowledges and agrees that the release of each Releasee is not
and shall not be construed as an admission of wrongdoing, liability or culpability on the part of
any Releasee, or as an admission by any Releasee of the existence or any Claims of such releasing
Party against any Releasee. Each Party further acknowledges that, to the extent that any such
Claims may exist, they are speculative and not liquidated. In any event, each Party acknowledges
and agrees that the value to such Party of the covenants and agreements of the other Party under
this Covenant is in excess of and constitutes more than "reasonably equivalent value" for the
Claims released by such releasing Party.
9. COVENANT NOT TO SUE.
Each of the Developer, on behalf of itself and its successors, assigns, and other legal
representatives and the CRA, on behalf of itself and its successors, assigns, and other legal
representatives, hereby absolutely, unconditionally and irrevocably, covenant and agree with and
in favor of each Releasee that it or he, as the case may be, will not sue (at law, in equity, in any
regulatory proceeding or otherwise) any Releasee on the basis of any Claim released, remised and
discharged by Developer pursuant to the Release contained herein. If Developer or the CRA, or
any of their respective successors, assigns or other legal representatives, as the case may be,
violates the foregoing covenant, the Developer or the CRA, as the case may be, for itself and its
successors, assigns and legal representatives, agrees, to pay, in addition to such other damages as
any Releasee may sustain as a result of such violation, all attorneys' fees and costs incurred by any
Releasee as a result of such violation.
10. ARBITRATION. In the event the Parties are unable to resolve a dispute under
Section 3.1, Section 4.2.3, Section 4.3.1, or Section 4.3.2 either Party shall have the right to
demand arbitration ("Arbitration"), which Arbitration shall be conducted pursuant to the Rules
of the American Arbitration Association. The Parties shall attempt to agree on the selection of a
neutral arbitrator within ten (10) days after notification by a Party to utilize Arbitration. If the
Parties cannot agree on such selection within such ten (10) day period, then either Party may
request that the American Arbitration Association, Miami, Florida, select the arbitrator. The
Arbitration hearing shall be conducted using the Florida Rules of evidence and Florida law shall
be applied by the panel. The venue of such Arbitration shall be located in Miami -Date County,
Florida, or such other location as mutually agreed upon by the Parties. The prevailing party in any
arbitration proceeding shall be entitled to recover its reasonable attorney fees, costs and expenses,
which shall be determined by the arbitrator.
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11. NOTICES. Any notices required or permitted to be given under this Covenant 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, sent by email, and another method
provided herein or mailed by certified or registered mail, return receipt requested, in a postage
prepaid envelope, and addressed as follows (or at such other address for a Party as shall be
specified in a notice given in accordance with this Section 11):
If to Developer:
201 NW 7th Street, Suite 401
Miami, FL 33136
Attention: Ted H. Weitzel
Fax: 786-472-8795
Email- tedw4868@gmail.com
With a copy to (which shall not constitute notice or service of process):
Cozen O'Connor P.C.
200 South Biscayne Blvd., Suite 3000
Miami, FL 33131
Attention: Charles Kline, Esq.
Fax: 305-704-5955
Email: ckline@cozen.com
And with a copy to (which shall not constitute notice or service of process):
Tenzer Arrieta PLLC
1001 Brickell Bay Drive
Suite 1812
Miami, FL 33131
Attention: Alejandro M. Arrieta, Esq.
Fax: 305-400-7993
Email: aarrietatenzer.com
If to Escrow Agent:
Cozen O'Connor P.C.
200 South Biscayne Blvd., Suite 3000
Miami, FL 33131
Attention: Charles Kline, Esq.
Fax: 305-704-5955
Email: ckline@cozen.com
With a copy to (which shall not constitute notice or service of process):
Tenzer Arrieta PLLC
1001 Brickell Bay Drive
Suite 1812
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If to CRA:
Miami, FL 33131
Attention: Alejandro M. Arrieta, Esq.
Fax: 305-400-7993
Email- aarrietantenzer.com
SOUTHEAST OVERTOWN / PARK WEST
COMMUNITY REDEVELOPMENT AGENCY
Attention: Cornelius Shiver, Executive Director
319 NW 2nd Avenue
Third Floor
Miami, FL 33136
Fax: 305-679-6836
Email: cschiver@miamigov.com
With a copy to (which shall not constitute notice or service of process):
William R. Bloom, Esq.
Holland & Knight, LLP
Suite 3300
701 Brickell Avenue
Miami, FL 33131
Fax: 305-789-7799
Email- william.bloom@hklaw.com
Notices personally delivered or sent by fax or email 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.
12. ACKNOWLEDGMENT. The CRA acknowledges that title to the Property did not
previously reverted to the CRA under the terms of the Original Covenant prior to the date of this
Covenant.
13. TERM. Unless title to the Property reverts to the CRA in accordance with the terms
of this Covenant, this Covenant shall remain in full force and effect during the Qualified Project
Period. At the end of the Qualified Project Period this Covenant shall automatically terminate and
be of no further force and effect except with respect to any outstanding amounts due at the end of
the Qualified Project Period which shall remain the obligation of the Developer under this
Covenant until paid.
14. AMENDED AND RESTATED COVENANT. This Covenant amends, restates and
supersedes in all respects the Original Covenant.
15. MISCELLANEOUS.
15.1 This Covenant 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
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Covenant have participated fully in the negotiation and preparation hereof, and, accordingly, this
Covenant shall not be more strictly construed against any one of the parties hereto.
15.2 In the event any term or provision of this Covenant 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 Covenant shall be construed to be in full force and effect.
15.3 In the event of any litigation between the parties under this Covenant, the
prevailing party shall be entitled to reasonable attorney's fees and court costs at all trial and
appellate levels.
15.4 In construing this Covenant, 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.
15.5 All of the exhibits attached to this Covenant are incorporated in, and made
a part of, this Covenant.
15.6 This Covenant may be executed in two or more counterparts, each of which
will be deemed an original, but all of which will constitute the same instrument.
15.7 Time shall be of the essence for each and every provision of this Covenant.
15.8 This Covenant shall be recorded in the Public Records of Miami -Dade
County.
16. COVENANT RUNNING WITH THE LAND. This Covenant shall be deemed a
covenant running with the Property and shall be binding upon the parties hereto and their
respective successors and assigns.
17. LIEN RIGHTS. If Developer fails to pay any amount due the CRA pursuant to
Sections 3.2, 3.3, 3.5, 4.3.1, 4.3.2, 4.6, 5.4(f), 5.4(g), 6.1 or 7, such unpaid amounts shall bear
interest at twelve percent (12%) per annum from the date due until paid and shall be secured by
this Covenant having priority from the date of recording this Covenant. If any amounts remain
unpaid for more than thirty (30) days after the Developer's receipt of written notice from the CRA
as to such late payment, the CRA may foreclose its lien rights against the Property in the same
manner as a mortgage would be foreclosed. Upon the request of the Developer upon payment of
each applicable amount due under Sections 3.2, 3.3, 3.5, 4.3.1, 4.3.2, 4.6, 5.4(f), 5.4(g), 6.1 or 7,
the CRA shall execute and promptly deliver to the Developer a recordable instrument reflecting
the release of the applicable payment obligation.
18. ESTOPPEL LETTER. At the request of any Party to this Covenant, the other Party
shall execute an estoppel letter in recordable form, confirm the status of this Covenant and
compliance with its terms within ten (10) days of request. The certificate shall state (i) that the
Covenant is in full force and effect and has not been modified, supplemented or amended in any
way, or, if there have been modifications, that this Covenant is in full force and effect as modified,
identifying such modification Covenant, and if this Covenant is not in force and effect, the
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certificate shall so state; (ii) that this Covenant, represents the entire Covenant between the parties,
or if it does not, the certificate shall so state; (iii) the status of any payment obligations under this
Covenant, including, without limitation, any PILOT payments; and (iv) that all conditions under
this Covenant to be performed by the CRA, or Developer, as the case may be, have been satisfied,
if true or known and state the current status if untrue or unknown, as of the date of such certificate,
there are no existing defenses or offsets which the CRA or the Developer, as the case may be, has
knowledge against the other party preventing enforcement of this Covenant by such other party,
or, if any conditions contained in this Covenant and required to be performed by a party have not
been satisfied or if there are any defenses or offsets, the certificate shall so state. The Party to
whom any such certificate shall be issued may rely on the matters therein set forth and thereafter
the Party issuing the same shall be estopped from denying the veracity or accuracy of the same.
Any certificate required to be made by the CRA pursuant to this paragraph may be made on its
behalf by the Executive Director.
19. RELATIONSHIP BETWEEN PARTIES. This Covenant does not evidence the
creation of nor shall it be construed as creating, a partnership or joint venture or any kind of
business entity affiliation between the CRA and Developer. No Party can create any obligations
or responsibility on behalf of the other or bind the other in any manner Each Party is acting for
its own account, and it has made its own independent decision to enter into this Covenant and as
to whether the same is appropriate or necessary. Each Party acknowledges that none of the other
parties hereto is acting as a fiduciary for or an adviser to the other Party with respect of this
Covenant or any responsibility or obligation contemplated herein. Developer further represents
and acknowledges that no one was paid a fee, commission, gift or other consideration by
Developer or Developer's agents as an inducement to entering into this Covenant.
20. WAIVER OF JURY TRIAL. THE PARTIES HEREBY KNOWINGLY,
IRREVOCABLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT EITHER
MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, PROCEEDING OR
COUNTERCLAIM BASED ON, ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS COVENANT OR ANY AMENDMENT OR MODIFICATION OF THIS COVENANT,
OR ANY OTHER COVENANT EXECUTED BY AND BETWEEN THE PARTIES IN
CONNECTION WITH THIS COVENANT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENT (WHETHER VERBAL OR WRITTEN) OR ACTION OF ANY
PARTY HERETO. THIS WAIVER OF JURY TRIAL PROVISION IS A MATERIAL
INDUCEMENT FOR THE CRA AND THE DEVELOPER TO ENTER INTO THE SUBJECT
TRANSACTION.
21
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21. EXISTING MORTGAGES AND FUTURE MORTGAGES. The CRA agrees to
give the holder of any mortgage who has provided notice of its existence to the CRA in accordance
with the notice provisions of this Covenant, by registered mail or certified mail, return receipt
requested sent to mortgagee's address provided to the CRA, a copy of any notice of default sent
to the Developer in accordance with Section 11. The CRA further agrees that if Developer shall
have failed to cure any default under Section 5 of this Covenant within the time provided for in
this Covenant, then such mortgagee shall have the right but not obligation for an additional sixty
(60) days within which to cure such default under Section 5 before the CRA exercises its rights
available to it under Section 5 of this Covenant. For the avoidance of any doubt, the additional
cure time period available to the mortgagee shall only apply with respect to Section 5 of this
Covenant. The liability of such mortgagee for the performance of any obligations of Developer
under the Covenant shall be limited to such mortgagee's interest in the Property, and the CRA
hereby agrees that any judgement it may obtain against any mortgagee's failure, as owner, to
perform any of Developer's obligations under this covenant shall be enforceable solely against
such mortgagee's interest in the Property.
22. ENTIRE AGREEMENT. This Covenant 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 Covenant 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.
[SIGNATURES ON FOLLOWING PAGE]
22
#58258855_v7
IN WITNESS hereof the parties have executive this Covenant as of the date first above
written.
DEVELOPER:
SAWYER'S WALK, LTD.,
a Florida limited partnership
By: Indian River Investment Communities, Inc.,
a Florida corporation, its general partner
By:
Name: Ted H. Weitzel
Title: President
POINCIANA VILLAGE OF MIAMI, LTD.,
a Florida limited partnership
By: Indian River Investments of Miami, Inc.,
a Florida corporation, its general partner
By:
Name: Ted H. Weitzel
Title: President
CRA:
SOUTHEAST OVERTOWN / PARK WEST
COMMUNITY REDEVELOPMENT AGENCY
By:
Cornelius Shiver, Executive Director
Approved for legal sufficiency:
By:
William R. Bloom, Esq.
Holland & Knight LLP,
Special Counsel to CRA
23
#58258855_v7
ESCROW AGENT:
Cozen O'Connor P.C.,
a Pennsylvania professional corporation
By:
Charles Kline, Esq.
Partner
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
)
) SS:
)
The foregoing instrument was acknowledged before me, this day of , 2018,
by Ted H. Weitzel, President of Indian River Investments Communities, Inc., a Florida
corporation, general partner of Sawyer's Walk, Ltd., a Florida limited partnership, on behalf of the
corporation and the general partnership. He is personally known to me or has produced
as identification.
My commission expires:
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
)
) SS:
)
Notary Public
Print Name:
The foregoing instrument was acknowledged before me, this day of , 2018,
by William R. Bloom, Esq., on behalf of Holland & Knight LLP, a Florida limited liability
partnership, serving as special counsel to CRA. He is personally known to me or has produced
as identification.
My commission expires:
24
Notary Public
Print Name:
#58258855_v7
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
)
) SS:
)
The foregoing instrument was acknowledged before me, this day of , 2018,
by Ted H. Weitzel, President of Indian River Investments of Miami, Inc., a Florida corporation,
general partner of Poinciana Village of Miami, Ltd., a Florida limited partnership, on behalf of the
corporation and the general partnership. He is personally known to me or has produced
as identification.
My commission expires:
25
Notary Public
Print Name:
#58258855_v7
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
)
) SS:
)
The foregoing instrument was acknowledged before me, this day of , 2018,
by Cornelius Shiver, Executive Director of SOUTHEAST OVERTOWN/PARK WEST
COMMUNITY REDEVELOPMENT AGENCY, a public agency and body corporate created
pursuant to Section 163.356, Florida Statutes, on behalf of the agency. He is personally known to
me or has produced as identification.
My commission expires:
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
)
) SS:
)
Notary Public
Print Name:
The foregoing instrument was acknowledged before me, this day of , 2018,
by Charles Kline, Esq., on behalf of Cozen O'Connor P.C., a Pennsylvania professional
corporation, as Escrow Agent. He is personally known to me or has produced
as identification.
My commission expires:
26
Notary Public
Print Name:
#58258855_v7
Schedule of Exhibits
A. Legal Description
B. Conceptual Design Documents
C. Form of Guaranty
D. Certificate of Compliance
27
#58258855_v7
EXHIBIT A
Legal Description
LEGAL DESCRIPTION
POINCIANA VILLAGE PHASE II
Seine a tract or pareal of land containing 1.23353 acres
53,733 8q. Ft.1 out of iota 4 thru 12 and lots 16 and
17,biock 46 N of "A.L. Knowlton Subdivision " according to
the plat thereof recorded in plat book B, page 41 of the
public records of Dade County, Florida. Also being a part
of lots 6 and 7 to include a portion of a 20 foot :eight p
Way according to the plat of George C. Bolles Subiivieion
thereof recorded In plat book 1, page 16 of the public
records of Dale County, Florida & being more particularly
described by metes and mounds as follows;
BEGINNING at a point_ of intereectiOn of the East Right of
Flay line OP NW 3r1 Avenue and the South Right of Way line
of NW 8th Street, said point being 10.00 feet Easterly and
12.5) fret Southerly fr.7m the Northwest corner of lot 10
of said "A.L. Knowlton Subdivision") thence Easterly
along said South Right of Way line of NA 8th Street , a
distance of 340.17 feet to a corner; thence Southerly
leaving said south Right of Way line of SW 8th Street end
parallel with the West Right of Way line of NW 2ni Avenue,
a distance of 80.27 feet to a corner) therms westerly
perpendicular to said Right of Way of NW 2nd Avenue, a
distance of 19.00 feet to a corner; thence Southerly
paraliet With lipid Right of Way of NW 2nd Avenue, a
distance of 77.O0 feet to a corner; thence Westerly
parallel with the Right of Way of 1.W 7th Street, a
distance of 190.83 feet to a corner; thence Southerly
perpendicular to said fright of way of NH 7th Street, a
distance of 13.00 feet to a corner) thence Westerly
parallel with said Right of key of t4W 7th Street, a
distance of 130.33 feet to a corner, tha enure being in the
East Right of way line of NW 3rd Avenue; thence Northerly
along said East Right of Way of NW 3rl Avenue, a distance
7f 170.26feet to the PoiNr Or BEGINNING of the tract
herein described containing within these metes & bounds
1.23353 acres (53,733 Sq. rt.) of land.
[00022115.9]
#58258855_v7
#56754030_v3
EXHIBIT B
Conceptual Design Documents
Conceptual Design Documents for Soleste Grand Central Zoning and Planning Submittal
dated June 1, 2018 prepared by Carmen T. Diaz, AR 96290 Caymart Design Inc. issued June 12,
2017 consisting of the following:
SGC-A-O
SGC-A-1.0 Zoning Date — Layout
SGC-A-2-0 Basement — Layout
SGC-A-2-1 Ground Floor - Layout
SGC-A-2-2 Mezzanine - Layout
SGC-A-2-3 2nd Parking Level - Layout
SGC-A-2-4 3rd Parking Level - Layout
SGC-A-2-5 4th REC Level - Layout
SGC-A-2-6 5th to 8th Levels - Layout
SGC-A-2-7 9th Level - Layout
SGC-A-2-8 TYP TOWER l Oth to 18th Levels - Layout
SGC-A-3-0 NORTH ELEVATION — A-3.0
SGC-A-3-1 WEST ELEVATION — A-3.1
SGC-A-3-2 SOUTH ELEVATION — A.3.2
SGC-A-3-3 EAST ELEVATION — A.3.3
SGC-A-3-4 3D VIEWS - Layout
SGC-A-3-5 3D VIEWS - Layout
SGC-A-3-6 3D VIEWS - Layout
SGC-A-3-7 3D VIEWS - Layout
SGC-A-3-8 3D VIEWS - Layout
SGC-R-0-1 RENDERING - Layout
SGC-A-0-2 RENDERING - Layout
29
#58258855_v7
EXHIBIT C
Form of Guaranty
THIS GUARANTY OF COMPLETION (the "Guaranty") is executed and delivered,
jointly and severally, as of the day of , 20 by ROBERT SURIS, individually, and
[AN ENTITY WITH A NET WORTH OF AT LEAST TWO MILLION
DOLLARS] (collectively 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").
WITNES SETH:
A. The CRA previously conveyed the property described on Exhibit "A" attached
hereto and made a part hereof (the "Property"), to Sawyer's Walk, Ltd., a Florida limited
partnership ("Sawyer's Walk") and Poinciana Village of Miami, Ltd., a Florida limited partnership
("Poinciana," together with Sawyer's Walk, collectively, the "Developer") and the CRA and the
Developer entered into that Covenant dated as of April 8, 2014 and recorded April 9, 2014 in
Official Records Book 29102, at Page 4177 of the Public Records of Miami -Dade County, Florida,
as amended by First Amendment to Covenant, by and between the CRA and the Developer
recorded June 30, 2017 in Official Records Book 30596, at Page 37 of the Public Records of
Miami -Dade County, Florida (collectively, the "Original Covenant").
B. The CRA and the Developer entered into that certain Amended and Restated
Covenant dated as of July 1, 2018 recorded July , 2018 in Official Records Book at Page
of the Public Records of Miami -Dade County, Florida (the "Restated Covenant"), which
Restated Covenant amended and restated in its entirety the Original Covenant. All defined terms
utilized but no defined in this Guaranty shall have the meaning set forth in the Restated Covenant.
C. Section 3.1 of the Restated Covenant provides that the Developer may cause the
Guarantor to provide this Guaranty in lieu of providing a Payment and Performance Bond.
NOW, THEREFORE, in consideration of the CRA agreeing to accept this Guaranty in
lieu of a Payment and Performance Bond as provided in Section 3.1 of the Restated Covenant,
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. Guarantor hereby unconditionally and irrevocably guarantees, jointly and severally,
to CRA the following (collectively, the "Guaranties Obligations"):
a. One hundred percent (100%) lien free Completion of the Project in
accordance with the requirement of Section 2.5 of the Restated Covenant prior to the Completion
Date, as same may be extended as a result of Unavoidable Delays and as same may be extended
in accordance with Section 3.2 of the Restated Covenant; 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
payable, and payment and discharge of all claims and demands for labor and/or materials used in
30
#58258855_v7
the construction and the completion of the Project substantially in accordance with the
requirements of Section 2.5 of the Restated Covenant which are or, if unpaid, may become liens,
claims or encumbrances on the Property.
c. To perform and complete construction of the Project prior to the Completion
Date, as same may be extended as a result of Unavoidable Delays and as same may be extended
in accordance with Section 3.2 of the Restated Covenant 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 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 Restated Covenant 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.
3. 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
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.
4. 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).
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#58258855_v7
5. 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 Restated Covenant), any such notice
being expressly waived by Guarantor.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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:
SOUTHEAST OVERTOWN / PARK WEST
COMMUNITY REDEVELOPMENT AGENCY
Attention: Executive Director
819 NW 2nd Avenue
3rd Floor
Miami, FL 33136
b. If to Guarantor:
and
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#58258855_v7
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 )
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:
WITNESSES:
33
Notary Public
Name of Notary Printed:
(NOTARY SEAL)
#58258855_v7
Print Name: Robert Suris
Print Name:
STATE OF FLORIDA
): ss.
COUNTY OF MIAMI-DADE
The foregoing instrument was acknowledged before me this day of , 201_, by
Robert Suris, as of , a , on behalf
of He is personally known to me or has produced
as identification.
My commission expires:
My commission number is:
34
Notary Public
Name of Notary Printed:
(NOTARY SEAL)
#58258855_v7
EXHIBIT D
FORM OF CERTIFICATION OF CONTINUING PROGRAM COMPLIANCE
Witnesseth that on this day of , 20 , the undersigned
(the "Owner"), does hereby certify, the Affordable Rental Units continuing compliance with the
Amended and Restated Covenant dated as of July 1, 2018 (the "Covenant") by and between
Sawyer's Walk, Ltd., a Florida limited partnership, Poinciana Village of Miami, Ltd., a Florida
limited partnership and the Southeast Overtown Park West Community Agency (including the
requirement that all of the Affordable Rental Units remain rental units) that an Income Certification
has been obtained for each new tenant occupying an Affordable Rental Unit. At all times during
the previous year 100% of the Affordable Residential Units were occupied (or deemed occupied)
by either Lower -Income Tenants, Modest -Income Tenants, and Moderate -Income Tenants during
the Qualified Project Period (as determined in accordance with Section 5.5 of the Covenant. At all
times during the previous year 100% of the Affordable Rental Units were occupied (or deemed
occupied) only be either Lower -Income Tenants, Modest -Income Tenants or Moderate Income
Tenants in accordance with the provisions of the Covenant. To the undersigned's knowledge no
default has occurred by the Owner under the Covenant with respect to the Affordable Residential
Units, or, if a default has occurred, the nature of the default and the steps, if any, Developer has
taken or proposes to take to correct such default are outlined on the Schedule attached hereto.
Assuming that the most recent Income Certifications provided by applicable tenant is accurate as
of the date of this Certificate, as of the date of this Certificate, the following percentages of
completed Affordable Residential Units are occupied by Lower -Income Tenants, occupied by
Modest -Income Tenants, occupied by Moderate -Income Tenants, or vacant:
Total number of units available for
occupancy as of , 20
Percentage Number
Lower -Income Tenants %
Modest -Income Tenants %
Moderate -Income Tenants %
Vacant Units %
Total Number of Studio Units Number of Occupied Studio Units
by Lower -Income Tenants
(A) (B)
Total Number of 1-Bedroom Units Number of Occupied 1-Bedroom
Units by Lower -Income Tenants
(A) (B)
Total Number of 2-Bedroom Units Number of Occupied 2-Bedroom
Units by Lower -Income Tenants
35
#58258855_v7
Total Number of Studio Units Number of Occupied Studio Units
by Lower -Income Tenants
(A) (B)
36
#58258855_v7
37
Number of Occupied Studio Units
by Modest -Income Tenants
(B)
Number of Occupied 1-Bedroom
Units by Modest -Income Tenants
(B)
Number of Occupied 2-Bedroom
Units by Modest -Income Tenants
(B)
Number of Occupied Studio Units by
Moderate -Income Tenants
(B)
Number of Occupied 1-Bedroom
Units by Moderate -Income Tenants
(B)
Number of Occupied 2-Bedroom
Units by Moderate -Income Tenants
(B)
#58258855_v7
EXHIBIT C
GUARANTY OF COMPLETION
THIS GUARANTY OF COMPLETION (the "Guaranty") is executed and delivered,
jointly and severally, as of the day of , 20 by ROBERT SURIS, individually, and
[AN ENTITY WITH A NET WORTH OF AT LEAST TWO MILLION
DOLLARS] (collectively 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").
WITNES SETH:
A. The CRA previously conveyed the property described on Exhibit "A" attached
hereto and made a part hereof (the "Property"), to Sawyer's Walk, Ltd., a Florida limited
partnership ("Sawyer's Walk") and Poinciana Village of Miami, Ltd., a Florida limited partnership
("Poinciana," together with Sawyer's Walk, collectively, the "Developer").
B. The CRA and the Developer entered into that Covenant dated as of April 8, 2014
and recorded April 9, 2014 in Official Records Book 29102, at Page 4177 of the Public Records
of Miami -Dade County, Florida, as amended by First Amendment to Covenant, by and between
the CRA and the Developer recorded June 30, 2017 in Official Records Book 30596, at Page 37
of the Public Records of Miami -Dade County, Florida (collectively, the "Original Covenant").
C. The CRA and the Developer entered into that certain Amended and Restated
Covenant dated as of July 1, 2018 recorded July , 2018 in Official Records Book at Page
of the Public Records of Miami -Dade County, Florida (the "Restated Covenant"), which
Restated Covenant amended and restated in its entirety the Original Covenant. All defined terms
utilized but no defined in this Guaranty shall have the meaning set forth in the Restated Covenant.
D. Section 3.1 of the Restated Covenant provides that the Developer may cause the
Guarantor to provide this Guaranty in lieu of providing a Payment and Performance Bond.
NOW, THEREFORE, in consideration of the CRA agreeing to accept this Guaranty in lieu
of a Payment and Performance Bond as provided in Section 3.1 of the Restated Covenant, 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. From and after the commencement of Vertical Construction, Guarantor hereby
unconditionally and irrevocably guarantees, jointly and severally, to CRA the following
(collectively, the "Guaranteed Obligations"):
a. Completion of the Project substantially in accordance with the requirement
of Section 2.5 of the Restated Covenant on or prior to the Completion Date, as same may be
extended as a result of Unavoidable Delays and as same may be extended in accordance with
Section 3.3 of the Restated Covenant; and
b. Subject to Developer's rights to contest or discharge liens resulting from
such matters in accordance with applicable law, full and punctual payment and discharge of all
costs and expenses of all contractors, subcontractors, materialmen, engineers, architects, and other
persons who have rendered or furnished labor, services or materials in connection with the design,
construction and the completion of the Project as the same become due and 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 requirements of Section 2.5 of
the Restated Covenant which are or, if unpaid, may become liens, claims or encumbrances on the
Property.
c. To perform and complete construction of the Project on or prior to the
Completion Date, as same may be extended as a result of Unavoidable Delays and as same may
be extended in accordance with Section 3.3 of the Restated Covenant and to pay all costs and
expenses of said construction (subject to Developer's rights to contest or discharge liens resulting
from such matters in accordance with applicable law) and completion of the Project substantially
in accordance with the plans associated therewith subject to field changes, change orders and any
modifications required by the City of Miami in connection with the issuance of the building permit
for the Project.
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 transfer of such liens
to bond within sixty (60) days of Guarantor having actual knowledge of the filing of such liens
(subject to Developer's rights to contest or discharge liens resulting from such matters in
accordance with applicable law after transfer of such liens to bond);
e. To pay the costs and fees of all architects and engineers employed by
Developer in connection with the Project; and
f To reimburse within thirty (30) days after receipt of written demand from
the CRA, all of CRA's actual out-of-pocket third party costs and expenses, including reasonable
attorneys' fees and costs, incurred in the enforcement of this Guaranty, subject to the terms of
Section [9] below.
2. 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 Restated Covenant 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. For the avoidance of any doubt, if the CRA recovers under this Guaranty against Guarantor
with respect to the Guaranteed Obligations, the CRA shall not have any claim with respect to the
Guaranteed Obligations against the Developer.
3. 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
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#58365889_v2
any liability of any party shall affect the liability of or in any manner release the Guarantor, 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/or performed.
4. That until the Completion of the Project, 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. Upon the
Executive Director's execution and delivery to the Developer of the certificate confirming
Completion of the Project pursuant to Section 3.6 of the Restated Covenant this Guaranty shall be
deemed terminated.
5. 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 Restated Covenant), any such notice
being expressly waived by Guarantor.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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:
SOUTHEAST OVERTOWN / PARK WEST
COMMUNITY REDEVELOPMENT AGENCY
3
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Attention: Executive Director
819 NW 2nd Avenue
3rd Floor
Miami, FL 33136
b. If to Guarantor:
Robert Suris
4949 SW 75 Avenue
Miami, Florida 33155
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 )
The foregoing instrument was acknowledged before me this day of , 201_, by
, as of , a , on
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4
behalf of He is personally known to me or has produced
as identification.
My commission expires:
My commission number is:
WITNESSES:
Notary Public
Name of Notary Printed:
(NOTARY SEAL)
Print Name: Robert Suris
Print Name:
STATE OF FLORIDA )
): ss.
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this day of , 201_, by
Robert Suris, as of , a , on behalf
of He is personally known to me or has produced
as identification.
My commission expires:
My commission number is:
5
Notary Public
Name of Notary Printed:
(NOTARY SEAL)
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