HomeMy WebLinkAboutCRA-R-18-0041 Exhibit ABLOCK 55
DEVELOPMENT AGREEMENT
By and Between
DOWNTOWN RETAIL ASSOCIATES, LLC
and
SOUTHEAST OVERTOWN/PARK WEST
COMMUNITY REDEVELOPMENT AGENCY
TABLE OF CONTENTS
Pate
1. RECITALS 1
2. PROPERTY 2
3. DEPOSIT 2
4. PURCHASE PRICE 2
5. INSPECTION PERIOD 2
6. AS -IS, WHERE IS, AND WITH ALL FAULTS CONDITION 5
7. TITLE AND SURVEY 6
8. PROJECT 8
9. REQUIREMENTS PRIOR TO VERTICAL CONSTRUCTION 13
10. RESIDENTIAL RENTAL HOUSING REQUIREMENTS 13
11. INTENTIONALLY DELETED. 14
12. MINORITY AND WOMEN'S PARTICIPATION AND EQUAL EMPLOYMENT
OPPORTUNITY 14
13. [RESTRICTIVE COVENANT] 24
14. SAWYER'S WALK 24
15. CONDITIONS PRECEDENT TO COMMENCEMENT OF CONSTRUCTION 25
16. CONDITION PRECEDENTS TO CLOSING 25
17. CONDITION PRECEDENTS TO CLOSING FOR DEVELOPER. 26
18. CLOSING DATE 26
19. REPRESENTATIONS OF CRA 27
20. THE DEVELOPER'S REPRESENTATIONS 28
21. DEFAULT 29
22. BROKERS 29
23. ASSIGNABILITY 29
24. NOTICES 30
25. CHALLENGES 31
26. RELOCATION OF TREES 31
27. LIEN RIGHTS. 32
28. MISCELLANEOUS. 32
29. ENTIRE AGREEMENT 32
ii
30. ESCROW AGENT 33
31. NO THIRD PARTY BENEFICIARY 33
LIST OF EXHIBITS
A. Legal Description
B. Insurance Requirements
C. Additional Permitted Exceptions
D. Conceptual Design Documents
E. Residential Housing Restrictive Covenant
F Sketch of Redevelopment Area
G. Map of Overtown
H. Hiring Standards
I. Responsible Wage Schedule
J. Restrictive Covenant
K. Deed
L. No Lien Affidavit
M. Assignment of Development Rights
N. Articles of Formation and Operating Agreement
O. Organizational Chart of Developer and List of Members
BLOCK 55 DEVELOPMENT AGREEMENT
THIS BLOCK 55 DEVELOPMENT AGREEMENT (the "Agreement") is dated as of the
day of September, 2018, by and between DOWNTOWN RETAIL ASSOCIATES, LLC, a
Florida limited liability company (the "Developer"), and the SOUTHEAST OVERTOWN/PARK
WEST COMMUNITY REDEVELOPMENT AGENCY, a public agency and body corporate
created pursuant to Section 163.356, Florida Statutes (the "CRA");
RECITALS
A. The Southeast Overtown/Park West Project area was designated as a community
redevelopment area (the "Redevelopment Area") by Miami -Dade County, a political subdivision
of the State of Florida (the "County"). A redevelopment plan was approved by the Commissioners
of the City of Miami (the "City") and the Commissioners of Miami -Dade County with certain
redevelopment authority granted by the County to the City for project implementation. The City
assigned to the CRA the redevelopment authority granted by the County to the City.
B. The CRA issued a request for proposal RFP No. 17-02 (the "RFP") for the
development of that certain real property located within the Redevelopment Area which is more
particularly described on Exhibit "A" (the "Property").
C. In response to the RFP, the Developer submitted a proposal for the development of
the Property, as more particularly described in the proposal submitted by the Developer dated
October 17, 2017 under the name Sawyer's Landing (the "Proposal").
D. Based upon the evaluation of all proposals submitted in response to the RFP by the
selection committee appointed by the executive director of the CRA (the "Executive Director")
the Proposal submitted by Developer was the highest ranked proposal and pursuant to CRA
Resolution Number CRA-R-18- the Board of Commissioners of the CRA (the "CRA
Board") authorized the Executive Director to negotiate a development agreement with Developer
with respect to the Property.
E. Based upon subsequent negotiations between the Executive Director and the
Developer, the Executive Director has presented this Agreement to the CRA Board for
consideration and pursuant to CRA Resolution Number CRA-R-18- , the CRA Board
authorized the CRA to enter into this Agreement.
F. The CRA desires to convey the Property to the Developer subject to the terms and
provisions of this Agreement and the Developer desires to acquire the Property from the CRA for
the development of the Project, as hereinafter defined, subject to the terms and provisions of this
Agreement.
NOW THEREFORE, for and in consideration of the $10.00 and other good and valuable
consideration and of the covenants and agreements hereafter set forth, the parties agree as follows:
1. RECITALS. The Recitals to this Agreement are true and correct and are
incorporated herein by reference and made a part hereof.
2. PROPERTY. The property to be conveyed by the CRA to the Developer pursuant
to the terms of this Agreement consists of the Property and all appurtenances belonging thereto,
including any and all rights, privileges and easements in any way pertaining thereto, all right, title
and interest of the CRA in and to any adjoining sidewalk and in and to any adjoining street or alley
and all right, title and interest of the CRA in all permits and approvals issued by the applicable
governmental authorities relating to the use and development of the Property, but specifically
excluding the large potted plants currently located on the Property which are to be removed by the
CRA prior to the Closing Date, as hereinafter defined.
3. DEPOSIT. Within two (2) business days after the expiration of the Inspection
Period, the Developer shall deliver to Holland & Knight LLP, as escrow agent (the "Escrow
Agent"), the sum of One Million and No/100 Dollars ($1,000,000.00) (the "Deposit"). Upon
receipt of the Developer's tax identification number, the Escrow Agent shall invest the Deposit in
an interest -bearing account. All interest accrued or earned thereon shall be paid or credited to the
Developer except in the event of default of the Developer, in which event the interest shall be
disbursed to the CRA, together with the Deposit, as liquidated damages.
4. PURCHASE PRICE. The purchase price (the "Purchase Price") for the Property
is Eighteen Million and No/100 Dollars ($18,000,000.00), subject to adjustments and prorations,
as hereinafter provided, to be paid by wire transfer of federal funds on the Closing Date, as
hereinafter defined, The Deposit shall be credited against the Purchase Price at Closing.
5. INSPECTION PERIOD.
5.1 Inspections. The Developer shall have until 5 p.m. on the sixtieth (60th) day
after the Effective Date, as hereinafter defined, (the "Inspection Period") to perform, at the
Developer's sole cost and expense, such investigations inspections and evaluations of the Property
as the Developer, in the Developer's sole and absolute discretion deems appropriate, including,
without limitation, soil tests, zoning investigations, development capacity confirmation of utility
availability and environmental assessments (collectively the "Inspections") to determine whether
the Property is acceptable to the Developer, in its sole discretion. Prior to performing any on -site
Inspections, the Developer shall provide at least one (1) business day's prior written notice to the
Executive Director (which may be delivered by email) at 819 NW Second Avenue, Third Floor,
Miami, Florida 33136, email: cshiver@miamigov.com (or such other CRA representatives as
designated by the Executive Director), which written notice shall provide reasonable detail
regarding the type and scope of Inspection(s) to be performed and the scheduled date and time for
such Inspection(s) and provide the Executive Director the opportunity to have a representative
from the CRA present at any such Inspection(s).
5.2 Restoration. Following any such Inspections, the Developer shall promptly
restore the Property to the condition existing immediately prior to such Inspections. The
Inspections shall be conducted in accordance with all applicable laws and by insured professionals,
and the Developer shall cause its inspectors to obtain, at the Developer's sole cost and expense,
any and all licenses and permits required to conduct the Inspections, as applicable.
5.3 Disclosure. The Developer agrees that in the event the need arises to notify,
under applicable laws, any federal, state or local public agencies of any conditions at the Property
as a result of the Inspections performed by the Developer, its agents, employees, contractors and/or
representatives, the Developer shall provide the Executive Director with copies of any pertinent
reports, written material or other evidence of the condition requiring such disclosure, if any. Any
required disclosures shall be made directly by the CRA, and not the Developer, to any such public
agencies, unless the Developer is required to make such disclosures by applicable law, and the
CRA fails to timely make such disclosures.
5.4 Indemnification. The Developer shall assume all risks associated with the
Inspections and agrees to indemnify, defend and hold harmless the CRA of, from and against any
and all costs, losses, claims, damages, liabilities, expenses and other obligations (including,
without limitation reasonable attorney's fees and court costs) arising from, out of or in connection
with or otherwise relating to the Inspections, including, without limitation, the entry by any one or
more of the Developer's agents, employees, contractors and other representatives in or upon the
Property for the purpose of the Inspections, provided, however, that the Developer's
indemnification and hold harmless obligations under this Section 5.4 shall not apply to the mere
discovery of a pre-existing environmental or physical condition of the Property except to (a) the
extent of any negligent or willful exacerbation caused by the Developer (or its agents, employees,
contractors and other representatives), or (b) any gross negligence or willful misconduct of the
CRA. The foregoing indemnification obligations of the Developer shall survive the termination
of this Agreement.
5.5 Insurance. The Developer shall, prior to entering the Property and
performing any Inspections, provide to the CRA evidence of insurance by the Developer and its
contractor(s), agent(s) or representative(s), as applicable, as specified on Exhibit "B" attached
hereto, insuring against any liability by any one or more of the Developer, its agents, employees,
contractors or other representatives arising from, out of or in connection with or otherwise relating
to the entry by any one or more of the Developer, its agents, employees, contractors or other
representatives in or upon the Property for the purpose of the Inspections. The Developer shall
provide the CRA with a certificate of insurance from the Developer and its contractor(s), agent(s)
or representative(s), as applicable, evidencing such insurance coverage, naming the CRA as an
additional insured thereon and which insurance coverage shall be kept in force until the termination
of this Agreement.
5.6 Acceptance of Property. If for any reason whatsoever the Developer, in its
sole discretion, determines during the Inspection Period that it does not wish to proceed with the
transaction contemplated by this Agreement, the Developer shall have the absolute right to
terminate this Agreement by giving written notice of such termination to the CRA prior to the
expiration of the Inspection Period. Upon the CRA's receipt of such notice prior to the end of the
Inspection Period, this Agreement shall be deemed terminated and of no further force and effect
and the parties shall be released and relieved from any liability or obligations hereunder, except
for those obligations which expressly survive the termination of this Agreement. If the Developer
does not terminate this Agreement prior to the expiration of the Inspection Period, then it shall be
presumed conclusively that the Developer has had adequate opportunity to review and inspect all
portions of the Property, including, without limitation, the environmental condition of the
Property, and the Developer has determined that the condition of all portions of the Property are
satisfactory to the Developer and the Developer has accepted every portion of the Property in its
"AS IS, WHERE IS, WITH ALL FAULTS" condition.
5.7 No Lien. The Developer shall not create or permit to be created any
mechanic's liens upon the Property, or any part thereof, as a result of the Inspections. If any lien
shall at any time be filed against the Property, or any part thereof in connection with the
Inspections, the Developer shall cause same to be discharged or transferred to bond in accordance
with applicable laws within thirty (30) days after the Developer first becomes aware that such lien
has been recorded against the Property. This provision shall survive the termination of this
Agreement.
5.8 CRA Deliveries. Prior to the date of this Agreement, the CRA has provided
to the Developer copies of all surveys, reports, data, information and environmental studies which
the CRA has been able to locate with respect to the Property (collectively the "CRA Deliveries").
Any reliance upon the CRA Deliveries is at the sole risk of the Developer and the CRA makes no
representations or warranties, express or implied, with respect to the accuracy or completeness of
the CRA Deliveries, and any reliance upon same is at the sole risk of the Developer.
5.9 Disclaimer of Representations by the Developer. The Developer hereby
expressly acknowledges and agrees that, except as specifically provided in this Agreement:
5.9.1 The CRA makes and has made no warranty or representation
whatsoever as to the condition or suitability of the Property for the Project, as hereinafter defined.
5.9.2 The CRA makes and has made no warranty, express or implied, with
regard to the accuracy or completeness of any information furnished to the Developer, and the
CRA shall not be bound by any statement of any broker, employee, agent or other representative
of the CRA.
5.9.3 The CRA has made no representations, warranties or promises to the
Developer not explicitly set forth in this Agreement.
5.9.4 The CRA has made no representations or warranties, express or
implied, with regard to the neighborhood, that the Redevelopment Area will be developed, or as
to the precise type or quality of improvements that will be constructed within the Redevelopment
Area or the timing thereof.
5.9.5 The CRA makes and has made no representation or warranty,
express or implied, concerning any portion of the Property, its condition or other things or matters
directly or indirectly relating thereto or hereto, including, without limitation, no warranty as to
merchantability or fitness for any particular purpose or relating to the absence of latent or other
defects.
5.10 Removal of Slum and Blight. The Developer specifically acknowledges
that the transaction contemplated by this Agreement and the time frame for performance by the
Developer under this Agreement is not contingent upon the redevelopment of the Redevelopment
Area, the removal of slum or blight from the Redevelopment Area, the reduction of crime in the
Redevelopment Area or the status of any other projects in the Redevelopment Area.
5.11 Copies of Reports. Within ten (10) days of the end the Inspection Period,
Developer shall provide to the Executive Director copies of all environment report obtained by
Developer with respect to the Property (the "Environmental Reports"). In addition, in the event
that this Agreement is terminated the Developer shall provide the CRA with copies of any third
party reports prepared for the Developer regarding solely the physical condition of the Property
within ten (10) days of the termination of this Agreement. Any reliance by the CRA upon the
Environmental Report and any other third party reports prepared for the Developer and delivered
to the CRA pursuant to this Section 5.11 is at the sole risk of the CRA. This provision shall survive
termination of this Agreement.
5.12 Deposit. If the Developer fails to terminate this Agreement prior to the end
of the Inspection Period, the Developer shall deliver to Escrow Agent the Deposit by wire transfer
of federal funds on or before two (2) business days after the end of the Inspection Period. If the
Developer fails to make the Deposit on or before two (2) business days after the end of the
Inspection Period this Agreement shall automatically terminate, in which event the parties shall be
relieved from any liability or obligations hereunder except for those obligations under this
Agreement which expressly survive termination of this Agreement.
5.13 CRA Cooperation. In the event the Developer does not terminate this
Agreement during the Inspection Period, the CRA shall promptly execute any documents and/or
applications requested by the Developer which are required to be executed by the record owner of
the Property in connections any zoning and land use approvals or permit applications required to
be obtained by the Developer for the Project to enable the Project to be developed substantially in
accordance with the Conceptual Design Documents, as hereinafter defined, provided such
documents and applications do not impose any financial obligations or liability on the CRA.
6. AS -IS, WHERE IS, AND WITH ALL FAULTS CONDITION.
6.1 The Developer does hereby acknowledge, represent, warrant and agree, to
and with CRA, that, (i) the Developer is acquiring the Property in an "AS IS, WHERE IS, AND
WITH ALL FAULTS" condition with respect to any facts, circumstances, conditions and defects
of all kinds; (ii) CRA has no obligation to repair or correct any such facts, circumstances,
conditions or defects or compensate the Developer for same; (iii) the Developer is and will be
relying strictly and solely upon the advice and counsel of its own agents and representatives and
such physical inspections, examinations and tests of the Property as the Developer deems
necessary or appropriate under the circumstances; (iv) the Developer has had and will have,
pursuant to this Agreement, an adequate opportunity to make such legal, factual and other inquiries
and investigations as the Developer deems necessary, desirable or appropriate with respect to the
Property; (v) the CRA is not making and has not made any warranty or representation, express or
implied, with respect to the physical condition and other conditions of the Property and the
neighborhood as an inducement to the Developer to enter into this Agreement, or for any other
purpose; and (vi) by reason of all of the foregoing, from and after the Closing Date, as hereinafter
defined, the Developer shall assume the full risk of any loss or damage occasioned by any fact,
circumstance, condition or defect pertaining to the physical and other conditions of the Property,
regardless of whether the same is capable of being observed or ascertained.
6.2 THE CRA HAS NOT, DOES NOT AND WILL NOT, WITH RESPECT
TO THE PROPERTY, MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR
IMPLIED, OR ARISING BY OPERATION OF LAW, INCLUDING, BUT IN NO WAY
LIMITED TO, ANY WARRANTY OF CONDITION OR MERCHANTABILITY, OR WITH
RESPECT TO THE VALUE, PROFITABILITY OR OPERATING POTENTIAL OF THE
PROPERTY.
6.3 The Developer hereby releases the CRA from any liability, claims,
damages, penalties, costs, fees, charges, losses, causes of action, demands, expenses of any kind
or nature or any other claim it has or may have against the CRA resulting from the presence,
removal or other remediation of "Hazardous Materials" (as hereinafter defined) on or under the
Property or which has migrated from adjacent lands to the Property or from the Property to adjacent
lands.
6.4 The term "Hazardous Materials" shall mean asbestos, any petroleum fuel
and any hazardous or toxic substance, material or waste which is or becomes regulated by any
local governmental authority, the state where the Property is located or the United States
Government, including, but not limited to, any material or substance defined as a "hazardous
waste," "extremely hazardous waste," "restricted hazardous waste," "hazardous substance,"
"hazardous material" or "toxic pollutant" under state law and/or under the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601, et seq.
6.5 The provisions of this Section 6 shall survive the termination of this
Agreement and shall survive the closing and the delivery of the Deed, as hereinafter defined.
7. TITLE AND SURVEY.
7.1 The Developer shall obtain a title insurance commitment (the
"Commitment") and a survey (the "Survey") of the Property, at the Developer's sole cost and
expense. The Commitment and the Survey shall show the CRA to be vested in good and
marketable fee simple title to the Property, subject only to the following (the "Permitted
Exceptions"):
7.1.1 Ad valorem real estate taxes and assessments for the year of closing
and subsequent years.
7.1.2 All applicable laws, ordinances and governmental regulations,
including, but not limited to, all applicable building, zoning, land use, environmental ordinances
and regulations.
7.1.3 Any matters arising by, through, or under the Developer.
7.1.4 Those matters listed on Exhibit "C" attached hereto and made a part
hereof.
7.2 The Developer shall promptly provide the CRA with a copy of the
Commitment and the Survey upon the Developer's receipt of same. The Survey shall be certified
to the Developer and the CRA. If the Commitment and Survey reveal any particular condition of
title other than the Permitted Exceptions, the Developer shall, no later than the expiration of the
Inspection Period, notify the CRA in writing of the defect(s). If the Developer fails to give the
CRA written notice of the defect(s) prior to the end of the Inspection Period, the defect(s) shown
in the Commitment and the Survey shall be deemed to be waived as title objections and same shall
be deemed to constitute Permitted Exceptions for all purposes under this Agreement. If the
Developer has given CRA written notice of defect(s) prior to the end of the Inspection Period other
than the Permitted Exceptions, the CRA shall elect within ten (10) days after receipt of written
notice of the title defect(s) (the "CRA Response Period") whether the CRA will elect to attempt
to cure the title defect(s). If the CRA does not elect to cure the title defect(s), or fails to provide
notice prior to the expiration of the CRA Response Period, the Developer shall have the option, at
its sole discretion and to be exercised within ten (10) days after the Developer receives written
notice from the CRA that the CRA has elected not to cure the title defect(s) or within ten (10) days
after the expiration of CRA Response Period, whichever is earlier, of either (i) waiving the
defect(s), in which event the defect(s) shall be deemed to constitute a Permitted Exception under
this Agreement, or (ii) terminating this Agreement, in which event Escrow Agent shall return the
Deposit, if any, to the Developer and the parties shall be released from any further obligations
under this Agreement, except for those obligations that expressly survive the termination of this
Agreement. If the CRA elects to attempt to cure the title defect(s), the CRA shall have sixty (60)
days from receipt of the written notice of defect(s) to use commercially reasonable efforts to cure
same (the "Cure Period"). If the CRA elects to cure the title defect(s), the CRA shall discharge
any lien(s), judgment(s) or other matters affecting title to the Property in a liquidated amount. The
CRA shall not be required to commence litigation to resolve any matters. In the event the CRA
attempts to cure the title defects and the CRA is not able to cure the defect(s) prior to the end of
the Cure Period, the Developer shall have the option, in its sole discretion and to be exercised
within ten (10) days after the end of the Cure Period, of either (i) waiving the defect(s), in which
event the defect(s) shall be deemed to constitute a Permitted Exception under this Agreement;
provided, however, that if such uncured title defect(s) is the result of the failure of the CRA to
discharge any lien(s), judgment(s), or other matters affecting title to the Property in a liquidated
amount, then the Developer shall have the right, at the closing, to satisfy same out of the Purchase
Price; or (ii) terminating this Agreement, whereupon Escrow Agent shall return the Deposit to the
Developer and the parties shall be released from any further obligations under this Agreement,
except for those obligations that expressly survive the termination of this Agreement.
7.3 In the event of any new title defect(s) arising from and after the effective
date of the Commitment and prior to the Closing Date which are not Permitted Exceptions, the
CRA shall use commercially reasonable efforts to cure such title defect(s) within thirty (30) days
after being notified of such new defect by the Developer and, in all events, at least five (5) business
days prior to the Closing Date; provided, however, that the CRA must irrevocably commit in
writing, within such initial thirty (30) day period, to curing such title defect(s) at least five (5)
business days prior to the Closing Date. The CRA shall discharge any lien(s), judgment(s) or other
matters affecting title to the Property, which are not Permitted Exceptions, that are in a liquidated
amount. The CRA shall not be required to bring any lawsuit(s) to cure any title defect(s) or expend
any funds to cure any title defect(s) not in a liquidated amount. In the event that the CRA (a) is
unable to cure the title defect(s) within thirty (30) days after being notified of such new defect by
the Developer; (b) fails to irrevocably commit in writing, within such initial thirty (30) day period,
to curing such title defect(s) at least five (5) business days prior to the Closing Date; or (c) after so
committing to cure, is unable to cure the title defect(s) at least five (5) business days prior to the
Closing Date, then the Developer shall have the option on or prior to the Closing Date of: (i)
waiving the title defect(s) and accepting title "as is" whereupon the title defect(s) will be deemed
to constitute a Permitted Exception under this Agreement; provided, however, that if such uncured
title defect(s) are in a liquidated amount, then the Developer shall have the right, at the Closing, to
satisfy same out of the Purchase Price; or (ii) canceling this Agreement, whereupon Escrow Agent
shall return the Deposit to the Developer and the parties shall be released from all further
obligations under this Agreement, except for those obligations that expressly survive the
termination of this Agreement.
8. PROJECT.
8.1 Description of the Project. The project (the "Project") shall be a mixed use
development consisting of (i) not less than the following residential units (as applicable, the
"Residential Units") (a) five hundred (500) residential units, if the City Code is amended
substantially in accordance with the amendment proposed by the Developer in substantially the
form of Exhibit "P" attached hereto (the "Code Amendment"), or (b) not less than one hundred
fifteen (115) workforce housing units, if the Code Amendment is not approved prior to the Closing
Date; (ii) not less than 250,000 rentable square feet of retail/restaurant/office/entertainment uses
of which not less than 30,000 rentable square feet shall consist of street level
retail/restaurant/office/entertainment uses along NW 2nd Avenue; (iii) a minimum of 1,000 parking
spaces, but in any event not less than the number of parking spaces required under applicable law;
and (iv) the development of Sawyer's Walk, as hereinafter defined.
8.2 Design of the Project. The Project, including Sawyer's Walk, shall be
developed substantially in accordance with the conceptual design documents prepared by Robin -
Bosco Architects & Planners, Inc. identified on Exhibit "D" attached hereto (the "Conceptual
Design Documents").
8.3 Schematic Documents. Within thirty (30) days after the end of the
Inspection Period, the Developer shall submit to the Executive Director for his review and approval
the schematic design documents for the Project consisting of drawings and other documents (such
as an architectural site plan, floor plans and building elevations) illustrating the scale and
relationship of components of Project, including Sawyer's Walk (the "Schematic Documents").
The Schematic Documents shall be subject to the approval of the Executive Director, which
approval shall not be unreasonably withheld, conditioned or delayed, and which approval shall be
given if the Schematic Documents are substantially consistent with the Conceptual Design
Documents. The Developer agrees to utilize its good faith efforts to make modifications to the
Schematic Documents to address the comments of the Executive Director if the Schematic
Documents are not substantially consistent with Conceptual Design Documents and revise the
Schematic Documents as necessary to address the comments of the Executive Director to make
the Schematic Document substantially consistent with the Conceptual Design Documents. The
Developer shall provide to the Executive Director such additional back-up information as the
Executive Director may reasonably request to enable the Executive Director to analyze the
Schematic Documents. The Executive Director shall have ten (10) days from the receipt of the
Schematic Documents to approve or disapprove same. If the Executive Director fails to respond
within said ten (10) day period, the Schematic Documents shall be conclusively deemed approved.
In the event of disapproval, the Executive Director shall specify the reason for such disapproval.
In the event of disapproval, the Developer shall modify the Schematic Documents, as appropriate,
to address the comments and concerns of the Executive Director to the Schematic Documents to
make same substantially consistent with the Conceptual Design Documents. Any resubmission
shall be subject to the approval of the Executive Director in accordance with the procedure outlined
above for the original submission until same is approved or deemed approved by the Executive
Director. The Executive Director and the Developer shall make commercially reasonable efforts
to resolve any disputes regarding the Schematic Documents. If the Executive Director has rejected
the Schematic Documents two (2) times, then, following the second rejection, the Developer may
elect to submit such dispute regarding the approval of the Schematic Documents to the CRA Board,
for resolution which resolution shall be binding on the parties. The Schematic Documents, as
approved or deemed approved by the Executive Director, shall mean the "Approved Schematic
Documents".
8.4 Design Development Documents. Within sixty (60) days after the
Executive Director's approval or deemed approval of the Approved Schematic Documents, the
Developer shall submit to the Executive Director for its review and approval the design
development documents for the Project, including Sawyer's Walk, consisting of building massings
and elevations, exterior materials and color schemes, fenestrations and a detailed description of all
building systems for the Project (the "Design Development Documents"). The Design
Development Documents shall be subject to the approval of the Executive Director, which
approval shall not be unreasonably withheld, conditioned or delayed and which approval shall be
given if the Design Development Documents are substantially consistent with the Approved
Schematic Documents. The Developer agrees to utilize its good faith efforts to make modifications
to the Design Development Documents to address the reasonable comments of the Executive
Director if the Design Development Documents are not substantially consistent with Approved
Schematic Documents and revise the Design Development Documents as necessary to be
consistent with the Approved Schematic Documents. The Developer shall provide to the
Executive Director such additional back-up information as the Executive Director may reasonably
request to enable the Executive Director to analyze the Design Development Documents. The
Executive Director shall have ten (10) day from the receipt of the Design Development Documents
to approve or disapprove same. If the Executive Director fails to respond within said ten (10) day
period, the Design Development Documents shall be conclusively deemed approved. In the event
of disapproval, the Executive Director shall specify the reason for such disapproval. In the event
of disapproval, the Developer shall modify the Design Development Documents, as appropriate,
to address the comments and concerns of the Executive Director to cause the Design Development
Documents to be substantially consistent with the Approved Schematic Documents. Any
resubmission shall be subject to the approval of the Executive Director in accordance with the
procedure outlined above for the original submission until same is approved or deemed approved
by the Executive Director. The Executive Director and the Developer shall make commercially
reasonable efforts to resolve any disputes regarding the Design Development Documents. If the
Executive Director has rejected the Design Development Documents two (2) times, the Developer
may elect to submit such dispute regarding the approval of the Design Development Documents
to the CRA Board for resolution, which resolution shall be binding on the parties. The Design
Development Documents as approved or deemed approved by the Executive Director shall mean
the "Design Documents".
8.6 Zoning Approvals. Developer, utilizing commercially reasonable efforts,
shall diligently pursue obtaining Site Plan Approval from the City of Miami for the Project. The
term "Site Plan Approval" shall mean the last discretionary Planning and Zoning approval for
the Project prior to applying for a building permit for the Project, and shall include any and all
quasi-judicial approvals for the Project. For the avoidance of doubt, the term Site Plan Approval
does not include any discretionary approvals associated with the City's review of the Plans for the
issuance of a building permit for the Project. Developer, utilizing commercially reasonable efforts,
shall diligently pursue Site Plan Approval from the Planning Depailiuent, Zoning Department,
Planning Zoning and Appeals Board, or the City Commission, as applicable, approving the Project.
Developer shall submit the Conceptual Design Documents, the Approved Schematic Design
Documents or the Design Development Documents, as appropriate, to the City's Zoning Division
of the Planning and Zoning Depaltiuent for design review or approval as soon as the appropriate
plans are available but in no event later than seven (7) days after approval or deemed approval of
the Design Documents.
8.7 Plans and Specifications. Promptly upon obtaining Site Plan Approval, the
Developer shall cause its architect to prepare plans and specifications for the construction of the
Project which shall be of sufficient detail to allow Developer to apply for a building permit, which
plans and specifications shall be substantially consistent with the Design Documents and Site Plan
Approval (the "Plans"). The parties recognize that (x) if the Residential Units are built in
accordance with Section 8.1(i)(a), the Residential Units will be constructed in two (2) phases and
the Plans may only include the first phase which will consist of not less than two hundred fifty
(250) residential units ("Phase I"). The second phase which will consist of not less than two
hundred fifty (250) residential units ("Phase II") may be constructed at a later date and the plans
for Phase II shall be substantially consistent with the Design Documents and the Site Plan
Approval and (y) if the Residential Units are built in accordance with Section 8.1(i)(b), the
Residential Units will be constructed in one (1) phase, which will be included in the Plans.
8.8 Building Permit. Upon completion of the Plans, the Developer, utilizing
commercially reasonable efforts, shall diligently pursue the issuance of a building permit for the
Project, which building permit may, or may not, include Phase II, at the option of the Developer.
8.9 Development. Developer covenants and agrees to develop the Project
substantially in accordance with the Plans, subject to any modifications required by the City of
Miami in connection with obtaining Site Plan Approval, and as 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 Plans to the Executive Director for approval, which approval shall not be
unreasonably withheld, conditioned or delayed and which approval shall be given if the variations
to the Plans are in accordance with the spirit and intent of the Design Documents, in all material
respects. The Executive Director may only disapprove any proposed material variations to the
Plans if such proposed variations are not in accordance with the spirit and intent of the Design
Documents in all material respects. The Developer shall provide to the Executive Director such
additional back up information as the Executive Director may reasonably request to enable the
Executive Director analyze the Plans. The Executive Director shall have ten (10) days from the
receipt of the request for approval of any material variation to the plans to approve or disapprove
same. If the Executive Director fails to respond in such ten (10) day period, the material variations
to the Plans 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 disapproval,
the Developer shall modify the Plans, as appropriate, to address the comments and concerns of the
Executive Director to cause the Plans to be in accordance with the spirit and intent of the Design
Documents, in all material respects. Any resubmission shall be subject to the approval of the
Executive Director in accordance with the procedure outlined above for the original submission
until same is approved or deemed approved by the Executive Director. In the event of any
disapproval, the Executive Director and Developer shall in good faith, attempt to resolve any
disputes regarding the proposed variations. If the Executive Director has rejected the Plans two (2)
times the Developer may elect to submit such dispute to the CRA Board, for resolution, which
resolution shall be binding on the parties.
8.10 DEVELOPMENT IN ACCORDANCE WITH PLANS. Developer
covenants and agrees to develop the Project substantially in accordance with the Plans. To the
extent that Phase II is not included in the Plans, when the plans and specification for Phase II are
prepared such plans and specifications shall comply with the requirements of Sections 8.7 and 8.9
of this Agreement, but all references therein to the Project shall be deemed references to only
Phase II.
8.11 Certificate Evidencing Compliance. Upon Developer obtaining a building
permit for the Project based upon the Plans complying with Section 8.7, as same may be modified
as permitted pursuant to Section 8.9, at the request of the Developer, the Executive Director shall
execute a certificate in recordable form confirming that the Plans comply with the requirements of
this Agreement, which certificate shall only include Phase II if include in the Plans.
8.12 DEVELOPMENT TIMEFRAME.
8.12.1 Intentionally Deleted.
8.12.2 Commencement and Completion of the Project. The Developer
must commence "Vertical Construction" (defined as physical structures, inclusive of the
excavation work for installing the foundation system, actually being constructed on the Project
pursuant to the building permit) within twelve (12) months after the Closing Date, as hereinafter
defined (the "Commencement of Construction Deadline"), time being of the essence. The
Developer shall complete the Project, including Sawyer's Walk, substantially in accordance with
the Plans as evidenced by temporary or permanent certificates of occupancy for all of the
Residential Units included in the Plans and temporary certificates of completion (or their
equivalent) (with cold and dark shells for their interiors) for all other components of the
improvements comprising the Project as reflected on the Plans ("Completion") on or before thirty
(30) months from the Commencement of Construction (the "Completion Date"). The Completion
Date shall automatically be extended one day for each day of Unavoidable Delays. The term
"Unavoidable Delay" means delays due to area wide strikes, acts of God, floods, hurricanes,
casualties, fire, acts of the public enemy and governmental moratoriums. The term Unavoidable
Delay shall not include any delays caused by any other source, including, but not limited to, any
governmental entity acting in its proprietary or regulatory capacity (other than an exercise of the
right of eminent domain) or delay caused by lack of funds. 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, if known. 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
and/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 CRA Board, for
resolution, which resolution shall be binding on the parties.
8.12.3 For the avoidance of any doubt, with respect to Commencement of
Construction, Completion and the Completion Date, Phase II of the Project does not have to be
included and is only included if the building permit obtained by the Developer for the Project in
accordance with Section 8.8 includes Phase II. If Phase II is not included in Plans submitted for
the building permit in accordance with Section 8.8, Developer shall develop Phase II at a later date
to be determined by the Developer.
8.12.4 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 twelve (12) months by paying to the CRA Twenty Thousand and No/100 Dollars
($20,000.00) per month for each monthly extension on or before the then Commencement of
Construction Deadline, as same may be extended as a result of Unavoidable Delay. For the
avoidance 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.
8.12.5 Extension of Completion Date. Developer shall have the right to
extend the Completion Date, as same may be extended as result of Unavoidable Delay, for twelve
(12) periods of thirty (30) days each by paying to the CRA Twenty Thousand and No/100 Dollars
($20,000.00) for each such thirty (30) day extension on 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.
8.12.6 Failure to Comply with Commencement of Construction
Deadline. If the Developer fails to commence Vertical Construction of the Project on or prior to
the Commencement of Construction Deadline, as automatically extended one day for each day of
Unavoidable Delay and as same may be extended in accordance with Section 8.12.4, the Developer
shall pay the CRA, as liquidated damages, Five Thousand and No/100 Dollars ($5,000.00) per day
for each day after Commencement of Construction Deadline, as same may be extended, until
commencement of Vertical Construction. Such amount shall be due and payable to the CRA
within thirty (30) days after Developer has achieved Vertical Construction.
8.12.7 Failure to Complete the Project. If the Developer has not
achieved Completion on or prior to the Completion Date, as automatically extended one day for
each day of Unavoidable Delay, and as same may be extended in accordance with Section 8.12.5,
the Developer shall pay to the CRA, as liquidated damages, Five Thousand and No/100 Dollars
($5,000.00) per day for each day from Completion Date, as same may be extended, until
Completion.
8.12.8 Certificate Evidencing Completion. Upon Developer achieving
Completion and complying with all the requirements of Section 8.9, 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 8.12.2 on or before the Completion Date, as same
way be extended as a result of Unavoidable Delay and as same may be extended pursuant to the
term of Section 8.12.5, which certificate shall only include Phase II if included in the Plans.
9. REQUIREMENTS PRIOR TO VERTICAL CONSTRUCTION.
9.1 Prior to Commencement of Vertical Construction, the Developer shall
comply with the following:
9.1.1 Construction Contract. Enter into the construction contract for the
Project (the "Construction Contract") with the general contractor (the "General Contractor")
which may or may not include Phase II, which Construction Contract shall include the obligation
of the General Contractor to comply with the requirements set forth in Sections 12.1, 12.2, 12.3,
12.4, 12.5, 12.6, 12.7, 12.8, and 12.10 of this Agreement and achieve Completion within thirty
(30) months from Commencement of Vertical Construction.
9.1.2 Payment and Performance Bond. Cause to be obtained 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 Project, which
shall be issued be 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"). In lieu of providing
Payment and Performance Bond, Developer shall have the option of providing a sub -guard
insurance policy provided the General Contractor is Coastal Construction Group of South Florida
Inc. or another general contractor of substantially equivalent reputation and net worth, and the
Executive Director approves the amount of the sub -guard policy, the deductibles under the sub -
guard policy the form of the sub -guard policy, and the company providing the policy in the sole
and reasonable discretion of the Executive Director.
10. RESIDENTIAL RENTAL HOUSING REQUIREMENTS.
10.1 RESIDENTIAL HOUSING RESTRICTIONS.
(a) The CRA and the Developer agree that (x) if the Residential Units
are built in accordance with Section 8.1(i)(a) that (i) three (3%) of the Residential Units in Phase
I are three percent (3%) of the Residential Units in Phase II shall be made available for individuals
and/or families earning up to eighty-five (85%) of AMI; (ii) three percent (3%) of the Residential
Units in Phase I and three percent (3%) of the Residential Units in Phase II shall be made available
for individuals and/or families earning more than eighty-five (85%) of AMI up to ninety percent
(90%) of AMI; (iii) two percent (2%) of the Residential Units in Phase I and two percent (2%) of
Residential Unites in Phase II shall be made available for individuals and/or families earning more
than ninety percent (90%) of AMI up to ninety-five (95%) of AMI; and (iv) two percent (2%) of
the Residential Units in Phase I and two percent (2%) of the Residential Unites in Phase II shall
be made available for individuals and/or families earning more than ninety-five (95%) of AMI up
to one hundred percent (100%) of AMI, and (v) if the Residential Units are built in accordance
with Section 8.1 (i)(b), than one hundred (100%) of the Residential Units shall be made available
only to individuals and/or families earning up to one hundred forty percent (140%) of AMI.
(b)"AMI" shall mean the median family income for Miami -Dade
County as published annually by the U.S. Depaitment of Housing and Urban Development.
(c) The Residential Units shall consist of studio units ("Studio Units"),
one bedroom one bath units with an approximate average size of five hundred sixty (560) square
feet and two bedroom two bath units with an approximate average size of nine hundred (900)
square feet.
(d) If the Residential Units are built in accordance with Section
8.1(i)(a), then notwithstanding the fact that Studio Units are included in the calculation of the total
number of Residential Units included in Phase I and the total number of Residential Units included
in Phase II for purposes of Section 10.1(a)(x) only one bedroom and two bedroom units shall be
applicable for determining compliance. For example if the total number of Residential Units
included in Phase I is 300 units of which 50 are Studio Units, then for the purposes of Section
10.1(a)(x) references to Residential Units would mean all 300 units notwithstanding the fact that
Studio Units will not be included in calculations for compliance (i.e. ten percent (10%) of the
Residential Units would be thirty (30) units all of which must be one bedroom and two bedroom
units).
(e) The Residential Units complying with the requirements of Section
10.1(a)(x) shall consist of approximately fifty percent (50%) one bedroom units and fifty percent
(50%) two bedroom units, which units shall be equitably distributed throughout Phase I and Phase
II, respectively, excluding the top five (5) floors of Phase I and Phase II.
(f) The requirements of this Section 10 are separate from any
requirements that Developer may elect to comply with under Miami 21.
10.2 Restrictive Covenant. At Closing, the Developer and the CRA shall execute
a restrictive covenant in the form of Exhibit "E" attached hereto and made a part hereof (the
"Residential Housing Restrictive Covenant"), which will run with the land for a period of thirty
(30) years from Completion as more particularly provided in the Residential Housing Restrictive
Covenant.
11. INTENTIONALLY DELETED.
12. MINORITY AND WOMEN'S PARTICIPATION AND EQUAL
EMPLOYMENT OPPORTUNITY.
12.1 Minority and Women Participation and Equal Opportunity. In connection
with the Project, the Developer agrees that it will and that the Developer will require its general
contractor to:
(a) Take good faith, commercially reasonable action in the recruitment
and advertising, and to attract and retain minority and female
contractors and subcontractors.
(b) Provide a reasonable opportunity in the recruitment, advertising and
hiring of professionals, contractors and subcontractors residing
within the Redevelopment Area and within the City of Miami.
(c) Take reasonable definitive action in retaining employees regardless
of race, color, place of birth, religion, national origin, sex, age,
marital status, veterans and disability status.
(d) Maintain equitable principles in the recruitment, advertising, hiring,
upgrading, transfer, layoff, termination, compensation and all other
terms, conditions and privileges of employment.
(e)
Monitor and review all personnel practices to guarantee that equal
opportunities are being provided to all employees regardless of race,
color, place of birth, religion, national origin, sex, age, marital
status, veterans and disability status.
(f) Post in conspicuous places, availability to employees and applicants
for employment, notices in a form to be provided to the Executive
Director, setting forth the non-discrimination clauses of this Section
12.
(g)
In all solicitations and advertisements for employment placed by or
on behalf of the Developer, state that all applicants will receive
consideration for employment without regard to race, creed, color
or national origin.
12.2 Participation Requirements. The Developer agrees to comply with the
following subcontractor participation requirements and laborer participation requirements (the
"Participation Requirements") with respect to the Project:
12.2.1 Local Labor Workforce Participation.
(i) Developer shall require the General Contractor and all
subcontractors and all sub -subcontractors at all levels (collectively, the "Contractors")
performing work in connection with the Project to employ local unskilled laborers who reside
within the County (the "Local Labor Workforce"). This requirement shall be deemed satisfied
if Contractors, in aggregate, hire thirty percent (30%) of the Local Labor Workforce (measured in
terms of the total number of man hours worked by new and existing unskilled laborers who are
residents of the County and the total man hours worked by new and existing unskilled laborers)
("Laborer Participation Requirement") with the following hiring priorities:
(a) first, to City residents living within the boundaries of
the Redevelopment Area as more particularly shown on the sketch attached as Exhibit "F";
(b) second, to City residents living within the boundaries
of the Overtown community, as shown on the sketch attached as Exhibit "G" ("Overtown"),
which community encompasses part of zip code 33136, excluding the Redevelopment Area;
(c) third, to City residents living within zip codes 33127,
33128, 33130, 33136, 33142, 33125, 33135, 33150 and the West Coconut Grove, excluding the
Redevelopment Area and Overtown (the "City Targeted Areas");
(d) fourth, to City residents residing outside of the
Redevelopment Area, Overtown and the City Targeted Areas;
(e) fifth, to County residents residing outside of the City
in zip codes 33010, 33030, 33034, 33054, and 33161 (the "County Targeted Areas"); and
(f) Sixth, to County residents residing outside of the
City and the County Targeted Zip Codes.
(ii) The Laborer Participation Requirement shall not be
deemed or construed to require Contractors to hire employees who do not comply with OSHA
requirements, drug testing requirements and insurance company requirements; however, neither
Contractors nor their agents will solicit information from potential laborers regarding their
criminal record at time of initial application and any evidence of past criminal acts committed by
a such laborer of which a Contractor or its agent becomes apprised shall not automatically
disqualify such laborer from Project related employment, but shall be evaluated on a case by case
basis in accordance with the standards set forth in Exhibit "H". Any aforementioned hiring
requirements shall not relieve the Developer from its obligation to satisfy the Laborer Participation
Requirement with respect to the Project.
(iii) The Developer shall require Contractors to maximize the
Local Labor Workforce performed by residents of the County in keeping with the hiring priorities
outlined above.
12.2.2 Skilled Construction Workforce Participation.
(i) Developer shall require all Contractors performing work in
connection with the Project to employ local skilled laborers who reside within the County (the
"Skilled Construction Workforce") of not less than ten percent (10%) of the skilled labor utilized
by Contractors (measured on terms of total number of skilled man hours worked by new and
existing skilled laborers who are residents of the County and the total number of skilled man hours
worked by new and existing skilled laborers (the "Skilled Laborer Participation Requirement")
with the following hiring priorities:
(a) first, to City residents living within the boundaries of
the Redevelopment Area;
(b) second, to City residents living within the boundaries
of Overtown, excluding the Redevelopment Area;
(c) third, to City residents living in the City Targeted
Areas, excluding the Redevelopment Area and Overtown;
(d) fourth, to be City residents residing outside of the
Redevelopment Area Overtown and the City Targeted Areas;
(e) fifth, to County residents of the County Targeted
Areas residing outside the City; and
(f) sixth, to County residents residing outside the City
and the County Targeted Areas.
(ii) The Skilled Laborer Participation Requirement shall not be deemed
or construed to require Contractors to hire employees who do not comply with OSHA
requirements, drug testing requirements and insurance company requirements; however, neither
the Contractors nor their agents will solicit information from potential skilled laborers regarding
their criminal record at the time of initial application and any evidence of past criminal acts
committed by such skilled laborer of which such Contractor or its agent becomes apprised shall
not automatically disqualify such skilled laborer from Project -related employment, but shall be
considered on a case -by -case basis in accordance with the standards set forth in Exhibit "H". Any
aforementioned hiring requirements shall not relieve Developer from its obligation to comply with
the Skilled Laborer Participation Requirement with respect to the Project.
(iii) The Developer shall require Contractors to maximize the Skilled
Labor Workforce performed by residents of the County in keeping with the hiring priorities
outlined above.
12.2.3 Construction Subcontractor Participation.
(i) Developer shall require the General Contractor to have
not less than twenty percent (20%) of the subcontractors for the Project (the "Subcontractor
Participation Requirement") (which 20% shall be calculated based upon the dollar amount paid
to subcontractors whose principal place of business is located within the County and the total dollar
amount paid to all subcontractors for construction of the Project),to have their principal place of
business in the County (the "Subcontractor Participation Requirement"), in accordance with
the following geographic hiring priorities:
(a) first, to subcontractors, having their principal
place of business located within the Redevelopment Area;
(b) second, to subcontractors, having their principal
place of business located within the boundaries of Overtown, but outside the Redevelopment Area;
(c) third, to subcontractors, having their principal
place of business located within the City Targeted Zip Codes, but outside the Redevelopment Area
and Overtown;
(d) fourth, to subcontractors, having their principal
place of business located within the City but outside of the Redevelopment Area, Overtown and
the City Targeted Zip Codes;
(e) fifth, to subcontractors, having their principal
place of business is located in the County Targeted Areas, but outside the City; and
(f) sixth, to subcontractors, having their principal
place of business located in the County but outside the City and the County Targeted Areas.
(ii) The Developer shall require the General Contractor to
have the work performed by subcontractors based upon their principal place of business in keeping
with the geographic hiring priorities outlined above; provided, however, that nothing contained
herein shall require such General Contractor to hire a subcontractor from within the County that
does not possess the necessary skills and qualifications required by such General Contractor for
the scope of employment. The fact that some potential subcontractors are not retained because
they do not possess the necessary skills and qualifications required by the General Contractor shall
not relieve the Developer from its obligation to comply with the Subcontractor Participation
Requirement with respect to the Project.
12.3 Minimum Hourly Construction Wage Rate.
(i) Until Completion of the Project, Contractors shall pay a
minimum hourly wage rate required by Section 2-8.9 of the Miami -Dade County Code for
employees working on the construction of the Project, as such rates may be revised by the County
annually (the "Minimum Hourly Construction Wage Rate"), which Minimum Hourly
Construction Wage Rate shall be increased annually to an amount equal to the amount set forth in
the living wage notice published by the County (the " Living Wage Notice"), which increase shall
be as effective as of the due set forth in the Living Wage Notice. Developer acknowledges that
based upon the Living Wage Notice published by the County, effective from October 1, 2017 to
September 30, 2018, the Minimum Hourly Construction Wage Rate applicable to the Project as of
the Effective Date would be $13.20 per hour with qualified health benefits valued at least $1.91
per hour, otherwise $15.11 per hour, which rates shall be adjusted annually. The actual Minimum
Hourly Construction Wage Rate shall be set forth in the Living Wage Notice(s) published by the
County, from time to time, during the period of construction of the Project.
(ii) All Contractors shall include the same Minimum Hourly
Construction Wage Rate in all contracts and in all subcontracts entered into by such Contractors,
which contracts and subcontracts shall require such Contractors to stipulate and agree that they
will pay the Minimum Hourly Construction Wage Rate, subject to adjustment, as set forth in
Section 12.3(i).
(iii) The General Contractor shall be required to post a notice
of the Minimum Hourly Construction Wage Rate at prominent locations throughout the Property
(the "Construction Wage Notice"). The Construction Wage Notice shall, at minimum, advise
workers at the Project of the Minimum Hourly Construction Wage Rate required to be paid by all
Contractors, the person to contact to initiate a grievance, and the penalties for non-compliance.
The form of Construction Wage Notice shall be subject to the approval of the Executive Director
prior to the commencement of construction of the Project, which approval shall not be
unreasonably withheld, conditioned or delayed. The General Contractor shall be responsible for
posting updated Construction Wage Notices at prominent locations throughout the Property
reflecting the New Minimum Hourly Construction Wage Rate within ten (10) days of the issuance
of a revised Living Wage Notice by the County through Completion of the Project. Copies of each
updated Construction Wage Notice shall be provided to the Executive Director not more than ten
(10) days after the issuance of the revised Living Wage Notice by the County reflecting the new
Minimum Hourly Construction Wage Rate.
12.4 Responsible Wage Rates for Electrical Workers and Plumbers.
(i) Developer shall require all Contractors performing work in
connection with the Project to pay the minimum hourly wage rates and benefits required by Section
2-11.16 of the County Code as such rates and benefits may be revised by the County annually (the
"Responsible Wage"), in compliance with the County's Responsible Wages and Benefits
Supplemental General Conditions Wages and Benefits Schedule, Construction Type: Building (the
"Schedule"), as the same may be revised by the County annually, which shall be required to be
paid for the Project for the labor classification set for the below. The Schedule for 2018 is attached
hereto as Exhibit "I," which shall apply for each of the following labor classifications set forth
below:
(a) Electrical Workers: Journeyman Wiremen;
Journeyman Cable Splicer; Journeyman Welder; Electrical Foreman; and General Electrical
Foreman.
(b) Plumbers: Journeyman Plumber; Plumbing
Foreman; and Plumbing General Foreman.
(ii) Contractors performing work in connection with the Project may
employ the services of Apprentices in each of the above -listed labor classifications without regard
to compliance with the staffing and other requirements set forth in Section 2-11.16 of the County
Code and/or the Schedule. The Responsible Wage paid to such Apprentices shall comply with the
rates and benefits published in the Schedule for the applicable category. Contractors shall include
the same obligation to pay the Responsible Wages in all contracts and in all subcontracts for
services entered into by such Contractors requiring workers within such classifications for the
performance of the scope of work. Developer, either directly or through its General Contractor,
shall further require all Contractors to stipulate and agree in each contract for services that they
will pay the Responsible Wage and that they will only employ Electrical Workers and Plumbers
in the trade/work level classifications set forth in the Schedule.
(iii) The General Contractor shall be required to post a notice at
prominent locations throughout the Property of the Responsible Wage Rate for such workers
providing services within each of the classifications identified in Section 12.4(i) (the "Responsible
Wage Notice"). The Responsible Wage Notice shall, at a minimum, advise workers of the
Responsible Wage rates and benefits, the person to contact to initiate a grievance, and the penalties
for non-compliance. The form of the Responsible Wage Notice shall be subject to the approval of
the Executive Director prior to the commencement of construction of the Project, which approval
shall not be unreasonably withheld, conditioned or delayed. The General Contractor shall be
responsible for posting an updated Responsible Wage Notice at prominent locations throughout
the Property reflecting the new Responsible Wage rates and benefits within ten (10) days of the
issuance of a revised Schedule by the County through Completion of the Project. Copies of each
updated Responsible Wage Notice reflecting the new Responsible Wage rates and benefits shall
be provided to the Executive Director not more than ten (10) days after the issuance of the revised
Schedule by the County.
12.5 Construction Reports & Penalties.
12.5.1 Construction Reporting Requirements. During construction of the
Project, Developer shall submit to the Executive Director: (i) on a quarterly basis commencing
thirty (30) days after the end of the first quarter after the commencement of construction of the
Project until thirty (30) days following Completion of the Project, detailed reports with respect to
compliance with the Subcontractor Participation Requirement during the prior quarter and overall
with respect to the Project; and (ii) on a monthly basis commencing thirty (30) days after the
commencement of construction of the Project until thirty (30) days following Completion of the
Project, detailed reports with respect to compliance with the Laborer Participation Requirement
and the Skilled Laborer Participation during the prior month with respect to the Project
(collectively the "Participation Reports"). The Developer and the Executive Director shall agree
reasonably on the form of the Participation Reports and the required back-up information to be
submitted as part of the Participation Reports prior to the commencement of construction of the
Project. The Participation Reports shall contain such information as the Executive Director may
reasonably require for the Executive Director to determine whether the Developer is in compliance
with the Subcontractor Participation Requirement, the Laborer Participation Requirement and the
Skilled Laborer Participation Requirement with respect to the Project. Each of the Participation
Reports submitted to the Executive Director must be certified as true and correct by the Developer.
12.5.2 Penalties for Non -Compliance with Subcontractor Participation
Requirement.
12.5.2.1 To the extent Developer fails to comply with the Subcontractor
Participation Requirement for the Project, Developer shall pay to the CRA as a penalty for such
non-compliance: (a) Ten Thousand and No/100 Dollars ($10,000.00) for each percentage point
(1%) below the Subcontractor Participation Requirement for the first three (3) percentage points
below the Subcontractor Participation Requirement; (b) Twenty -Five Thousand and No/100
Dollars ($25,000.00) thereafter for each additional percentage point (1%) below the first three (3)
percentage points below the Subcontractor Participation Requirement, thereafter for up to three
(3) additional percentage points; and (c) Fifty Thousand and No/100 Dollars ($50,000.00)
thereafter for each additional percentage point 1 % below the first six (6) percentage points below
of the Subcontractor Participation Requirement (the "Subcontractor Non -Compliance Funds").
12.5.2.2 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) from the date of the Developer's receipt of written statement from the Executive
Director stating the amount of the Subcontractor Non -Compliance Funds, if any, are due with
respect to the Project. In the event of a dispute between the Executive Director and the Developer
with respect to the compliance with the Subcontractor Participation Requirement with respect to
the Project, such dispute shall be submitted to the CRA Board for resolution if the Developer and
the Executive Director are not able to resolve the dispute within thirty (30) days. The decision of
the CRA Board shall be binding upon the parties. Any amount of the Subcontractor Non -
Compliance Funds not paid when due shall bear interest at 12% per annum from the date due until
paid.
12.5.3 Penalties for Non -Compliance with Laborer Participation
Requirement with respect to the Project.
12.5.3.1 To the extent Developer fails to comply with the Laborer
Participation Requirement set forth in Section 12.2.1 with respect to the Project, Developer shall
pay to the CRA as a penalty for such non-compliance: (a) Ten Thousand and No/100 Dollars
($10,000.00) for each percentage point below the Laborer Participation Requirement for the first
four (4) percentage points below the Laborer Participation Requirement; (b) Twenty -Five
Thousand and No/100 Dollars ($25,000.00) for each additional percentage point below the first
four (4) percentage points below the Laborer Participation Requirement for up to four (4)
percentage points; and thereafter (c) Fifty Thousand and No/100 Dollars ($50,000.00) per each
additional percentage point below eight (8) percentage points below the Labor Participation
Requirement (collectively, the "Laborer Non -Compliance Funds").
12.5.3.2 The Laborer Non -Compliance Funds shall be calculated by the
Executive Director after Completion of the Project and shall be due and payable within thirty (30)
from the date of the Developer's receipt of written statement from the Executive Director stating
the amount of the Laborer Non -Compliance Funds, if any, are due with respect to the Project. In
the event of a dispute between the Executive Director and the Developer with respect to the
compliance with the Laborer Participation Requirement with respect to the Project, such dispute
shall be submitted to the CRA Board for resolution if the Developer and the Executive Director
are not able to resolve the dispute within thirty (30) days. The decision of the CRA Board shall
be binding upon the parties. Any amount of Laborer Non -Compliance Funds not paid when due
shall bear interest at 12% per annum from the date due until paid.
12.5.4 Penalties for Non -Compliance with Skilled Laborer Participation
Requirement with respect to the Project.
12.5.4.1 To the extent Developer fails to comply with the Skilled Laborer
Participation Requirement for the Project, Developer shall pay to the CRA as a penalty for such
non-compliance (a) Ten Thousand and No/100 Dollars ($10,000.00) for each one half of a
percentage point (0.5%) below the Skilled Laborer Participation Requirement for the first one and
one-half percent (1.5%) below the Skilled Laborer Participation Requirement (b) Twenty Five
Thousand and No/100 Dollars ($25,000.00) for each additional one-half of a percentage point
(0.5%) below the first one and one half percent (1.5%) below the Skilled Laborer Participation
Requirement for up to an additional one and one-half percent (1.5%) and thereafter (c) Fifty
Thousand and No/100 Dollars ($50,000.00) per each additional one-half of a percentage point
(0.5%) below three percent (3%) below the Skilled Laborer Participation Requirement
(collectively, the "Skilled Laborer Non -Compliance Funds").
12.5.4.2 The Skilled Laborer Non -Compliance Funds shall be calculated
by the Executive Director after Completion of the Project and shall be due and payable within
thirty (30) from the date of the Developer's receipt of written statement from the Executive
Director stating the amount of the Skilled Laborer Non -Compliance Funds, if any, are due with
respect to the Project. In the event of a dispute between the Executive Director and the Developer
with respect to compliance with the Skilled Laborer Participation Requirement with respect to the
Project, such dispute shall be submitted to the CRA Board for resolution if the Developer and the
Executive Director are not able to resolve the dispute within thirty (30) days. The decision of the
CRA Board shall be binding upon the parties. Any amount of Skilled Laborer Non -Compliance
Funds not paid when due shall bear interest at 12% per annum from the date due until paid.
12.6 Failure to Comply with Minimum Hourly Construction Wage Rate
Requirement. In the event that any Contractor fails to pay the Minimum Hourly Construction
Wage Rate to any worker working on the construction of the Project, which failure is reported by
such worker to the Executive Director, the Executive Director shall investigate the report and if
the Executive Director, based upon his investigation confirms such non-compliance with the
Minimum Hourly Construction Wage Rate requirement, and that the error on the part of the
Contractor was not a de minimis miscalculation of the same, the Developer shall pay to the affected
worker(s) as a penalty the Minimum Hourly Construction Wage Rate for every hour for which
such worker was underpaid plus a twenty percent (20%) penalty (collectively the "Construction
Wage Rate Penalty"). Developer shall not receive the benefit of any credit for hourly wage
payments made to such worker that did not comply with the Minimum Hourly Construction Wage
Rate requirement ("Erroneous Hourly Wage Payment"). By way of illustration, if a worker was
paid an hourly rate of Ten and No/100 Dollars ($10.00) and no health benefits were provided for
one (1) hour in lieu of the Minimum Hourly Construction Wage Rate, the Construction Wage Rate
Penalty would be calculated as follows:
Construction Wage Rate Penalty = [(Minimum Hourly Construction Labor Rate times
the Total Hours Worked) * times 120%1 equals the Erroneous Hourly Wage Payment, in
addition to what already paid to such worker.
Such Construction Wage Rate Penalty shall be due from the Developer to the underpaid worker(s)
within thirty (30) days after written demand from the Executive Director. Developer shall have
the right to dispute such demand and the findings of the Executive Director. If the Executive
Director and the Developer are not able to resolve their dispute within thirty (30) days the dispute
shall be submitted to the CRA Board for determination which determination shall be binding on
the parties.
The Construction Wage Rate Penalty is not intended to waive any worker's rights to seek any and
all available legal relief available under applicable law. In the event a worker is granted a monetary
award against the Developer or its Contractor(s) in some other forum ("Monetary Award"), any
Construction Wage Rate Penalty otherwise due and owing shall be reduced by the amount of any
such Monetary Award previously paid to such worker.
12.7 Failure to Comply with Responsible Wage Requirement. In the event that
any Contractor fails to pay the Responsible Wage to any worker working on the construction of
the Project within the labor classifications set forth in Sections 12.4 (i) (a) and 12.4 (i) (b), above,
which failure is reported by such worker to the Executive Director, the Executive Director shall
investigate the report and if the Executive Director, based upon his investigation, confirms such
non-compliance with the Responsible Wage requirement, and that the error on the part of the
Contractor was not a de minimis miscalculation of the same, the Developer shall pay to the affected
worker(s) as a penalty the Responsible Wage for every hour for which such worker was underpaid
plus a twenty percent (20%) penalty (the "Responsible Wage Penalty"). Developer shall not
receive the benefit of any credit for hourly wage payments made to such worker that did not
comply with the Responsible Wage requirement ("Erroneous Responsible Wage Payment"). By
way of illustration, if a worker was paid an hourly rate of Twenty and No/100 Dollars ($20.00)
and no health benefits were provided for one (1) hour in lieu of the Responsible Wage of, for
example, $38.46, plus benefits shown on the Schedule, the Responsible Wage Penalty would be
calculated as follows:
Responsible Wage Penalty = [(Responsible Wage, including all required benefits, times
the Total Hours Worked times 120% equals the Erroneous Responsible Wage Payment, in
addition to the amount already paid to such worker.
Such Responsible Wage Penalty shall be due from the Developer to the underpaid workers(s)
within thirty (30) days after written demand from the Executive Director. Developer shall have
the right to dispute such demand and the findings of the Executive Director. If the Executive
Director and the Developer are not able to resolve their dispute within thirty (30) days the dispute
shall be submitted to the CRA Board from for resolution which resolution shall be binding on the
parties.
The Responsible Wage Penalty is not intended to waive any Electrical Worker's or Plumbing
Worker's rights to seek any and all available relief available under applicable law. In the event
any Electrical Worker or Plumbing Worker is granted a Monetary Award against the Developer or
its Contractor(s) in some other forum, any Responsible Wage Penalty otherwise due and owing
shall be reduced by the amount of any such Monetary Award previously paid to such Electrical
Worker or Plumbing Worker.
12.8 Employment Advertisement & Notice. With respect to the construction of
the Project, Developer shall:
(i) Require its General Contractor and all subcontractors to
electronically post job opportunities in established job outreach websites and organizations,
including, without limitation, CareerSource South Florida, and similar programs in order to attract
as many eligible applicants for such jobs as reasonably possible;
(ii) Require the General Contractor to place a full -page weekly
advertisement in the Miami Times newspaper to inform residents of available job opportunities
and any upcoming job fairs not less than thirty (30) days prior to and through the date of
construction commencement of the Project. This shall be in addition to any advertisements done
through other job outreach websites, organizations, and efforts referenced hereinabove; and
(iii) Require the General Contractor to place weekly radio commercials
on either Hot 105 or 99JAMZ to inform residents of available job opportunities and upcoming job
fairs not less than thirty (30) days prior to and through the date of construction commencement of
the Project.
12.9 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 monthly basis for the costs incurred by the CRA under the Compliance
Monitoring Contract, which reimbursements paid to the CRA shall not exceed Fifteen Thousand
and No/100 Dollars ($15,000.00) per month and One Hundred Eighty Thousand and No/100
Dollars ($180,000.00) per year during construction of the Project. The Compliance Monitoring
Contract shall commence upon the earlier to occur of (i) thirty (30) days prior to the
commencement of construction of the Project or (ii) within ten (10) days of this issuance of any
construction permits for the Project and end thirty days after Completion. For the avoidance of
any doubt, if the Developer constructs Phase II separately from the rest of the Project, the CRA
will execute a separate Compliance Monitoring Contract with respect to Phase II and the
provisions of Section 12.9 shall apply to Phase II.
12.10 Job Fair.
12.10.1 Construction Job Opportunities. The Developer shall require its
General Contractor to utilize commercially reasonable efforts to broadly disseminate information
regarding job opportunities for local area residents and businesses within Overtown to allow them
to participate in construction of the Project, including, without limitation, hosting at least two (2)
job fairs within Overtown prior to the commencement of construction of the Project.
12.10.2 Permanent Job Opportunities. The Developer shall broadly
disseminate information regarding job opportunities at the Project for local residents and
businesses within Overtown post -construction, including newly generated trade and service related
jobs upon completion of the Project, including, without limitation, hosting at least one (1) job fair
within Overtown upon completion of the Project.
12.11 Phase II. For the avoidance of any doubt, if the Developer constructs Phase
II separately from the rest of the Project, all reference in Section 12 and Section 15 to the Project
shall be deemed to be references to the Project, excluding Phase II. In such event, when Developer
constructs Phase II all of the provisions of Section 12 and Section 15 shall apply and all references
to the Project shall be deemed references to Phase II only.
13. RESTRICTIVE COVENANT. Prior to the end of the Inspection Period, the
Executive Director and the Developer will finalize a restrictive covenant incorporating the terms
referenced in the sections of this Agreement listed in Exhibit "J" attached hereto and made a part
hereof (the "Restrictive Covenant"). At Closing, the Developer and the CRA shall execute the
Restrictive Covenant.
14. SAWYER'S WALK.
14.1 As part of the Project, Developer, at its sole cost and expenses, shall develop
the right of way adjacent to the North side of the Property in the location of NW 7th Street between
NW 2nd Avenue and NW 3td Avenue, in accordance with the Plans (the "Sawyer's Walk").
Developer acknowledges that the Sawyer's Walk is a public pedestrian walkway and that no
interest in the Sawyer's Walk is being transferred to Developer pursuant to this Agreement. The
CRA agrees to not object to the Developer's efforts to obtain any and all City design approvals
and permits related to the proposed improvements to Sawyer's Walk and not to object the
Developer's efforts to maintain business kiosks and seating for patrons of the Project within
Sawyer's Walk provided that such uses do not impair the use of Sawyer's Walk for CRA, City and
County events.
14.2 Upon Completion of the Project, including, Sawyer's Walk, the Developer,
at its sole cost and expense, shall be obligated to maintain Sawyer's Walk in good condition and
repair, substantially in its condition as of Completion, notwithstanding the fact that Sawyer's Walk
is a public pedestrian walk way, for a period of thirty (30) years from Completion. In the event
Developer seeks to enter a public benefit agreement with the City pursuant to Article 3, Section
3.14.2, Miami 21, wherein the City (1) accepts the capital contribution of improvements to
Sawyer's Walk as a contribution in lieu of park impact fees, and (2) accepts the maintenance as a
Public Parks and Open Space public space benefit for bonus height and/or FLR, the CRA shall not
object to such agreement(s) and the Developer's efforts related thereto.
14.3 Developer acknowledges that the CRA does not own Sawyer's Walk and
that the CRA has no right to grant Developer and its successor and assigns any right to utilize
Sawyer's Walk in connection with the operation of the Project.
15. CONDITIONS PRECEDENT TO COMMENCEMENT OF CONSTRUCTION.
The Developer shall not commence construction of the Project contemplated by this Agreement
until the satisfaction or waiver by the Executive Director of the following conditions precedent
(the "Construction Conditions Precedent"):
15.1 The Executive Director has approved the format for the Participation
Reports.
15.2 The Developer has complied with the provisions of Section 9 of this
Agreement.
16. CONDITION PRECEDENTS TO CLOSING.
16.1 The obligations of the CRA to close the transaction contemplated by this
Agreement is subject to the satisfaction or waiver by the Executive Director of the following
conditions precedent (the "Conditions Precedent").
16.1.1 The Design Development Documents have been approved or
deemed approved by the Executive Director in accordance with Section 8.4.
16.1.2 The Executive Director has approved the Restrictive Covenant.
16.2 In the event the Conditions Precedent are not satisfied or waived by the
Executive Director on or before the Closing Date, as hereinafter defined, then the Executive
Director may either (i) terminate this Agreement, in which event the Escrow Agent shall deliver
the Deposit to the CRA, as liquidated damages, and the parties shall be released from all further
obligations under this Agreement except for the obligations under this Agreement which expressly
survive termination, or (ii) waive the condition and proceed in accordance with this Agreement.
17. CONDITION PRECEDENTS TO CLOSING FOR DEVELOPER. The Obligation
of the Developer to close the transactions contemplated by this Agreement is subject to the
satisfaction or waiver by the Developer of the following conditions precedent (the "Developer
Condition Precedents")
17.1.1 Developer has obtained Site Plan Approval for the Project.
17.1.2 There has been no material, adverse changes to the environmental
condition of the Property from that in reflected in the Environmental Report (This Section 17.1.3
shall not be applicable if Developer does not provide the Executive Director with the
Environmental Report required to be delivered in accordance with Section 5.11).
17.2 In the event the Developer Condition Precedents are not satisfied or waived
by the Developer on or before the Closing Date, then the Developer may either (i) terminate this
Agreement on the Closing Date, in which event the Escrow Agent shall return the Deposit to the
Developer and the parties shall be released from all further obligations under this Agreement,
except for the obligations that expressly survive termination, or (ii) waive the condition and
proceed with the closing in accordance with this Agreement.
18. CLOSING DATE.
18.1 Closing. The closing of the transaction contemplated by this Agreement
(the "Closing Date") shall occur on the earlier of (a) ten (10) days after Site Plan Approval has
been obtained; or (b) July 31, 2019, time being of the essence; provided that Developer shall have
the right to extend the Closing Date for up to two additional thirty (30) days periods by delivering
written notice of each such extension to the CRA not less than five (5) days prior to the then
scheduled Closing Date and simultaneously therewith paying to the CRA an extension fee of
Fifteen Thousand and No/100 Dollars ($15,000.00) for each such extension (each an "Extension
Fee"). Any Extension Fee(s) paid by the Developer shall not be credited against the Purchase Price.
On the Closing Date the following shall occur provided all of the Conditions Precedent have been
satisfied or waived:
18.1.1 CRA Deliveries. The CRA shall deliver to the Developer at closing:
18.1.1.1 A special warranty deed in the form of Exhibit "K" attached
hereto and made a part hereof (the "Deed") with respect to the Property.
18.1.1.2 A certified copy of the resolution authorizing the conveyance by
the CRA and the execution and delivery of the documents contemplated by this Agreement.
18.1.1.3 A no lien and possession and gap affidavit in the form of Exhibit
"L" attached hereto and made a part hereof.
18.1.1.4 A FIRPTA affidavit.
18.1.1.5 The Restrictive Covenant executed by the CRA.
18.1.1.6 The Residential Housing Restrictive Covenant executed by the
CRA.
18.1.1.7 An assignment of all of the CRA's interests in the development
rights with respect to the Property if any; in the form of Exhibit "M" attached hereto and made a
part hereof.
18.1.1.8 Such other documents as the title company may reasonably
request.
18.2 Developer Deliveries. The Developer shall deliver to the CRA or cause to
be delivered to the CRA at closing:
18.2.1 Evidence of authority to close the transaction and execute and
deliver the appropriate closing documents.
Developer.
18.2.2 The Restrictive Covenant executed by the Developer.
18.2.3 The Residential Housing Restrictive Covenant executed by the
18.2.4 The balance of the Purchase Price by wire transfer of federal funds.
18.2.5 Such other documents as the title company may reasonably request.
18.3 Recording Costs. The documentary stamp tax and surtax to be affixed to
the Deed, the cost for recording the Deed, the Residential Housing Restrictive Covenant and the
Restrictive Covenant shall be paid by the Developer. Each party shall bear the cost of the fees of
their own respective attorneys and other professionals and the cost of their own respective
performance under this Agreement.
18.4 Adjustments and Prorations. The Developer and the CRA acknowledge that
the Property is currently exempt from ad valorem real estate taxes and assessments and therefore
taxes and assessments shall not be prorated. The Deposit shall be applied to reduce the balance of
the Purchase Price due on the Closing Date.
18.5 Parties in Possession. On the Closing Date the CRA shall deliver Property
to the Developer free and clear of all parties in possession.
18.6 Removal of Planters. On or prior to the Closing Date, the CRA shall remove
the planters located on the Property.
19. REPRESENTATIONS OF CRA.
19.1 The CRA makes the following representations:
19.1.1 The CRA is duly organized and validly existing under the laws of
the State of Florida, and has full power and capacity to own its properties, to carry on its business
as presently conducted by the CRA, and to perform its obligations under this Agreement.
19.1.2 The CRA's execution, delivery and performance of this Agreement
have been duly authorized by all necessary legal actions and does not and shall not conflict with
or constitute a default under any indenture, agreement or instrument to which the CRA is a party
or by which the CRA or CRA's property may be bound or affected, except for such approvals
required by this Agreement.
19.1.3 This Agreement constitutes the valid and binding obligation of the
CRA, enforceable against the CRA, and its successors and assigns, in accordance with their
respective terms, subject to bankruptcy, insolvency and other similar laws affecting the rights of
creditors generally.
19.2 Survival of Representations. All of the representations of the CRA set forth
in this Agreement shall be true upon the execution of this Agreement shall be deemed to be
repeated and as of the Closing Date and shall be true as of the Closing Date. All of the
representations, warranties and agreements of the CRA set forth in this Agreement shall not
survive the closing.
20. THE DEVELOPER'S REPRESENTATIONS.
20.1 The Developer makes the following representations to the CRA as follows:
20.1.1 The Developer is a limited liability company duly organized and
validly existing under the laws of the State of Florida, and have full power and capacity to own
the Property, to carry on its business as presently conducted, and to enter into the transactions
contemplated by this Agreement.
20.1.2 Copies of the articles of organization and all amendments thereto
and the operating agreement, and all amendments thereto, for the Developer are attached hereto as
Exhibit "N" (the "Organizational Documents"). The organizational chart of the Developer, a
list of all of the members of the Developer and the interest of all entities having an ownership
interest in Developer is attached hereto as Exhibit "0" and made a part hereof (the
"Organizational Chart"). Except as reflected in the Organizational Chart no other person or
entity has an ownership interest in Developer.
20.1.3 The Developer's execution, delivery and performance of this
Agreement has been duly authorized by all necessary company actions and does not and shall not
conflict with or constitute a default under any indenture, agreement or instrument to which it is a
party or by which it may be bound or affected.
20.1.4 This Agreement constitutes the valid and binding obligation of the
Developer, enforceable against the Developer and its successors and assigns, in accordance with
its respective terms, subject to bankruptcy, insolvency and other similar laws affecting the rights
of creditors generally.
20.2 Survival of Representations. All of the representations of the Developer set
forth in this Agreement shall in all material respects be true upon the execution of this Agreement,
shall be deemed to be repeated and as of the Closing Date, and shall be true in all material respects
as of the Closing Date. All of the representations, warranties and agreements of the Developer
and the CRA set forth in this Agreement shall not survive the Closing.
21. DEFAULT.
21.1 In the event the Developer breaches any terms and provisions of this
Agreement prior to the Closing Date and fails to cure same within ten (10) days of written notice
from the Executive Director, the CRA, as its sole remedy may terminate this Agreement in which
event the Escrow Agent shall deliver the Deposit to the CRA as liquidated damages and the parties
shall be released from all further obligations under this Agreement except for the obligations that
expressly survive termination. The cure period shall not apply if the Developer fails to close on
the Closing Date.
21.2 In the event of a default by the CRA under this Agreement (other than an
intentional default) which is not cured within ten (10) days of written notice from the Developer,
without any default on the part of the Developer, the Developer, as its sole and exclusive remedy,
shall be entitled to (i) terminate this Agreement in which event the Escrow Agent shall return the
Deposit to the Developer and parties shall be released from all further obligations under this
Agreement except for the obligations that expressly survive the termination, or (ii) seek specific
performance of the terms of this Agreement. The Developer waives any other remedies it may
have against the CRA at law or in equity as a result of a breach of this Agreement except if the
CRA conveys the Property to another party prior to the termination of this Agreement, in which
event the Developer may pursue all remedies available at law or in equity as a result of such breach
as a result of the remedy of specific performance not being available.
22. BROKERS. The parties each represent and warrant to the other that there are no
real estate broker(s), salesman (salesmen) or finder(s) involved in this transaction. If a claim for
commissions in connection with this transaction is made by any broker, salesman or finder
claiming to have dealt through or on behalf of one of the parties hereto ("Indemnitor"), Indemnitor
shall indemnify, defend and hold harmless the other party hereunder ("Indemnitee"), and
Indemnitee's officers, directors, agents and representatives, from and against all liabilities,
damages, claims, costs, fees and expenses whatsoever (including reasonable attorney's fees and
court costs at trial and all appellate levels) with respect to said claim for commissions.
Notwithstanding anything to the contrary contained in this Agreement, the provisions of this
Section shall survive the closing or earlier termination of this Agreement.
23. ASSIGNABILITY. This Agreement may not be assigned without the approval of
the Executive Director, which approval shall not be unreasonably withheld, conditioned or
delayed. For the purpose of this Section 23, each of the following events shall be deemed an
assignment requiring the approval of the Executive Director, which approval shall not be
unreasonably withheld, conditioned or delayed by the Executive Director:
(i) if Michael Swerdlow and Alben Duffle or entities that they control
no longer have day to day operational control over the decision making of the Developer.
(ii) If Michael Swerdlow has transferred his interest as a managing
member of the Developer to an entity, Michael Swerdlow no longer has day to day operational
control over the decision making by said entity or Michael Swerdlow owns less than 50% of the
ownership interests in such entity.
(iii) If Alben Duffie has transferred his interest as a managing member
of the Developer to an entity, Alben Duffie no longer has day to day operational control over the
decision making by said entity or Alben Duffie owns less than 50% of the ownership interest in
such entity.
(iv) If (a) Michael Swerdlow and/or an entity that Michael Swerdlow has
day to day operational control over decision making; and (b) Alben Duffie and/or an entity that
Alben Duffie has day to day operational control over decision making collectively own less than
50% of the membership interests in the Developer.
Notwithstanding anything to the contrary set forth in this Section 23, any transfer by Michael
Swerdlow or Alben Duffie of their respective direct or indirect interests in the Developer that
occurs by inheritance, devise, bequest or operation of law upon the death or long-term incapacity
of either of them, or to a trust, partnership or other entity for family estate planning purposes, or
which constitutes an assignment of limited partnership interests or other non -management
beneficial ownership interests (including limited liability company interests which do not convey
management rights in the Developer), shall not be deemed an assignment hereunder and shall not
require the approval of the Executive Director.
24. NOTICES. Any notices required or permitted to be given under this Agreement
shall be in writing and shall be deemed to have been given if delivered by hand, sent by recognized
overnight courier (such as Federal Express), or mailed by certified or registered mail, return receipt
requested, in a postage prepaid envelope, and addressed as follows:
If to the Developer:
Downtown Retail Associates, LLC
2901 Florida Avenue
Coconut Grove, FL 33133
Attention: Michael Swerdlow
Coral Gables, FL 33134
Email: Mswerdlow@swerdlow.com
With a copy (which shall not constitute notice or service of process) to:
Bercow Radell Fernandez & Larkin
Attention: Jeffrey Bercow, Esq.
200 S. Biscayne Boulevard
Suite 850
Miami, FL 33131
Email: Jbercow@brzoning.com
With a copy (which shall not constitute notice or service of process) to:
If to CRA:
Alvarez & Diaz-Silveira LLP
Attention: Real Estate Notices
1001 Brickell Bay Drive
Suite 2110
Miami, FL 33131
Email: lhunt@adsllp.com
SOUTHEAST OVERTOWN / PARK WEST
COMMUNITY REDEVELOPMENT AGENCY
Attention: Cornelius Shiver, Executive Director
819 NW Second Avenue
Third Floor
Miami, FL 33136
Email: cshiver@miamigov.com
With a copy (which shall not constitute notice or service of process) to:
William R. Bloom, Esq.
Holland & Knight, LLP
Suite 3300
701 Brickell Avenue
Miami, FL 33131
Email: william.bloom@hklaw.com
Notices personally delivered, delivered by email, or sent by overnight courier 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.
25. CHALLENGES. The Developer acknowledges and agrees that the CRA shall have
no liability whatsoever to the Developer in connection with any challenge to this Agreement and
the transaction contemplated by this Agreement and the Developer hereby forever waives and
releases the CRA from any liability whatsoever, now existing or hereafter arising in connection
with any challenge and covenant and agree not to initiate any legal proceedings against the CRA
in connection with any challenges to this Agreement by any third parties.
26. RELOCATION OF TREES.
26.1 In the event Developer is required or relocate or replace any trees currently
located on the Property pursuant to Chapter 17 of the City Code, Developer shall coordinate with
the Executive Director to cause the trees to be relocated or replaced within the Redevelopment
Area in a location approved by the Executive Director.
27. LIEN RIGHTS. If Developer fails to pay any amount due the CRA pursuant to
Sections 8.12.6, 8.12.7, 12.5.2, 12.5.3, 12.5.4 and 12.9, such unpaid amounts shall bear interest at
twelve percent (12%) per annum from the date due until paid and shall be secured by the
Restrictive Covenant having priority from the date of recording the Restrictive 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 8.12.6, 8.12.7, 12.5.2,
12.5.3, 12.5.4 and 12.9, the CRA shall execute and promptly deliver to the Developer a recordable
instrument reflecting the release of the applicable payment obligation.
28. MISCELLANEOUS.
28.1 This Agreement shall be construed and governed in accordance with the
laws of the State of Florida. Venue shall be in Miami -Dade County, Florida. All of the parties to
this Agreement have participated fully in the negotiation and preparation hereof, and, accordingly,
this Agreement shall not be more strictly construed against any one of the parties hereto.
28.2 In the event any term or provision of this Agreement is determined by
appropriate judicial authority to be illegal or otherwise invalid, such provision shall be given its
nearest legal meaning or be construed as deleted as such authority determines, and the remainder
of this Agreement shall be construed to be in full force and effect.
28.3 In construing this Agreement, the singular shall be held to include the plural,
the plural shall be held to include the singular, the use of any gender shall be held to include every
other and all genders, and captions and Section headings shall be disregarded.
28.4 All of the exhibits attached to this Agreement are incorporated in, and made
a part of, this Agreement.
28.5 Time shall be of the essence for each and every provision of this Agreement.
28.6 This Agreement may not be recorded in the Public Records of Miami -Dade
County.
28.7 The "Effective Date" shall mean the date this Agreement is last executed by
the Developer and the CRA.
29. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and
understanding between the parties with respect to the subject matter hereof and there are no other
agreements, representations or warranties other than as set forth herein. This Agreement may not
be changed, altered or modified except by an instrument in writing signed by the party against
whom enforcement of such change would be sought. This Agreement shall be binding upon the
parties hereto and their respective successors and permitted assigns.
30. ESCROW AGENT. The Deposit shall be held by Escrow Agent in trust, on the
terms hereinafter set forth:
30.1 The Escrow Agent shall deliver the Deposit in accordance with the terms of
this Agreement.
30.2 It is agreed that the duties of the Escrow Agent are only as herein
specifically provided and purely ministerial in nature, and the Escrow Agent shall incur no liability
whatsoever except for willful misconduct or gross negligence, as long as the Escrow Agent has
acted in good faith. The CRA and the Developer each release the Escrow Agent from any act done
or omitted to be done by the Escrow Agent in good faith in the performance of its duties hereunder.
30.3 The Escrow Agent is acting as stakeholder only with respect to the Deposit.
If there is any dispute as to whether the Escrow Agent is obligated to deliver the Deposit, the
Escrow Agent shall not make any delivery, but in such event, the Escrow Agent shall hold same
until receipt by it of an authorization in writing, signed by all parties having interest in such dispute,
directing the disposition of same; or in the absence of such authorization, the Escrow Agent shall
hold the Deposit until final determination of the rights of the parties in the appropriate proceedings.
If such written authorization is not given or proceedings for such determination are not begun
within thirty (30) days of written notice to the Escrow Agent of the existence of a dispute with
respect to the Deposit and diligently continued, the Escrow Agent may bring an appropriate action
or proceeding to interplead the Deposit. The Escrow Agent shall be reimbursed for all costs and
expenses of such action or proceeding, including, without limitation, reasonable attorneys' fees
and disbursements, by the party determined not to be entitled to the Deposit. Upon making
delivery of the Deposit, the Escrow Agent shall have no further liability unless such delivery
constituted willful misconduct or gross negligence. The Developer acknowledges that the Escrow
Agent is counsel to the CRA, and can represent the CRA hereunder in the event of any dispute
hereunder, concerning the Deposit, and the Developer waives any right to object to same.
31. NO THIRD PARTY BENEFICIARY. The provisions of this Agreement are for
the benefit of the Developer and CRA only and are not for the benefit of any third party, and
accordingly, no third party shall have the right to enforce the provisions of this Agreement.
[SIGNATURE PAGES TO FOLLOW]
IN WITNESS hereof the parties have executed this Agreement as of the date first above
written.
THE DEVELOPER:
DOWNTOWN RETAIL ASSOCIATES, LLC,
a Florida limited liability company
By:
Name: Michael Swerdlow
Title: Manager
Date Executed:
CRA:
SOUTHEAST OVERTOWN / PARK WEST
COMMUNITY REDEVELOPMENT AGENCY
By:
Cornelius Shiver, Executive Director
Date Executed:
ATTEST:
Clerk of the Board
Approved for legal sufficiency
By:
William R. Bloom, Esq.
Holland & Knight LLP,
Special Counsel to CRA
EXHIBIT A
Legal Description
Lots 1 through 20, inclusive, Block 55, NORTH, CITY OF MIAMI, according to the Plat thereof,
as recorded in Plat Book "B" at Page 41 of the Public Records of Miami -Dade County, Florida.
EXHIBIT B
INSURANCE REQUIREMENTS
I. Commercial General Liability (Primary & Non Contributory)
A. Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence $1,000,000
General Aggregate Limit $ 2,000,000
Products/Completed Operations $ 1,000,000
Personal and Advertising Injury $1,000,000
B. Endorsements Required
City of Miami and Southeast Overtown/Park West Community
Redevelopment Agency as an Additional Insured (CG 2010 11/85 or its
equivalent)
Contingent Liability & Contractual Liability
Premises & Operations Liability
Explosion, Collapse and Underground Hazard
II. Business Automobile Liability
A. Limits of Liability
Bodily Injury and Property Damage Liability
Combined Single Limit
Any Auto/Owned Autos/Scheduled
Including Hired, Borrowed or Non -Owned Autos
Any One Accident $ 1,000,000
B. Endorsements Required
City of Miami & Southeast Overtown/Park West Community
Redevelopment Agency listed as an additional insured
III. Worker's Compensation
Limits of Liability
Statutory -State of Florida
Waiver of subrogation
Employer's Liability
A. Limits of Liability
$1,000,000 for bodily injury caused by an accident, each accident.
$1,000,000 for bodily injury caused by disease, each employee
$1,000,000 for bodily injury caused by disease, policy limit
IV Umbrella Policy/Excess Liability (Excess Follow Form)
A. Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence $3,000,000
Aggregate $3,000,000
B. Endorsements Required
City of Miami & Southeast Overtown/Park West Community Redevelopment
Agency listed as an additional insured
V Owner's & Contractor's Protective
Limits of Liability
Each Occurrence $1,000,000
Policy Aggregate $1,000,000
City of Miami and Southeast Overtown/Park West Community Redevelopment
Agency as Named Insured
VI. Builders' Risk
Causes of Loss: All Risk -Specific Coverage Project Location
Valuation: Replacement Cost
Deductible: $25,000 All other Perils
5% maximum on Wind
City of Miami and Southeast Overtown/Park West Community Redevelopment
Agency listed as an Additional Insured
A. Limit/Value at Location or Site - Full Replacement
B. Coverage Extensions as provided by insurer
The above policies shall provide the City of Miami and Southeast Overtown/Park West
Community Redevelopment Agency with written notice of cancellation or material change
from the insurer not less than (30) days prior to any such cancellation or material change,
or in accordance to policy provisions.
Companies authorized to do business in the State of Florida, with the following qualifications,
shall issue all insurance policies required above:
The company must be rated no less than "A" as to management, and no less than "Class V"
as to Financial Size Category, by the latest edition of Best's Insurance Guide, published by
A.M. Best Company, Oldwick, New Jersey, or its equivalent. All policies and /or certificates
of insurance are subject to review and verification by Risk Management prior to insurance
approval.
EXHIBIT C
Additional Permitted Exceptions
NONE
EXHIBIT D
Conceptual Design Documents
EXHIBIT E
Residential Housing Restrictive Covenant
EXHIBIT F
Sketch of Redevelopment Area
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EXHIBIT G
Map of Overtown
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EXHIBIT H
Hiring Standards
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EXHIBIT I
Responsible Wage Schedule
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EXHIBIT J
Restrictive Covenant
The parties shall negotiate the terms of the Restrictive Covenant prior to the end of the
Inspection Period. The Restrictive Covenant shall incorporate the following provisions of the
Development Agreement:
1. Sections 8.9, 8.10, 8.11, 8.12.2, 8.12.4, 8.12.5, 8.12.6, 8.12.7, 8.12.8
2. Sections 9.1, 9.2 and 9.3
3. Sections 12.1, 12.2, 12.3, 12.4, 12.5, 12.6, 12.7, 12.8, 12.9, 12.10 and 12.11.
4. Section 14
5. Section 15
6. Section 26
7. Section 27
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EXHIBIT K
Deed
THIS INSTRUMENT WAS PREPARED BY:
William R. Bloom, Esquire
Holland & Knight LLP
701 Brickell Ave., Suite 3000
Miami, Florida 33131
Folio Number:
SPECIAL WARRANTY DEED
THIS DEED, made this day of , 201, between SOUTHEAST
OVERTOWN/PARK WEST COMMUNITY REDEVELOPMENT AGENCY, a body
corporate and politic of the State of Florida ("Grantor") and DOWNTOWN RETAIL
ASSOCIATES, LLC, a Florida limited liability company ("Grantee").
Wherever used herein, the terms "Grantor" and "Grantee" shall include singular and plural,
heirs, legal representatives, assigns of individuals, and the successors and assigns of corporations,
wherever the context so admits or requires.
WITNESSETH:
THAT, for and in consideration of the sum of Ten and No/100 Dollars ($10.00), and other
good and valuable consideration, the receipt and sufficiency of which is acknowledged by Grantor,
Grantor hereby grants, bargains, and sells unto Grantee, the following described property located
in Miami -Dade County, Florida ("the Property"):
TOGETHER WITH all the tenements, hereditaments and appurtenances thereto belonging
or in any way appertaining
TO HAVE AND TO HOLD the same unto Grantee in fee simple, forever.
THIS CONVEYANCE IS SUBJECT TO:
1. Taxes and assessments for the year 201 and subsequent years;
2. Zoning and other governmental restrictions;
3. Conditions, restrictions, reservations, and easements of record; however, reference
thereto shall not serve to reimpose same.
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TO HAVE AND TO HOLD, the same in fee simple forever.
AND Grantor has good right and lawful authority to sell and convey the property, the
Grantor hereby fully warrants the title to said land and will defend the same against the lawful
claims of all persons claiming by, through and under Grantor and none other.
SIGNATURES FOLLOW ON NEXT PAGE
IN WITNESS WHEREOF, Grantor has caused this special warranty deed to be executed
as of the day and year first above written.
Signed, sealed and delivered
in our presence:
WITNESSES: GRANTOR:
Name:
Name:
Approved for legal sufficiency
By:
William R. Bloom, Esq.
Holland & Knight LLP
Special Counsel to the CRA
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
)
)
)
SOUTHEAST OVERTOWN/PARK
WEST COMMUNITY
REDEVELOPMENT AGENCY, a body
corporate and politic of the State of Florida
By:
Name: Cornelius Shiver
Title: Executive Director
The foregoing instrument was acknowledged before me this day of
201, by Cornelius Shiver, as Executive Director of SOUTHEAST
OVERTOWN/PARK WEST COMMUNITY REDEVELOPMENT AGENCY, a body corporate
and politic of the State of Florida, on behalf of the Agency, who is personally known to me or has
produced as identification.
Notary Public, State of Florida
My Commission Expires:
EXHIBIT L
No Lien Affidavit
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EXHIBIT M
Assignment of Development Rights
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EXHIBIT N
Articles of Formation and Operating Agreement of Downtown Retail Associates, LLC
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EXHIBIT 0
Organizational Chart and List of Members
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EXHIBIT P
Proposed Amendment to City Code
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