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HomeMy WebLinkAboutCRA-R-20-0005 Exhibit AExhibit "A" Fifth Amendment FIFTH AMENDMENT THIS FIFTH AMENDMENT is made and entered into as of March 18, 2020 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. Developer and the CRA entered into that certain Block 55 Development Agreement dated as of October 1, 2018 (the "Original Agreement"), as amended by Amendment dated as of November 21, 2018, (the "First Amendment"), Second Amendment dated as of April 17, 2019 (the "Second Amendment"), Third Amendment dated as of September 26, 2019 (the "Third Amendment") and Fourth Amendment dated as of December 20, 2019 (the "Fourth Amendment") (the Original Agreement as amended by the First Amendment, the Second Amendment, the Third Amendment and the Fourth Amendment is collectively, the "Agreement"). B. Developer and the CRA desire to modify and amend certain terms and provisions of the Agreement, as hereinafter provided. NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. RECITALS. The Recitals to this Fifth Amendment are true and correct and hereby incorporated by reference and made a part hereof. 2. DEFINED TERMS. Any defined teiins utilized in this Fifth Amendment but not defined in this Fifth Amendment shall have the meanings ascribed to said terms in the Agreement. 3. RESIDENTIAL HOUSING REQUIREMENTS. Section 10.1 of the Agreement is hereby amended and restated in its entirety as follows: "10.1 RESIDENTIAL HOUSING RESTRICTIONS. (a) The CRA and the Developer agree that twenty percent (20%) of the square footage of all the Residential Units in the Project which represents approximately one hundred fifty four (154) of the Residential Units in the Project, shall be made available for individuals and/or families earning up to fifty percent (50%) of AMI ("Low -Income Tenants"); and the balance of the Residential Units shall be made available to individuals or families at or below market rates. (b) "AMI" shall mean the then applicable median family income for Miami -Dade County, Florida, standard metropolitan statistical area, determined in a manner consistent with Section 42(g) (1) of the Internal Revenue Code of 1986, including adjustment for family size as published annually by the U.S. Department of Housing and Urban Development. #73693291_v3 (c) The Residential Units shall consist of studio units with an average size of approximately four hundred seventy (470) square feet ("Studio Units"), one bedroom one bath units with an average size of approximately six hundred forty (640) square feet ("One Bedroom Units") and two bedroom two bath units with an average size of approximately nine hundred forty (940) square feet ("Two Bedroom Units"). (d) The Residential Units which shall be occupied by Low -Income Tenants, shall consist of approximately one hundred ten (110) Studio Units and approximately forty-four (44) One Bedroom Units but in no event shall the number of Residential Units occupied by Low -Income Tenants be less than twenty percent (20%) of the square footage of all Residential Units at the Project. The Residential Units occupied by Low -Income Tenants shall be equitably distributed throughout the Residential Units. (e) The requirements of this Section 10 are separate and apart from any requirements that Developer may elect to comply with under Miami 21." 4. RESIDENTIAL HOUSING RESTRICTIVE COVENANT. Section 10.2 of the Agreement is hereby amended to provide that at Closing, the Developer and the CRA shall execute the restrictive covenant in the form attached hereto as Exhibit "A" (the "Residential Housing Restrictive Covenant"). The Residential Housing Restrictive Covenant attached hereto as Exhibit "A" supersedes, and replaces the forms of Residential Housing Restrictive Covenant attached as Exhibit "E-1" and Exhibit "E-2" to the Agreement. 5. RESTRICTIVE COVENANT. The Restrictive Covenant to be executed by the Developer and the CRA on the Closing Date attached to the Agreement as Exhibit J is hereby deleted and replaced by Block 55 Restrictive Covenant in the form attached hereto as Exhibit "B". If the transfer contemplated by Section 9 below occurs on or before Closing, the Block 55 Restrictive Covenant shall be in the form attached hereto as Exhibit "B-1". 6. TITLE OBJECTIONS. Developer waives its title object with respect to the form of the CRA Board resolution authorizing the transaction contemplated by the Agreement and waives any requirement that the CRA provide a certified copy of the CRA Board resolution as required by Section 5(B) of the Second Amendment. 7. DEVELOPER REPRESENTATIONS. A. Section 20.1.2 of the Agreement is hereby amended to replace the Organizational Documents of Developer attached to the Agreement as Exhibit "N" with the articles of organization and all amendments thereto and the operating agreement for Developer and all amendments thereto attached hereto as Exhibit "C" and made a part hereof. B. Section 20.1.2 of the Agreement is hereby amended to replace the Organizational Chart attached to the Agreement as Exhibit "0" with the Organizational Chart attached hereto as Exhibit "D" attached hereto and made a part hereof. 2 #7369329 I_v3 C. Developer represents and warrants to the CRA that as of the date of this Fifth Amendment no person or entity has an ownership interest in Developer other than as set forth in the Organizational Chart attached hereto as Exhibit "D". 8. ASSIGNABILITY. Section 23 of the Agreement is hereby amended and restated in its entirety to read as follows: "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 or entities that he controls 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 40% of the ownership interests in such entity. (iii) If Michael Swerdlow and/or an entity that Michael Swerdlow has day to day operational control over decision making owns less than 25% of the membership interests in the Developer. Notwithstanding anything to the contrary set forth in this Section 23, any transfer by Michael Swerdlow of his 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 Michael Swerdlow, or any transfer by Michael Swerdlow 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." 9. ASSIGNMENT PRIOR TO CLOSING. The parties acknowledge and agree that Developer may form a new limited liability company to own the property (the "Property Owner"), a new limited liability company to be the sole member and owner of the Property Owner ("Member") and a new limited liability company to be the sole member and owner of Member ("Holdings") provided Property Owner is one hundred percent (100%) owned by Member and Member is one hundred percent (100%) owned by Holdings and all decision making of Holdings, Member and Property Owner is directly or indirectly controlled by Michael Swerdlow, except for Major Decisions, as defined in the Block 55 Restrictive Covenant attached hereto as Exhibit B-1. Holdings shall be jointly owned by Developer, which shall own not less than sixty-three percent (63%) of the ownership interests of Holdings, and an entity controlled by David Martin and Pedro Martin ("Terra Entity"), which shall own the balance of the ownership interests of Holdings. 3 #73693291_v3 Developer has requested the CRA's consent to the assignment of the Development Agreement to the Property Owner at Closing. The CRA hereby consents to the assignment of the Development Agreement to the Property Owner and if so assigned by Developer, the CRA agrees to convey the Property to the Property Owner at Closing, provided that (i) Holdings is the sole member and owner of Member; (ii) Member is the sole member and owner of the Property Owner; (iii) Developer owns at least sixty-three percent (63%) of the ownership interests of Holdings; (iv) Michael Swerdlow or an entity he controls retains all decision making with respect to of Holdings, Member and Property Owner, except for Major Decisions; (iv) the organizational chart for Property Owner, Member and Holdings is substantially as shown on Exhibit "E" attached hereto; (v) Developer provides to the CRA copies of the executed articles of organization and all amendments thereto for Property Owner, Member and Holdings and the operating agreement and all amendments thereto for Property Owner, Member and Holdings to enable the CRA to confirm the ownership structure of Property Owner, Member and Holdings is consistent with the organizational chart attached hereto as Exhibit E and that Michael Swerdlow directly or indirectly controls the decision making of Property Owner, Member and Holdings, except for Major Decisions (if Michael Swerdlow controls Property Owner, Member and Holdings indirectly the organizational documents of such entity which Michael Swerdlow controls shall also be provided); and (vi) Terra Entity confirms that it has not paid cash consideration for its interest in Holdings. In the event the assignment contemplated by this Section 9 occurs at or prior to Closing, Property Owner and the CRA shall execute the Block 55 Restrictive Covenant in the form attached hereto as Exhibit B-1. For the avoidance of doubt, the CRA acknowledges and agrees that under the terms of the proposed operating agreement of Holdings, all Major Decisions must be approved by both Developer and Terra Entity. 10. ASSIGNMENT TO LENDER. Developer shall have the right to collaterally assign the Development Agreement to any lender providing financing for the Project and the enforcement by any such lender of its rights under the financing documents shall not constitute an assignment of the Development Agreement requiring the consent of the CRA or the Executive Director. 11. ESTABLISHMENT OF COMMUNITY DEVELOPMENT DISTRICT. Developer desires to establish a community development district to participate in the funding and construction of stormwater management system, water distribution system, wastewater collection system, roadway improvements, park and recreational facilities, landscape improvements and parking garage component of the Project ("Improvements") and has requested that the CRA agree to support such request. The CRA hereby agrees to support the establishment of a community development district with respect to the Improvements after the CRA Board ratifies the establishment of a community development district with respect to the Improvements. 12. APPROVALS. Notwithstanding anything to the contrary set forth in the Agreement, as amended hereby, including without limitation Section 23 thereof, as amended hereby, all assignment restrictions, prohibitions, approvals and consent rights of the CRA shall terminate upon the conveyance of the Property pursuant to the Agreement, as amended, except as otherwise expressly set forth in Section 11 above, the Residential Housing Restrictive Covenant and the Block 55 Restrictive Covenant. 13. EXTENSION OF DELIVERY DATE. Notwithstanding anything to the contrary set forth in Section 3 of the Fourth Amendment, Developer and the CRA desire to extend the due 4 #73693291_v3 date of the Second Closing Extension Deposit (as defined in the Fourth Amendment) in the amount of Five Hundred Thousand and No/100 Dollars ($500,000.00) and the Second Additional Consideration (as defined in the Fourth Amendment) in the amount of Three Hundred Thousand and No/100 Dollars ($300,000), which amounts are currently due on or before March 20, 2020, to on or before the Closing Date, time being of the essence, to be paid directly to the CRA by wire transfer in accordance with the Wire Instructions (as defined in the Fourth Amendment). The Second Additional Deposit shall be credited against the Purchase Price and the Second Additional Consideration shall be retained by the CRA as additional consideration and not be credited against the Purchase Price. 14. RATIFICATION. Except as modified by this Fifth Amendment, the Developer and the CRA ratify and reaffirm all terms and provisions of the Agreement. 15. CONFLICT. In the event of a conflict between the terms and provisions of this Fifth Amendment and the terms and provisions of the Agreement, the terms and provisions of this Fifth Amendment shall control. 16. COUNTERPARTS. This Fifth Amendment may be executed in counterparts by the parties hereto and each shall be considered an original as the parties are concerned but together such counterparts shall comprise only one Fifth Amendment. Executed counterparts transmitted by facsimile or PDF via email shall be binding upon the parties. [Signatures on following page] 5 #73693291_v3 IN WITNESS WHEREOF, the parties have executed this Fifth Amendment as of the date and year first above written. DEVELOPER: DOWNTOWN RETAIL ASSOCIATES LLC, a Florida limited liability company By: Name: Michael Swerdlow Title: Manager CRA: SOUTHEAST OVEOWN / PARK WEST COMMUNITY r $ VE 3PM . [ AGENCY By: Cornell u '.hi E<'ecutive Dir:ctor Approved for legal sufficiency By: William R. Bloom, Esq. Holland & Knight LLP, Special Counsel to CRA Joinder The undersigned Block 55 Lender, LLC joins in this Fifth Amendment to consent to the execution of the Fifth Amendment in accordance with the Recognition Agreement dated December 14, 2018. BLOCK 55 LENDE By: Name: Ezra Katz Title: Manager GUARANTY THIS GUARANTY is given as of the 18th day of March, 2020, by Michael Swerdlow ("Guarantor") in favor of 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. Downtown Retail Associates LLC, a Florida limited liability company ("Developer") and the CRA entered into that certain Block 55 Development Agreement dated as of October 1, 2018 (the "Original Agreement"), as amended by Amendment dated as of November 21, 2018, (the "First Amendment"), Second Amendment dated as of April 17, 2019 (the "Second Amendment"), Third Amendment dated as of September 26, 2019 (the "Third Amendment"), Fourth Amendment dated as of December 20, 2019 ("Fourth Amendment") and Fifth Amendment dated as of March 18, 2020 (the "Fifth Amendment") (the Original Agreement as amended by the First Amendment, the Second Amendment, the Third Amendment, the Fourth Amendment and the Fifth Amendment is collectively, the "Agreement") (capitalized terms used and not defined herein have the meanings set forth in the Fourth Amendment, or if not defined therein, in the Agreement). B. Guarantor desires to guaranty the payment to the CRA of the Second Closing Extension Deposit and the Second Additional Consideration in the aggregate amount of Eight Hundred Thousand and No/100 Dollars ($800,000) due from the Developer to the CRA on the Closing Date, time being of the essence. NOW, THEREFORE, FOR VALUE RECEIVED, Guarantor hereby guarantees the full payment of the Second Extension Deposit and the Second Additional Consideration in the aggregate amount of Eight Hundred and no/100 Dollars ($800,000.00) on or before the Closing Date, with time being of the essence, and if such amount is not paid on the Closing Date, such amount shall bear interest at twelve percent (12%) per annum from the date due until paid together with all costs of collection, including reasonable attorney fees and costs. IN WITNESS WHEREOF, the undersigned has executed this Guaranty as of the date first written above. Michael Swerdlow #73693291_v3 EXHIBIT "A" Form of Residential Housing Restrictive Covenant [see attached] #73693291_v3 [TO BE REVISED TO CHANGE PARTIES IF PERMITTED TRANSFER CONTEMPLATED BY SECTION 9 OF FIFTH AMENDMENT OCCURS AT CLOSING] This document prepared by and return to: William R. Bloom, Esq. Holland & Knight, LLP 701 Brickell Avenue Suite 3300 Miami, FL 33131 HOUSING RESTRICTIVE COVENANT AGREEMENT THIS HOUSING RESTRICTIVE COVENANT AGREEMENT (this "Agreement") is made and entered into as of March , 2020, by and between SOUTHEAST OVERTOWN/PARK WEST COMMUNITY REDEVELOPMENT AGENCY, a public body corporate and politic created pursuant to the laws of the State of Florida (the "CRA"); and DOWNTOWN RETAIL ASSOCIATES LLC, a Florida limited liability company (the "Owner"). RECITALS A. Owner and the CRA entered into the certain Block 55 Development Agreement dated October 1st, 2018, as amended (the "Development Agreement") with respect to the development of the certain real property located in the City of Miami, which is more particularly described on Exhibit "A" attached hereto and made a part hereof (the "Land"). B. The project (the "Project") is to be developed on the Land is to consist of not less than five hundred (500) residential apartment units (the "Residential Units") and not less than 250,000 square feet of retail/restaurant/office/entertainment uses (the "Retail Space"). NOW THEREFORE, in consideration of $10.00 and other good and valuable consideration Owner covenants and agrees with the CRA as follows: 1. Recitals. The Recitals to this Agreement are true and correct and incorporated herein by reference. 2. Definitions and Interpretation. 2.1 The following terms shall have the respective meanings set forth below: "AMI" shall mean the then applicable median family income for Miami -Dade County, Florida, standard metropolitan statistical area, determined in a manner consistent with Section 1 #73289886_v4 42(g) (1) of the Internal Revenue Code of 1986, including adjustment for family size as published annually by the U.S. Department of Housing and Urban Development. "Applicable Income Limit" means with respect to Low -Income Tenants, the applicable income limit set forth in the definition of "Low -Income Tenants". "Available Units" means the Residential Units that are actually occupied and Residential Units that are unoccupied and have been leased at least once after becoming available for occupancy, provided that a residential unit that is not available for occupancy due to renovations is not an Available Unit and does not become an Available Unit until it has been leased for the first time after the renovations are completed. "Certificate of Continuing Program Compliance" means the certificate required to be delivered by the Owner to the CRA pursuant to Section 5.4 of this Agreement. "Code" means the Internal Revenue Code of 1986, as amended. Any reference to a Code section shall include any successor provision; provided that if the Internal Revenue Code is amended to eliminate corresponding provisions in connection with low income housing tax credits then reference shall be to such provision of the Code immediately prior to such amendment. "County" means Miami -Dade County, Florida, a political subdivision of the State of Florida. "HUD" means the United States Department of Housing and Urban Development or any successor agency. "Income Certification" means the certificate required to be obtained by the Owner from each tenant pursuant to Section 5.1 of this Agreement. "Land" has the meaning ascribed to that term in the Recitals. "Low -Income Tenants" means one or more natural persons or a family, whose income does not exceed fifty percent (50%) of AMI. "Manager" means the Owner or any agent hired by or on behalf of the Owner to operate and manage the Residential Units. For the avoidance of doubts the Owner or the Manager must at all times manage all of the Residential Units. If there are two owners of the Residential Units as permitted by Section 10.2, the two Owners must hire a Manager to manage all of the Residential Units. "Project" has the meaning ascribed to said term in the Recital. "Qualified Project Period" means a period beginning on the first day on which temporary certificate(s) of occupancy (or its equivalent) have been issued for all Residential Units in the Project and ending on the date which is thirty (30) years thereafter. The Owner is authorized to use Exhibit "B" attached hereto to evidence the foregoing with respect to the Project. "Residential Units" has the meaning ascribed to such term in the Recitals. 2 #73289886_v4 "Retail Space" has the meaning ascribed to such term in the Recitals. "State" means the State of Florida. 2.2 Unless the context clearly requires otherwise, as used in this Agreement, words of the masculine, feminine or neuter gender shall be construed to include any other gender when appropriate and words of the singular number shall be construed to include the plural number, and vice versa, when appropriate. This Agreement and all the terms and provisions hereof shall be construed to effectuate the purposes set forth herein and to sustain the validity hereof. 2.3 The titles and headings of the sections of this Agreement have been inserted for convenience of reference only, and are not to be considered a part hereof and shall not in any way modify or restrict any of the terms or provisions hereof or be considered or given any effect in construing this Agreement or any provisions hereof or in ascertaining intent, if any question of intent shall arise. 3. Residential Units. The Owner hereby represents, covenants, warrants and agrees that, during the Qualified Project Period: 3.1 The Owner will construct, own, subject to Section 10, and operate the Residential Units in the Project for the purpose of providing a multifamily residential rental project, and all of the Residential Units shall be continually managed and operated as a multifamily residential rental property. 3.2 Each Residential Unit shall be contained in one or more buildings or structures located on the Land and shall be similarly designed, appointed and constructed (except as to unit dimensions, number of bedrooms and bathrooms), each of which will contain complete facilities for living, sleeping, eating, cooking and sanitation for an individual or a family, including a living area, a sleeping area, bathing and sanitation facilities and cooking facilities equipped with a cooking range, refrigerator and sink, all of which are separate and distinct from the other units. 3.3 None of the Residential Units will at any time be (1) utilized on a transient basis, (2) used as a hotel, motel, dormitory, fraternity or sorority house, rooming house, nursing home, hospital, sanitarium, rest home, trailer court or park, or (3) rented for initial lease periods of less than six months. No part of the Residential Units will, at any time during the Qualified Project Period, be owned or used by a cooperative housing corporation. The Residential Units may be included as part of a condominium (provided that all of the Residential Units are owned by Owner or its permitted assigns in accordance with Section 10). 3.4 All of the Residential Units will be rented or available for rent on a continuous basis to members of the general public, and the Owner will not give preference to any particular class or group of persons in renting the Residential Units, except to the extent that units are required to be leased or rented to Low -Income Tenants. Low -Income Tenants will have equal access to and enjoyment of all common facilities associated with the Residential Units. The Owner will not discriminate against children of any age when renting the Residential Units. 3.5 The Owner shall not (i) demolish any part of the Project necessary for the operation of the Residential Units for its intended purposes or substantially subtract from any real or personal 3 #73289886_v4 property of the Residential Units; or (ii) permit the use of the Residential Units for any purpose except rental residences in compliance with this Agreement. Nothing herein shall limit Owner from undertaking repairs necessary for making Residential Units available for occupancy. 3.6 The Owner shall maintain "all risk" property insurance on the Project at 100% of replacement cost, with deductible amounts which are commercially reasonably, consistent with other similar properties. 4. Low -Income Tenants. Owner hereby represents, warrants and covenants as follows: 4.1 Subject to Section 4.4 below, at all times during the Qualified Project Period, not less than twenty percent (20%) of the square footage of all of the Residential Units in the Project, which represents approximately one hundred fifty-four (154) Residential Units, shall be occupied by Low -Income Tenants; provided, however, during the first four (4) months from the beginning of the Qualified Project Period this requirement shall be deemed satisfied if the one hundred fifty- four (154) Residential Units are occupied or reserved for occupancy by Low -Income Tenants. 4.2 The Residential Units shall consist of studio units with an average size of approximately four hundred seventy (470) square feet ("Studio Units"), one bedroom one bathroom units with an average size of approximately six hundred forty (640) square feet ("One Bedroom Units") and two bedroom two bath units with an approximate size of nine hundred forty (940) square feet ("Two Bedroom Units"). 4.3 The Residential Units which shall be occupied by Low -Income Tenants shall consist of approximately one hundred ten (110) Studio Units and approximately forty-four (44) One Bedroom Units, but in no event shall the number of Residential Units occupied by the Low - Income Tenants be less than twenty percent (20%) of the square footage of all of the Residential Units. The Residential Units occupied by Low -Income Tenants shall be equitably distributed throughout the Residential Units. 4.4 The requirements of this Section 4 are separate and apart from any requirement that the Owner may elect to comply with under Miami 21. 4.5 For purposes of Section 4.1 and Section 3.4, a unit occupied by an individual or family who at the commencement of the occupancy of such unit is a Low -Income Tenant shall be counted as occupied by a Low -Income Tenant during such individual's or family's tenancy in such unit, even though such individual or family ceases to be a Low -Income Tenant. However, such unit shall cease to be counted as occupied by a Low -Income Tenant upon a determination that the tenant's most recently reported income exceeds 140% of the Applicable Income Limit. In addition, a vacant unit that was occupied by a Low -Income Tenant shall be counted as occupied by a Low - Income Tenant until it is reoccupied other than a temporary period of not more than thirty-one (31) days, at which time the unit shall be considered to be occupied by a Low -Income Tenant only if the individual or family then occupying the unit satisfies the definition of a Low -Income Tenant. 4 #73289886_v4 5. Reporting Requirements. During the Qualified Project Period: 5.1 Income Certifications in the form attached hereto as Exhibit "C" shall be obtained from each occupant (i) no less than five days prior to the time of initial occupancy of such unit by such occupant, and (ii) no less frequently than once each calendar year thereafter. 5.2 The Owner shall file with the CRA, on or before the thirtieth day after the end of each calendar quarter (and if such day falls on a weekend or holiday, submission must be made the first business day after), copies of the Income Certifications specified in Section 5.1 hereof obtained by the Owner during the previous calendar quarter. 5.3 The Owner shall maintain complete and accurate records pertaining to the incomes of (as of the date of initial occupancy of each tenant and annually thereafter) and rentals charged to Low -Income Tenants residing in the Residential Units, and shall petiiiit during normal business hours and upon five business days' notice to the Owner, any duly authorized representative of the CRA to inspect the books and records of the Owner pertaining to the incomes of and rentals charged to all tenants residing in the Residential Units. Such inspection shall occur at the Project or another location in the County where Owner maintains such records. 5.4 The Owner shall prepare and submit to the CRA within thirty (30) days after the end of first calendar quarter after the beginning of the Qualified Project Period, and on or before the thirtieth day after the end of each calendar quarter (and if such day falls on a weekend or holiday, submission must be made the next business day after) thereafter, rent rolls for the Residential Units and a Certificate of Continuing Program Compliance in the form attached hereto as Exhibit "D", executed by the Owner. If any such report indicates that the vacancy rate at the Residential Units is 10% or higher, the CRA shall be permitted during normal business hours and upon five business days' notice to the Owner, to inspect all or some of the vacant Residential Units to determine to its reasonable satisfaction that such vacant units are ready and available for rental. 5.5 No later than May 1st of each year during the Qualified Project Period, the Owner shall submit to the CRA a certification by an independent compliance agency which is selected by the Owner and reasonably acceptable to the CRA, evidencing compliance or non-compliance with the provisions of Section 4 of this Agreement during the prior calendar year. 5.6 In the event that the Owner fails to submit to the CRA the items which the Owner is required to submit under Sections 5.2, 5.4 and 5.5 above on or before the date required, the Owner shall be liable for the payment to the CRA of a late fee of $100.00 per day until such item is delivered, which amount shall be payable within ten business days of written notification from the CRA of the amount of such late fee. The failure of the Owner to timely pay a late fee shall be an event of default by the Owner under this Agreement. 5.7 If the certificate prepared by the independent compliance agency in accordance with Section 5.5 evidences that the Owner has failed to comply with the requirements of Section 4, then in such event the Owner shall pay to the CRA, as a penalty for non-compliance with such requirements, the sum of (i) $1,000 for the initial unit which is not in compliance, (ii) $2,500 for a second unit which is not in compliance, and (iii) $5,000 for each additional unit which is not in compliance, all determined on an annual basis, based upon such certificate. Amounts, if any, due 5 #73289886_v4 from the Owner in accordance with this Section 5.7 shall be calculated annually as of each January 1 and paid by the Owner within thirty (30) days of issuance of the certificate in accordance with Section 5.5. The failure of the Owner to pay the amount due under this Section 5.7 shall be an event of default by Owner under this Agreement. 6. Indemnification. The Owner hereby covenants and agrees that it shall indemnify and hold harmless the CRA, the City of Miami, the County and their respective past, present and future officers, members, governing body members, employees, agents and representatives (any or all of the foregoing being hereinafter referred to as the "Indemnified Persons") from and against any and all losses, costs, damages, expenses and liabilities of whatsoever nature or kind (including but not limited to, reasonable attorneys' fees, litigation and court costs related to trial and appellate proceedings, amounts paid in settlement and amounts paid to discharge judgments) directly or indirectly resulting from or arising out of, the design, construction, installation, operation, use, occupancy, maintenance or ownership of the Project other than for matters arising from the negligent, illegal or unlawful acts or omissions of the Indemnified Persons. In the event that any action or proceeding is brought against any Indemnified Persons with respect to which indemnity may be sought hereunder, the Owner, upon timely written notice from any of the Indemnified Persons, shall assume the investigation and defense thereof, including the employment of counsel, reasonably acceptable to such Indemnified Persons, and the payment of all expenses for such counsel. The Indemnified Persons shall have the right to participate in the investigation and defense thereof and may employ separate counsel either with the approval and consent of the Owner at the sole cost of such Indemnified Persons, which consent shall not be unreasonably withheld, or in the event the Indemnified Persons reasonably determines that a conflict of interest exists between such Indemnified Persons and the Owner in connection therewith, in such event the Owner shall pay the reasonable fees and expenses of such separate counsel retained by Indemnified Persons and may terminate the counsel retained by Owner. 7. Fair Housing Laws. The Owner will comply with all fair applicable housing laws, rules, regulations or orders applicable to the Project and shall not violate any applicable laws related to discrimination on the basis of race, creed, color, sex, age or national origin in the lease, use or occupancy of the Project or in connection with the employment or application for employment of persons for the operation and management of the Project. All advertising and promotional material used in connection with the Project shall contain the phrase "Fair Housing Opportunity." 8. Tenant Lists. All tenants lists, applications, and waiting lists relating to the Residential Units ("Tenancy Information") shall at all times be kept separate and identifiable from any other business of the Owner which is unrelated to the Residential Units, and shall be maintained, as reasonably required by the CRA from time to time, in a reasonable condition for proper audit and subject to examination upon reasonable notice during business hours by representatives of the CRA in accordance with Section 5.3 hereof. Failure to keep the Tenancy Information or to make them available to the CRA will be a default hereunder. Owner shall not be required to maintain Tenancy Information for a period longer than five (5) years after collection. 6 #73289886_v4 9. Tenant Lease Restrictions. All tenant leases with respect to the Residential Units shall contain clauses, among others, wherein each individual lessee: 9.1 Certifies the accuracy of the statements made in the Income Certification; 9.2 Agrees that the family income, family composition and other eligibility requirements shall be deemed substantial and material obligations of such lessee's tenancy; that such lessee will comply promptly with all requests for information with respect thereto from the Owner or the CRA, and that such lessee's failure to provide accurate information in the Income Certification or refusal to comply with a request for information with respect thereto shall be deemed a violation of a substantial obligation of such lessee's tenancy; and 9.3 Agrees not to sublease to any person or family who does not execute, and deliver to the Owner, an Income Certification. 10. Sale, Lease or Transfer of Residential Units. 10.1 The Owner shall not sell or otherwise transfer the Residential Units in whole or in part without providing written notice of the proposed transfer to the CRA not less than ten (10) days prior to the date the transfer is to occur. Prior to completion of construction of the Project, the CRA shall have approval rights of the proposed transferee, which approval shall not be unreasonably withheld, conditioned or delayed and which approval shall be given if the proposed transferee has the experience to complete the construction of the Project, provided, however, no approval of the CRA shall be shall be required with respect to (a) a lender taking title to the Residential Units subject to the terms of this Agreement following the enforcement of such lender's remedies, (b) the transfer of such Residential Units by a lender to an affiliate of such lender subject to the terms of this Agreement or (c) the transfer of such Residential Units by a lender or its affiliate to an unrelated third party purchaser subject to the terms of this Agreement; provided, in each case, that the payment and performance bond satisfying the requirement of Section 5.1.2 of the Block 55 Restrictive Covenant dated as of the date hereof between the Owner and the CRA (the "Block 55 Restrictive Covenant") has been obtained and remains in full force and effect or sub -guard insurance policy, satisfying the requirement of Section 5.1.2 of the Block 55 Restrictive Covenant which has been approved by the CRA remains in full force and effect. After completion of construction of the Project the CRA shall not have approval rights with respect to such transfer and after completion of construction of the Project, Owner may sell or otherwise transfer the Residential Units in whole, but not in part, except as provided in Section 10.2), provided the purchaser or transferee shall execute an assumption of all of the duties and obligations of the Owner under this Agreement arising from and after the date of such transfer. It is hereby expressly stipulated and agreed that any sale, transfer or other disposition of the Residential Units in violation of this Section shall be null, void and without effect and shall be ineffective to relieve the Owner of its obligations under this Agreement. In the event that the purchaser or transferee shall assume the obligations of the Owner under this Agreement, the Owner shall be released from its obligations hereunder, other than its obligations under Section 5 hereof arising prior to such date of assumption. 10.2 Owner has advised the CRA that upon completion of the Project Owner anticipates submitting the Project to condominium form of ownership or vertically subdivided with separate 7 #73289886_v4 portions of the Project being separate condominium units or separate vertically subdivided parcels (such condominium units or separate vertically subdivided parcels, each a "Parcel"). The CRA and the Owner agree that two (2) separate Parcels will be allowed to be created out of the Residential Units provided that at all times they are operated together. Owner will be permitted to convey the two (2) Parcels separately provided the owners of the two (2) Parcels each execute an assumption of all of the duties and obligations of Owner under this Agreement arising from and after the date of such transfer and such purchasers acknowledge that they shall be jointly and severally liable for compliance with this Agreement. From and after such conveyance the term "Owner" shall refer to the owners of both Parcels. In addition, from and after such conveyance the two (2) Parcels comprising all of the Residential Units in the Project shall be treated together for compliance with all of the terms of this Agreement, including without limitation, the reporting requirements and the two (2) owners shall jointly retain a Manager for all of the Residential Units. It is hereby expressly stipulated and agreed that any sale, transfer or other disposition of the Residential Units in violation of this section shall be null, void and without effect. 10.3 Notwithstanding anything in this Section 10 to the contrary, the restrictions set forth above on the sale, transfer or other disposition or encumbrance of the Residential Units or any portion thereof shall not be applicable to any of the following: (i) leases of apartment units as contemplated by this Agreement; (ii) grants of utility related easements, service or concession related leases, declarations of condominium, declarations of covenants, reciprocal easement agreements or any other easements, including, without limitation, coin -operated laundry service leases and/or television cable easements affecting the Residential Units, providing same are granted in connection with the development and/or operation of the Residential Units as contemplated by this Agreement and the Block 55 Restrictive Covenant; (iii) any sale or conveyance to a condemning governmental authority as a direct result of the condemnation or a governmental taking or a threat thereof; (iv) any transfer pursuant to or in lieu of a foreclosure or any exercise of remedies (including, without limitation, foreclosure) under any mortgage encumbering the Residential Units or under any pledge, collateral assignment or encumbrance of the membership interests of the Owner as security for any financing of the Residential Units; provided, that the purchaser acquires the Residential Units, subject to the terms of this Agreement; (v) any sale, transfer, or assignment of non -managing membership interest or addition of new non - managing members in the Owner, or any sale, transfer or assignment of direct or indirect membership interests in the Owner to a related entity (including without limitation to direct or indirect members of Owner); (vi) any pledge, collateral assignment or encumbrance of the direct or indirect membership interests of the Owner as security for any financing of the Residential Units, subject to (iv) above; (vii) the placing of a mortgage lien, assignment of leases and rents or security interests on or pertaining to the Residential Units if made expressly subject and subordinate to this Agreement; or (viii) any change in allocations or preferred return of capital, depreciation or losses or any final adjustment in capital accounts (all of which may be freely transferred or adjusted by Owner pursuant to Owner's operating agreement); (ix) any title encumbrance existing at the time the CRA conveys the Land to the Owner except for this Agreement and the Block 55 Restrictive Covenant between the Owner and the CRA or (x) any transfer after completion in accordance with Section 10.1 or Section 10.2. Any other transfer or lien granted by the Owner or its transferees shall be and remain subject to the restrictions contained herein. #73289886_v4 11. Covenants to Run with the Land. This Agreement and the covenants, reservations and restrictions set forth herein shall be deemed covenants running with the land and, during the term of this Agreement as set forth in Section 12 hereof, shall pass to and be binding upon the Owner's assigns and successors and all subsequent owners of the Residential Units or any interest therein; provided, however, that upon the termination of this Agreement in accordance with the terms hereof said covenants, reservations and restrictions shall expire. Each and every contract, deed or other instrument hereafter executed covering or conveying the Residential Units or any portion thereof or interest therein shall conclusively be held to have been executed, delivered and accepted subject to such covenants, reservations and restrictions, regardless of whether such covenants, reservations and restrictions are set forth in such contract, deed or other instruments. 12. Term. This Agreement shall remain in full force and effect during the Qualified Project Period. 13. Burden and Benefit. The CRA and the Owner hereby declare their understanding and intent that the burden of the covenants set forth herein touch and concern the Residential Units and run with the Residential Units. 14. CRA Goals. The CRA and the Owner hereby further declare their understanding and intent that the benefit of such covenants set forth herein touch and concern the Residential Units by enhancing and increasing the enjoyment and use of the Residential Units by Low -Income Tenants, the intended beneficiaries of such covenants, reservations and restrictions, and by furthering the public purposes contemplated by the Development Agreement. The Owner hereby expressly acknowledges that this Agreement is necessary to accomplish the CRA's public purpose and covenants and agrees that in connection with the construction, ownership and operation of the Residential Units, it shall comply with all terms and conditions of this Agreement. 15. Application of Insurance and Condemnation Proceeds. If, during the Qualified Project Period, the Residential Units are damaged or destroyed or if all or a portion thereof is taken through eminent domain proceedings, or under threat thereof, proceeds from insurance on the Residential Units or any condemnation awards pertaining to such eminent domain proceedings shall be applied solely to the repair, reconstruction or replacement of the Residential Units except that any excess proceeds available after the Residential Units has been restored may be utilized by the Owner for other purposes. Notwithstanding the foregoing, if during the Qualified Project Period the holder of any mortgage encumbering the Residential Units requires the insurance proceeds or eminent domain proceeds, as applicable, to be applied to reduce the outstanding indebtedness and does not make same available to restore the Residential Units, or any portion thereof, then in such event, Owner shall not be required to restore the Residential Units so long as no portion of the Residential Units shall be permitted to be occupied and/or used until such time as all of the Residential Units are fully restored unless otherwise approved in writing by the CRA. 16. Remedies; Enforceability. The benefits of this Agreement shall inure to, and may be enforced by the CRA and its successors and assigns. If a material violation of any of the provisions hereof occurs or is attempted, the CRA may institute and prosecute any proceeding at law or in equity to abate, prevent or enjoin any such violation or attempted violation; and to compel specific performance hereunder, it being recognized that except set forth in Sections 5.6 and 5.7 the CRA cannot be adequately compensated by monetary damages in the event of the Owner's 9 #73289886_v4 default. No delay in enforcing the provisions hereof as to any breach or violation shall impair, damage or waive the right of any party entitled to enforce the provisions hereof or to obtain relief against or recover for the continuation or repetition of such breach or violation or any similar breach or violation hereof at any later time or times. 17. Filing. Upon execution and delivery by the parties hereto, the Owner shall cause this Agreement and all amendments and supplements hereto to be recorded and filed in the official public records of Miami -Dade County, Florida, and in such manner and in such other places as the CRA may reasonably request, and shall pay all fees and charges incurred in connection therewith. If the Owner has failed to make any such filing, the CRA may cause such document(s) to be filed. 18. Governing Law. This Agreement shall be governed by the laws of the State of Florida. 19. Assignment. The Owner shall not assign its interest in the Residential Units, except by writing and in connection with a transfer of the Residential Units in accordance with the provisions of Section 10 hereof. 20. Amendments. This Agreement shall not be amended, revised, or terminated except by a written instrument, executed by the parties hereto (or their successors in title), and duly recorded in the official public records for Miami -Dade County, Florida. 21. Notice. 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 Owner: Downtown Retail Associates LLC 2901 Florida Avenue Suite 806 Coconut Grove, FL 33133 Attention: Michael Swerdlow With a copy (which shall not constitute notice or service of process) to: Bercow Radell Fernandez Larkin Tapanes PLLC Attention: Jeffrey Bercow, Esq. 200 S. Biscayne Boulevard Suite 850 Miami, FL 33131 With a copy (which shall not constitute notice or service of process) to: Alvarez & Diaz-Silveira LLP Attention: Real Estate Notices 10 #73289886_v4 If to CRA: 355 Alhambra Circle Suite 1450 Coral Gables, FL 33134 SOUTHEAST OVERTOWN / PARK WEST COMMUNITY REDEVELOPMENT AGENCY Attention: Cornelius Shiver, Executive Director 819 NW 2nd Avenue, Third Floor Miami, FL 33136 With a copy to: William R. Bloom, Esq. Holland & Knight, LLP Suite 3300 701 Brickell Avenue Miami, FL 33131 And with a copy to: Staff Counsel Southeast Overtown/Park West Community Redevelopment Agency 819 NW 2nd Avenue, Third Floor Miami, FL 33136 Notices personally delivered or sent via 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. 22. Severability. If any provision hereof shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining portions hereof shall not in any way be affected or impaired thereby. 23. Multiple Counterparts. This Agreement may be simultaneously executed in multiple counterparts, all of which shall constitute one and the same instrument, and each of which shall be deemed to be an original. 24. No Third Party Beneficiary. The provisions of this Agreement are and will be for the benefit of Owner 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. 25. ESTOPPEL CERTIFICATES. From time to time the CRA will execute and deliver an estoppel certificate to Owner confirming the status of Owner's compliance with the terms and conditions of this Agreement within ten (10) business days of written request from Owner. The 11 #73289886_v4 estoppel certificate shall state (i) that this Agreement is in full force and effect and has not been modified, supplemented or amended, or if there has been any modifications that this Agreement is in full force and effect as modified and identifying the modifications or if this Agreement is not enforceable, so state; (ii) whether the CRA has issued any written notice(s) of any default(s) by Owner under this Agreement which remain uncured, and if so, stating the nature of the default(s); and (iii) whether the CRA knows of any event with the giving of notice or passage of time, or both, would constitute a default by Owner under this Agreement. Any estoppel certificate required to be provided pursuant to this Agreement shall be made on behalf of the CRA by the executive director of the CRA. 26. Entire Agreement. Except for the Block 55 Restrictive Covenant, this Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof, superseding and/or incorporating all prior or contemporaneous oral or written agreements (including, without limitation, that certain Block 55 Development Agreement by and between Downtown Retail Associates LLC and the CRA, as amended) and there are no other agreements, representations or warranties with respect to the subject matter hereof other than as set forth herein and in the Block 55 Restrictive Covenant. [Remainder of page intentionally left blank] 12 #73289886_v4 IN WITNESS WHEREOF, the CRA and the Owner have executed this Agreement by duly authorized representatives, all as of the date first set forth above. Witnesses: Print Name Print Name Attest: Clerk of the Board Approved for Legal Sufficiency By: William R. Bloom, Esq. Holland & Knight, LLP Special Counsel SOUTHEAST OVERTOWN/PARK WEST COMMUNITY REDEVELOPMENT AGENCY, a public agency and body corporate created pursuant to section 163.356, Florida Statutes By: Cornelius Shiver Executive Director Witnesses: DOWNTOWN RETAIL ASSOCIATES LLC, a Florida limited liability company By: Print Name Michael Swerdlow Manager Print Name 13 #73289886_v4 STATE OF FLORIDA )SS: COUNTY OF MIAMI-DADE The foregoing instrument was acknowledged before me by means of ❑ physical presence or ❑ online notarization, this day of , 2020, by Cornelius Shiver, Executive Director of the Southeast Overtown/Park West Community Redevelopment Agency, on behalf of the Agency. He is personally known to me or has produced as identification. (SEAL) Notary Public — State of Commission Number: 14 #73289886_v4 STATE OF FLORIDA )SS: COUNTY OF MIAMI-DADE The foregoing instrument was acknowledged before me by means of ❑ physical presence or ❑ online notarization, this day of , 2020, Michael Swerdlow, as Manager of Downtown Retail Associates LLC, a Florida limited liability company, on behalf of the limited liability company. He is personally known to me or has produced as identification. (SEAL) Notary Public — State of Commission Number: 15 #73289886_v4 EXHIBIT A LEGAL DESCRIPTION OF REAL ESTATE Lots 1 through 20, inclusive, of Block 55, North, City of Miami, according to the Plat thereof, as recorded in Plat Book `B", Page 41, of the Public Records of Miami -Dade County, Florida; less and except the East 7.5 feet of Lot 20; and further less and except that portion of Lot 10 taken by the State of Florida Department of Transportation by Order of Taking recorded in Official Records Book 5349, at Page 129, of the Public Records of Miami -Dade County, Florida, being more particularly described as follows: Begin on the West line of said Lot 10 at a point 14.51 feet South 02° 6' 16" East from the Northwest corner thereof, said point being the beginning of a curve concave Southeasterly having a radius of 14.5 feet, thence from a tangent bearing of North 02°16'16" West run Northwesterly, Northerly and Northeasterly 22.79 feet along said curve through a central angle of 90°02'57" to the North line of said Lot 10, thence Westerly 14.51 feet along said North line to the Northwest corner of said Lot 10, thence South 02°16'16" East 14.51 feet along the West line of said Lot 10 to the Point of Beginning. ALSO DESCRIBED AS: Lots 1 through 20, inclusive, of Block 55 North, Map of Miami, Dade Co. Fla, according to the plat thereof, as recorded in Plat Book B, Page 41, of the Public Records of Miami -Dade County, Florida; less and except the East 7.5 feet of Lot 20; and further less and except that portion of Lot 10 taken by the State Of Florida Department Of Transportation by Order Of Taking recorded in Official Records Book 5349, Page 129, of the Public Records of Miami -Dade County, Florida, being more particularly described as follows: Begin on the West line of said Lot 10 at a point 14.51 feet South 02°16'16" East from the Northwest corner thereof, said point being the beginning of a curve concave Southeasterly having a radius of 14.5 feet, thence from a tangent bearing of North 02°16'16" West run Northwesterly, Northerly and Northeasterly 22.79 feet along said curve through a central angle of 90°02'57" to the North line of said Lot 10, thence Westerly 14.51 feet along said North line to the Northwest corner of said Lot 10, thence South 02°16'16" East 14.51 feet along the West line of said Lot 10 to the Point Of Beginning. 16 #73289886_v4 EXHIBIT B FORM OF CERTIFICATE CONCERNING COMMENCEMENT AND TERMINATION OF QUALIFIED PROJECT PERIOD THIS CERTIFICATE is being executed pursuant to the provisions of the Housing Restrictive Covenant Agreement, dated as of March , 2020, (the "Agreement), among Southeast Overtown/Park West Community Redevelopment Agency (the "CRA") and Downtown Retail Associates LLC, a Florida limited liability company (the "Owner"), in connection with those certain Residential Units (as defined in the Agreement) within the project located in Miami -Dade County located on real property described on Exhibit "A" hereto as such project is more particularly defined in the Agreement (the "Project"). The period for which the restrictions set forth in the Agreement are applicable to the Residential Units is referred to as the "Qualified Project Period" and is defined in the Agreement as follows: "Qualified Project Period" means a period beginning on the first day on which the last temporary certificate(s) of occupancy (or its equivalent) have been issued for all Residential Units within the Project and ending on the date which is thirty (30) years thereafter. To evidence the Qualified Project Period with respect to the Residential Units within the Project, the Owner certifies to the CRA the date on which the last temporary certificate of occupancy (or its equivalent) for all Residential Units within the Project was obtained on . Therefore, the Qualified Project Period began on and expires on (insert date 30 years later). Prior to the recording of this Certificate in the land records of Miami -Dade County, Florida, the Owner has supplied the CRA with documentation to establish the facts relating to the Residential Units set forth in this Certificate, which documentation has been found satisfactory to the CRA. Nothing in this Certificate is intended to modify the requirement of the Agreement that all Residential Units within the Project be rented as residential rental property or any other provision of the Agreement. 17 #73289886_v4 IN WITNESS WHEREOF, the Owner has caused this Certificate to be executed by its duly authorized representative as of this day of , 20 . Downtown Retail Associates LLC, a Florida limited liability company By: 18 Michael Swerdlow, Manager #73289886_v4 STATE OF FLORIDA ) )SS: COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me by means of ❑ physical presence or ❑ online notarization, this day of , 20_, by Michael Swerdlow, as Manager of Downtown Retail Associates LLC, a Florida limited liability company, on behalf of the limited liability company. He is personally known to me or has produced as identification. (SEAL) Notary Public — State of Commission Number: 19 #73289886_v4 EXHIBIT A to Certificate Concerning Commencement and Termination of Qualified Project Period REAL PROPERTY DESCRIPTION Lots 1 through 20, inclusive, of Block 55, North, City of Miami, according to the Plat thereof, as recorded in Plat Book `B", Page 41, of the Public Records of Miami -Dade County, Florida; less and except the East 7.5 feet of Lot 20; and further less and except that portion of Lot 10 taken by the State of Florida Department of Transportation by Order of Taking recorded in Official Records Book 5349, at Page 129, of the Public Records of Miami -Dade County, Florida, being more particularly described as follows: Begin on the West line of said Lot 10 at a point 14.51 feet South 02° 6' 16" East from the Northwest comer thereof, said point being the beginning of a curve concave Southeasterly having a radius of 14.5 feet, thence from a tangent bearing of North 02°16'16" West run Northwesterly, Northerly and Northeasterly 22.79 feet along said curve through a central angle of 90°02'57" to the North line of said Lot 10, thence Westerly 14.51 feet along said North line to the Northwest comer of said Lot 10, thence South 02°16'16" East 14.51 feet along the West line of said Lot 10 to the Point of Beginning. ALSO DESCRIBED AS: Lots 1 through 20, inclusive, of Block 55 North, Map of Miami, Dade Co. Fla, according to the plat thereof, as recorded in Plat Book B, Page 41, of the Public Records of Miami -Dade County, Florida; less and except the East 7.5 feet of Lot 20; and further less and except that portion of Lot 10 taken by the State Of Florida Department Of Transportation by Order Of Taking recorded in Official Records Book 5349, Page 129, of the Public Records of Miami -Dade County, Florida, being more particularly described as follows: Begin on the West line of said Lot 10 at a point 14.51 feet South 02°16'16" East from the Northwest corner thereof, said point being the beginning of a curve concave Southeasterly having a radius of 14.5 feet, thence from a tangent bearing of North 02°16'16" West run Northwesterly, Northerly and Northeasterly 22.79 feet along said curve through a central angle of 90°02'57" to the North line of said Lot 10, thence Westerly 14.51 feet along said North line to the Northwest corner of said Lot 10, thence South 02°16'16" East 14.51 feet along the West line of said Lot 10 to the Point Of Beginning. 20 #73289886_v4 RE: [ [Address] Unit # EXHIBIT C CERTIFICATION OF TENANT ELIGIBILITY ] Apartments The undersigned hereby (certify) (certifies) that: 1. This Income Certification is being delivered in connection with the undersigned's application for occupancy of apartment # [ ] Apartments in Miami -Dade County, Florida. Capitalized terms not otherwise defined in this Certificate shall have the meanings ascribed to said terms in the Housing Restrictive Covenant Agreement. 2. List all occupants of the apartment, the relationship (if any) of the various occupants, their ages, and the total anticipated income, reasonably acceptable to the Southeast Overtown/Park West Community Redevelopment Agency for each person listed below during the 12-month period commencing with the date occupancy will begin. Name (a) (b) (c) (d) (e) (f) Annual Relationship Age Income DEFINITION OF INCOME: Full amount, before payroll deductions, of wages, salaries, overtime, commissions, fees, tips and bonuses; net income from operation of a business or profession; interest and dividends and other net income from real or personal property; periodic payments from social security, annuities, insurance policies, retirement funds, pensions, disability or death benefits and other similar types of periodic payments; payments in lieu of earnings, such as unemployment and disability compensation, worker's compensation and severance pay; public assistance income, where payments include amounts specifically designated for shelter and utilities; periodic and determinable allowances such as alimony and child support, and regular contributions or gifts from persons not residing in the dwelling; all regular and special pay and allowances of members of the Armed Forces (whether or not living in the dwelling) who are the head of the family or spouse; but excluding: casual, sporadic or irregular gifts; amounts which are specifically for reimbursement of medical expenses; lump sum additions to family assets, such as inheritances, insurance payments (including payments under health and accident insurance and worker's compensation), capital gains and settlement for personal or property losses; amounts of educational scholarships paid directly to the student or the educational institution, and amounts paid by the government to a veteran for use in meeting costs of tuition, fees, books and equipment, but in either case only to the extent used for such purposes; special pay to a servicemen head of 21 #73289886_v4 family who is away from home and exposed to hostile fire; relocation payments under Title II of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970; foster child care payments; the value of coupon allotments for the purposes of food pursuant to the Food Stamp Act of 1964 which is in excess of the amount actually charged for the allotments; payments received pursuant to participation in ACTION volunteer programs; and income from the employment of children (including foster children) under the age of eighteen (18) years. 3. If any of the occupants listed in Section 2 has any savings, bonds, or equity in real property, or other forms of capital investment (but do not include necessary items such as furniture or automobiles) * enter the following amounts: * Include the value over and above actual consideration received, except in foreclosure or bankruptcy, of any asset disposed of for less than fair market value within two (2) years of the date of this Income Certification. (a) The total value of all such assets owned by all persons: $ (b) A percentage of the value of such assets based on the current passbook savings rate, as determined by HUD (applicable passbook savings rate %): $ . ** If assets do not exceed $5,000 and resident is not a Lower Income Tenant, do not impute assets. (c) The amount of income expected to be derived from such assets in the 12 month period commencing with the occupancy of the unit: $ 4. RESIDENT'S STATEMENT: The information on this form is to be used to determine maximum income for eligibility. I/We have provided, for each person set forth in Section 2, either (a) an Employer's Verification of current anticipated annual income, if the potential occupant is currently employed, or (b) if the potential occupant is currently unemployed, such other evidence of current anticipated income as is consistent with income determinations under Section 8 of the United States Housing Act of 1937, as amended, or (c) copies of the potential occupants' most recent Federal Income Tax Return, if a return was filed for the most recent year. I/We certify that the statements above are true and complete to the best of my/our knowledge and belief on the date hereof and are given under penalty of perjury. Name (a) (b) (c) (d) (e) (f) 22 Date #73289886_v4 EXHIBIT D FORM OF CERTIFICATION OF CONTINUING PROGRAM COMPLIANCE Witnesseth that on this day of , 20 , the undersigned (the "Owner"), does hereby certify to the Southeast Overtown/Park West Community Redevelopment Agency (the "CRA") that the Residential Units are in continuing compliance with the Housing Restrictive Covenant Agreement executed by the Owner and the CRA dated , and filed in the official public records of Miami -Dade County, Florida (including the requirement that all units be and remain rental units available for rent), that an Income Certification has been submitted for each new tenant of the Residential Units as required by the Housing Restrictive Covenant Agreement and that the same are true and correct to the best of the undersigned's knowledge and belief. To the best of the undersigned's knowledge and belief, at all time during the previous quarter the provisions of Section 4 of the Housing Restrictive Covenant Agreement were complied with. To the best of Owner's knowledge and belief, no default has occurred under the Housing Restrictive Covenant Agreement, or, if a default has occurred, the nature of the default and the steps, if any, Owner has taken or proposes to take to correct such default are outlined on the Schedule attached hereto. As of the date of this Certificate, the following percentage of rentable square footage of all of the Residential Units are occupied by Low -Income Tenants: Percentage Capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Housing Restrictive Covenant Agreement. 23 #73289886_v4 (A) Total Square Footage of Residential Units Occupied by Low -Income Tenants Number of Occupied 1- Bedroom Units by Low -Income Tenants (B) Number of Occupied Studio Units by Low - Income Tenants (B) Total Square Footage of the Residential Units 24 Square Footage of 1-Bedroom Units Occupied by Low - Income Tenants Square Footage of Studio Units Occupied by Low - Income Tenants Downtown Retail Associates LLC, a Florida limited liability company By: Name: Title: #73289886_v4 EXHIBIT "B" Form of Block 55 Restrictive Covenant [see attached] #73693291_v3 [NOTE: To be utilized if Transfer described in Section 9 of Fifth Amendment does not occur] Prepared by: William R. Bloom, Esq. Holland & Knight LLP 701 Brickell Avenue, Suite 3300 Miami, FL 33131 BLOCK 55 RESTRICTIVE COVENANT THIS BLOCK 55 RESTRICTIVE COVENANT (the "Covenant") is made as of this day of March, 2020 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 CRA is the owner of that certain real property located in the City of Miami more particularly described on Exhibit "A" attached hereto and made a part hereof (the "Property"). B. Simultaneously with the execution of this Covenant, the CRA is conveying the Property to Developer subject to the terms and provisions set forth in this Covenant, which shall constitute a covenant running with the land and that title to the Property shall be subject to the tends and conditions of this Covenant, as hereinafter set forth. C. The Developer has requested the CRA provide economic incentives to assist with the cost of developing the Project, as hereinafter defined, in view of the job creation and business opportunities that will result from the construction, development and operation of the Project and the affordable and workforce housing which will be created. D. In light of the affordable and workforce housing being created, job creation and business opportunities that will result from the construction, development and operation of the Project, the CRA is willing to provide certain economic incentives to assist Developer, subject to the teiiiis and conditions as hereinafter provided. NOW, THEREFORE, for and in consideration of $10.00 and other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Recitals. The Recitals to this Covenant are true and correct and hereby incorporated by reference and made a part hereof. 2. Definitions. The following terms used in this Covenant shall have the following meanings: 2.1 "Architect" has the meaning ascribed to said term in Section 3.1. #73289798_v4 2.2 "Assignment Notice" shall have the meaning ascribed to such term in Section 12.2.2. 2.3 "Base Year" shall mean the calendar year preceding the calendar year in which the tax rolls for the County with respect to Property reflect an increase in the assessed value as a result of the Substantial Completion of the entire Project. For the avoidance of any doubt, should portions of the Project be completed and be on the tax rolls prior to Substantial Completion of the entire Project the assessed value of the Project for the Base Year shall be the assessed value for the land only, excluding the assessed value of any improvements. 2.4 "Bond Obligations" has the meaning ascribed to such term in Section 13.1. 2.5 "Change of Control" means (i) the transfer of more than fifty percent (50%) of the membership interests in the Developer, in one or a series of transactions, to an unrelated third party in an arm's length transaction provided however, up to seventy-five percent (75%) of the membership interest in Developer may be transferred in one or a series of transactions to institutional investors and shall not be deemed a Change of Control hereunder provided Michael Swerdlow directly or indirectly maintains control of all decision making by Developer, except for Major Decisions; or (ii) the sale of any membership interest in Developer which results in Michael Swerdlow, directly or indirectly, not having control of all decision making by Developer except for Major Decisions. For the avoidance of doubt, no transfer of membership interests in Developer that occurs by inheritance, device, bequest, transfer or operation of law upon the death or long- term incapacity of such member, or transfer by a member of its membership interest to a trust for family estate planning purposes shall be deemed a transfer of a membership interest. Further the pledge, collateral assignment or encumbrance of membership interests in Developer as security of a loan shall not be deemed a transfer of membership interests or Change of Control. The ownership interests in Developer as of the date of this Covenant is reflected on Exhibit "B" attached hereto. 2.6 "Children's Trust" means that certain independent special district authorized pursuant to Section 1.01.A.11 of the County Home Rule Charter and Section 125.901, Fla. Statutes, for the purpose of providing funding for children's services throughout the County. 2.7 "City" means the City of Miami, a municipal corporation of the State of Florida. 2.8 "City Approval" means the approval by the City Commission of the City of the CRA Budget for the applicable year, which CRA Budget includes the applicable Incentive Payment. 2.9 "City Targeted Areas" has the meaning ascribed to such term in Section 7.2.1(i)(c). 2.10 "Commencement of Construction Deadline" shall have the meaning ascribed to said term in Section 4.1. 2.11 "Completion" shall have the meaning ascribed to said term in Section 4.1. 2 #73289798_v4 4.1. in Section 7.2.1. (i) in Section Section 5.1.1. 2.12 "Completion Date" shall have the meaning ascribed to said term in Section 2.13 "Compliance Monitoring Contract" has the meaning ascribed to such term 7.9. 2.14 "Contractor(s)" shall have the meaning ascribed to said term in Section 2.15 "Construction Conditions Precedent" has the meaning ascribed to such temin 8. 2.16 "Construction Contract" shall have the meaning ascribed to said term in 2.17 "Construction Wage Notice" has the meaning ascribed to such term in Section 7.3(iii). 2.18 "Construction Wage Rate Penalty" has the meaning ascribed to such term in Section 7.6. 2.19 "County" means Miami -Dade County, a political subdivision of the State of Florida. 2.20 "County Approval" means the approval by the Board of County Commissioners of the County of the CRA Budget for the applicable year, which includes the applicable Incentive Payment. 2.21 "County Code" means the Miami -Dade County Code, as same may be amended from time to time. 2.22 "County Targeted Areas" has the meaning ascribed to such term in Section 7.2.1(i)(e). 2.23 "CRA" shall have the meaning ascribed to the term in the Recitals. 2.24 CRA Budget Approval" means the approval by the CRA Board of the annual CRA Budget which includes a line item for the Incentive Payment for the applicable year. 2.25 "CRA Board" means the Board of Commissioners of the CRA. 2.26 "CRA Budget" means the annual budget for the operation of the CRA approved by the CRA Board, subject to City Approval and County Approval. 2.27 "CRA Space" shall have the meaning ascribed to said term in Section 23. 2.28 "Design Documents" shall have the meaning ascribed to said term in Section 3.1. 3 #73289798_v4 2.29 "Developer" shall have the meaning ascribed to such term in the Recitals. 2.30 "Effective Date" means the date of execution and delivery of this Covenant by all parties hereto. 2.31 "Enforcement Action" shall have the meaning ascribed to such term in Section 14.7. 2.32 "Erroneous Hourly Wage Payment" has the meaning as ascribed to such term in Section 7.6. 2.33 "Erroneous Responsible Wage Payment" shall have the meaning ascribed to such term in Section 7.7. 2.34 "Executive Director" has the meaning ascribed to said term in Section 3.3. 2.35 "Extension Interlocal Agreement" means that Interlocal Agreement between the City, the County and the CRA with respect to the extension of the life of the CRA through March 31, 2042. 2.36 "General Contractor" means the general contractor engaged by the Developer to construct the Project. 2.37 "Global Agreement" means that certain Interlocal Agreement between the City, the County, the CRA and the Omni Community Redevelopment Agency dated as of December 31, 2007, as amended from time to time. 2.38 "Grant Obligations" shall have the meaning ascribed to such term in Section 13.1. 2.39 "Gross Sales Price" means the gross sales price paid and value of all other consideration received by the Developer or its members, as applicable. 2.40 "Incentive Payment" shall have the meaning ascribed to such term in Section 12.2.1 2.41 "Incremental TIF" shall mean, for each tax year, the tax increment revenues, if any, actually received by the CRA from the County and City with respect only to the Project and the Property, after Substantial Completion of the entire Project after deduction for any (i) allocable administrative charges imposed by the County and the City (but not administrative costs associated with the operation of the CRA), (ii) all allocable charges and/or payments to or for the benefit of the Children's Trust, (iii) other adjustments to the assessed value of the Project made by the City and/or County as a result of challenges or tax contests with respect to the assessed value of the Project, and (iv) any payments that the CRA is required to make to the City and the County under the terms of the Global Agreement, if any. 2.42 "Job Fair" shall have the meaning ascribed to said term in Section 24. 4 #73289798_v4 2.43 "Laborer Non -Compliance Funds" has the meaning ascribed to said term in Section 7.5.3(a). 2.44 "Living Wage Notice" has the meaning ascribed to said term in Section 7.3(i). 2.45 "Laborer Participation Requirement" has the meaning ascribed to said term in Section 7.2.1(i). 2.46 "Local Labor Workforce" has the meaning ascribed to Section 7.2.1(i). said term in 2.47 "Major Decisions" shall mean decisions to be made by the Developer which require the approval of the holders of more than fifty percent (50%) of the membership interests in Developer, including, but not limited to, approving the terms of the construction loan and/or permanent financing for Project; the decision to sell an interest in the Project; the tetras of major leases at the Project; actions or decisions not in accordance with an approved budget or an approved business plan; and similar major decisions customarily included in limited liability company operating agreements for projects of a similar nature where the members are institutional investors. 2.48 "Minimum Hourly Construction Wage Rate" shall have the meaning ascribed to such term in Section 7.3(i). 2.49 "Monetary Award" shall have the meaning ascribed to such term in Section 7.6. 2.50 "Notices" shall have the meaning ascribed to such term in Section 10. 2.51 "Office Component" shall have the meaning ascribed to said term in Section 3.1. 2.52 "Office Space" shall have the meaning ascribed to said term in Section 22. 2.53 "Overtown" has the meaning ascribed to such term in Section 7.2.1(i)(b). 2.54 "Parking Garage" has the meaning ascribed to said term in Section 3.1. 2.55 "Participation Requirements" shall have the meaning ascribed to said term in Section 7.2. 2.56 "Participation Reports" shall have the meaning ascribed to such term in Section 7.5.1. 2.57 "Payment and Performance Bond" shall have the meaning ascribed to said term in Section 5.1.2. 2.58 "Plans" shall have the meaning ascribed to such term in Section 3.2. 5 #73289798_v4 2.59 "Principal Place of Business" means the location of the primary office or central office of a Contractor. If the Contractor has only one business location, such business location shall be its Principal Place of Business. Confirmation of the Subcontractor's Principal Place of Business may be evidenced by a valid business tax receipt issued by Miami -Dade County. 2.60 "Project" shall have the meaning ascribed to such term in Section 3.1. 2.61 "Property" has the meaning ascribed to such term in the Recitals. 2.62 "Redevelopment Area" has the meaning ascribed to such term in Section 7.1(b). 2.63 "Resident" shall mean a natural person that has established a legal residence within an applicable area not less than six (6) months prior to said individuals receipt of such identification issued by the General Contractor for the Project necessary to access the Property during the erection of the Project. A Resident's "legal residence" shall be evidenced by (i) government issued, picture ID (i.e. driver's license, U.S. Passport, etc.) and (ii) any of the following documents: (a) a deed, monthly mortgage statement, mortgage payment booklet, or residential rental/lease agreement; (b) Florida voter registration card; (c) Florida vehicle registration, (d) a sworn affidavit from a head of household attesting to said individual's residence within the such household located within a Target Area; (e) a utility bill confirming the address not more than sixty (60) days old; or (f) such other document evidencing such natural person's legal residence deemed equivalent to the foregoing in the sole discretion of the Executive Director. 2.64 "Residential Units" shall have the meaning ascribed to said term in Section 3.1. 2.65 "Responsible Wage" has the meaning ascribed to such term in Section 7.4(i). 2.66 "Responsible Wage Notice" shall have the meaning ascribed to such term in Section 7.4(iii). in Section 7.7. Section 5. 6.1. 2.67 "Responsible Wage Penalty" shall have the meaning ascribed to such term 2.68 "Restricted Rental Units" shall have the meaning ascribed to such term in 2.69 "Retail Space" shall have the meaning ascribed to said term in Section 3.1. 2.70 "Sawyer's Walk" shall have the meaning ascribed to said term in Section 2.71 "Schedule" shall have the meaning ascribed to such term in Section 7.4(i). 2.72 "Skilled Construction Workforce" has the meaning ascribed to said term in Section 7.2.2(i). 6 #73289798_v4 2.73 "Skilled Laborer Non -Compliance Funds" has the meaning ascribed to such teirn in Section 7.5.4(a). 2.74 "Skilled Laborer Participation Requirement" has the meaning ascribed to said term in Section 7.2.2(i). 2.75 "Subcontractor" means a contractor engaged by the General Contractor or by any other contractor to provide labor material or services in connection with the construction of the Project. For the avoidance of any doubt, the term Subcontractor includes sub -Subcontractors at all levels who contract to provide labor material or services in connection with the construction of the Project. 2.76 "Subcontractor Participation Requirement" has the meaning ascribed to said term in Section 7.2.3(i). 2.77 "Subcontractor Non -Compliance Funds" has the meaning ascribed to said term in Section 7.5.2(a). 2.78 "Substantially Completed" or "Substantial Completion," or words of like import, means that a temporary or permanent certificate of occupancy, or its equivalent, has been issued by the City for all of the residential units comprising the Project and a certificate of completion, or its equivalent, for the commercial space and any office space included in the Project. For the avoidance of doubt, substantial completion does not include Tenant Improvements for the commercial space or the office space. Areas. 2.79 "Target Area" means the City Targeted Areas and the County Targeted 2.80 "Tax Assessor" means the Miami -Dade County Property Appraiser. 2.81 "Tenant Improvements" means the build -out of the tenant improvements with respect to commercial space and office space on behalf of a tenant for any commercial or office portion of the Project. 2.82 "Unavoidable Delay" shall have the meaning ascribed to said term in Section 4.1. 2.83 "Vertical Construction" shall have the meaning ascribed to said term in Section 4.1. 2.84 "Term" shall mean the period commencing on the Effective Date of this Covenant and terminating upon the expiration of the life of the CRA which currently is set to expire on March 31, 2030, as same may be extended with the approval of the CRA Board, the City Commission of the City and the Board of County Commissioners of the County in accordance with all applicable laws to March 31, 2042 pursuant to the Extension Interlocal Agreement. 2.85 "TIF Agreement" has the meaning ascribed to said term in Section 13.3. 7 #73289798_v4 3. Proiect. 3.1 Description of the Project. The project (the "Project") shall be a mixed use development to be located on the Property consisting of (i) not less than five hundred (500) residential units, which may be located in one or two subdivided tax parcels (collectively, the "Residential Units", and each such tax parcel, a "Residential Component"), (ii) not less than 250,000 rentable square feet of retail/restaurant/entertainment uses, of which not less than 30,000 rentable square feet shall consist of street level retail use along NW 2nd Avenue and NW 6th Street, (collectively, the "Retail Space") and a portion of which may consist of office space (the "Office Component"); (iii) a minimum 925 parking spaces, but in any event not less than the number of parking spaces required under applicable law (the "Parking Garage" and together with each Residential Component, the Retail Space and the Office Component, each a "Component"); and (iv) the development of Sawyer's Walk, as hereinafter defined, all as more particularly shown on the design development documents prepared by Arquitectonica International Corporation, Inc. (the "Architect") identified on Exhibit "C" (the "Design Documents"). 3.2 Plans and Specifications. The Developer shall cause the 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 (the "Plans"). 3.3 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 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 of the CRA (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 #73289798_v4 3.4 DEVELOPMENT IN ACCORDANCE WITH PLANS. Developer covenants and agrees to develop the Project substantially in accordance with the Plans. 3.5 Certificate Evidencing Compliance. Upon Developer obtaining a building permit for the Project based upon the Plans complying with Section 3.2, as same may be modified as permitted pursuant to Section 3.3, 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 Covenant. 4. DEVELOPMENT TIMEFRAME 4.1 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) on or before March 31, 2021 (the "Commencement of Construction Deadline"), time being of the essence. The Developer shall complete the Project, including Sawyer's Walk, as hereinafter defined, 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 Commencement of Construction Deadline and the Completion Date shall automatically be extended one day for each day of Unavoidable Delays. The term "Unavoidable Delay" means actual delays to the commencement of Vertical Construction and actual delays in completion of the Project due to area wide strikes, acts of God, public health emergencies, pandemics, epidemics, floods, hurricanes, casualties, fire, acts of the public enemy and governmental moratoria. 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 quarantine) 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. 4.2 Extension of Vertical Construction Deadline. Developer shall have the right to extend the Commencement of Construction Deadline, as extended for Unavoidable Delay, for up to 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. The CRA agrees that a lender providing financing for the Project may exercise the Developer's right to extend 9 #73289798_v4 pursuant to this Section 4.2 subject to the terms hereof by giving written notice thereof to the Developer and the CRA and paying the applicable monthly extension fee(s). 4.3 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. The CRA agrees that a lender providing financing for the Project may exercise the Developer's right to extend pursuant to this Section 4.3 subject to the terms hereof by giving written notice thereof to the Developer and the CRA and paying the applicable monthly extension fee(s). 4.4 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 4.2, 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. 4.5 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 4.3, 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. 4.6 Certificate Evidencing Completion. Upon Developer achieving Completion and complying with all the requirements of Section 3.3, the Executive Director shall execute and deliver to the Developer a certificate in recordable form confirming that Developer has complied with the Commencement of Construction Deadline and completed the Project in accordance with the requirements of Section 4.1 on or before the Completion Date, as same may be extended as a result of Unavoidable Delay and as same may be extended pursuant to the term of Section 4.4. 5. REQUIREMENTS PRIOR TO VERTICAL CONSTRUCTION. 5.1 Prior to Commencement of Vertical Construction, the Developer shall comply with the following: 5.1.1 Construction Contract. Enter into the construction contract for the Project (the "Construction Contract") with the General Contractor, which Construction Contract shall include the obligation of the General Contractor to comply with the requirements set forth in Sections 7.1, 7.2, 7.3, 7.4, 7.5, 7.6, 7.7, 7.8, and 7.10 of this Covenant and achieve Completion 10 #73289798_v4 within thirty (30) months from Commencement of Vertical Construction, as extended one day for each day of Unavoidable Delay. 5.1.2 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 Construction Contract for construction of the Project, which shall be issued by a surety having a credit rating of "A" or higher with a financial size category rating of VII or higher in the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey (the "Payment and Performance Bond"). 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. 6. SAWYER'S WALK 6.1 As part of the Project, Developer, at its sole cost and expense, subject to obtaining all necessary peunits and approvals from the City of Miami, shall develop the right of way adjacent to the North side of the Property in the location of NW 7th Street between NW 2'd Avenue and NW 3rd Avenue, in accordance with the Plans (the "Sawyer's Walk"). Developer acknowledges that the Sawyer's Walk is a public pedestrian walkway. The CRA agrees to not object to the Developer's efforts to obtain any and all City design approvals and peiuiits related to the proposed improvements to Sawyer's Walk and not to object to 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. 6.2 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, of 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. 6.3 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. 11 #73289798_v4 7. MINORITY AND WOMEN'S PARTICIPATION AND EQUAL EMPLOYMENT OPPORTUNITY. 7.1 Minority And Women's Participation And Equal Employment Opportunity. In connection with construction of the Project, the Developer agrees that it and its general contractor will: a. Take good faith commercially reasonable action in the recruitment, advertising and to attract and retain minority and female contractors and subcontractors; b. Provide a reasonable opportunity in the recruitment, advertising and hiring of professionals, contractors and subcontractors residing within the Southeast Overtown/Park West Community Redevelopment Area (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 g• 6. In all solicitations and advertisements for employment placed by or on behalf of Developer, state that all applicants will receive consideration for employment without regard to race, creed, color or national origin. 7.2 Participation Requirements. The Developer agrees to comply with the following subcontractor participation requirements and laborer participation requirements (the "Participation Requirements") with respect to the construction of the Project: 7.2.1 Local Labor Workforce Participation. (i) Developer shall require the General Contractor and all Subcontractors (collectively, the "Contractors") performing work in connection with the Project 12 #73289798_v4 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 "D"; (b) second, to City Residents living within the boundaries of the Overtown community, as shown on the sketch attached as Exhibit "E" ("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 "F". 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. 7.2.2 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 13 #73289798_v4 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) Areas residing outside the City; and (f) and the County Targeted Areas. fifth, to County Residents of the County Targeted sixth, to County Residents residing outside the City (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 "E". 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. 7.2.3 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, in accordance with the following geographic hiring priorities: 14 #73289798_v4 (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. 7.3 Minimum Hourly Construction Wage Rate. (i) Until Completion of construction 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, 2019 to September 30, 2020, the Minimum Hourly Construction Wage Rate applicable to the Project as of the Effective Date would be $13.83 per hour with qualified health benefits valued at least $2.00 per hour, otherwise $15.83 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. 15 #73289798_v4 (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 7.3(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. 7.4 Responsible Wage Rates for Electrical Workers and Plumbers. (i) Developer shall require all Contractors performing work in connection with the construction of 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 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, 16 #73289798_v4 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 6.4(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. 7.5 Construction Reports & Penalties. 7.5.1 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. 7.5.2 Penalties for Non -Compliance with Subcontractor Participation Requirement. a. 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 17 #73289798_v4 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"). b. 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. 7.5.3 Penalties for Non -Compliance with Laborer Participation Requirement with respect to the Project. a. To the extent Developer fails to comply with the Laborer Participation Requirement set forth in Section 7.2.1 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"). b. 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. 7.5.4 Penalties for Non -Compliance with Skilled Laborer Participation Requirement with respect to the Project. 18 #73289798_v4 a. 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"). b. 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. 7.6 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 hundred (100) hours 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%]equals the Construction Wage Rate Penalty, which would be in addition to the Erroneous Hourly Wage Payment worker. For example if the Minimum Hourly Construction Wage Rate is $15.83 per hour because no qualified health care benefits are paid and if the worker was paid Ten and °O/ioo Dollars ($10.00) an hour and no health benefits paid and the worker worked for one hundred (100) hours, the Construction Wage Penalty would be: 19 #73289798_v4 $15.83 x 120% x 100 hours = $1,899.60 which amount would be in addition to the Erroneous Hourly Wage Payment previously 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. 7.7 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 7.4 (i) (a) and 7.4 (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 hundred (100) hours 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 Responsible Wage Penalty, which amount could be in addition to the Responsible Wage Penalty which amount would be in addition to the Erroneous Responsible Wage Payment previously paid to such worker, previously paid to such worker. For example if the Responsible Wage is $38.46 plus benefits shown on the Schedule and the worker was paid Twenty Dollars ($20.00) an hour and no benefits were paid and the worker worked one hundred (100) hours, the Responsible Wage Penalty would be: $38.46 + the amount of benefits shown on the Schedule (assumed to total $6.00 for this example) x 120% x 100 hours = $5,335.20 which amount would be in addition to the Erroneous Responsible Wage Payment previously 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 20 #73289798_v4 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. 7.8 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. 7.9 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. 7.10 Job Fair. 7.10.1 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 21 #73289798_v4 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. 7.10.2 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. 7.11 Term. The provisions of this Article 7 shall run with the Property and be binding upon Developer and its successors and assigns until (a) Completion of the entire Project, (b) payment of all amounts, if any, due from the Developer to the CRA in accordance with Sections 4 and Section 7 hereof, (c) the payment of all amounts that may become due to workers pursuant to Sections 7.6 and 7.7 hereof, and (d) the completion of the job fair required by Section 7.10.2. 8. CONDITIONS PRECEDENT TO COMMENCEMENT OF CONSTRUCTION. The Developer shall not commence construction of the Project contemplated by this Covenant until the satisfaction or waiver by the Executive Director of the following conditions precedent (the "Construction Conditions Precedent"): 8.1 The Executive Director has approved the format for the Participation Reports. 8.2 The Developer has complied with the provisions of Section 5 of this Agreement. 9. RELOCATION OF TREES. 9.1 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. 10. LIEN RIGHTS. If Developer fails to pay any amount due the CRA pursuant to Sections 4.4, 4.5, 7.5.2, 7.5.3, 7.5.4, 7.9 and 14 such unpaid amounts shall bear interest at twelve percent (12%) per annum from the date due until paid and shall be secured by this Covenant having priority from the date of recording this Covenant. If any amounts remain unpaid for more than thirty (30) days after the Developer's receipt of written notice from the CRA as to such late payment, the CRA may foreclose its lien rights against the Property in the same manner as a mortgage would be foreclosed. Upon the request of the Developer upon payment of each applicable amount due under Sections 4.5, 4.6, 7.5.2, 7.5.3, 7.5.4, 7.9, and 14 the CRA shall execute and promptly deliver to the Developer a recordable instrument reflecting the release of the applicable payment obligation. If any payment due pursuant to this Section 10 is not made within thirty (30) days of when due the CRA may offset the amounts due against the Incentive Payment. 11. DEFAULT AND REMEDIES. If Developer fails to comply with any of the terms and provisions of this Covenant, including, without limitation the payment of money or the performance of any other obligation under this Covenant which failure is not cured by the 22 #73289798_v4 Developer within thirty (30) days of written notice from the CRA, or, if by reason of the nature of such default, the same cannot be cured within thirty (30) days following receipt by Developer of written demand from the CRA to do so, Developer fails to commence curing such default within such thirty (30) days following such written notice, or having so commenced, shall fail thereafter to continue with diligence the curing thereof and, in any event, fails to cure such default within a reasonable time after receipt of notice of such default, whichever is earlier, the CRA may pursue all remedies available at law or in equity to enforce the tettiis and provisions of this Covenant, including, without limitation, specific performance; provided, however, with respect to Developer's failure to comply with the terms of (a) Section 4.1, as may be extended pursuant to Sections 4.2 and 4.3, the CRA's remedies shall be limited to a suit to collect the unpaid amount and the enforcement of its lien rights as provided in Section 10, for non-payment of any amount due pursuant to the terms of Sections 4.4 and 4.5 or offset the amount due from the Incentive Payments, (b) Section 7.2.1, the CRA's remedies shall be limited to a suit to collect the unpaid amount and the enforcement of its lien rights as provided in Section 10 for non-payment of any amount due pursuant to Section 7.5.3, or offset the amount due from the Incentive Payment, (c) Section 7.2.3, the CRA's remedies shall be limited to a suit to collect the unpaid amount and the enforcement of its lien rights as provided in Section 10 for non-payment of any amount due pursuant to the terms of Section 7.5.4, or offset the amount due from the Incentive Payment, (d) Section 7.2.3, the CRA's remedies shall be limited to a suit to collect the unpaid amount and the enforcement of its lien rights as provided in Section 10 for non-payment of any amount due pursuant to the tetnis of Section 7.5.2, or offset the amount due from the Incentive Payment, (e) Section 7.3, the CRA's sole remedies will be to enforce specific performance of the terms of Section 7.6, (f) Section 7.4, the CRA's sole remedy will be to enforce specific performance of the terms of Section 7.7, (g) Section 7.9, the CRA's remedies shall be limited to a suit to collect the unpaid amount and the enforcement of its lien rights as provided in Section 10 for non-payment of any amount due pursuant to Section 7.9 or offset the amount due from the Incentive Payment, and (h) Section 14, the CRA's remedies shall be limited to a suit to collect the unpaid amount and enforcement of its lien rights as provided in Section 10 for non-payment of any amount due pursuant to Section 14 or offset the amount due from the Incentive Payment. Notwithstanding anything to the contrary contained herein, following Completion and payment to the CRA of all amounts due under Sections 4.4, 4.5, 7.5.2, 7.5.3, 7.5.4, 7.9 and following any partial assignment of the right to receive any Incentive Payment permitted by Section 12.2.2, the CRA shall only exercise its remedies against a defaulting owner of the Project with respect to Incentive Payments due to such defaulting owner. For example, if owner A owns the Office Component and has been assigned the Incentive Payment for the Office Component and owner B owns the Retail Space and has been assigned the Incentive Payment for the Retail Space, and owner A defaults in its obligations under Section 14 of this Agreement and as a result of such default, the CRA has the right to right to offset any amounts owed to the CRA under Section 14 of this Agreement from the Incentive Payment, the CRA shall only offset amounts owed by owner A of the Office Component against the Incentive Payment due to owner A of the Office Component and shall not offset any amounts owed by owner A under Section 14 of this Agreement against the Incentive Payment due to owner B or any other owner within portion of the Project. For the avoidance of any doubt if Developer has not assigned the Incentive Payment with respect to a Component and the owner of that Component defaults in its obligation under Section 14 of this Agreement the CRA shall have the right to offset any amount owed to the CRA under Section 14 of this Agreement by the owner 23 #73289798_v4 of the Component who is in default solely against the Incentive Payment due Developer derived from that Component. 12. PROJECT INCREMENTAL TIF. 12.1 Projected Incremental TIF. Developer acknowledges and agrees that Developer shall bear the entire risk under this Covenant if the Project is valued at less than anticipated by the Developer and/or is not developed within the time frame anticipated by the Developer resulting in Incentive Payment payable by the CRA pursuant to this Covenant being less than anticipated by Developer. Developer acknowledges and agrees that the CRA shall have no liability to Developer if the Incentive Payment as estimated by Developer proves not to be accurate for any reason and same shall not relieve the Developer or the CRA from their respective obligations under this Covenant. Developer acknowledges and agrees that the CRA has made no representation to the Developer regarding the amount of Incremental TIF which may be generated by the Project and Developer is relying solely on its own projections of the Incremental TIF which will be generated by the Project. 12.2 Development Incentive. Subject to CRA Budget Approval by the CRA Board, City Approval and County Approval, on an annual basis in all cases, as an inducement to develop the Project, the CRA agrees to pay Developer a percentage of Incremental TIF as follows: 12.2.1 Payment of Incremental TIF. On an annual basis for each calendar year commencing after the Base Year and continuing throughout the Term of this Covenant, subject to reduction under Section 12.2.2 and Section 12.2.3 below, the CRA shall pay to Developer an incentive payment equal to Seventy percent (70%) of the Incremental TIF (the "Incentive Payment"). All Incentive Payments shall be due and payable within thirty (30) days of the CRA's receipt of Incremental TIF. 12.2.2 Incentive Payments After Assignment or Sale. Developer, in its sole and absolute discretion, may collaterally assign and reassign the Incentive Payment or any portion thereof to any lender providing financing for the Project or any Component thereof. Developer, in its sole and absolute discretion, may also assign the Incentive Payment to any purchaser all of Developer's entire interest in the Project or the purchaser of all of Developer's interest in any of the Component(s) thereof or to a community development district acquiring any Component of the Project at any time or from time to time upon written notice given to the CRA. For the avoidance of any doubt, except with respect to a collateral assignment to a lender, Developer must assign the entire Incentive TIF with respect to the entire Project or the entire Incentive TIF with respect to any Component thereof which Developer has elected to assign in whole but not in part. Partial assignments of the Incentive TIF to the owner of a Component are not permitted. Each owner of a Component shall also have the right to assign the Incentive Payment with respect to such Component to its successor owner of such Component in connection with a sale of such Component. Any such notice of assignment shall indicate: (i) the name of the assignee and the assignee's contact information, (ii) the Component of the Project transferred to the assignee for which the assignee shall be entitled to the Incentive Payment for such Component, and (iii) any other terms or provisions applicable thereto and mutually agreed to as between Developer and the assignee (the "Assignment Notice"). Any such assignee must assume the obligation of the Developer or such other assignor to utilize the Incentive Payment in accordance with the 24 #73289798_v4 provisions of Section 12.2.4 of this Agreement. Any assignment by Developer of its rights to the Incentive Payment shall not release Developer of its duties and obligations under this Covenant. 12.2.3 Reductions of Incentive Payments. If the entire Project is not Substantially Completed and on the Tax Rolls on or before January 1, 2024 as such date is extended as a result of Unavoidable Delays, the Incentive Payments shall be reduced by ten percent (10%) for or the Term of this Covenant. If the entire Project is not Substantially Completed and on the Tax Rolls by January 1, 2025 as such date is extended as a result of Unavoidable Delays, the Incentive Payment shall be reduced by twenty percent (20%) for the Term of this Covenant. If the entire Project is not Substantially Completed by January 1, 2027 as such date is extended as a result of Unavoidable Delays, the CRA shall not be obligated to make any Incentive Payments to the Developer. 12.2.4 Limitation on Use of Incentive Payments. Incentive Payments paid during the Term of this Covenant shall be used for the sole and exclusive purpose of paying and/or reimbursing the costs of the construction, maintenance, operation, and debt service/debt issuance costs of the Project, to the extent such payments are a permitted use of TIF Increment pursuant to Chapter 163 Part III, Florida Statute. 13. SUBORDINATION OF INCENTIVE PAYMENT. 13.1 Developer acknowledges and agrees that the obligations of the CRA under this Covenant to make Incentive Payments hereunder are junior and subordinate to the obligations of the CRA to pay debt service with respect to any bonds now existing issued by the CRA or any bonds now existing or hereafter issued by the City and secured a pledge by the CRA of tax increment funds including, without limitation, bonds issued by the City pursuant to the terms of the Interlocal Agency Agreement effective November 8, 2016 between the City, the CRA and the South Florida Regional Transportation Authority obligating the CRA to pledge Incremental TIF with respect to a bond issue by the City (collectively the "Bond Obligations") and junior and subordinate to the payments to be made in connection with the grant to be made by the CRA in connection with "Mama Hattie" and the Grant Agreement, as amended, by and between the City and the CRA and with respect to the Gibson Park (collectively, the "Grant Obligations"), which Grant Obligations are more fully described in Exhibit "G". Under no circumstances shall the CRA be obligated to make Incentive Payments from its general revenues or any other sources if Increment TIF is unavailable after the CRA makes all required payments with respect to the Bond Obligations and the Grant Obligations. To the extent no Incremental TIF or only a portion of the Incremental TIF is available to pay the CRA's obligations under this Covenant as a result of the Bond Obligations and the Grant Obligations, the Incentive Payments shall be reduced to the amount of Incremental TIF available, if any, and the shortfall shall be deferred to subsequent year(s) to the extent available. If requested by the CRA, the Developer shall execute a subordination agreement confirming that this Covenant is junior and subordinate to any Bond Obligations and Grant Obligations within ten (10) business days of written request by the CRA. 13.2 Pledge of TIF Revenues. In the event the CRA issues additional bonds subsequent to the Effective Date, the CRA covenants and agrees not to pledge the Incremental TIF derived from the Project which will be payable to Developer under this Covenant as collateral for such bonds. 25 #73289798_v4 13.3 Additional Agreements Regarding Use of Incremental TIF. Developer acknowledges and agrees that nothing contained in this Covenant shall be deemed or construed to prevent the CRA from entering into agreements similar to Section 12 of this Covenant (each a "TIF Agreement") pursuant to which the CRA commits to pay such developers a portion of the Incremental TIF generated from their project within the Redevelopment Area. Developer acknowledges and agrees that Incremental TIF generated from other projects which are subject to TIF Agreement(s) will not be available to make up for any shortfall under Section 13.1. 13.4 Penalties. To the extent Developer fails to pay to the CRA any amount due under this Covenant, the CRA may set off the amount due against the Incentive Payment due within thirty (30) days of the date due under this Covenant. 14. TRANSFER FEE. 14.1 Transfer Prior to Completion. If, at any time prior to Completion (i) the Developer sells the entire Project to an unrelated third party purchaser in an arm's length transaction; (ii) the Developer sells the Retail Space, the Office Component, the Parking Garage or the Residential Components, or any of them or any combination thereof, to an unrelated third party purchaser in an arm's length transaction; or (iii) a Change of Control occurs, then the Developer shall pay to the CRA a fee in an amount equal to one and one-half percent (1.5%) of the Gross Sales Price simultaneously with the closing of such sale or Change of Control. For the avoidance of doubt, if Developer sells the Retail Space, the Office Component, the Parking Garage or the Residential Components, or any of them or any combination thereof, the provisions of this Section 14.1 shall apply to each such transaction until Completion and the fee to the CRA of one and one-half percent (1.5%) of the Gross Sales Price shall apply to each such transaction until Completion; provided, however, in no event shall any such transfer fee be payable in connection with the transfer of the Parking Garage to any community development district established with respect to the Property. 14.2 Transfer After Completion. If, at any time after Completion (i) Developer sells the entire Project to an unrelated third party purchaser in an arm's length transaction; (ii) the Developer sells the Retail Space, the Office Component, the Parking Garage or the Residential Components, or any of them or any combination thereof, to an unrelated an third party purchaser in an arm's length transaction, or (iii) a Change of Control occurs, then the Developer shall pay the CRA a fee in the amount of one and one-half percent (1.5%) of the Gross Sales. Price simultaneously with the closing of such sale or Change of Control. For the avoidance of doubt, if Developer sells the Retail Space, the Office Component, the Parking Garage, or the Residential Components, together or in a series of transactions, the one and one-half percent (1.5%) of the Gross Sales Price shall apply to each transaction until Developer has no further interest in the Project; provided, however, in no event shall any such transfer fee be payable in connection with the transfer of the Parking Garage to any community development district established with respect to the Property. 14.3 Related Transfers. For the avoidance of any doubt, should Developer transfer its interest in the Project in whole or part to a related entity or to a third party purchaser (including without limitation any tax -credit investor) in transaction which is not considered an arm's length transaction, no transfer fee shall be payable, provided, however, the obligations under 26 #73289798_v4 this Section 14 shall be binding upon such successors and assigns and such transferee shall be deemed the "Developer" for the purposes of this Section 14. For the avoidance of doubt, should any transfer of membership interests in Developer occur, in whole or part to a related entity (including without limitation to direct or indirect members of Developer), no transfer fee shall be payable in connection with such transfer. 14.4 Failure to Pay. If Developer fails to pay the CRA any fees due pursuant to this Section 14 when due, such fee shall bear interest at the rate of twelve percent (12%) until paid. 14.5 Undisclosed Transfer. If a Change of Control or sale occurs and Developer fails to disclose such sale or Change of Control to the CRA and the CRA discovers that Developer has breached the terms of provisions of this Section 14, the applicable fees due the CRA pursuant to this Section 14 shall triple. 14.6 One Transfer Fee. For the avoidance of doubt, Developer shall only be required to pay one transfer fee on each portion of the Project, whether such transfer fee is paid prior to or after Completion. 14.7 Transfers to Lenders. For the avoidance of doubt, the placing of a mortgage lien, assignment of leases and rents or security interest on or pertaining to the Property, the Project or any Component, any pledge, collateral assignment or encumbrance of the direct or indirect membership interests of Developer as security for any financing of the Property, Project or any Component thereof, or any transfer pursuant to or in lieu of a foreclosure or any exercise of remedies (including, without limitation, foreclosure) under any mortgage on the Property, the Project or any Component thereof or under any pledge, collateral assignment or encumbrance of the membership interests of Developer as security for any financing of the Property, the Project or any Component thereof (each an "Enforcement Action"), in each case shall not be deemed a transfer requiring payment of any transfer fee hereunder. 14.8 In the event of an Enforcement Action with respect to the Property, the Project or any Component thereof as described in Section 14.7, the party which acquires the interest of the Developer in the Property, the Project or any Component thereof shall be deemed the "Developer" for purposes of this Section 14 and the provisions of this Section 14 (including without limitation the provisions of Section 14.3) shall apply with respect to any subsequent transfer of the Property, the Project or any Component thereof acquired by such party in the Enforcement Action. A "Change of Control" shall be deemed to have occurred if such party acquiring the interest of the Developer through an Enforcement Action no longer controls all decision making by Developer, and the fees described in this Section 14 shall be due and payable at that time with respect to the Property, the Project or any Component thereof acquired by such party in the Enforcement Action upon such Change of Control. 15. CHALLENGES. 15.1 No Liability. Developer hereby forever waives and releases the CRA from any liability whatsoever, now or hereafter arising in connection with any challenge to Section 12 of this Covenant by a third party and covenant and agree not to initiate any legal proceedings against the CRA in connection with any challenges to Section 12 of this Covenant, other than as a 27 #73289798_v4 result of a default by the CRA with respect to its obligations under this Covenant, for which Developer shall have the right to sue the CRA for specific enforcement of the CRA's obligations to pay any unpaid Incentive Payments. 15.2 Duty to Defend. In the event of any challenge to Section 12 of this Covenant, any party in interest, at its or their sole cost and expense, may defend any such challenge by a third party. The CRA shall cooperate with Developer and, if necessary, participate in the defense of such challenge provided Developer pays the cost of such defense. 16. APPROVAL OF CRA BUDGET. Developer acknowledges that no voter approval was obtained in connection with this Covenant and that neither the City nor the County has approved Section 12 this Covenant. In the event Section 12 of this Covenant is determined to be unenforceable in whole or in part as a result of (i) the multi -year CRA commitment regarding the Incentive Payments or (ii) the failure to obtain CRA Board Approval, City Approval and County Approval of the CRA Budget including a line item for the Incentive Payment on an annual basis, Developer acknowledges and agrees that the CRA shall have no liability to Developer arising under Section 12 of this Covenant. Developer acknowledges that this provision is a material inducement for the CRA to enter into this Covenant. 17. COUNTY APPROVAL. Developer acknowledges that this Covenant has not been submitted to the County Commission for review or approval and that the Incentive Payments contemplated by this Covenant will be included in the annual budget (subject to CRA Board Approval) submitted by the CRA to the City for approval and submitted by the CRA to the County for approval, once the CRA Budget is approved by the CRA Board and City Approval is obtained. The CRA shall use commercially reasonable efforts to procure the City Approval and the County Approval of the CRA Budget. The CRA shall have no liability to Developer under Section 12 of this Covenant in the event that City Approval and County Approval are not obtained. 18. NON -RECOURSE. This Covenant is non -recourse to the CRA. In the event of a breach of this Covenant by the CRA, Developer (and only the Developer or any impacted Assignee) may seek specific performance of this Agreement or bring an action at law which shall be limited to recovery of any Incentive Payments due under the terms of this Covenant and in no event shall Developer or any assignee have the right to seek damages against the CRA. Except with respect to the CRA's rights to seek specific perfotniance of this Covenant and the CRA's right to sue to collect any payments due from Developer to the CRA pursuant to this Covenant, the CRA shall not have the right to seek damages against Developer. 19. RELATIONSHIP BETWEEN PARTIES. This Covenant does not evidence the creation of, nor shall it be construed as creating, a partnership or joint venture between the CRA and Developer. No party can create any obligations or responsibility on behalf of the others or bind the others in any manner. Each party is acting for its own account, and it has made its own independent decisions to enter into this Covenant and as to whether the same is appropriate or proper for it based upon its own judgment and upon advice from such advisors as it has deemed necessary. Each party acknowledges that none of the other parties hereto is acting as a fiduciary for or an adviser to it in respect of this Covenant or any responsibility or obligation contemplated herein. Developer further represent and acknowledge that no one was paid a fee, commission, gift 28 #73289798_v4 or other consideration by such party or such party's agent as an inducement to entering into this Covenant. 20. BUDGET & APPROPRIATION. CRA covenants and agrees to budget the Incentive Payment as a line item in its annual operating budget subject to CRA Board Approval, City Approval and County Approval. CRA further covenants to use commercially reasonable efforts to procure annual approval of its operating budget, including the Incentive Payment and as contemplated by this Covenant, by both the City and County. 21. CONSULTANT AND PROFESSIONAL COMPENSATION. Developer has retained consultants and professionals to assist Developer with the negotiation and execution of this Covenant, and Developer may compensate those consultants and professionals at their standard hourly rate for services performed, or any other method of compensation that is considered standard and reasonable for that particular service. Notwithstanding anything to the contrary contained herein, in no event shall Developer compensate any such consultant or professional in any form that would be deemed a "bonus," "success fee" or "finder's fee" in exchange for the CRA Board's approval of this Covenant. 22. NET OFFICE/POLICE SUBSTATION/CRA OFFICES. Developer covenants and agrees to provide approximately one thousand (1,000) square feet of rentable space substantially in the location shown on Exhibit "H" attached hereto (the "Office Space") with vehicular access as shown on Exhibit "H", to be utilized by the City as either a Neighborhood Enhancement Team (NET) office or a police substation or utilized by the CRA, at the option of the CRA. The Developer shall have no obligation to build out the Office Space and possession of the Office Space shall be provided to the City or the CRA, as determined by the CRA, upon Completion. The Developer and the City or the CRA, as applicable, shall execute a lease for the Office Space utilizing the standard form lease utilized by the Developer for the Project, subject to such changes required by the City Attorney and provisions customarily included in City leases. The lease will be for a total rent of One Dollar ($1.00) per year with no pass through expenses of any kind or nature including without limitation, common area maintenance expenses, tax expenses, insurance expenses, utility expenses or management fees. The term of the lease shall be for the life of the CRA. 23. RETAIL OPPORTUNITY. Developer covenants and agrees to make one retail/office space available containing approximately one thousand one hundred (1,100) rentable square feet in the location shown on Exhibit "I" attached hereto for a CRA supported business (the "CRA Space"). The CRA shall identify the proposed tenant and the proposed tenant shall lease the CRA Space for fifty percent (50%) of the average total rent, including escalation, of similar first floor leased space in the Project fronting Sawyer's Walk, plus pass through expenses and operating expenses. Rent shall be paid monthly in advance. If the lease terminates for any reason the CRA shall propose a replacement tenant for the CRA Space which the Developer shall lease on the same teiius and conditions. The procedure shall continue for the entire life of the CRA so that the CRA Space is always leased to a CRA sponsored tenant. For the avoidance of doubt, any tenant of the CRA Space will be subject to the same exclusive use restrictions as other tenants in the Project. 29 #73289798_v4 24. RETAIL EMPLOYMENT OPPORTUNITIES. Commencing upon Completion and every six (6) months thereafter for a period of five (5) years Developer, in coordination CareerSource South Florida, the CRA, and retail businesses operating within the Project, shall host job fairs (each a "Job Fair") at the Project in an effort to create job opportunities at the Project for residents of the Redevelopment Area. No less than thirty (30) days prior to each Job Fair the Developer shall place a full -page weekly advertisement in the Miami Times Newspaper about the Job Fair and place weekly radio commercials on either HOT 105 or 99JAMZ to inform residents of the Redevelopment Area of the Job Fair. 25. Notices. Any notices required or permitted to be given under this Covenant shall be in writing and shall be deemed to have been given if delivered by hand, sent by recognized overnight courier (such as Federal Express), 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 Suite 806 Attention: Michael Swerdlow With a copy (which shall not constitute notice or service of process) to: Bercow Radell Fernandez Larkin & Tapanes PLLC Attention: Jeffrey Bercow, Esq. 200 S. Biscayne Boulevard Suite 850 Miami, FL 33131 With a copy (which shall not constitute notice or service of process) to: Alvarez & Diaz-Silveira LLP Attention: Real Estate Notices 355 Alhambra Circle Suite 1450 Coral Gables, FL 33134 If to CRA: SOUTHEAST OVERTOWN / PARK WEST COMMUNITY REDEVELOPMENT AGENCY Attention: Cornelius Shiver, Executive Director 819 NW Second Avenue Third Floor Miami, FL 33136 30 #73289798_v4 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 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. 26. MISCELLANEOUS. 26.1 This Covenant shall be construed and governed in accordance with the laws of the State of Florida. Venue shall be in Miami -Dade County, Florida. All of the parties to this Covenant have participated fully in the negotiation and preparation hereof, and, accordingly, this Covenant shall not be more strictly construed against any one of the parties hereto. 26.2 In the event any term or provision of this Covenant is determined by appropriate judicial authority to be illegal or otherwise invalid, such provision shall be given its nearest legal meaning or be construed as deleted as such authority determines, and the remainder of this Covenant shall be construed to be in full force and effect. 26.3 In construing this Covenant, the singular shall be held to include the plural, the plural shall be held to include the singular, the use of any gender shall be held to include every other and all genders, and captions and Section headings shall be disregarded. 26.4 All of the exhibits attached to this Covenant are incorporated in, and made a part of, this Covenant. 26.5 Time shall be of the essence for each and every provision of this Covenant. 27. COVENANT RUNNING WITH THE LAND. This Covenant shall be deemed a covenant running with the Property and shall be binding upon Developer and its successors and assign for the Term, or such shorter period of time applicable to certain specific provisions of this Covenant as specifically provided in Sections 6.2, 7.11 and 24 of this Covenant. 28. ENTIRE AGREEMENT. Except for the Housing Restrictive Covenant Agreement dated as of the Effective Date between Developer and the CRA, this Covenant constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof, superseding and/or incorporating all prior or contemporaneous oral or written agreements (including, without limitation, that certain Block 55 Development Agreement by and between Downtown Retail Associates LLC and the CRA, as amended) and there are no other agreements, representations or warranties with respect to the subject matter hereof other than as set forth herein. 31 #73289798_v4 29. MODIFICATION. This Covenant may not be changed, altered or modified except by an instrument in writing signed by the party against whom enforcement of such change would be sought. 30. APPROVAL OF PAYMENT OF INCENTIVE PAYMENT. The Parties acknowledge that due to the cancellation of the CRA Board meeting scheduled for March 16, 2020, the CRA Board has not approved the Incentive Payment to Developer as contemplated by Section 12 of this Covenant. The Parties acknowledge and agree that if the CRA Board does not ratify Section 12 of the Covenant on or before Substantial Completion, the provision of Sections 12 and 13 of this Covenant shall be of no further force and effect and the CRA shall be released from any obligations under this Covenant to make the Incentive Payments to Developer contemplated by Section 12. If the CRA Board ratifies Section 12 of this Covenant on or before Substantial Completion, at the request of the Developer, the CRA and the Developer shall execute a document in recordable form confirming that the CRA Board has ratified the provisions of Section 12 of this Covenant, to be recorded at the Developer's sole cost and expense. For the avoidance of any doubt, all other terms and provisions of this Covenant shall remain in full force and effect whether or not the CRA Board ratifies the provisions of Section 12 of this Covenant. 31. ESTOPPEL CERTIFICATES. From time to time the CRA will execute and deliver an estoppel certificate to Developer confirming the status of Developer's compliance with the terms and conditions of this Covenant within ten (10) business days of written request from Developer. The estoppel certificate shall state (i) that this Covenant is in full force and effect and has not been modified, supplemented or amended, or if there has been any modifications that this Covenant is in full force and effect as modified and identifying the modifications or if this Covenant is not enforceable, so state; (ii) whether the CRA has issued any written notice(s) of any default(s) by Developer under this Covenant which remain uncured, and if so, stating the nature of the default(s); and (iii) whether the CRA knows of any event with the giving of notice or passage of time, or both, would constitute a default by Developer under this Covenant. Any estoppel certificate required to be provided pursuant to this Covenant shall be made on behalf of the CRA by the executive director of the CRA. 32. BINDING EFFECT. This Covenant shall be binding upon the parties hereto and their respective successors and permitted assigns. (Signatures on Next Page) 32 #73289798_v4 IN WITNESS hereof the parties have executive this Covenant as of the date first above written. DEVELOPER: WITNESSES: DOWNTOWN DEVELOPMENT ASSOCIATES LLC, a Florida limited liability company Print Name: By: Print Name: Michael Swerdlow Manager CRA: WITNESSES: Print Name: SOUTHEAST OVERTOWN / PARK WEST COMMUNITY REDEVELOPMENT AGENCY By: Print Name: Cornelius Shiver, Executive Director ATTEST: Clerk of the Board Approved for legal sufficiency By: William R. Bloom, Esq. Holland & Knight LLP, Special Counsel to CRA 33 #73289798_v4 STATE OF FLORIDA ) SS: COUNTY OF MIAMI-DADE The foregoing instrument was acknowledged before me by means of ❑ physical presence or ❑ online notarization, this day of March, 2020, by Michael Swerdlow, Manager of DOWNTOWN RETAIL ASSOCIATES LLC, a Florida limited liability company, on behalf of the limited liability company. He is personally known to me or has produced as identification. My commission expires: 34 Notary Public Print Name: #73289798_v4 STATE OF FLORIDA COUNTY OF MIAMI-DADE ) ) SS: ) The foregoing instrument was acknowledged before me by means of ❑ physical presence or 0 online notarization, this day of March, 2020, by Cornelius Shiver, Executive Director of SOUTHEAST OVERTOWN/PARK WEST COMMUNITY REDEVELOPMENT AGENCY, a public agency and body corporate created pursuant to Section 163.356, Florida Statutes, on behalf of the agency. He/she is personally known to me or has produced as identification. My commission expires: 35 Notary Public Print Name: #73289798_v4 Schedule of Exhibits A. Legal Description B. Developer Organizational Chart C. Design Documents D. Sketch of Redevelopment Area E. Sketch of Overtown F. Hiring Standards G. Grant Obligations H. Office Space I. CRA Space 36 #73289798_v4 EXHIBIT "A" Legal Description Lots 1 through 20, inclusive, of Block 55, North, City of Miami, according to the Plat thereof, as recorded in Plat Book "B", Page 41, of the Public Records of Miami -Dade County, Florida; less and except the East 7.5 feet of Lot 20; and further less and except that portion of Lot 10 taken by the State of Florida Department of Transportation by Order of Taking recorded in Official Records Book 5349, at Page 129, of the Public Records of Miami -Dade County, Florida, being more particularly described as follows: Begin on the West line of said Lot 10 at a point 14.51 feet South 02° 6' 16" East from the Northwest corner thereof, said point being the beginning of a curve concave Southeasterly having a radius of 14.5 feet, thence from a tangent bearing of North 02°16'16" West run Northwesterly, Northerly and Northeasterly 22.79 feet along said curve through a central angle of 90°02'57" to the North line of said Lot 10, thence Westerly 14.51 feet along said North line to the Northwest corner of said Lot 10, thence South 02°16'16" East 14.51 feet along the West line of said Lot 10 to the Point of Beginning. ALSO DESCRIBED AS: Lots 1 through 20, inclusive, of Block 55 North, Map of Miami, Dade Co. Fla, according to the plat thereof, as recorded in Plat Book B, Page 41, of the Public Records of Miami -Dade County, Florida; less and except the East 7.5 feet of Lot 20; and further less and except that portion of Lot 10 taken by the State Of Florida Department Of Transportation by Order Of Taking recorded in Official Records Book 5349, Page 129, of the Public Records of Miami -Dade County, Florida, being more particularly described as follows: Begin on the West line of said Lot 10 at a point 14.51 feet South 02°16'16" East from the Northwest corner thereof, said point being the beginning of a curve concave Southeasterly having a radius of 14.5 feet, thence from a tangent bearing of North 02°16'16" West run Northwesterly, Northerly and Northeasterly 22.79 feet along said curve through a central angle of 90°02'57" to the North line of said Lot 10, thence Westerly 14.51 feet along said North line to the Northwest corner of said Lot 10, thence South 02°16'16" East 14.51 feet along the West line of said Lot 10 to the Point Of Beginning. #73289798_v4 EXHIBIT "B" Developer Organizational Chart [see attached] #73289798_v4 DOWNTOWN RETAIL ASSOCIATES LLC (FL) MICHAEI SWERDLOW T PLIEN GARCI IK ALBEN DUEFIE 006 REVO C.BLE Y y'' of L W-: eh 51.50% Michael Swerdlow EXHIBIT "C" Design Documents Sawyer's Landing Block 55 Design Development (Progress Set) Issue Date April 2, 2019 Consisting of the sheets listed on Exhibit C-1 attached hereto #73289798_v4 :402 Sawyer's Landing - Design Developm Edit View Window Help' '` Create Em- Eig Sheets and Views -A0.100 003 G1.102 0-03 G1,103 0-0 G1,104 - 03 A1,101 A1,102 FY A1,103 `03A1,104 09 A1,105 -03 A1.106 HT A1,107 A1.108 U3 A1.109 A1,110 0 A1,201A A1,201B -0 A1,201 C .113 A1.201D A1.202A A1.202B A1,202C -03 A1,202D $ A1.203A -03 A1.203B A1,203C LP A1,203D -03 A1.204A -Er A1.204B A1,204C _03 A1,204D A1,205A EXHIBIT "C-1" 190402 Sawyer's Landing -Design Devel File Edit View Window: Help LP A1.205A — A1,205B A1,205C "17 A1.205D --EP A1.206A _A1.206B A1.206C A1.206D - A1.207A -I? A1,2078 -EP A1,207C _EP A1,207D -113 A1,208A A1,208B 'EP A1,208C _g A1.208D LP A1.209A - A1,209B - A1,209C A1.209D 'LP A1,210A - A1.210B 0 A1.210C A1,210D —LP A1.301 e A1.302 CP A2,301 -113 A2,302 -g LS1.100 -0 LS1,101 g LS1,102 FP LS1,103 190402 Sawyer's Landing - Design Development Edit View Window Help:: ._ Create [1] A0.100 Bookmarks :47 LS1.103 { LS1,104 -0 LS1,105 03 LS1,106 E.....� LS1.107 [-LPLS1,108 LS1,109 ( LS1,110 03 A3,104 - West g A3.101 - North {P A3,102 - South —03 A3,103 - East g A4,102 - Section _., • A4.101 -Section ▪ A5.101 A7.118 A7,101 0 A7.102 09A7.103 1,2 A7.104 E 12 A7.105 f..... A7,106 A7,107 A7,108 { A7,109 a....._u A7,110 IT A7.111 0 0,A7.112 A7,113 ., A7,114 • A7.115 A7,117 #73289798_v4 EXHIBIT "D" SOUTHEAST OVERTOWN/P ST BO YMAP #73289798_v4 EXHIBIT "E" Sketch of Overtown #73289798_v4 EXHIBIT "F" Hiring Standards • • Criminal Background Standards Developer wil4 analyze the criminal record of a potential catididate'for employinetit on a case -by -case basis where the candidate's record contains an indication of the following: (1) adjudication of guilt; (h) no action; (iii) none "pross' ;.(iv) withhold of adjudication; and (v) suspended entry of sentence. Developer ' will make an individualized assessment of the information provided_,by the, applicant, taking into . consideration 'the facttirs"fisted• in Salon.'V,B. '9"'of tlie••U.S:',Equal Employnienf Opportunity Commission's Ere orcemer}t"Guidanca; Consideration' of Arrest and Conviction Records in Employment Decisions Under Title 'sin of: the Civil Rights Aet'of'1964;,issued Apiil25, 2012:. '• An- individualized'assestinent generally'elaill:sonsist:o>`:"(,i)-the employer informing the potential candidate diet.they may be excluded from empioyment•at the' Project because of past criminal conduct; (ii) providing the candidate an opportunity to demonstrate that the exclusion does not properly apply to him or her; and (iii) a review and. assessment .of whether the additional.•information provided by the potential candidate. shows that the prior violation or alleged criminal wrongdoing is not job -related and not consistent withbusiness necessity. • • The potential c'andidaie's showing'may include iufermationtbat the candidate was not correctly identified •itt Ibe criminal record o'r that the recordis otherwise inaccurate:. Other relevant individualized evidence •';eo(j sdered by the Developer in ifs review of recoid of.erinanal wrongdoing includes but is not limited to; The facts or circamitances surrounding the actual or alleged offense or conduct; • The number of offenses for which the individual was arrested and/or convicted; Older age'at the time of conviction, GI• release front prison; r�.: ; Evidence that the individual performed the same type of work, post conviction, with same or a different employer, with no known incidents of criminal conduct; • • The length and consistency of'employment history before and after the offense or conduct; • • Rehabilitation efforts (e.g. education, training); • • Employment or character references and any other information regarding fitness for a particular position; and • ' Wbether the individual is bonded under federal, state or local bonding program. If the'individual does not respond to tlieDeveloper's attempt to gather additional information about their criminal background, the Developer may make its employment decision withouttlie information - Developer considers the following criminal offenses to be tilustrative of `sob -related" or "inconsistent with business necessity"; • • " ' •' ' • • Aggravated Assault, as defined in s. 784.021, Fla. Statutes (2015) ' ▪ • .A:ggravated Batterv;'as defined in s. 784.03, 784.041 and 784:045; Pia; Statutes (2015) • .:Homicide. asdefined;in:Chapter:782, Fla.'Statutes (2015)- • :Kidnapping or False•Imprisonment' as.defined in Chapter.787; Fla: Statutes (2015) #73289798_v4 • Sexual Battery, as defined in Chapter 794, FIa. Statutes (2015) ■ Robbery, as defined•in s. 812.13, et seq., Fla. Statutes (2015) ■ Abuse, neglect or exploitation of an Elderly Person(s) or Disabled Person(s), as defined in Chapter 827, Fla. Stntutes.(20i5) , • • Abuse of Children, as define8 h s. 827.03(2)(a) and 827.03(2)(b), Fla. Statutes. (2015) ■ Affray, Riots, as defined in Chapter 870, Fla.' Statutes (2015) ✓ Grand Theft, as defined in s. 812,014,'Pla.'Statutes (2015), within 2 years of the date of applidation for employment at the Projedt. • Felony Petit Theft, as defined in s.' 812.014, Fla, Statutes (2015), within 2 years of the date of application for employment at.the Project•. : , • EXHIBIT "G" CRA Grant Obligations Name Par Amount Annual Debt Service Maturity Year Mama Hattie $ unknown (est) unknown Gibson Park Improvement Grant $14.1 million (See Exhibit G-1) 2030 #73289798_v4 EXHIBIT "G-1" 016'SON PARKI.401 04VE4T: Qi01i agacIP:Veaf 'ervio8 ' 'I ntorpst : •10.11 • • - -. • . • M601440:. , 'Mai ' . tiAtf.Mtr • ,20.14. ,' . • -. • 0.40.4.0). •-*.syie!••• ..... .... .,. . • .aitfA Zio.'..*' • ;.:.::;..::1: ' .417 ,.;.; ,20.1.6 V: ' .201.0 "52.0.2Q 14 2..6'1 fqib: M1409. • .44:4Z • i 00. 2,I17,$86: 0.' M 00. MU% MO ;024 _611.0 . gi484.1.0.40- 02 ' 'VIA_ 99.0 20%010' 02.0.... • . •-:.a.ip• Ulu • li . 7,•§V... 027 5:,:..:.i.zta •fliqp:p. , -if • •• V. . .•. .....•,.. 2OU i:,:::','... f 3.0.gig • • . ' • .i /WO' 00 . :6'4. 0017 / Sii3A0 • 141'. 7.0 6:0 MICI. 11'04 7.98 • PillapOrthrot,kfti:a.0.. WIZ.P.[Miff.0.0".0.14.#), ",:. veirroike: -..- ,•• .ficrtgiC . .0;080.;004. ;" ' 1.,:oo040. . 43;00,1100. 5OP ProAute•S ereog' •PkiriOpel. frtottes't 4§R.A0,0 44(.4069.:. • 4410,0$9. -440;05g. 4,91 4.100I•6'. 42.0440' 14•41660, 40.4:;24 '.3.13.041 WtiM 1$.$2;5.63: 'MINA q?.cti771 1f8M11) db0;704: PO.Ornli Mit,360. §9.74001 22 226164.4 51:00,6$2 4.0106 grI0,040.: 711,4ZIOM .260m, sew (1), z.ptyloo.• • Teta! -Mara 452,20 • 4441)59 •040i0§0: 83,1••,§.,34', • .$33,g7 '4,3T5,54- •13;8;9;766:. 442fefg$:• '.$4473M Mt ;086; oo•A62.: 116z4z366, '00400 1369i7.9i • gliot , • 110ti•-.„$51a •4:• . itatib0.4rifaly.onot).- # 732 8979 8_v4 EXHIBIT "H" Office Space #73289798_v4 t)a�A. Jt a to paint - approx 160 If by 20 feet high S-ctGP 35.32 oAMeow. Rani, n 13133 1.305.372w12 xaannvs Neawki ban,ntlwbin,npa4ciasttakmatic mrap41.n IXaM punka«bw,a barAva11 raNa«4 pad ate bDa matla wO MIIMecpawan Wnr.. alppYbrbrc.6.61:.at Plic.{�w4kaw a10.ill tna»p.P: Mnp«MVuiwH�u lam... MOr169 as ta.v. COMMIS avyaviaw ZOIll GROUP BLOCK 55 249 NW 6TH ST, MIAMI, FL 33136 GROUND LEVEL RETAIL + SERVICE SCME I:20 Al-01 #73289798_v4 EXHIBIT "I" CRA Space #73289798_v4 area to paint - approx 160 If by 20 feet high CRC Sfeee ARgUITECTOB ICA j3- eirT 1BODwk Mews W.. FL 33,131 T..3711812 fb5.3721175 No perr�et lr N> wa`*r Ntvlwi.lMdaig .ortek�iGA. n lanee GmewFa ertNPM.*0 MWi aN NhenWroel McarrtM.mn clan BLOCK 55 249 NW 6TH ST, MIAMI, FL 33136 f GROUND LEVEL RETAIL + SERVICE art Al-01 • #73289798 v4 EXHIBIT "B-1" Form of Block 55 Restrictive Covenant if assignment contemplated by Section 9 occurs at or prior to Closing. [see attached] #73693291_v3 Prepared by: William R. Bloom, Esq. Holland & Knight LLP 701 Brickell Avenue, Suite 3300 Miami, FL 33131 BLOCK 55 RESTRICTIVE COVENANT THIS BLOCK 55 RESTRICTIVE COVENANT (the "Covenant") is made as of this day of March, 2020 by and between BLOCK 55 INVESTMENTS, 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 CRA is the owner of that certain real property located in the City of Miami more particularly described on Exhibit "A" attached hereto and made a part hereof (the "Property"). B. Simultaneously with the execution of this Covenant, the CRA is conveying the Property to Developer subject to the terms and provisions set forth in this Covenant, which shall constitute a covenant running with the land and that title to the Property shall be subject to the tents and conditions of this Covenant, as hereinafter set forth. C. The Developer has requested the CRA provide economic incentives to assist with the cost of developing the Project, as hereinafter defined, in view of the job creation and business opportunities that will result from the construction, development and operation of the Project and the affordable and workforce housing which will be created. D. In light of the affordable and workforce housing being created, job creation and business opportunities that will result from the construction, development and operation of the Project, the CRA is willing to provide certain economic incentives to assist Developer, subject to the terms and conditions as hereinafter provided. NOW, THEREFORE, for and in consideration of $10.00 and other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Recitals. The Recitals to this Covenant are true and correct and hereby incorporated by reference and made a part hereof. 2. Definitions. The following terms used in this Covenant shall have the following meanings: 2.1 "Architect" has the meaning ascribed to said term in Section 3.1. #73699420_v3 2.2 "Assignment Notice" shall have the meaning ascribed to such term in Section 12.2.2. 2.3 "Base Year" shall mean the calendar year preceding the calendar year in which the tax rolls for the County with respect to Property reflect an increase in the assessed value as a result of the Substantial Completion of the entire Project. For the avoidance of any doubt, should portions of the Project be completed and be on the tax rolls prior to Substantial Completion of the entire Project the assessed value of the Project for the Base Year shall be the assessed value for the land only, excluding the assessed value of any improvements. 2.4 "Bond Obligations" has the meaning ascribed to such term in Section 13.1. 2.5 "Change of Control" means (i) the transfer of more than fifty percent (50%) of the membership interests in the Developer, in one or a series of transactions, to an unrelated third party or parties in an arm's length transaction provided however, up to seventy five percent (75%) of the membership interest in Developer may be transferred in one or a series of transactions to institutional investors and shall not be deemed a Change of Control hereunder provided Michael Swerdlow directly or indirectly maintains control of all decision making by Developer, except for Major Decisions; (ii) the transfer of more than fifty percent (50%) of the membership interests in Member, in one or a series of transactions, to an unrelated third party or parties in an arm's length transaction provided however, up to seventy five percent (75%) of the membership interest in Member may be transferred in one or a series of transactions to institutional investors and shall not be deemed a Change of Control hereunder provided Michael Swerdlow directly or indirectly maintains control of all decision making by Member, except for Major Decisions; (iii) the transfer of more than fifty percent (50%) of the membership interests in Holdings, in one or a series of transactions, to an unrelated third party or parties in an arm's length transaction provided however, up to seventy five percent (75%) of the membership interest in Holdings may be transferred in one or a series of transactions to institutional investors and shall not be deemed a Change of Control hereunder provided Michael Swerdlow directly or indirectly maintains control of all decision making by Holdings, except for Major Decisions; (iv) the sale of any membership interest in Developer which results in Michael Swerdlow, directly or indirectly, not having control of all decision making by Developer except for Major Decisions; (v) the sale of any membership interest in Member which results in Michael Swerdlow, directly or indirectly, not having control of all decision making by Member, except for Major Decisions; or (vi) the sale of any membership interest in Holdings which results in Michael Swerdlow, directly or indirectly, not having control of all decision making by Holdings, except for Major Decisions. For the avoidance of doubt, no transfer of membership interests in Developer, Member or Holdings that occurs by inheritance, device, bequest, transfer or operation of law upon the death or long-term incapacity of such member, or transfer by a member of its membership interest to a trust for family estate planning purposes shall be deemed a transfer of a membership interest. Further the pledge, collateral assignment or encumbrance of membership interests in Developer, Member and/or Holdings as security of a loan shall not be deemed a transfer of membership interests or Change of Control. The ownership interests in Developer, Member and Holdings as of the date of this Covenant is reflected on Exhibit "B" attached hereto. 2 #73699420_v3 2.6 "Children's Trust" means that certain independent special district authorized pursuant to Section 1.01.A.11 of the County Home Rule Charter and Section 125.901, Fla. Statutes, for the purpose of providing funding for children's services throughout the County. 2.7 "City" means the City of Miami, a municipal corporation of the State of Florida. 2.8 "City Approval" means the approval by the City Commission of the City of the CRA Budget for the applicable year, which CRA Budget includes the applicable Incentive Payment. 2.9 "City Targeted Areas" has the meaning ascribed to such term in Section 7.2.1(i)(c). 2.10 "Commencement of Construction Deadline" shall have the meaning ascribed to said teiiii in Section 4.1. 4.1. in Section 7.9. 7.2.1. (i) in Section 8. Section 5.1.1. 2.11 "Completion" shall have the meaning ascribed to said term in Section 4.1. 2.12 "Completion Date" shall have the meaning ascribed to said term in Section 2.13 "Compliance Monitoring Contract" has the meaning ascribed to such term 2.14 "Contractor(s)" shall have the meaning ascribed to said term in Section 2.15 "Construction Conditions Precedent" has the meaning ascribed to such term 2.16 "Construction Contract" shall have the meaning ascribed to said term in 2.17 "Construction Wage Notice" has the meaning ascribed to such term in Section 7.3(iii). 2.18 "Construction Wage Rate Penalty" has the meaning ascribed to such term in Section 7.6. 2.19 "County" means Miami -Dade County, a political subdivision of the State of Florida. 2.20 "County Approval" means the approval by the Board of County Commissioners of the County of the CRA Budget for the applicable year, which includes the applicable Incentive Payment. 3 #73699420_v3 2.21 "County Code" means the Miami -Dade County Code, as same may be amended from time to time. 2.22 "County Targeted Areas" has the meaning ascribed to such tell i in Section 7.2.1(i)(e). 2.23 "CRA" shall have the meaning ascribed to the term in the Recitals. 2.24 CRA Budget Approval" means the approval by the CRA Board of the annual CRA Budget which includes a line item for the Incentive Payment for the applicable year. 2.25 "CRA Board" means the Board of Commissioners of the CRA. 2.26 "CRA Budget" means the annual budget for the operation of the CRA approved by the CRA Board, subject to City Approval and County Approval. Section 3.1. 2.27 "CRA Space" shall have the meaning ascribed to said term in Section 23. 2.28 "Design Documents" shall have the meaning ascribed to said term in 2.29 "Developer" shall have the meaning ascribed to such term in the Recitals. 2.30 "Effective Date" means the date of execution and delivery of this Covenant by all parties hereto. 2.31 "Enforcement Action" shall have the meaning ascribed to such term in Section 14.7. 2.32 "Erroneous Hourly Wage Payment" has the meaning as ascribed to such term in Section 7.6. 2.33 "Erroneous Responsible Wage Payment" shall have the meaning ascribed to such term in Section 7.7. 2.34 "Executive Director" has the meaning ascribed to said term in Section 3.3. 2.35 "Extension Interlocal Agreement" means that Interlocal Agreement between the City, the County and the CRA with respect to the extension of the life of the CRA through March 31, 2042. 2.36 "General Contractor" means the general contractor engaged by the Developer to construct the Project. 2.37 "Global Agreement" means that certain Interlocal Agreement between the City, the County, the CRA and the Omni Community Redevelopment Agency dated as of December 31, 2007, as amended from time to time. 4 #73699420_v3 2.38 "Grant Obligations" shall have the meaning ascribed to such term in Section 13.1. 2.39 "Gross Sales Price" means the gross sales price paid and value of all other consideration received by the Developer or its members, as applicable. 2.40 "Holdings" means Block 55 Investments Holdings, LLC, a Delaware limited liability company. 2.41 "Incentive Payment" shall have the meaning ascribed to such term in Section 12.2.1 2.42 "Incremental TIF" shall mean, for each tax year, the tax increment revenues, if any, actually received by the CRA from the County and City with respect only to the Project and the Property, after Substantial Completion of the entire Project after deduction for any (i) allocable administrative charges imposed by the County and the City (but not administrative costs associated with the operation of the CRA), (ii) all allocable charges and/or payments to or for the benefit of the Children's Trust, (iii) other adjustments to the assessed value of the Project made by the City and/or County as a result of challenges or tax contests with respect to the assessed value of the Project, and (iv) any payments that the CRA is required to make to the City and the County under the terms of the Global Agreement, if any. 2.43 "Job Fair" shall have the meaning ascribed to said term in Section 24. 2.44 "Laborer Non -Compliance Funds" has the meaning ascribed to said term in Section 7.5.3(a). 2.45 "Living Wage Notice" has the meaning ascribed to said term in Section 7.3(i). 2.46 "Laborer Participation Requirement" has the meaning ascribed to said term in Section 7.2.1(i). 2.47 "Local Labor Workforce" has the meaning ascribed to said term in Section 7.2.1(i). 2.48 "Major Decisions" shall mean decisions to be made by the Developer which require the approval of the holders of more than fifty percent (50%) of the membership interests in Developer (or the holders of more than fifty percent (50%) of the membership interests in Holdings if Holdings controls, directly or indirectly, Developer), including, but not limited to, approving the terms of the construction loan and/or permanent financing for Project; the decision to sell an interest in the Project; the terms of major leases at the Project; actions or decisions not in accordance with an approved budget or an approved business plan; and similar major decisions customarily included in limited liability company operating agreements for projects of a similar nature where the members are institutional investors. 2.49 "Member" means Block 55 Investments Member, LLC, a Delaware limited liability company. 5 #73699420_v3 2.50 "Minimum Hourly Construction Wage Rate" shall have the meaning ascribed to such term in Section 7.3(i). 2.51 "Monetary Award" shall have the meaning ascribed to such term in Section 7.6. 2.52 "Notices" shall have the meaning ascribed to such term in Section 10. 2.53 "Office Component" shall have the meaning ascribed to said term in Section 3.1. 2.54 "Office Space" shall have the meaning ascribed to said term in Section 22. 2.55 "Overtown" has the meaning ascribed to such term in Section 7.2.1(i)(b). 2.56 "Parking Garage" has the meaning ascribed to said term in Section 3.1. 2.57 "Participation Requirements" shall have the meaning ascribed to said term in Section 7.2. 2.58 "Participation Reports" shall have the meaning ascribed to such term in Section 7.5.1. 2.59 "Payment and Performance Bond" shall have the meaning ascribed to said term in Section 5.1.2. 2.60 "Plans" shall have the meaning ascribed to such term in Section 3.2. 2.61 "Principal Place of Business" means the location of the primary office or central office of a Contractor. If the Contractor has only one business location, such business location shall be its Principal Place of Business. Confirmation of the Subcontractor's Principal Place of Business may be evidenced by a valid business tax receipt issued by Miami -Dade County. 2.62 "Project" shall have the meaning ascribed to such term in Section 3.1. 2.63 "Property" has the meaning ascribed to such term in the Recitals. 2.64 "Redevelopment Area" has the meaning ascribed to such term in Section 7.1(b). 2.65 "Resident" shall mean a natural person that has established a legal residence within an applicable area not less than six (6) months prior to said individuals receipt of such identification issued by the General Contractor for the Project necessary to access the Property during the erection of the Project. A Resident's "legal residence" shall be evidenced by (i) government issued, picture ID (i.e. driver's license, U.S. Passport, etc.) and (ii) any of the following documents: (a) a deed, monthly mortgage statement, mortgage payment booklet, or residential rental/lease agreement; (b) Florida voter registration card; (c) Florida vehicle registration, (d) a sworn affidavit from a head of household attesting to said individual's residence 6 #73699420_v3 within the such household located within a Target Area; (e) a utility bill confirming the address not more than sixty (60) days old; or (f) such other document evidencing such natural person's legal residence deemed equivalent to the foregoing in the sole discretion of the Executive Director. 2.66 "Residential Units" shall have the meaning ascribed to said term in Section 2.67 "Responsible Wage" has the meaning ascribed to such terra in 2.68 "Responsible Wage Notice" shall have the meaning ascribed to such term in Section 7.4(iii). 2.69 "Responsible Wage Penalty" shall have the meaning ascribed to such term 3.1. Section 7.4(i). in Section 7.7. 2.70 "Restricted Rental Units" shall have the meaning ascribed to such term in Section 5. 2.71 "Retail Space" shall have the meaning ascribed to said term in Section 3.1. 2.72 "Sawyer's Walk" shall have the meaning ascribed to said term in Section 6.1. 2.73 "Schedule" shall have the meaning ascribed to such term in Section 7.4(i). 2.74 "Skilled Construction Workforce" has the meaning ascribed to said term in Section 7.2.2(i). 2.75 "Skilled Laborer Non -Compliance Funds" has the meaning ascribed to such term in Section 7.5.4(a). 2.76 "Skilled Laborer Participation Requirement" has the meaning ascribed to said term in Section 7.2.2(i). 2.77 "Subcontractor" means a contractor engaged by the General Contractor or by any other contractor to provide labor material or services in connection with the construction of the Project. For the avoidance of any doubt, the term Subcontractor includes sub -Subcontractors at all levels who contract to provide labor material or services in connection with the construction of the Project. 2.78 "Subcontractor Participation Requirement" has the meaning ascribed to said terrn in Section 7.2.3(i). 2.79 "Subcontractor Non -Compliance Funds" has the meaning ascribed to said term in Section 7.5.2(a). 7 #73699420_v3 2.80 "Substantially Completed" or "Substantial Completion," or words of like import, means that a temporary or permanent certificate of occupancy, or its equivalent, has been issued by the City for all of the residential units comprising the Project and a certificate of completion, or its equivalent, for the commercial space and any office space included in the Project. For the avoidance of doubt, substantial completion does not include Tenant Improvements for the commercial space or the office space. Areas. 2.81 "Target Area" means the City Targeted Areas and the County Targeted 2.82 "Tax Assessor" means the Miami -Dade County Property Appraiser. 2.83 "Tenant Improvements" means the build -out of the tenant improvements with respect to commercial space and office space on behalf of a tenant for any commercial or office portion of the Project. 2.84 "Unavoidable Delay" shall have the meaning ascribed to said term in Section 4.1. 2.85 "Vertical Construction" shall have the meaning ascribed to said term in Section 4.1. 2.86 "Term" shall mean the period commencing on the Effective Date of this Covenant and terminating upon the expiration of the life of the CRA which currently is set to expire on March 31, 2030, as same may be extended with the approval of the CRA Board, the City Commission of the City and the Board of County Commissioners of the County in accordance with all applicable laws to March 31, 2042 pursuant to the Extension Interlocal Agreement. 2.87 "TIF Agreement" has the meaning ascribed to said term in Section 13.3. 3. Proiect. 3.1 Description of the Project. The project (the "Project") shall be a mixed use development to be located on the Property consisting of (i) not less than five hundred (500) residential units, which may be located in one or two subdivided tax parcels (collectively, the "Residential Units", and each such tax parcel, a "Residential Component"), (ii) not less than 250,000 rentable square feet of retail/restaurant/entertainment uses, of which not less than 30,000 rentable square feet shall consist of street level retail use along NW 2°d Avenue and NW 6th Street, (collectively, the "Retail Space") and a portion of which may consist of office space (the "Office Component"); (iii) a minimum 925 parking spaces, but in any event not less than the number of parking spaces required under applicable law (the "Parking Garage" and together with each Residential Component, the Retail Space and the Office Component, each a "Component"); and (iv) the development of Sawyer's Walk, as hereinafter defined, all as more particularly shown on the design development documents prepared by Arquitectonica International Corporation, Inc. (the "Architect") identified on Exhibit "C" (the "Design Documents"). 3.2 Plans and Specifications. The Developer shall cause the Architect to prepare plans and specifications for the construction of the Project which shall be of sufficient 8 #73699420_v3 detail to allow Developer to apply for a building permit, which plans and specifications shall be substantially consistent with the Design Documents (the "Plans"). 3.3 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 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 of the CRA (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. 3.4 DEVELOPMENT IN ACCORDANCE WITH PLANS. Developer covenants and agrees to develop the Project substantially in accordance with the Plans. 3.5 Certificate Evidencing Compliance. Upon Developer obtaining a building permit for the Project based upon the Plans complying with Section 3.2, as same may be modified as permitted pursuant to Section 3.3, 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 Covenant. 4. DEVELOPMENT TIMEFRAME 4.1 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) on or before March 31, 2021 (the "Commencement of Construction Deadline"), time being of the essence. The Developer shall complete the Project, including Sawyer's Walk, as hereinafter defined, 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 9 #73699420_v3 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 Commencement of Construction Deadline and the Completion Date shall automatically be extended one day for each day of Unavoidable Delays. The term "Unavoidable Delay" means actual delays to the commencement of Vertical Construction and actual delays in completion of the Project due to area wide strikes, acts of God, public health emergencies, pandemics, epidemics, floods, hurricanes, casualties, fire, acts of the public enemy and governmental moratoria. 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 quarantine) 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. 4.2 Extension of Vertical Construction Deadline. Developer shall have the right to extend the Commencement of Construction Deadline, as extended for Unavoidable Delay, for up to 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. The CRA agrees that a lender providing financing for the Project may exercise the Developer's right to extend pursuant to this Section 4.2 subject to the terms hereof by giving written notice thereof to the Developer and the CRA and paying the applicable monthly extension fee(s). 4.3 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. The CRA agrees that a lender providing financing for the Proj ect may exercise the Developer's right to extend pursuant to this Section 4.3 subject to the terms hereof by giving written notice thereof to the Developer and the CRA and paying the applicable monthly extension fee(s). 4.4 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 4.2, the Developer shall pay the CRA, as liquidated damages, Five Thousand and No/100 Dollars ($5,000.00) per day 10 #73699420_v3 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. 4.5 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 4.3, 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. 4.6 Certificate Evidencing Completion. Upon Developer achieving Completion and complying with all the requirements of Section 3.3, the Executive Director shall execute and deliver to the Developer a certificate in recordable form confirming that Developer has complied with the Commencement of Construction Deadline and completed the Project in accordance with the requirements of Section 4.1 on or before the Completion Date, as same may be extended as a result of Unavoidable Delay and as same may be extended pursuant to the term of Section 4.4. 5. REQUIREMENTS PRIOR TO VERTICAL CONSTRUCTION. 5.1 Prior to Commencement of Vertical Construction, the Developer shall comply with the following: 5.1.1 Construction Contract. Enter into the construction contract for the Project (the "Construction Contract") with the General Contractor, which Construction Contract shall include the obligation of the General Contractor to comply with the requirements set forth in Sections 7.1, 7.2, 7.3, 7.4, 7.5, 7.6, 7.7, 7.8, and 7.10 of this Covenant and achieve Completion within thirty (30) months from Commencement of Vertical Construction, as extended one day for each day of Unavoidable Delay. 5.1.2 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 Construction Contract for construction of the Project, which shall be issued by a surety having a credit rating of "A" or higher with a financial size category rating of VII or higher in the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey (the "Payment and Performance Bond"). 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. 6. SAWYER'S WALK 6.1 As part of the Project, Developer, at its sole cost and expense, subject to obtaining all necessary permits and approvals from the City of Miami, shall develop the right of way adjacent to the North side of the Property in the location of NW 7th Street between NW 2nd 11 #73699420_v3 Avenue and NW 3rd Avenue, in accordance with the Plans (the "Sawyer's Walk"). Developer acknowledges that the Sawyer's Walk is a public pedestrian walkway. 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 to 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. 6.2 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, of 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. 6.3 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. 7. MINORITY AND WOMEN'S PARTICIPATION AND EQUAL EMPLOYMENT OPPORTUNITY. 7.1 Minority And Women's Participation And Equal Employment Opportunity. In connection with construction of the Project, the Developer agrees that it and its general contractor will: a. Take good faith commercially reasonable action in the recruitment, advertising and to attract and retain minority and female contractors and subcontractors; b. Provide a reasonable opportunity in the recruitment, advertising and hiring of professionals, contractors and subcontractors residing within the Southeast Overtown/Park West Community Redevelopment Area (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, 12 #73699420_v3 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 g. 6. In all solicitations and advertisements for employment placed by or on behalf of Developer, state that all applicants will receive consideration for employment without regard to race, creed, color or national origin. 7.2 Participation Requirements. The Developer agrees to comply with the following subcontractor participation requirements and laborer participation requirements (the "Participation Requirements") with respect to the construction of the Project: 7.2.1 Local Labor Workforce Participation. (i) Developer shall require the General Contractor and all Subcontractors (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 "D"; (b) second, to City Residents living within the boundaries of the Overtown community, as shown on the sketch attached as Exhibit "E" ("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) City and the County Targeted Zip Codes. Sixth, to County Residents residing outside of the 13 #73699420_v3 (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 "F". 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. 7.2.2 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) and the County Targeted Areas. sixth, to County Residents residing outside the City (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 14 #73699420_v3 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 "E". 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. 7.2.3 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, 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. 15 #73699420_v3 7.3 Minimum Hourly Construction Wage Rate. (i) Until Completion of construction 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, 2019 to September 30, 2020, the Minimum Hourly Construction Wage Rate applicable to the Project as of the Effective Date would be $13.83 per hour with qualified health benefits valued at least $2.00 per hour, otherwise $15.83 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 Proj ect. (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 7.3(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. 7.4 Responsible Wage Rates for Electrical Workers and Plumbers. (i) Developer shall require all Contractors performing work in connection with the construction of 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 16 #73699420_v3 required to be paid for the Project for the labor classification set for the below. The Schedule 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 perfoiuiance 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 6.4(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. 7.5 Construction Reports & Penalties. 7.5.1 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 17 #73699420_v3 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. 7.5.2 Penalties for Non -Compliance with Subcontractor Participation Requirement. a. 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"). b. 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. 7.5.3 Penalties for Non -Compliance with Laborer Participation Requirement with respect to the Project. a. To the extent Developer fails to comply with the Laborer Participation Requirement set forth in Section 7.2.1 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) 18 #73699420_v3 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"). b. 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. 7.5.4 Penalties for Non -Compliance with Skilled Laborer Participation Requirement with respect to the Project. a. 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"). b. 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. 7.6 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 19 #73699420_v3 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 hundred (100) hours 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%] equals the Construction Wage Rate Penalty, which amount would be in addition to the Erroneous Hourly Wage Payment previously paid to such worker. For example if the Minimum Hourly Constructions Wage Rate is $15.83 per hour because no qualified health care benefits are paid and if the worker was paid ten and no/100 Dollars ($10.00) an hour and no health benefits paid and the worker worked for one hundred (100) hours, the Construction Wage Penalty would be: $15.83 x 120% x 100 hours = $1,899.60 which amount would be in addition to the Erroneous Hourly Wage Payment previously 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. 7.7 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 7.4 (i) (a) and 7.4 (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) 20 #73699420_v3 and no health benefits were provided for one hundred (100) hours 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 Responsible Wage Penalty, which amount would be in addition to the Erroneous Responsible Wage Payment previously paid to such worker. For example if the Responsible Wage is $38.46 plus benefits shown on the Schedule and the worker was paid Twenty Dollars ($20.00) an hour and no benefits were paid and the worker worked one hundred (100) hours, the Responsible Wage Penalty would be: $38.46 + the amount of benefits shown on the Schedule (assumed to total $6.00 for this example) x 120% x 100 hours = $5,335.20 which amount would be in addition to the Erroneous Responsible Wage Payment previously 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. 7.8 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 infoinu residents of available job opportunities and 21 #73699420_v3 upcoming job fairs not less than thirty (30) days prior to and through the date of construction commencement of the Project. 7.9 Compliance Monitoring Contract. Executive Director shall select and retain, prior to the issuance of any construction peilnits 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. 7.10 Job Fair. 7.10.1 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. 7.10.2 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. 7.11 Term. The provisions of this Article 7 shall run with the Property and be binding upon Developer and its successors and assigns until (a) Completion of the entire Project, (b) payment of all amounts, if any, due from the Developer to the CRA in accordance with Sections 4 and Section 7 hereof, (c) the payment of all amounts that may become due to workers pursuant to Sections 7.6 and 7.7 hereof, and (d) the completion of the job fair required by Section 7.10.2. 8. CONDITIONS PRECEDENT TO COMMENCEMENT OF CONSTRUCTION. The Developer shall not commence construction of the Project contemplated by this Covenant until the satisfaction or waiver by the Executive Director of the following conditions precedent (the "Construction Conditions Precedent"): 8.1 The Executive Director has approved the format for the Participation Reports. 8.2 The Developer has complied with the provisions of Section 5 of this Agreement. 9. RELOCATION OF TREES. 22 #73699420_v3 9.1 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. 10. LIEN RIGHTS. If Developer fails to pay any amount due the CRA pursuant to Sections 4.4, 4.5, 7.5.2, 7.5.3, 7.5.4, 7.9 and 14 such unpaid amounts shall bear interest at twelve percent (12%) per annum from the date due until paid and shall be secured by this Covenant having priority from the date of recording this Covenant. If any amounts remain unpaid for more than thirty (30) days after the Developer's receipt of written notice from the CRA as to such late payment, the CRA may foreclose its lien rights against the Property in the same manner as a mortgage would be foreclosed. Upon the request of the Developer upon payment of each applicable amount due under Sections 4.5, 4.6, 7.5.2, 7.5.3, 7.5.4, 7.9, and 14 the CRA shall execute and promptly deliver to the Developer a recordable instrument reflecting the release of the applicable payment obligation. If any payment due pursuant to this Section 10 is not made within thirty (30) days of when due the CRA may offset the amounts due against the Incentive Payment. 11. DEFAULT AND REMEDIES. If Developer fails to comply with any of the teiiiis and provisions of this Covenant, including, without limitation the payment of money or the performance of any other obligation under this Covenant which failure is not cured by the Developer within thirty (30) days of written notice from the CRA, or, if by reason of the nature of such default, the same cannot be cured within thirty (30) days following receipt by Developer of written demand from the CRA to do so, Developer fails to commence curing such default within such thirty (30) days following such written notice, or having so commenced, shall fail thereafter to continue with diligence the curing thereof and, in any event, fails to cure such default within a reasonable time after receipt of notice of such default, whichever is earlier, the CRA may pursue all remedies available at law or in equity to enforce the terms and provisions of this Covenant, including, without limitation, specific performance; provided, however, with respect to Developer's failure to comply with the terms of (a) Section 4.1, as may be extended pursuant to Sections 4.2 and 4.3, the CRA's remedies shall be limited to a suit to collect the unpaid amount and the enforcement of its lien rights as provided in Section 10, for non-payment of any amount due pursuant to the terms of Sections 4.4 and 4.5 or offset the amount due from the Incentive Payments, (b) Section 7.2.1, the CRA's remedies shall be limited to a suit to collect the unpaid amount and the enforcement of its lien rights as provided in Section 10 for non-payment of any amount due pursuant to Section 7.5.3, or offset the amount due from the Incentive Payment, (c) Section 7.2.3, the CRA's remedies shall be limited to a suit to collect the unpaid amount and the enforcement of its lien rights as provided in Section 10 for non-payment of any amount due pursuant to the terms of Section 7.5.4, or offset the amount due from the Incentive Payment, (d) Section 7.2.3, the CRA's remedies shall be limited to a suit to collect the unpaid amount and the enforcement of its lien rights as provided in Section 10 for non-payment of any amount due pursuant to the terms of Section 7.5.2, or offset the amount due from the Incentive Payment, (e) Section 7.3, the CRA's sole remedies will be to enforce specific performance of the terms of Section 7.6, (f) Section 7.4, the CRA's sole remedy will be to enforce specific performance of the teiiiis of Section 7.7, (g) Section 7.9, the CRA's remedies shall be limited to a suit to collect the unpaid amount and the enforcement of its lien rights as provided in Section 10 for non-payment of any amount due pursuant to Section 7.9 or offset the amount due from the Incentive Payment, and (h) Section 14, the CRA's remedies shall be limited to a suit to collect the unpaid amount and 23 #73699420_v3 enforcement of its lien rights as provided in Section 10 for non-payment of any amount due pursuant to Section 14 or offset the amount due from the Incentive Payment. Notwithstanding anything to the contrary contained herein, following Completion and payment to the CRA of all amounts due under Sections 4.4, 4.5, 7.5.2, 7.5.3, 7.5.4, 7.9 and following any partial assignment of the right to receive any Incentive Payment peimitted by Section 12.2.2, the CRA shall only exercise its remedies against a defaulting owner of the Project with respect to Incentive Payments due to such defaulting owner. For example, if owner A owns the Office Component and has been assigned the Incentive Payment for the Office Component and owner B owns the Retail Space and has been assigned the Incentive Payment for the Retail Space, and owner A defaults in its obligations under Section 14 of this Agreement and as a result of such default, the CRA has the right to right to offset any amounts owed to the CRA under Section 14 of this Agreement from the Incentive Payment, the CRA shall only offset amounts owed by owner A of the Office Component against the Incentive Payment due to owner A of the Office Component and shall not offset any amounts owed by owner A under Section 14 of this Agreement against the Incentive Payment due to owner B or any other owner within portion of the Project. For the avoidance of any doubt if Developer has not assigned the Incentive Payment with respect to a Component and the owner of that Component defaults in its obligation under Section 14 of this Agreement the CRA shall have the right to offset any amount owed to the CRA under Section 14 of this Agreement by the owner of the Component who is in default solely against the Incentive Payment due Developer derived from that Component. 12. PROJECT INCREMENTAL TIF. 12.1 Projected Incremental TIF. Developer acknowledges and agrees that Developer shall bear the entire risk under this Covenant if the Project is valued at less than anticipated by the Developer and/or is not developed within the time frame anticipated by the Developer resulting in Incentive Payment payable by the CRA pursuant to this Covenant being less than anticipated by Developer. Developer acknowledges and agrees that the CRA shall have no liability to Developer if the Incentive Payment as estimated by Developer proves not to be accurate for any reason and same shall not relieve the Developer or the CRA from their respective obligations under this Covenant. Developer acknowledges and agrees that the CRA has made no representation to the Developer regarding the amount of Incremental TIF which may be generated by the Project and Developer is relying solely on its own projections of the Incremental TIF which will be generated by the Project. 12.2 Development Incentive. Subject to CRA Budget Approval by the CRA Board, City Approval and County Approval, on an annual basis in all cases, as an inducement to develop the Project, the CRA agrees to pay Developer a percentage of Incremental TIF as follows: 12.2.1 Payment of Incremental TIF. On an annual basis for each calendar year commencing after the Base Year and continuing throughout the Term of this Covenant, subject to reduction under Section 12.2.2 and Section 12.2.3 below, the CRA shall pay to Developer an incentive payment equal to Seventy percent (70%) of the Incremental TIF (the "Incentive Payment"). All Incentive Payments shall be due and payable within thirty (30) days of the CRA's receipt of Incremental TIF. 24 #73699420_v3 12.2.2 Incentive Payments After Assignment or Sale. Developer, in its sole and absolute discretion, may collaterally assign and reassign the Incentive Payment or any portion thereof to any lender providing financing for the Project or any Component thereof. Developer, in its sole and absolute discretion, may also assign the Incentive Payment to any purchaser all of Developer's entire interest in the Project or the purchaser of all of Developer's interest in any of the Component(s) thereof or to a community development district acquiring any Component of the Project at any time or from time to time upon written notice given to the CRA. For the avoidance of any doubt, except with respect to a collateral assignment to a lender, Developer must assign the entire Incentive TIF with respect to the entire Project or the entire Incentive TIF with respect to any Component thereof which Developer has elected to assign in whole but not in part. Partial assignments of the Incentive TIF to the owner of a Component are not permitted. Each owner of a Component shall also have the right to assign the Incentive Payment with respect to such Component to its successor owner of such Component in connection with a sale of such Component. Any such notice of assignment shall indicate: (i) the name of the assignee and the assignee's contact information, (ii) the Component of the Project transferred to the assignee for which the assignee shall be entitled to the Incentive Payment for such Component, and (iii) any other terms or provisions applicable thereto and mutually agreed to as between Developer and the assignee (the "Assignment Notice"). Any such assignee must assume the obligation of the Developer or such other assignor to utilize the Incentive Payment in accordance with the provisions of Section 12.2.4 of this Agreement. Any assignment by Developer of its rights to the Incentive Payment shall not release Developer of its duties and obligations under this Covenant. 12.2.3 Reductions of Incentive Payments. If the entire Project is not Substantially Completed and on the Tax Rolls on or before January 1, 2024 as such date is extended as a result of Unavoidable Delays, the Incentive Payments shall be reduced by ten percent (10%) for or the Term of this Covenant. If the entire Project is not Substantially Completed and on the Tax Rolls by January 1, 2025 as such date is extended as a result of Unavoidable Delays, the Incentive Payment shall be reduced by twenty percent (20%) for the Term of this Covenant. If the entire Project is not Substantially Completed by January 1, 2027 as such date is extended as a result of Unavoidable Delays, the CRA shall not be obligated to make any Incentive Payments to the Developer. 12.2.4 Limitation on Use of Incentive Payments. Incentive Payments paid during the Term of this Covenant shall be used for the sole and exclusive purpose of paying and/or reimbursing the costs of the construction, maintenance, operation, and debt service/debt issuance costs of the Project, to the extent such payments are a permitted use of TIF Increment pursuant to Chapter 163 Part III, Florida Statute. 13. SUBORDINATION OF INCENTIVE PAYMENT. 13.1 Developer acknowledges and agrees that the obligations of the CRA under this Covenant to make Incentive Payments hereunder are junior and subordinate to the obligations of the CRA to pay debt service with respect to any bonds now existing issued by the CRA or any bonds now existing or hereafter issued by the City and secured a pledge by the CRA of tax increment funds including, without limitation, bonds issued by the City pursuant to the teiius of the Interlocal Agency Agreement effective November 8, 2016 between the City, the CRA and the South Florida Regional Transportation Authority obligating the CRA to pledge Incremental TIF 25 #73699420_v3 with respect to a bond issue by the City (collectively the "Bond Obligations") and junior and subordinate to the payments to be made in connection with the grant to be made by the CRA in connection with "Mama Hattie" and the Grant Agreement, as amended, by and between the City and the CRA and with respect to the Gibson Park (collectively, the "Grant Obligations"), which Grant Obligations are more fully described in Exhibit "G". Under no circumstances shall the CRA be obligated to make Incentive Payments from its general revenues or any other sources if Increment TIF is unavailable after the CRA makes all required payments with respect to the Bond Obligations and the Grant Obligations. To the extent no Incremental TIF or only a portion of the Incremental TIF is available to pay the CRA's obligations under this Covenant as a result of the Bond Obligations and the Grant Obligations, the Incentive Payments shall be reduced to the amount of Incremental TIF available, if any, and the shortfall shall be deferred to subsequent year(s) to the extent available. If requested by the CRA, the Developer shall execute a subordination agreement confirming that this Covenant is junior and subordinate to any Bond Obligations and Grant Obligations within ten (10) business days of written request by the CRA. 13.2 Pledge of TIF Revenues. In the event the CRA issues additional bonds subsequent to the Effective Date, the CRA covenants and agrees not to pledge the Incremental TIF derived from the Project which will be payable to Developer under this Covenant as collateral for such bonds. 13.3 Additional Agreements Regarding Use of Incremental TIF. Developer acknowledges and agrees that nothing contained in this Covenant shall be deemed or construed to prevent the CRA from entering into agreements similar to Section 12 of this Covenant (each a "TIF Agreement") pursuant to which the CRA commits to pay such developers a portion of the Incremental TIF generated from their project within the Redevelopment Area. Developer acknowledges and agrees that Incremental TIF generated from other projects which are subject to TIF Agreement(s) will not be available to make up for any shortfall under Section 13.1. 13.4 Penalties. To the extent Developer fails to pay to the CRA any amount due under this Covenant, the CRA may set off the amount due against the Incentive Payment due within thirty (30) days of the date due under this Covenant. 14. TRANSFER FEE. 14.1 Transfer Prior to Completion. If, at any time prior to Completion (i) the Developer sells the entire Project to an unrelated third party purchaser in an arm's length transaction; (ii) the Developer sells the Retail Space, the Office Component, the Parking Garage or the Residential Components, or any of them or any combination thereof, to an unrelated third party purchaser in an arm's length transaction; or (iii) a Change of Control occurs, then the Developer shall pay to the CRA a fee in an amount equal to one and one-half percent (1.5%) of the Gross Sales Price simultaneously with the closing of such sale or Change of Control. For the avoidance of doubt, if Developer sells the Retail Space, the Office Component, the Parking Garage or the Residential Components, or any of them or any combination thereof, the provisions of this Section 14.1 shall apply to each such transaction until Completion and the fee to the CRA of one and one-half percent (1.5%) of the Gross Sales Price shall apply to each such transaction until Completion; provided, however, in no event shall any such transfer fee be payable in connection 26 #73699420_v3 with the transfer of the Parking Garage to any community development district established with respect to the Property. 14.2 Transfer After Completion. If, at any time after Completion (i) Developer sells the entire Project to an unrelated third party purchaser in an arm's length transaction; (ii) the Developer sells the Retail Space, the Office Component, the Parking Garage or the Residential Components, or any of them or any combination thereof, to an unrelated an third party purchaser in an arm's length transaction, or (iii) a Change of Control occurs, then the Developer shall pay the CRA a fee in the amount of one and one-half percent (1.5%) of the Gross Sales Price simultaneously with the closing of such sale or Change of Control. For the avoidance of doubt, if Developer sells the Retail Space, the Office Component, the Parking Garage, or the Residential Components, together or in a series of transactions, the one and one-half percent (1.5%) of the Gross Sales Price shall apply to each transaction until Developer has no further interest in the Project; provided, however, in no event shall any such transfer fee be payable in connection with the transfer of the Parking Garage to any community development district established with respect to the Property. 14.3 Related Transfers. For the avoidance of any doubt, should Developer transfer its interest in the Project in whole or part to a related entity or to a third party purchaser (including without limitation any tax -credit investor) in transaction which is not considered an arm's length transaction, no transfer fee shall be payable, provided, however, the obligations under this Section 14 shall be binding upon such successors and assigns and such transferee shall be deemed the "Developer" for the purposes of this Section 14. For the avoidance of doubt, should any transfer of membership interests in Developer, Member and/or Holdings occur, in whole or part to a related entity (including without limitation to direct or indirect members of Developer, Member or Holdings), no transfer fee shall be payable in connection with such transfer. 14.4 Failure to Pay. If Developer fails to pay the CRA any fees due pursuant to this Section 14 when due, such fee shall bear interest at the rate of twelve percent (12%) until paid. 14.5 Undisclosed Transfer. If a Change of Control or sale occurs and Developer fails to disclose such sale or Change of Control to the CRA and the CRA discovers that Developer has breached the terms of provisions of this Section 14, the applicable fees due the CRA pursuant to this Section 14 shall triple. 14.6 One Transfer Fee. For the avoidance of doubt, Developer shall only be required to pay one transfer fee on each portion of the Project, whether such transfer fee is paid prior to or after Completion. 14.7 Transfers to Lenders. For the avoidance of doubt, the placing of a mortgage lien, assignment of leases and rents or security interest on or pertaining to the Property, the Project or any Component, or any pledge, collateral assignment or encumbrance of the direct or indirect membership interests of Developer as security for any financing of the Property, Project or any Component thereof, or any pledge, collateral assignment or encumbrance of the direct or indirect membership interests in Member as security for the financing of the Property, the Project or any Component thereof, or any pledge, collateral assignment or encumbrance of the direct or indirect membership interests in Holdings as security for the financing of the Property, the Project or any 27 #73699420_v3 Component thereof, or any transfer pursuant to or in lieu of a foreclosure or any exercise of remedies (including, without limitation, foreclosure) under any mortgage on the Property, the Project or any Component thereof or the transfer of membership interest in Developer, Member or Holdings under any pledge, collateral assignment or encumbrance of the membership interests of Developer, Member or Holdings as security for any financing of the Property, the Project or any Component thereof (each an "Enforcement Action"), in each case shall not be deemed a transfer requiring payment of any transfer fee hereunder. 14.8 In the event of an Enforcement Action with respect to the Property, the Project or any Component thereof or the transfer of membership interests in Developer, Member or Holdings as described in Section 14.7, the party which acquires the interests of the Developer in the Property, the Project or any Component thereof or that acquires the membership interests of Developer, Member or Holdings shall be deemed the "Developer" for purposes of this Section 14 and the provisions of this Section 14 (including without limitation the provisions of Section 14.3) shall apply with respect to any subsequent transfer of the Property, the Project or any Component thereof acquired by such party in the Enforcement Action. A "Change of Control" shall be deemed to have occurred if such party acquiring the interest of the Developer, Member or Holdings through an Enforcement Action no longer controls all decision making by Developer, Member or Holdings, and the fees described in this Section 14 shall be due and payable at that time with respect to the Property, the Project or any Component thereof acquired by such party in the Enforcement Action upon such Change of Control. 15. CHALLENGES. 15.1 No Liability. Developer hereby forever waives and releases the CRA from any liability whatsoever, now or hereafter arising in connection with any challenge to Section 12 of this Covenant by a third party and covenant and agree not to initiate any legal proceedings against the CRA in connection with any challenges to Section 12 of this Covenant, other than as a result of a default by the CRA with respect to its obligations under this Covenant, for which Developer shall have the right to sue the CRA for specific enforcement of the CRA's obligations to pay any unpaid Incentive Payments. 15.2 Duty to Defend. In the event of any challenge to Section 12 of this Covenant, any party in interest, at its or their sole cost and expense, may defend any such challenge by a third party. The CRA shall cooperate with Developer and, if necessary, participate in the defense of such challenge provided Developer pays the cost of such defense. 16. APPROVAL OF CRA BUDGET. Developer acknowledges that no voter approval was obtained in connection with this Covenant and that neither the City nor the County has approved Section 12 this Covenant. In the event Section 12 of this Covenant is determined to be unenforceable in whole or in part as a result of (i) the multi -year CRA commitment regarding the Incentive Payments or (ii) the failure to obtain CRA Board Approval, City Approval and County Approval of the CRA Budget including a line item for the Incentive Payment on an annual basis, Developer acknowledges and agrees that the CRA shall have no liability to Developer arising under Section 12 of this Covenant. Developer acknowledges that this provision is a material inducement for the CRA to enter into this Covenant. 28 #73699420_v3 17. COUNTY APPROVAL. Developer acknowledges that this Covenant has not been submitted to the County Commission for review or approval and that the Incentive Payments contemplated by this Covenant will be included in the annual budget (subject to CRA Board Approval) submitted by the CRA to the City for approval and submitted by the CRA to the County for approval, once the CRA Budget is approved by the CRA Board and City Approval is obtained. The CRA shall use commercially reasonable efforts to procure the City Approval and the County Approval of the CRA Budget. The CRA shall have no liability to Developer under Section 12 of this Covenant in the event that City Approval and County Approval are not obtained. 18. NON -RECOURSE. This Covenant is non -recourse to the CRA. In the event of a breach of this Covenant by the CRA, Developer (and only the Developer or any impacted Assignee) may seek specific performance of this Agreement or bring an action at law which shall be limited to recovery of any Incentive Payments due under the terms of this Covenant and in no event shall Developer or any assignee have the right to seek damages against the CRA. Except with respect to the CRA's rights to seek specific perfoiivance of this Covenant and the CRA's right to sue to collect any payments due from Developer to the CRA pursuant to this Covenant, the CRA shall not have the right to seek damages against Developer. 19. RELATIONSHIP BETWEEN PARTIES. This Covenant does not evidence the creation of, nor shall it be construed as creating, a partnership or joint venture between the CRA and Developer. No party can create any obligations or responsibility on behalf of the others or bind the others in any manner. Each party is acting for its own account, and it has made its own independent decisions to enter into this Covenant and as to whether the same is appropriate or proper for it based upon its own judgment and upon advice from such advisors as it has deemed necessary. Each party acknowledges that none of the other parties hereto is acting as a fiduciary for or an adviser to it in respect of this Covenant or any responsibility or obligation contemplated herein. Developer further represent and acknowledge that no one was paid a fee, commission, gift or other consideration by such party or such party's agent as an inducement to entering into this Covenant. 20. BUDGET & APPROPRIATION. CRA covenants and agrees to budget the Incentive Payment as a line item in its annual operating budget subject to CRA Board Approval, City Approval and County Approval. CRA further covenants to use commercially reasonable efforts to procure annual approval of its operating budget, including the Incentive Payment and as contemplated by this Covenant, by both the City and County. 21. CONSULTANT AND PROFESSIONAL COMPENSATION. Developer has retained consultants and professionals to assist Developer with the negotiation and execution of this Covenant, and Developer may compensate those consultants and professionals at their standard hourly rate for services performed, or any other method of compensation that is considered standard and reasonable for that particular service. Notwithstanding anything to the contrary contained herein, in no event shall Developer compensate any such consultant or professional in any form that would be deemed a "bonus," "success fee" or "finder's fee" in exchange for the CRA Board's approval of this Covenant. 22. NET OFFICE/POLICE SUBSTATION/CRA OFFICES. Developer covenants and agrees to provide approximately one thousand (1,000) square feet of rentable space substantially 29 #73699420_v3 in the location shown on Exhibit "H" attached hereto (the "Office Space") with vehicular access as shown on Exhibit "H", to be utilized by the City as either a Neighborhood Enhancement Team (NET) office or a police substation or utilized by the CRA, at the option of the CRA. The Developer shall have no obligation to build out the Office Space and possession of the Office Space shall be provided to the City or the CRA, as determined by the CRA, upon Completion. The Developer and the City or the CRA, as applicable, shall execute a lease for the Office Space utilizing the standard form lease utilized by the Developer for the Project, subject to such changes required by the City Attorney and provisions customarily included in City leases. The lease will be for a total rent of One Dollar ($1.00) per year with no pass through expenses of any kind or nature including without limitation, common area maintenance expenses, tax expenses, insurance expenses, utility expenses or management fees. The term of the lease shall be for the life of the CRA. 23. RETAIL OPPORTUNITY. Developer covenants and agrees to make one retail/office space available containing approximately one thousand one hundred (1,100) rentable square feet in the location shown on Exhibit "I" attached hereto for a CRA supported business (the "CRA Space"). The CRA shall identify the proposed tenant and the proposed tenant shall lease the CRA Space for fifty percent (50%) of the average total rent, including escalation, of similar first floor leased space in the Project fronting Sawyer's Walk, plus pass through expenses and operating expenses. Rent shall be paid monthly in advance. If the lease terminates for any reason the CRA shall propose a replacement tenant for the CRA Space which the Developer shall lease on the same terms and conditions. The procedure shall continue for the entire life of the CRA so that the CRA Space is always leased to a CRA sponsored tenant. For the avoidance of doubt, any tenant of the CRA Space will be subject to the same exclusive use restrictions as other tenants in the Project. 24. RETAIL EMPLOYMENT OPPORTUNITIES. Commencing upon Completion and every six (6) months thereafter for a period of five (5) years Developer, in coordination CareerSource South Florida, the CRA, and retail businesses operating within the Project, shall host job fairs (each a "Job Fair") at the Project in an effort to create job opportunities at the Project for residents of the Redevelopment Area. No less than thirty (30) days prior to each Job Fair the Developer shall place a full -page weekly advertisement in the Miami Times Newspaper about the Job Fair and place weekly radio commercials on either HOT 105 or 99JAMZ to infoiiu residents of the Redevelopment Area of the Job Fair. 25. Notices. Any notices required or permitted to be given under this Covenant shall be in writing and shall be deemed to have been given if delivered by hand, sent by recognized overnight courier (such as Federal Express), or mailed by certified or registered mail, return receipt requested, in a postage prepaid envelope, and addressed as follows: If to the Developer: Block 55 Investments, LLC 2901 Florida Avenue Coconut Grove, FL 33133 Suite 806 Attention: Michael Swerdlow 30 #73699420_v3 With a copy (which shall not constitute notice or service of process) to: Bercow Radell Fernandez Larkin & Tapanes PLLC Attention: Jeffrey Bercow, Esq. 200 S. Biscayne Boulevard Suite 850 Miami, FL 33131 With a copy (which shall not constitute notice or service of process) to: If to CRA: Alvarez & Diaz-Silveira LLP Attention: Real Estate Notices 355 Alhambra Circle Suite 1450 Coral Gables, FL 33134 SOUTHEAST OVERTOWN / PARK WEST COMMUNITY REDEVELOPMENT AGENCY Attention: Cornelius Shiver, Executive Director 819 NW Second Avenue Third Floor Miami, FL 33136 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 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. 26. MISCELLANEOUS. 26.1 This Covenant shall be construed and governed in accordance with the laws of the State of Florida. Venue shall be in Miami -Dade County, Florida. All of the parties to this Covenant have participated fully in the negotiation and preparation hereof, and, accordingly, this Covenant shall not be more strictly construed against any one of the parties hereto. 26.2 In the event any term or provision of this Covenant is determined by appropriate judicial authority to be illegal or otherwise invalid, such provision shall be given its 31 #73699420_v3 nearest legal meaning or be construed as deleted as such authority determines, and the remainder of this Covenant shall be construed to be in full force and effect. 26.3 In construing this Covenant, the singular shall be held to include the plural, the plural shall be held to include the singular, the use of any gender shall be held to include every other and all genders, and captions and Section headings shall be disregarded. 26.4 All of the exhibits attached to this Covenant are incorporated in, and made a part of, this Covenant. 26.5 Time shall be of the essence for each and every provision of this Covenant. 27. COVENANT RUNNING WITH THE LAND. This Covenant shall be deemed a covenant running with the Property and shall be binding upon Developer and its successors and assign for the Term, or such shorter period of time applicable to certain specific provisions of this Covenant as specifically provided in Sections 6.2, 7.11 and 24 of this Covenant. 28. ENTIRE AGREEMENT. Except for the Housing Restrictive Covenant Agreement dated as of the Effective Date between Developer and the CRA, this Covenant constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof, superseding and/or incorporating all prior or contemporaneous oral or written agreements (including, without limitation, that certain Block 55 Development Agreement by and between Downtown Retail Associates LLC and the CRA, as amended and assigned to Developer) and there are no other agreements, representations or warranties with respect to the subject matter hereof other than as set forth herein. 29. MODIFICATION. This Covenant may not be changed, altered or modified except by an instrument in writing signed by the party against whom enforcement of such change would be sought. 30. APPROVAL OF PAYMENT OF INCENTIVE PAYMENT. The Parties acknowledge that due to the cancellation of the CRA Board meeting scheduled for March 16, 2020, the CRA Board has not approved the Incentive Payment to Developer as contemplated by Section 12 of this Covenant. The Parties acknowledge and agree that if the CRA Board does not ratify Section 12 of the Covenant on or before Substantial Completion, the provision of Sections 12 and 13 of this Covenant shall be of no further force and effect and the CRA shall be released from any obligations under this Covenant to make the Incentive Payments to Developer contemplated by Section 12. If the CRA Board ratifies Section 12 of this Covenant on or before Substantial Completion, at the request of the Developer, the CRA and the Developer shall execute a document in recordable form confirming that the CRA Board has ratified the provisions of Section 12 of this Covenant, to be recorded at the Developer's sole cost and expense. For the avoidance of any doubt, all other terms and provisions of this Covenant shall remain in full force and effect whether or not the CRA Board ratifies the provisions of Section 12 of this Covenant. 31. ESTOPPEL CERTIFICATES. From time to time the CRA will execute and deliver an estoppel certificate to Developer confirming the status of Developer's compliance with the terms and conditions of this Covenant within ten (10) business days of written request from Developer. The estoppel certificate shall state (i) that this Covenant is in full force and effect and 32 #73699420_v3 has not been modified, supplemented or amended, or if there has been any modifications that this Covenant is in full force and effect as modified and identifying the modifications or if this Covenant is not enforceable, so state; (ii) whether the CRA has issued any written notice(s) of any default(s) by Developer under this Covenant which remain uncured, and if so, stating the nature of the default(s); and (iii) whether the CRA knows of any event with the giving of notice or passage of time, or both, would constitute a default by Developer under this Covenant. Any estoppel certificate required to be provided pursuant to this Covenant shall be made on behalf of the CRA by the Executive Director. 32. BINDING EFFECT. This Covenant shall be binding upon the parties hereto and their respective successors and permitted assigns. (Signatures on Next Page) 33 #73699420_v3 IN WITNESS hereof the parties have executive this Covenant as of the date first above written. DEVELOPER: WITNESSES: BLOCK 55 INVESTMENTS, LLC, a Florida limited liability company Print Name: By: Downtown Retail Associates LLC, its manager Print Name: By: Michael Swerdlow Its Manager CRA: WITNESSES: Print Name: SOUTHEAST OVERTOWN / PARK WEST COMMUNITY REDEVELOPMENT AGENCY By: Print Name: Cornelius Shiver, Executive Director ATTEST: Clerk of the Board Approved for legal sufficiency By: William R. Bloom, Esq. Holland & Knight LLP, Special Counsel to CRA 34 #73699420_v3 STATE OF FLORIDA COUNTY OF MIAMI-DADE ) ) SS: ) The foregoing instrument was acknowledged before me by means of ❑ physical presence or ❑ online notarization, this day of March, 2020, by Michael Swerdlow, as manager of Downtown Retail Associates LLC, a Florida limited liability company, as manager of BLOCK 55 INVESTMENTS, LLC, a Florida limited liability company, on behalf of the limited liability companies. He is personally known to me or has produced as identification. My commission expires: 35 Notary Public Print Name: #73699420_v3 STATE OF FLORIDA ) SS: COUNTY OF MIAMI-DADE The foregoing instrument was acknowledged before me by means of ❑ physical presence or ['online notarization, this day of March, 2020, by Cornelius Shiver, Executive Director of SOUTHEAST OVERTOWN/PARK WEST COMMUNITY REDEVELOPMENT AGENCY, a public agency and body corporate created pursuant to Section 163.356, Florida Statutes, on behalf of the agency. He/she is personally known to me or has produced as identification. My commission expires: 36 Notary Public Print Name: #73699420_v3 Schedule of Exhibits A. Legal Description B. Developer, Member and Holdings Organizational Chart C. Design Documents D. Sketch of Redevelopment Area E. Sketch of Overtown F. Hiring Standards G. Grant Obligations H. Office Space I. CRA Space 37 #73699420_v3 EXHIBIT "A" Legal Description Lots 1 through 20, inclusive, of Block 55, North, City of Miami, according to the Plat thereof, as recorded in Plat Book `B", Page 41, of the Public Records of Miami -Dade County, Florida; less and except the East 7.5 feet of Lot 20; and further less and except that portion of Lot 10 taken by the State of Florida Department of Transportation by Order of Taking recorded in Official Records Book 5349, at Page 129, of the Public Records of Miami -Dade County, Florida, being more particularly described as follows: Begin on the West line of said Lot 10 at a point 14.51 feet South 02° 6'16" East from the Northwest corner thereof, said point being the beginning of a curve concave Southeasterly having a radius of 14.5 feet, thence from a tangent bearing of North 02° 16' 16" West run Northwesterly, Northerly and Northeasterly 22.79 feet along said curve through a central angle of 90°02'57" to the North line of said Lot 10, thence Westerly 14.51 feet along said North line to the Northwest corner of said Lot 10, thence South 02° 16' 16" East 14.51 feet along the West line of said Lot 10 to the Point of Beginning. ALSO DESCRIBED AS: Lots 1 through 20, inclusive, of Block 55 North, Map of Miami, Dade Co. Fla, according to the plat thereof, as recorded in Plat Book B, Page 41, of the Public Records of Miami -Dade County, Florida; less and except the East 7.5 feet of Lot 20; and further less and except that portion of Lot 10 taken by the State Of Florida Department Of Transportation by Order Of Taking recorded in Official Records Book 5349, Page 129, of the Public Records of Miami -Dade County, Florida, being more particularly described as follows: Begin on the West line of said Lot 10 at a point 14.51 feet South 02° 16' 16" East from the Northwest corner thereof, said point being the beginning of a curve concave Southeasterly having a radius of 14.5 feet, thence from a tangent bearing of North 02° 16' 16" West run Northwesterly, Northerly and Northeasterly 22.79 feet along said curve through a central angle of 90°02'57" to the North line of said Lot 10, thence Westerly 14.51 feet along said North line to the Northwest corner of said Lot 10, thence South 02°16'16" East 14.51 feet along the West line of said Lot 10 to the Point Of Beginning. #73699420_v3 EXHIBIT "B" Developer, Member and Holdings Organizational Chart [see attached] #73699420_v3 Sawyer's Landing GN�aX an �s&� eiioUerte �'ea egior T f }j & p 3 c 3�1IU4 8 'fig _- . t-F 5 3 '4 95y. a @ ,'fssF§g8 Ems. I Ca.n gas a �' Jt3�{ppiEh`' �iR' �A?" �essiesY g £€3s/t+�H�'3'� E^ri {� 3'4'7 s �feria k .``'xa 3'`x s5 c o .�S%. _ a ,ggy'p�s 6335% #73699420_v3 Sawyers Landing Investors LLC #73699420_v3 Biscayne Investments Holdings, LLC #73699420_v3 EXHIBIT "C" Design Documents Sawyer's Landing Block 55 Design Development (Progress Set) Issue Date April 2, 2019 Consisting of the sheets listed on Exhibit C-1 attached hereto #73699420_v3 ,02 Savvyer's Landing - Design Developm ;Edit View ,Window ,-Help" Create [1] A0.100 (1 of Bookmarks BR Sheets and Views 0.-0 A0,100 s ..Q G1,102 [7-0 G1,103 0.0 G1,104 0 A1,101 A1,102 -0 A1,103 , A1,104 -0 A1,105 ..LP A1.106 - 7 A1.107 0 A1,1.08 0 A1,109 EPA1.110 A1.201A -i A1,201B A1,201C 1_.E A1,201D A1,202A A1,202B _P A1.202C A1,202D A1,203A E--0 A1,2036 A1.203C A1,203D A1,204A EP A1.204B A1,204C A1,204D A1,205A EXHIBIT "C-1" ]1] A0,100 1 of 94) Al',2U4U A1,205A - A1,205B - A1,205C - A1.205D A1,206A A1,206B - A1.206C • A1.206D A1,207A -0 A1,207B A1,207C -Cr A1,207D - A1,208A A1,208B _0 A1,208C - A1.208D _EP A1,209A - A1,209B - A1.209C - A1,209D • A1,210A A1,210B • A1,210C • A1,210D _0 A1.301 _.9 A1,302 • A2,301 A2,302 EP LS1,100 LS1,101 12 LS1,102 - LS1,103 190402 Sawyer's Landing - Design Development Crew-,"ndo Helpma [1]A0.100 Book m arks -, '_i LS1,103 JrLS1,104 1 him LS1.105 LS1.106 LS1.107 FLP `A? LS1,108 LS1,109 -0 LS1.110 _P A3,104 -West A3.101 - North ink A3.102 - South A3,103 - East - A4,102 - Section 0 A4,101 - Section ...._0 A5.101 A7,118 A7,101 <,.-.w A7,102 0 A7,103 -0 A7,104 E 0 A7,105 ].-0 A7,106 r'0' A7,107 [7-g A7,108 A7,109 E._.[13 A7,110 0_0 A7,111 17-011 A7,112 910 A7,113 1 A7.114 HIP A7.115 o....0 A7,117 #73699420_v3 EXHIBIT "D" SOUTHEAST OVERTOWN/PARK WEST BOUNDARY MAP #73699420_v3 EXHIBIT "E" Sketch of Overtown #73699420_v3 EXHIBIT "F" Hiring Standards • • • Criminal Eackgrounci Standards• Developer will analyze the criminal record of a potential candidate 'for employment on a case -by -case basis where the candidate's record•contains an indication of the following: (1) adjudication of guilt; (ii) no action; (iii) none gross";•(iv) withhold of'adjudication; and (v) suspended entry of sentence. Developer ' will make an individualized assessment of the information provided;,by the. applicant, taking into . consideration the factors -liked' in $e'etiou•' V:B. • •'•of the V•S:•,Equal Eiiiiirploymenf Opportunity Commission's Enforcement' Guidance: Consideration' of Arrest and Conviction Records in Employment Decisions Under' Title VII of:the Civil rights Act of 1964;,issued Aprit,25, 2012: • ' An- individualized'assessinent generally• Ghail,.:¢onsist•.4:•0(1) • the employer informing the potential candidate ;that they may be excluded from ertaployment•at the Project because of past criminal conduct; (ii) providing the candidate an opportunity to demonstrate that the exclusion does not properly apply to him or her; and (iii) a review and: assessment .of whether the additional..information provided by. the potential candidate, shows that the prior violation or alleged criminal wrongdoing is not job -related and not consistent with•business necessity. • The potential candidate's showing'may include informationthat the candidate was not correctly identified in. the criminal record of that the record is otherwise inaccurate:, Other relevant individualized evidence •:'dott,idered by the Developer in it's review of cecoid of.drintinal wrongdoing includes, but is not Hinted to; �`. The facts or• circumstances surrounding the actual or alleged offense or conduct; ▪ The number of offenses for which the individual was arrested and/or convicted; • • • Older age'at the time of conviction, or release front prison; • . Evidence that the individual performed the same type of work, post conviction, with same or a , different employer, with no known incidents of criminal conduct; • The length and consistency of employment history before and after the offense or ponditct; • Rehabilitation efforts (e.g. education, training); ' • Employment or character references and any other information regarding fitness for a particular position; and • ' Whether the individual is bonded under federal, state or local bonding program. If the'individual does not respond to theDeIeleper's attempt to gather additional information -about their criminal background, the Developer may'make its employment decision withoutxtie information. Dev•eloper considers the following etiininal offenses to be tilustrative of `yob -related" or "inconsistent with business necessity"; • . .. ' • ' • • • • Aggravated Assault, as defined in s. 784.021, Fla. Statutes (2015) • ▪ • ,pggravated Battery;'as defnied in s. 784.03, 784.041 and 784.045; Fia; Statutes (2015) .:Homicide, as definedtin',Chapter..•782, Fla. Statutes (2p15)' ' • :' :Kidnapping or'.FalselmprisoIunelit' as 4efined in Chapter•787, Fla: Statutes (2015) #73699420_v3 ■ Sexual Battery, as defined in Chapter 794, FIa. Statutes (2015) • Robbery, as defined,in s. 812,13, et seq., Fla Statutes (2015) • ■ Abuse, neglect or exploitation of an Elderly Person(s) or Disabled Pers'on(s) as defined in Chapter 827, Fla. Statates.(20i5) • . m . Abuse of Children_, as defined hi s. 827.03(2)(a) and 827.03(2)(b), Ala Statutes, (2015) ■ Affray, Riots, as defined in Chapter 870, Fla. Statutes (2015) ▪ Grand Theft, as defined in s. 812.014,171a.'Statutes (2015), within 2 years of the date of applioation for employment at the Projedt. ■ Felony Petit Theft, as defined in s.' 812.014, Fla. Statutes (2015), within 2 years of the date of application for employment at•the Project, : , • • EXHIBIT "G" CRA Grant Obligations Name Par Amount Annual Debt Service Maturity Year Mama Hattie $ unknown (est) unknown Gibson Park Improvement Grant $14.1 million (See Exhibit G-1) 2030 #73699420_v3 EXHIBIT "G— I" . . . 01[3•SON PARKL.C3AN qt;Fils.YlVfENT. Q10. gal '51;13*J:431,17 Servioe; ?r14450 „. ntOrost: IOU • Witt.44 •ZIO:..•'• • . :201:0 i.•-• '1202P . A• • tgY: ki 1409: • ;:o2•2- . 4, tli). 2,(417,$'85' itcOpt tici• VW, it) 024 • .46'40.010.0 R,4840.40- 1o23 • '40 L2300 • ;. ..53tVq; 44,9•:*.r.:. • • Q••••• RO2u .; ti • :0,79$4000 013i8h ;9.0. mlyworthrooh:004 (AMPIRE.Witifitir.017,01, • .2., Pftfor ti,. ''''' . ' . f. 10Vist 41,0153).1X1. . 41;20,00. Istm.% .. 11,42,0 Fro.Kote•StiereVIYORpNitio. ;901131. tritorea 'refa I Share 4§a.e2tiO 452,233 440;.0.69; 441459 .440,0$9 440;059: ..41:4406V. 141 41'2;991' 003 ;OW. 0.7$:041 c3..NR1 db0V4.• Nit,3613. W2;$32 426.:thif 100,642 TAM Attiab. :Atqict r • 061.410:01*.mt).- ;OP OL 21,3, #73699420_v3 EXHIBIT "H" Office Space #73699420_v3 1\>,QA. p- lf,a to paint-approx 160 If by 20 feet high 5 ; a. Ge SARQIIITECTONICA N00 Ca4 Mm,/MR R RIR TJ03.32I$I7 F305.372.1174 110 mpkc hammisskaangv9pergn swpmrk mumpuOon Want pmimolbms tlmNy b elitle a4 ;adverb Rmtls WpoulPO d n int am WAqu,3am xsavSoml Mx=FmskW[irolwtlsx<I+1wWawroP'oMYW/s9WRr+nim Heralwxl. Mm%1i➢IMnsn+'u1 Wpm +"n S�VF.IZDT��V BLOCK 55 249 NW 6TH ST, MIAMI, FL 33136 1 GROUND LEVEL RETAIL+ SERVICE SCAL„ LI Al-01 #73699420_v3 EXHIBIT "I" CRA Space #73699420_v3 area to paint - approx 160 If by 20 feet high ARQUITECTONICA - c- p 75/006k Armuq Mml.n.39131 T905]R101} FSS.T2fT15 Na aplet hamaoar. hpmEutlbna,aeY>rorlcmd dfr. dmyP3mtle» deaitINWIbo,n pit WO to oa w ahwt as op(al&n pridldmdN43ermNmLilempaul. Mar4esbekdmvrttx Gsaip ere ponerti of Mcof...0 MetnWpal P➢mpI�MS,®nM /q M16 BLOCK 55 249 NW 6TH ST, MIAMI, FL 33136 i GROUND LEVEL RETAIL + SERVICE Al-01 473699420_v3 EXHIBIT "C" Current Organizational Documents of Developer [see attached] #73693291_v3 Electronic Articles of Organization For Florida Limited Liability Company Article I The naive of the Limited Liability Company is: DOWNTOWN RETAIL ASSOCIATES LLC Li 5000208295 FILED 8:00 AM December 15, 2015 Sec. Of State tbrown Article I:[ The street address of the principal office of the Limited Liability Company is: 2901 FLORIDA AVENUE COCONUT GROVE, FL US 33133 The mailing address of the Limited Liability Company is. 2901 FLORIDA AVENUE COCONUT GROVE, FL. US 33133 Article Ill The name and Florida street address of the registered agent MICHAEL SWERDLOW 2901 FLORIDA AVENUE COCONUT GROVE. FL. 33133 I Iaving been named as t eg�sten>.d agent anti ta.accept se.riiio of preset r--liia aboue:stated• liipited Ititbtiiiy,'cbmpatty:at the plat desig1Fateti tt ¢iris certificate, I hereby ecvept.d* appbiiaineit a3: registerod u0ent zfod agree to act i> this cuptciay I tirtlret agree to comply -watt thte provisions of all statutes rek Ming'rp a proper and eontp eke psrtptmnnicx tin-`iduttes, And 7 tun 1antiliar: di'.und.nacepf tYte oblig iiona of rrt;y'Fostirtsis:ttsregisterett agejtt:. • Registered Agent Signnatnre: tv1JCHAEL SWERDIOW #73693291_v3 Article IV The name and address of person(s) authorized to manage LLC: Title: MGR MICHAEL SWERDLOW 2901 FLORIDA AVENUE COCONUT GROVE, FL. 33133 US Article V The effective date for this Limited Liability Company shall be: 12/15/2015 Signature of member or an authorized representative Eleolronic Signature: MICHAEL SWERDLOW — T nm tJte:taietlil ¢rnutltori ed tepi sctxtnttve subihtttiag these Artistes o Chggatitzatson and raTltnt that t1i fnatx~ stilted 11 a elrt t h tt., .1 ani aWat`e that 1 th,a infarmatton sttbirit fl 1 in a docntifdif tta tlti Department. (af$t ectr�t tesfittitfrd.de vent`€ionyasprovi€tL'7 dedfor:ii si.55 I5 tunttexstandthertglirentenr_tQ lfis art tt anttat repo I 1 twuctt attttar�r ]st anti 4) 1si tn':ttie oalet?dnr ye ''Sollowttlg'Jbnn tttoti arthe LLC ansi ev„dt 1yens l t± fter't ttla inatn.i natrVa. striate, • L15000208295 FILED 8:00.AM DecemJ :r 1:5, 2015 Sec, tJ ;-State tbrowri- #73693291_v3 SECOND AMENDED AND RESTATED OPERATING AGREEMENT OF DOWNTOWN RETAIL ASSOCIATES LLC DATED AS OF FEBRUARY 26 , 2020 THE MEMBERSHIP INTERESTS REPRESENTED BY THIS AMENDED & RESTATED OPERATING AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933 OR UNDER ANY OTHER APPLICABLE SECURITIES LAWS. SUCH MEMBERSHIP INTERESTS MAY NOT BE SOLD, ASSIGNED, PLEDGED OR OTHERWISE DISPOSED OF AT ANY TIME WITHOUT EFFECTIVE REGISTRATION UNDER SUCH ACT AND LAWS OR EXEMPTION THEREFROM AND COMPLIANCE WITH THE OTHER RESTRICTIONS ON TRANSFERABILITY SET FORTH HEREIN. AOSLLP-00077196.3 #73693291_v3 SECOND AMENDED AND RESTATED OPERATING AGREEMENT Or DOWNTOWN RETAIL ASSOCIATES LLC This SECOND AMENDED AND RESTATED OPERATING AGREEMENT of Downtown Retail Associates LLC (the "Company"), dated as of the 26th day of February 2020 (this "Agreement"), is entered into by the Company, the undersigned members as of the date hereof (each, a "Member" and, collectively, the "Members") and each other Person who after the date hereof becomes a Member of the Company and becomes a party to this Agreement by executing a joinder agreement. Capitalized terms shall have the meanings set forth in Schedule B hereto. WITNESSETH: WHEREAS, the Company was formed as a limited liability company pursuant to the Florida Revised Limited Liability Company Act (as amended from time to time, the "Act") by the filing of Articles of Organization of the Company (as amended from time to time, the "Articles") with the Florida Secretary of State on. December 15; 2015 by Michael Swerdlow acting as an authorized representative; WHEREAS, the Company's then sole members adopted the original Operating Agreement of the Company as of September 1, 2018 which was amended and restated by the Members on or about July 2019 pursuant to that certain Amended. and Restated Operating Agreement of the Company (collectively, the "Original Agreement"); WHEREAS, the Members have concluded that the business of the Company may be conducted most effectively in the form of a limited liability company in accordance with the terms and conditions hereinafter set forth and this Agreement shall replace in its entirety the Original Agreement. NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties hereto hereby agree as follows: 1. Name. The name of the Company is Downtown Retail Associates LLC. 2, Purpose. The purpose of the Company is to engage in any lawful actor activity for which limited. liability companies may be formed under the Act and to engage in any and all activities necessary or incidental thereto. 3. Principal Office; Registered Agent. a. Principal Office. The location of the principal office of the Company shall be 2901 Florida Avenue, Coconut Grove, pL 33133, or such other location as the Board may from time to time designate. ADSLLP-00077196.3 2 #73693291_v3 b. Registered Agent. The registered agent of the Company* for service of process in the State of Florida and the registered office of the Company in the State of Florida shall be that person and location reflected in the Articles. The registered agent of the Company for service of process in the State of Florida and/or the registered office of the Company in the State of Florida may be changed by the Board at any time and for any or no reason without notice or consent of the registered agent appointed at such time. In the event the registered agent ceases to act as such for any reason or the registered office shall change, the Board shall promptly designate a replacement registered agent or file a notice of change of address, as the case may be, in the manner provided by Applicable Law. 4. Formation. Michael Swerdlow, acting as an authorized representative of the Company, formed the Company as a Florida limited liability company by filing the Articles with the Florida Secretary of State. The Members acknowledge, and ratify the filing of the Articles (including, but not limited to, the designation of, Michael Swerdlow as an authorized representative for purposes of filing the Articles). Except for the Original Agreement, there have been no other operating agreements of the Company prior to this Agreement and this Agreement replaces the Original Agreement. 5. Members. a. Members. The name, address, value of the capital contribution and Percentage Interest of each Member as of the date hereof shall be set forth on Schedule A attached hereto. Upon execution of this Agreement, each Member is confirmed as a member of the Company. b. Additional Members. One or more additional members may be admitted to the Company with the prior written consent of the Board. Each additional member shall execute and deliver a supplement or counterpart to this Agreement, as necessary, and any additional documents that may reasonably be required by the Board. c. Membership Interests; Certificates. The Company will not issue any certificates to evidence ownership of the Membership Interests. d. Transfer of Membership Interests. A Member may not Transfer, in whole or in part, its Membership Interest without the prior written consent of the Board; provided, however, that any Transfer by a Member (a) that occurs by inheritance, devise, bequest, court order or operation of law upon the death or Disability of such Member, or (b) for family estate planning purposes to a trust of which such Member is grantor or settlor, or to a partnership or other entity of which such Member is the sole owner, shall not be deemed. a Transfer hereunder and shall not require the approval of the Board. ADSLLP-00077196.3 3 1/73693291_v3 6. Management a. Authority Powers :and. Duties' of :the; .Board. The business and affairs of the Company shall be managed by a Board of Managers (the "Board") elected by the Members in accordance with this Agreement. Except for situations in which the approval of the Members (or any one or more of them) is expressly required by this Agreement or by non-waivable provisions of Applicable Law, the Board shall have full and complete authority, power and discretion to manage and control the business, affairs and properties of the Company, to make all decisions regarding those matters and to perform any and all other acts or activities customary or incident to the management of the Company's business. Each Manager shall be an agent of the Company and shall have the right, power and authority to transact any business in the name of the Company to the degree authorized by the Board and to act for on behalf of or bind the Company to the degree authorized by the Board. Nothing contained in this Agreement shall require any Person to inquire into the authority of a Manager to execute and deliver any document on behalf of the Company or bind the Company pursuant to such document. In performing its duties, the Board shall be entitled to rely on information, opinions, reports or statements, including financial statements and other financial data, in each ease, prepared and presented by one or more agents or employees of the Company whom the Board reasonably believes to be reliable and competent in the matters presented or counsel, public accountants or other persons as to matters which the Board reasonably believes to be within such person's professional or expert competence: The Board shall not be liable for actions taken as a manager of the Company, or for failure to take actions, if the Board performed its duties in compliance with this Section 6(a). b. Number and Term of Office of the Board. The Board shall initially consist of one (1) member (a "Manager"), whom shall be appointed by Swerdlow. The initial Manager shall be Swerdlow. A Member may, from time to time remove (with or without cause) the Manager appointed by such Member and name a successor Manager to serve. A Manager shall hold office until a qualified successor has been duly elected and qualified as provided herein, or until the Manager's earlier death, resignation or removal. In the event that a Manager becomes Disabled, any Member that did not appoint such Manager may notify the appointing Member (or its representative) in accordance with Section 19(d) of this Agreement that such Disabled Manager shall be replaced within fifteen (I5) calendar days of such notification. If such appointing Member (or its representative) fails to replace such Manager within the I5-day period, the Disabled Manager shall be removed and a Manager shall be appointed by the Members holding a majority of the Membership Interests. ADSLLP-00077196.3 4 #73693291_v3 c. Meetings of the Board; Action by the Board. If the Board is ever increased to more than one Manager, the Board shall meet as often as is necessary or desirable, to carry out its functions on such dates and times as the Board may determine from time to time. Any action required or permitted to be taken at any meeting of the Board may be taken without a meeting, without prior notice and without a vote if a consent or consents in writing, setting forth the action so taken, shall be signed by all Managers on the Board. Each Manager shall have one vote and, except as otherwise provided herein or provided by Applicable Law, all questions shall be determined by a unanimous vote of the Managers. If the Board is ever increased to more than one Manager, any one or all of the Managers may participate in a meeting of the Board by means of a conference telephone or similar coirununication device that allows all persons. participating in the meeting simultaneously to hear each other during the meeting and such participation in the meeting shall be equivalent of being present in person at such meeting. The Company shall maintain permanent written records of all actions taken by the Board. d. Election of Officers; Delegation of Authority. The Board may, from time to time, designate one or more officers with such titles as may be designated by the Board to act in the naive of the Company with such authority as may be delegated to. such officers by the Board (each such designated person, an "Officer"). Any such Officer shall act pursuant to such delegated authority until such Officer is removed by the Board. Any action taken by an Officer designated by the Board pursuant to authority delegated to such Officer by the Board shall constitute the act of and serve to bind the Company. Persons dealing with the Company are entitled to rely conclusively onthe power and authority of any officer set forth in this Agreement and any instrument designating, such officer and the authority delegatedto him or her. 7. Liability of Officers and Managers; Indemnification. a. Liability of Board and Officers. To the fullest extent permitted under the Act, the Officers and any Manager shall not be liable for any debts, obligations or liabilities of the Company or each other, whether arising in tort, contract or otherwise, solely by reason of being a manager. b. indemnification. To the fullest extent permitted under the Act, the Officers and any Manager (irrespective of the capacity in which they act) shall be entitled to indemnification and advancement of expenses from the Company for and against any loss, damage, claim or expense (including, without limitation, attorneys' fees) 'whatsoever incurred by an Officer or Manager relating to or arising out of any act or omission or alleged acts or omissions (whether or not constituting negligence or gross negligence) performed or omitted by the Members on behalf of the Company; provided, however, that any indemnity under this Section 7(b1 shall be ADSLLP-00077196.3 5 #73693291_v3 .provided, out of and to the extent of Company assets only, and none of the Managers, the Members or any other person shall have any personal liability on account thereof. 8. Term. The term of the Company shall be perpetual unless the Company is dissolved and terminated in accordance with Section 1.6. 9. Capital Contributions. The name, address, value of the initial capital contribution and percentage of membership interest of each Member in the Company (the "Membership Interests") shall be set forth on. Schedule A attached hereto. No Member shall be required to snake any additional Capital Contributions in excess of the amounts set forth on Schedule A, To the extent approved by the Board, from time to time, additional Capital 'Contributions ("Additional Capital Contributions") may be called from the Members on a pro rata basis among the Members based on each Member's Percentage Interest, if the Board determines that such Additional Capital Contributions are necessary for the conduct of the Company's business: In connection with each Additional Capital Contribution, the Membership Interests of the Members shall be adjusted so as to reflect such Additional Capital Contributions based on the Capital Accounts of the Members, inunediately after such Additional Capital Contribution is made. 10. Capital Accounts. A separate capital account ("Capital Account") with respect to each Member shall be maintained and adjusted in accordance with the applicable requirements of Section 704(b) of the Code and the applicable provisions of the income tax regulations promulgated under the Code, as amended, including the corresponding provisions of any successor regulations (the "Treasury Regulations"). 11. Allocation of Profits and Losses. (a) The Company's profits and losses (and, to the extent necessary, individual items of income, gain, Loss or deduction) shall be allocated in accordance with each Member's Percentage Interest. (b) Losses allocated to a Member pursuant to Subsection (a) shall not exceed the maximum amount of losses that can be allocated without causing a Member to have. an adjusted Capital Account deficit under the Treasury Regulations at the end of any fiscal year, In the event that any Member would have an adjusted Capital Account deficit under the Treasury Regulations as a consequence of an allocation of losses pursuant to Subsection (a), the amount of losses that would be allocated to such Member but for the application of this Subsection (b) shall be allocated to the other Members to the extent that such allocations would not cause such other Members to have an adjusted Capital Account deficit and allocated among such other Members in proportion to their Percentage Interests. Any allocation of items of income, gain, loss, deduction or credit pursuant to this Subsection (b) shall be taken into account in computing subsequent allocations ADSLLP-00077196.3 6 #73693291_v3 (c) pursuant to Subsection (a), and prior to any allocation of items in such Subsection so that the net amount of any items allocated to each Member pursuant to Subsection (a) and this Subsection (b) shall, to the maximum extent practicable, be equal to the net amount that would have been allocated to each Member pursuant to the provisions of Subsection (a) and this Subsection (b) if such allocation under this Subsection (b) had not oeeurred. Notwithstanding the foregoing, the Company's profits, gains and losses shall be allocated so as to satisfy the qualified income offset requirement of Treasury Regulations Section 1.704-1(b)(2)(ii)(d). 12. Return of Capital' Withdrawal. Notwithstanding anything to the contrary under the Act, no Member shall have the right to resign or withdraw from the Company or to receive interests or other earnings on its Capital Contributions or to receive any distributions from the Company, except as expressly provided in this Agreement, and each Member agrees and covenants not to (a) resign or withdraw or attempt to resign or withdraw from the Company, (b) exercise any power under the Act to dissolve the Company, (c) Transfer all or any portion of such Member's Membership Interest, except as expressly allowed herein, (d) petition for judicial dissolution of the Company or (e) demand a return of such. Member's Capital Contributions or Net Income of the Company (or a bond or other security for the return of such Capital Contributions or Net Income of the Company). 13. Tax Elections; Tax Audits. a. Any elections- or other decisions relating to' any tax matter shall be made as approved by the Board in any manner that reasonably reflects the purposes and intention of this Agreement. Each Member shall cooperate with the Company and provide to the Company upon request such information, certifications or forms which the Board may reasonably request with respect to any tax -related elections and the Company's .compliance with applicable tax laws, including any requirements necessary to avoid withholding taxes with respect to any payments to be received or made by the Company. b. For each taxable year in which the Company is subject to the partnership audit regime under subchapter C to chapter 63 of the Code, as added by the Bipartisan Budget Act of 2015, and the Treasury Regulations and other guidance promulgated thereunder (the "BBA Procedures"), the Board shall cause the Company to designate. a Member (or other Person as permitted under applicable law) to act as the Company's "partnership representative" for any tax period subject to the provisions of Section 6223 of the Code and the "tax matters partner" as provided in Section 6231 of the Code as well as for purposes of any state, local, or non-U.S. tax law (collectively, the "Tax Matters Partner"), The initial Tax Matters Partner shall be Swerdlow. ADSLLP-00077196.3 7 #73693291_v3 c, The Tax Matters Partner is authorized and required to represent the Company (at the Company's expense) in connection with all examinations of the Company's affairs by taxing authorities, including resulting .administrative and judicial proceedings; and to expend Company funds for professional services and costs associated therewith, with respect to the taxable year(s) such Person was designated to serve in such capacity, until such. Person resigns or is replaced by the Board in accordance with applicable IRS procedures. For the avoidance of doubt, the Board shall have the authority to require the Tax Matters Partner to take all necessary steps to resign and designate a successor named by the Board. In no event will the Tax Matters Partner have the authority to choose a successor other than a Person chosen by the Board. Each Member agrees that such Member will not independently act with respect to tax audits or tax litigation of the Company, unless previously authorized to do so in writing by the Tax Matters Partner, which authorization may be. withheld by the. Tax Matters Partner in its sole and absolute discretion. d. To the extent permitted by Applicable Law and regulations, the Company will annually elect out of the BBA Procedures for each taxable year. For any year in which .Applicable Law and regulations do not permit the Company to .elect out of the BI3A Procedures, then within forty-five (45) days of any notice of final partnership adjustment, the Company will elect the alternative procedure under Code Section 6226 and furnish to the Internal Revenue Service and. each Member during the year or years to•which the notice of final partnership adjustment relates a statement of the Member's share of any adjustment set forth in the notice of final partnership adjustment. e. Each Member agrees that such Member shall not treat any Company item inconsistently on such Member's federal, state, foreign or other income tax return with the treatment of the item on the Company's return. Any deficiency for taxes imposed on any Member (including penalties, additions to tax or interest imposed with respect to such taxes and taxes imposed. pursuant to Code Section 6226, as amended by the BBA) will be paid by such. Member and if required to be paid (and actually paid) by the Company, will be recoverable from such Member upon demand by the Company. f. The Company shall be treated as a partnership for federal and state income tax purposes. No Member shall cause the Company to elect to be treated as a corporation for federal or state income tax purposes, unless such election is approved in writing by all of the Members. g. At the expense of the Company, the Board (or any Officer that it may designate) shall endeavor to cause the preparation and timely filing (including extensions) of all tax returns required to be filed by the Company pursuant to the Code as well as all other required tax returns in each jurisdiction in which the Company owns ADSLLP-00077196.38 #73693291_v3 property or does business. As soon as reasonably possible after the end of each fiscal year, the Board or designated Officer will cause to be delivered to each Person who was a Member at any time during such fiscal year, IRS Schedule K-1 to Form 1065 and such other information with respect to the Company as may be necessary for the preparation of such Person's federal, state and local income tax returns for such fiscal year. 14, Distributions. a. Distributions shall be made to the Members atthe tunes and in the amounts determined by the Board. Such distributions shall be allocated among the Members in the following order: i. First, pro rata to the Members in accordance with the outstanding amount of any advances of development costs made by the Members on behalf of the Company, together with any interest thereon at the rates approved by the Board, until each Mernber has received an amount equal to such advances and any interest thereon that may be so approved; ii. Second, pro rata to the Members in accordance with the outstanding amount of their unreturned capital contributions, until each Member has received an amount equal to any unreturned capital contributions; and Third, pro rata to the Members based on their Percentage Interests. b. Distributions in the course of liquidation of the Company shall be made proportionately to Members according to their positive Capital Account balances, after adjustments forali items of income, gain and loss realized on liquidation or as otherwise required under the Treasury Regulations. c. Tax Distributions, The Board may cause the Company to distribute via wire transfer to each Member annually an amount of cash (a "Tax Distribution") which .in the good faith judgment of the Board equals (i) the Board's estimate of the amount of net taxable income (adjusted to take account of any net taxable losses of the Company allocable to the Members in prior periods specifically taking into account any allocation of taxable income, gain, deduction or loss pursuant to Section 704(c) of the Code, but not taking into account any deductions accruing to any. Member as a result of the recovery of a special basis adjustment pursuant to either Section 734 or 743 of the Code) of the Company allocable to the Members in respect of the Fiscal Year, multiplied by (ii) the combined maximum United States federal, state, and local corporate or individual tax rate, taking into account the Medicare tax on investment income, whichever is .higher, to be applied with respect to such taxable income (calculated by using the highest maximum combined marginal United States federal, state and local blended tax rates in ADSLLP-00077196.3 9 #73693291_v3 respect to income earned by the Company and its subsidiaries and taking into account the character of such taxable income and the deductibility of state income tax for federal income tax purposes) for such Fiscal Year (making an appropriate adjustment for any Tate changes that take place during such period). All such distributions shall have :priority over any other distributions. .Amounts distributed pursuant to this Section 14(c) shall be treated as distributions of Distributable Cash for all purposes of this Agreement and shall be offset against and reduce subsequent distributions of Distributable Cash made pursuant to Section 14(a), d. Restricted Payments. Notwithstanding any provisions to the contrary in this Agreement, the Company shall not make a distribution if such distribution would violate the Act or the terms of any agreements of the Company and any such distributions made shall, when such violation is made apparent to the Members, be immediately returned to the Company. • 15. Withholding Taxes. a. :Authority to Withhold; Treatment of Withheld Tax. Notwithstanding any other provision of this Agreement, each Member hereby authorizes the Company to withhold and to pay over, or otherwise pay, any withholding or other taxes payable by the Company or any of its affiliates (pursuant to the. Code or any provision of United States federal, state or local or non -United States tax law) with respect to such Member or as a result of such Member's participation in the Company. If and to the extent that the Company shall be required to withhold or pay any such withholding or other taxes, such Member shall be deemed for all purposes of this Agreement to have received a distribution from the Company as of the time such withholding or other tax is required to be paid, which distribution shall be deemed to be a distribution of Distributable Cash pursuant to Section 15(a) with respect to such Member's Membership Interests to the extent that such Member (or any successor to such Member's Membership Interests) would have received a distribution but for such withholding. To the extent that the aggregate of such distributions to a Member for any period exceeds the distributions that such Member would have received for such period .but for such withholding, the Board shall notify such Member as to the amount of such excess and such Member shall make a prompt payment to the Company of such amount by wire transfer. Any withholdinga by the Company referred to in this Section 16(a) shall be made at the maximum applicable statutory rate under the applicable tax law unless the Board shall have received an opinion of counsel or other evidence, satisfactory to the Board, to the effect that a lower rate is applicable, or that no withholding is applicable. b. Withholding from Distributions of Property. If the Company makes a distribution in kind and such distribution is subject to withholding or other taxes payable by the ADSLLP-00077196.3 10 #73693291_v3 Company on behalf of any Member, such Member shall make a prompt payment to the Company of the amount required to be withheld. 16. Dissolution; Liquidation. a. The Company shall dissolve, and its affairs shall be wound up upon the first to occur of the following: (i) the written consent of the Board or (ii) any other event or circumstance giving rise to the dissolution of the Company under the Act, unless the Company's existence is continued pursuant to the Act. b. Upon dissolution of the Company, the Company shall immediately commence to wind up its affairs and the Board shall promptly liquidate the business of the Company. During the period of the winding up of the affairs of the .Company, the rights and obligations of the Board under this Agreement shall continue. c. In the event of dissolution, the Company shall conduct only such activities as are necessary towind up its affairs (including, without limitation, the sale of the assets of the Company in an orderly manner), and the assets of the Company shall be applied as follows: (i) first, to creditors, to the extent otherwise permitted by Applicable Law, in satisfaction of liabilities of the Company (whether by payment or the making of reasonable provision for payment thereof); and (ii) thereafter, to the Members in accordance with Section 14. d. Upon the completion of the winding up of the Company, the Board shall file Articles of Dissolution in accordance with the Act. 17. Covenants. . a. Confidentiality. Each Other Member acknowledges that during the term of this Agreement, he will have access to and become acquainted with trade secrets, proprietary information and confidential information belonging to the Company, that are not generally known to the public, including, but not limited to, information concerning business plans, financial statements and other information that may be provided pursuant to this Agreement, operating practices and methods, expansion plans, strategic plans, marketing plans, contracts, customer lists or other business documents which the Company, treats as confidential, in any format whatsoever (including oral, written, electronic or any other form or medium) (collectively, "Confidential Information"). In addition, each Other Member acknowledges that: (i) the Company has invested, and continues to invest, substantial time, expense and specialized knowledge in developing its Confidential Information; (ii) the Confidential Information ADSLLP-00077I96.3 11 #73693291_v3 provides the Company with a competitive advantage over others in the marketplace; and (iii) the Company would be irreparably harmed if the Confidential Information were disclosed to competitors or made available to the public. each Other Member shall not, directly or indirectly, disclose or use (other than solely for the purposes of monitoring and analyzing his investment in the Company or performing his duties as a consultant or other service provider of the Company) at any time,, including, without limitation, use for personal, commercial or proprietary advantage or profit, either during his association with the Company or thereafter, any Confidential Information of which he is or becomes aware. Each Other Member shall take all appropriate steps to safeguard such information and to protect it against disclosure, misuse,. espionage, loss and theft. Nothing contained in Section 17(a)(i) shall prevent an Other Member from disclosing Confidential Information: (i) upon the order of any court or administrative agency; (ii) to the extent necessary in connection with the exercise of any remedy hereunder; (iii) to any Members; or (iv) to such Other Member's representatives who, in the reasonable judgment of such Other Member, need to know. such Confidential Information and agree to be bound by the provisions of this Section 17(a) as if bound by the provision directly; provided, that in the case of clause (i), such Other Member shall notify the Company and other Members of the proposed disclosure as far in advance of such disclosure as practicable (but in no event make any such disclosure before notifying the Company and other Members) and use reasonable efforts to ensure that any Confidential Information so disclosed is accorded confidential treatment satisfactory to the Company; when and if available. The restrictions of Section 17(a)(i) shall not apply to Confidential Information that: (i) is or becomes generally available to the public other than as a result of a disclosure by such Other Member in violation of this Agreement; (ii) is or has been independently developed or conceived by such Other Member without use of Confidential Information; or (iii) becomes available to such Other Member -on a non -confidential basis from a source other than the Company, an Affiliate, any other Member or any of their respective representatives; provided, that such source is not known by such Other Member to be bound by a confidentiality agreement with the Company or any of its Affiliates. iv. To the extent an Other Member has entered into any prior agreements with the Company or subsequently enters into any other agreement or obligation with the Company, concerning the subject matter of this ADSLLP-00077196.3 12 #73693291_v3 Section 17(a), the provision(s) providing the greatest protection to the Company shall. apply. b. Other Business. Activities. The Members expressly acknowledge and agree that: (i) each of the Members and their respective Affiliates are permitted to liave, and may presently or in the future have, investments or other business relationships, ventures, agreements or arrangements with entities engaged in the business of the Company, other than through the Company (an "Other Business"); (ii) each of the Members and their respective Affiliates have or may develop a strategic relationship with businesses that are or may be competitive with the Company; (iii) none of the Members nor their respective Affiliates will be prohibited by virtue of their investment in the Company from pursuing and engaging in any such activities; and (iv) none of the Members nor their respective Affiliates will be obligated to inform the Company or any Member of any such opportunity, relationship or investment (an "Other Opportunity") or to present 'an Other Opportunity, and the Company hereby renounces any interest in an Other Opportunity and any expectancy that an Other Opportunity will be offered to it. The parties hereto also expressly authorize and consent to the involvement of the Members and/or their respective Affiliates in any Other Business and waive, to the fullest extent permitted by Applicable Law, any rights to assert any claim that such involvement breaches any fiduciary or other duty or obligation owed to the Company or any Member or to assert that such involvement constitutes a conflict of interest by such Persons with respect to the Company or any Member. 18. Representation and Wa>santies of the Members. By execution and delivery of this Agreement or a joinder agreement, as applicable, each of the Members represents and warrants to the Company and acknowledges that: a. The Membership Interests have not been registered under the Securities Act or the securities laws of .any other jurisdiction, are issued in reliance upon federal and state exemptions for transactions not involving a public offering and cannot be disposed of unless (i) they are subsequently registered or exempted from registration under the Securities Act and (ii) the provisions of this Agreement have been complied with. b. Such Member is an "accredited investor" within. the meaning of Rule 501 promulgated under the Securities Act, as amended by Section 413(a) of the Dodd - Frank Wall Street Reform and Consumer Protection Act; c. Such Member agrees that it will not take any action that could have an adverse effect on the availability of the exemption from registration provided by Rule 501 promulgated under the Securities Act with respect to the offer and sale of the Units; ADSr r,P-00077196.3 13 #73693291_v3 d. Such Member's Membership Interests are being acquired for its own account solely for investment and not with a view to resale or distribution thereof; e. Such Member has conducted its own independent review and analysis of the business, operations, assets, liabilities, results of operations, financial condition and prospects of the Company and such Member acknowledges that it has been provided adequate access to the appropriate records of the Company for such purpose; f. The determination of such Member to acquire Membership Interests has been made by such Member independent of any other Member and independent of any statements or opinions as to the advisability of such purchase or as to the business, operations, assets, liabilities, results of operations, financial condition and prospects of the Company that may have been made or given by any other Member or by any agent or employee of any other Member; and g- This .Agreement is valid, binding and enforceable against such Member in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium, and other similar laws of general applicability relating to or affecting creditors' rights or general equity principles (regardless of whether considered at law or in equity). 19. Miscellaneous. a. Entire Agreement. This Agreement and each of the exhibits attached hereto and the agreements referred to herein or therein set forth all (and are intended by all parties hereto to be an integration of all) of the promises, agreements, conditions, understandings, warranties, and representations among the parties hereto with respect to the Company and supersedes and replaces any and all prior agreements, understandings, statements, representations and warranties,. written or oral, express or implied and/or whenever and howsoever made; and there are no promises, agreements, conditions, understandings, warranties, or representations, oral or written, express or implied, among them other than as set. forth herein. b. Captions. The captions usedherein are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement. c. Counterparts; Electronic Delivery, For the convenience of the parties, any number of counterparts of this Agreement may be executed by the parties hereto and each such executed counteipart shall be deemed to be an original instrument. This Agreement may be executed and delivered by facsimile or .pdf signatures, each of which shall be deemed an original for all purposes hereunder ADSLLP-00077I963 I4 #73693291_v3 d. Notices. Any notice or communication required or permitted to be given by any provision of this Agreement, including, without limitation, any consents, shall be in writing and shall be deemed to have been given and received by the Person to whom directed (a) when delivered personally to such Person or to an officer or partner of the Member to which directed, (b) immediately after transmitted by facsimile, evidence of transmission attached, or email to the facsimile number or .email of such Person who has notified the Company and all of the Members of its facsimile number and email, or (c) when received if delivered by overnight courier service or certified or registered mail, in any case addressed to the Person as set forth below. Any notices to a Member shall be copied to the Company and its counsel (neither of which shall constitute notice to such Member) at the address set forth below. i. If to the Company: Downtown Retail Associates LLC 2901 Florida Avenue Coconut Grove, FL 33133 If to any Member: such notice shall be mailed to the addresses or facsimile numbers or emails set forth opposite each .of their names on Schedule A respectively, attached hereto, or to such other address or facsimile number or email as any such party hereto may, from time to time, designate in writing to all other parties hereto. iii. If to counsel to the Company: Alvarez & Diaz-Silveira LLP 355 Alhambra Circle Suite 1450 Miami,. Florida 33134 Attention: Lauren Hunt Email: Ihunt@adsllp.com e. Continuation of the Company. Notwithstanding anything to the contrary contained herein, the death, retirement, resignation, expulsion, bankruptcy, dissolution or removal of a Member shall not cause the dissolution of the Company, and the Members are expressly authorized to continue the business of the Company in such event in accordance with the requirements of the Act. f. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Company, the Members and their respective successors, assigns and ADSLLP-00077196.3 15 #73693291_v3 g• any transferee in accordance with this Agreement. Any or all of the rights of a Member under this Agreement may be assigned or otherwise conveyed by any Member only in connection with a Transfer of Membership Interest which is in compliance with this Agreement'. Amendments. Amendments to this Agreement may be made only with the consent of the Members holding at least seventy percent (70%) of the Membership Interests provided, however, that any amendment of this Agreement that treats any Member differently from other Members in any materially adverse respect (other than based on the pro rata Percentage interests of the Members) shall not be effective without the written consent of such materially adversely treated Member. Notwithstanding the foregoing, amendments to Schedule A following any new issuance, redemption, repurchase, reduction or Transfer of Membership Interests in accordance with this Agreement may be made by the Board without the consent of or execution by the Members. h. Governing Law WAIVER OF JURY TRIAL. This Agreement shall be governed by the laws of the State of Florida. EACH PARTY HEREBY WAIVES ITS RIGHT TO TRIAL BY JURY IN CONNECTION WITH ANY DISPUTES WITH RESPECT TO THIS AGREEMENT AND FOR ANY ACTIONS, SUITS OR PROCEEDINGS ARISING OUT OF OR RELATING THERETO. Severability. In the event that any provision of this Agreement shall be declared to be invalid, illegal or unenforceable, such provision shall survive to the extent it is not so declared, and the validity, legality and enforceability of the other provisions hereof shall not in any way be affected or impaired thereby, unless such action would substantially impair the benefits to any party of the remaining provisions of this Agreement. j. Further Action. Each Member agrees to perform all further acts and execute, acknowledge, and deliver any documents which may be reasonably necessary, appropriate or desirable to carry out the provisions of this Agreement. k. Nature of Interests. A Member's Membership Interest shall, for all purposes, be personal property. No Member has .any interest in specific Company property. 1. Construction. Whenever required by the context hereof, the singular shall include the plural, and vice versa and the masculine gender shall include the feminine and neuter genders, and vice versa. Except where otherwise expressly provided, all references to Articles, Sections or. Schedules, refer to the Articles, Sections, or Schedules of this' Agreement. The words "hereof'; "herein", "hereto" and "hereunder", and words of similar import, shall refer to this Agreement as a whole and not to any provision of this Agreement. The use of the words "or," "either," "any," "such as," or "for example" herein shall not be exclusive. References in ADSLLP-000771963 16 #73693291_v3 this Agreement to any Person include the successors and permitted assigns of such Person. This "Agreement" or any other agreement or document shall be construed as a reference to this Agreement or, as the case may be, such other agreement or document as the same may have been, or may from time to time be, amended, varied, novated or supplemented pursuant to its terms. References to any agreement, contract or schedule, unless otherwise stated, are to such agreement, contract or schedule as amended, modified or supplemented from tune to time in accordance with the terms hereof and thereof. [SIGNATURE PAGE FOLLOWS] ADSLLP-00077196:3 [7 I/73693291_v3 IN WITNESS WHEREOF, the undersigned have executed this Second Amended an Restated Operating Agreement to be effective as of the date first above written, ADSLLP-000771963 Michael Swerdlow Alben Duffle .mil Stephen Garchik Ezra Katz, as Trustee 6rjl'1zra Katz 2006 Revocable Trust [Signature Page to Operating Agreement] i #73693291_v3 SCHEDULE A NAME, ADDRESS, EMAIL ADDRESS, CAPITAL CONTRIBUTION AND PERCENTAGE OF MEMBERSHIP INTEREST OF THE MEMBERS Name of Member Address of Member Value of Capital Contribution Membership Interest Michael Swerdlow • 2901 Florida Avenue Coconut Grove, FL 33133 Email: m.swerdlow@swerdlow.com $1,500,100 51.5% Alben Duffle 2901 Florida Avenue Coconut Grove, FL 33133 Email: albenduffie(a3yahoo;com $ 100 23.7% The Ezra Katz 2006 Revocable Trust 2665South BayshoreDrive, PH-2A Coconut Grove, Florida 33133 aztecgroup.com EKatz@aztecgroup.com $1,000,000 5% Stephen Garchik 11890 Sunrise Valley Dr Suite 554 Reston, VA 20191 Email: sgarchik@sjmpartners.com $1,500,000 19.8% Total. $4,000,200 100% ADSLLR00077196.3 #73693291_v3 SCHEDULE B Definition of Terms Term Section Act Recitals Additional Capital Contributions 9 Articles Recitals. Agreement Introductory :Paragraph BBA Procedures 13(b) Capital Account 10 Company Introductory Paragraph Confidential Information 17(a) Other Business 17(b) Other Opportunity 17(b) Manager 6(b) Member Introductory Paragraph Membership Interests 9 Officer 6(b) Tax Distribution 14(c) Tax Matters Partner 13(b) Treasury Regulations 10 "Affiliate" means, with respect to any Person, any other Person who, directly or indirectly (including through one or more intermediaries), controls, is controlled by, or is under common control with, such Person. For purposes of this definition, "control," when used with respect to any specified Person, shall mean the power, direct or indirect, to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities or partnership or other ownership interests, by contract or otherwise; and the terns "controlling" and "controlled" shall have correlative. meanings. "Applicable Law" shall mean, with respect to any Person, all provisions of laws, statutes, ordinances, rules, regulations, permits or certificates of any Governmental Authority applicable to such Person or any of its assets or property, and all judgments, injunctions, orders and decrees of any Governmental Authorities in proceedings or actions in which such Person is a party or by which any of its assets or properties are bound. "Capital Contribution" shall mean an amount contributed to the capital of the Company by a Member, including, without limitation, any Additional Capital Contributions of such Member. "Code" shall mean the United States Internal Revenue Code of 1986, as amended from time to time, including the corresponding provisions of any successor law. "Disabled," "Disability and words of similar import shall mean that a Person or the ultimate individual controlling beneficialowner of such Person, by reason of any incapacity, mental or physical disability or illness, is unable to perform his or her duties as contemplated hereunder for ADSLLP-00077196.3 #73693291_v3 greater than forty-five (45) days in any one (1) calendar year or for greater than thirty (30) consecutive days. "Distributable Cash" shall mean the excess of the sum of cash receipts of all kinds of the Company over the sum of the any reserves and cash disbursements for the expenses of the Company (or amounts reserved against liabilities (contingent or otherwise) of the Company, to pay expenses of the Company or to .make Tax Distributions), all as determined by the Manager in its sole discretion. "Duffle" shall mean Alben Duffie who is a Member on the date hereof. "Governmental Authority" shall mean any instrumentality, subdivision, court, administrative agency, commission, official or other authority of the United States or any other country or any state, province, prefect, municipality, locality or other government or political subdivision thereof, or any quasi -governmental or private body exercising any regulatory, taxing, importing or other governmental or quasi -governmental authority. "Net Income" and "Net Loss" shall mean, for each Fiscal Year, an amount equal to the Company's taxable income or loss for such Fiscal Year, determined in accordance with Section 703(a) of the Code (but including in taxable income or loss, for this purpose, all items of income, gain, loss or deduction required to be stated separately pursuant to Section 703(a)(1) of the Code), with the following adjustments: (a) any income of the Company exempt from federal income tax and not otherwise taken into account in computing Net Income or Net Loss pursuant to this definition shall be added to such taxable income or loss; (b) any expenditures of the Company described in § 705(a)(2)(B) of the Code (or treated as expenditures described in § 705(a)(2)(B) of the Code pursuant to Treasury Regulations § 1.704-1(b)(2)(iv)(i)) and not otherwise taken into account in computing Net Income or Net Loss pursuant to this definition shall be subtracted from such taxable income or loss; and (d) gain or loss resulting from any disposition of any asset of the Company with respect to which gain or loss is recognized for federal income tax purposes shall be computed by reference to the book value of the asset disposed of under Treasury Regulations § 1.704-1(b)(2)(iv), notwithstanding that the adjusted tax basis of such asset differs from such book value. "Other, Member" shall mean each Person who is a Member as of the date hereof or becomes a Member- through the execution and delivery of a joinder agreement, other than Swerdlow and Duffle. "Percentage Interest" with respect to each Member, means the percentages as shown on Exhibit A hereof, which percentage reflects such Member's Membership Interest, as the same may be adjusted from time to tune in accordance with this Agreement. ADSUP-00077196.3 #73693291_v3 "Person" shall mean any individual, corporation, limited partnership, general partnership, limited liability company, joint stock company, joint. venture, association, company, trust, unincorporated organization or any governmental or political subdivision or any agency, department or instrumentality thereof. "Property" shall mean Brock 55, a +3.44 acre undeveloped lot located at 249 NW '6th Street, Miami, Florida. "Swerdlow" shall mean Michael Swerdlow who is a Member on the date hereof. "Transfer" means to, directly or indirectly, sell, transfer, assign, pledge, encumber, hypothecate or similarly dispose of, either voluntarily or involuntarily, by operation of law or otherwise, or to enter into any contract, option or other arrangement or understanding with respect to the sale, transfer, assignment, pledge, encumbrance, hypothecation or similar disposition of, any Membership Interest owned by a Person or any interest (including a beneficial interest) in any Membership Interest owned by a Person. ADSLLP-o0077196.3 #73693291_v3 EXHIBIT "D" Organizational Chart of Developer [see attached] #73693291_v3 DOWNTOWN RETAIL ASSOCIATES LLC (FL) fHT;„EZRA ri{AT z° MICFIAEL STEP EN,GAR�CIlIK dI A� BENDUFFIF _ � �2011(, RI VOCABLE SWERDLOW` 51.50% 19.80% 23.70% 5.00% Michael Swerdlow EXHIBIT "E" Organizational Chart of Property Owner Member and Holding [see attached] #73693291_v3 Sawyer's Landing 36.65% #73693291_v3 Sawyers Landing Investors LLC #73693291_v3 Biscayne Investments Holdings, LLC #7369329 1v3