HomeMy WebLinkAbout18357 Exhibit APrepared By:
William R. Bloom, Esq.
Holland & Knight LLP
Suite 3300
701 Brickell Avenue
Miami, FL 33131
ATLANTIC SQUARE
DEVELOPMENT AGREEMENT
By and Between
BLOCK 45, LLC
and
SOUTHEAST OVERTOWN/PARK WEST
COMMUNITY REDEVELOPMENT AGENCY
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ATLANTIC SQUARE DEVELOPMENT AGREEMENT
THIS ATLANTIC SQUARE DEVELOPMENT AGREEMENT (the "Agreement") is
dated as of the day of , 2025 (the "Effective Date"), by and between BLOCK 45,
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. Southeast Overtown/Park West was designated as a community redevelopment
area by Miami -Dade County, a political subdivision of the State of Florida (the "County")
pursuant to that certain Intergovernmental Cooperation Agreement entered into between the
County and the City of Miami (the "City"), dated as of March 30, 1983, as amended, on November
15, 1990 by the County and the City by Amendments to Interlocal Cooperations Agreement, as
amended December 31, 2007 by the Global Agreement, as hereinafter defined, and as amended by
amendment dated September 20, 2022 by and between the County, the City and the CRA(the
Intergovernmental Cooperation Agreement, as amended, the "Interlocal Agreement"). A
redevelopment plan was approved by the City and the County, as amended, (the "Redevelopment
Plan") for the specified geographic area identified in the Interlocal Agreement (the
"Redevelopment Area") with certain redevelopment authority granted by the County to the City
for project implementation, including the obligation to establish a redevelopment trust fund (the
"CRA Trust Fund"). The City assigned to the CRA the redevelopment authority granted by the
County to the City.
B. Atlantic Pacific Communities, LLC, as tenant, and Miami -Dade County, Florida, a
political subdivision of the State of Florida (the "County"), as landlord, are parties to that certain
Development of Block 45 at 152 NW 8t1 Street, Miami, FL Lease Agreement No. RFP-00700,
dated July 15, 2019 (the "Lease") with respect to that certain real property located in Miami -Dade
County, Florida, as more particularly described on Exhibit A attached hereto and made a part
hereof (the "Property").
C. Atlantic Pacific Communities, LLC assigned all of its right, title and interest in the
Lease to Developer.
D. In accordance with the terms and provisions of the Lease, Developer commenced
construction on the project consisting of 616 residential units (the "Residential Units") and
approximately 24,000 square feet of commercial/retail space on the Property (collectively, the
"Project") in accordance with the Construction Plans, as defined in the Lease.
E. The CRA has agreed to provide certain economic incentives to Developer in
exchange for Developer's agreement to a set aside (i) forty (40) affordable housing units and (ii)
lease to the CRA approximately 4,000 square feet of the commercial/retail space at the Project,
subject to the terms and conditions of this Agreement.
NOW THEREFORE, for and in consideration of the $10.00 and other good and valuable
consideration and of the covenants and agreements hereafter set forth, the parties agree as follows:
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1. RECITALS. The Recitals to this Agreement are true and correct and are
incorporated herein by reference and made a part hereof.
2. RESIDENTIAL RENTAL HOUSING REQUIREMENTS.
2.1 Residential Housing Restrictions. The CRA and the Developer
agree that (i) twelve (12) of the Residential Units ("Low Affordable Units"), consisting
of four (4) one bedroom units which are not less than 631 square feet, four (4) two bedroom
units which are not less than 923 square feet, and four (4) three bedroom units of not less
than 1,114 square feet will be made available for individuals and/or families earning up to
sixty percent (60%) of AMI ("Low Income Tenant") and (ii) twenty eight (28) of the
Residential Units ("Middle Low Affordable Units"), consisting of eighteen (18) studio
units which are not less than 322 square feet, six (6) one bedroom units containing not less
than 631 square feet, two (2) two bedroom units which are not less than 923 square feet
and two (2) three bedroom units which are not less than 1,114 square feet will be made
available for individuals and/or families earning up to eighty percent (80%) of AMI
("Middle Low Income Tenant") (The twelve (12) Low Affordable Units and twenty-eight
(28) Middle Low Affordable Units will be equitably distributed throughout the Project such
that no more than three (3) such units are located per residential floor. As used in this
Agreement the term "AMP' means the then applicable median income for Miami -Dade
County, including adjustments for family size, as published annually by the U.S.
Department of Housing and Urban Development. For avoidance of doubt, as set forth in
Section 8.5 of the Lease and consistent with the guidelines set forth in Section 3009 of the
Housing and Economic Recovery Act of 2008, any determination of AMI shall not be less
than the AMI determined for the calendar year preceding the calendar year for which such
determination is made.
2.2 Residential Housing Restrictive Covenant. Simultaneously with the
Effective Date, the Developer and the CRA shall execute a restrictive covenant in the form
of Exhibit B attached hereto and made a part hereof (the "Residential Housing Restrictive
Covenant") which shall govern the use and occupancy of the forty (40) Residential Units,
described in Section 2.1(a) above.
2.3 Miami 21. The requirements of Section 2.1 and the Residential
Housing Restrictive Covenant are separate from, and in addition to, any requirements that
Developer may be required to comply with under Miami 21 of the City zoning code.
3. EMPLOYMENT.
3.1 Community Business Enterprise Payroll. Developer represents and
warrants to the CRA that Developer has met or exceeded the level of Small Business
Enterprise (SBE) participation included in the Proposal, as defined in the Lease. Prior to
the Effective Date, Developer has provided the executive director of the CRA (the
"Executive Director") evidence of compliance with the Small Business Enterprise (SBE)
participation included in the Proposal including all documentation with respect thereto
furnished to the County.
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3.2 Responsible Wages. Developer represents and warrants to the CRA
that Developer has complied with the terms of Section 4.21 of the Lease and paid all
workers Responsible Wages and benefits in accordance with Section 2-11.16 of the Miami -
Dade County Code with respect to the construction of the Project as of the Effective Date
and that Developer shall pay Responsible Wages and benefit in accordance with Section
2-11.16 of the Miami -Dade County Code through completion of construction of the
Project. Prior to the Effective Date, Developer has provided the Executive Director with
evidence of compliance with Section 4.21 of the Lease regarding Responsible Wages
including all documentation with respect thereto furnished to the County.
3.3 Participation Requirement. Developer has implemented policies to
enhance participation by local skilled labor, local unskilled labor, and local subcontractor
participation in the construction of the Project, including the Redevelopment Area. As of
the Effective Date, Developer represents to the CRA that Exhibit C attached hereto
accurately reflects such local participation. Prior to the Effective Date Developer has
submitted to the Effective Director evidence that Exhibit C accurately reflects local
participation.
3.4 Permanent Job Opportunities. The Developer shall broadly
disseminate information regarding job opportunities at the Project for local residents and
businesses within the Redevelopment Area post -construction, including newly generated
trade and service -related jobs upon completion of the Project. Developer agrees to host at
least one (1) job fair within the Redevelopment Area upon completion of the Project.
4. LEASE OF COMMERCIAL SPACE. Contemporaneously with the execution of
this Agreement, Developer will enter into a sublease with the CRA (the "CRA Sublease") in the
form of Exhibit D attached hereto for approximately four thousand (4,000) square feet of the
commercial/retail space in the Project (the "CRA Retail Space") identified on Exhibit E attached
hereto. The base rental for the CRA Retail Space will be One Dollar ($1.00) for the term of the
CRA Sublease, which will commence one hundred eighty (180) days after the execution of the
CRA Sublease (the "Rent Commencement Date") and terminate on December 31, 2041, unless
sooner terminated pursuant to the terms of the CRA Sublease. The CRA Sublease shall include the
following terms:
4.1 The CRA Sublease shall be subject to all of the terms and conditions
of the Lease, other than in connection with the development of the Project and payment of
rent. The Sublease shall reflect the intention of Developer and the CRA that the CRA shall
sublease portions of the CRA Retail Space to businesses or residents of the Redevelopment
Area. The Parties' intent is for the CRA Retail Space to be made available to subtenants
that complement Historic Overtown's heritage and enhance the lives of Overtown residents
(including residents of Atlantic Square), with an emphasis on small businesses that enhance
Historic Overtown's "sense of place." Examples of businesses currently in the
Redevelopment Area that meet this goal include Lil Greenhouse Grill and Red Rooster.
All subtenants of the CRA shall be subject to the approval of the Developer, which approval
shall not be unreasonably withheld or delayed and which approved shall be deemed granted
if Developer does not respond within ten (10) business days. The Parties recognize,
however, that pursuant to Section 4.1 of the Lease any use within the Project must be of "a
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level of quality and character ... that is similar to comparable projects of this nature in
Miami -Dade County, Florida," and the Developer shall have the right to reject any sublease
that fails to achieve such standard. In addition to approval of the proposed subtenant of
the CRA, Developer shall have review and reasonable approval rights of the proposed use
and buildout of the tenant improvement plans, all as more particularly described in the
CRA Sublease.
4.2 The CRA Sublease shall be subject to any exclusivity restrictions
applicable to the Project provided Developer provided written notice of the exclusivity
restrictions as provided in the CRA Sublease. No exclusivity restrictions shall limit the
rights of any permitted use under any CRA Sublease executed prior to the establishment
of a new exclusivity provision by the Developer. The CRA shall not grant any exclusive
rights to a particular use pursuant to any CRA Sublease, unless Developer in its sole
discretion, agrees to the terms of the proposed exclusivity restrictions.
4.3 Developer will deliver the CRA Retail Space in "gray shell"
condition (ready for tenant buildout) pursuant to the specifications set forth in Exhibit F.
The CRA acknowledges that, as of the Effective Date of this Agreement, it has inspected
the CRA Retail Space and confirmed that the Developer has completed its work and the
CRA Retail Space is in "gray shell" condition. The CRA Retail Space will have access to
use the grease trap at the location identified on attached Exhibit I ].
4.4 As of the Rent Commencement Date, the CRA will be responsible
for the operating expenses associated with the CRA Retail Space (which shall be separately
metered or reasonably apportioned), including common area maintenance, security, real
estate taxes, utilities, and insurance all as more particularly provided in the CRA Sublease.
4.5 If all or any portion of the CRA Retail Space remains vacant and not
subject to a bona fide third -party lease (the "Vacated Space") for a period of eighteen (18)
months or longer, Developer shall have the option to take back Vacated Space, and such
Vacated Space shall be deleted from the CRA Sublease. The Developer will remit 75% of
any net income recognized from the Vacated Space to the CRA, after deducting all
expenses (including tenant improvements, leasing commissions, percentage rent, operating
expenses, and the like).
5. INCENTIVE PAYMENTS.
5.1 Incentive Payments. Subject to approval by the City and the County
of the CRA's annual budget, on an annual basis, the CRA agrees to pay Developer the
following (collectively, the "Incentive Payments"):
5.1.1 Tax Increment Revenues. On an annual basis for each
calendar year commencing after the first year the Project is assessed on the Miami -Dade
County tax rolls and continuing through 2041 with the last payment (to be paid in 2042),
unless sooner terminated pursuant to the terms of this Agreement, the CRA shall pay to
Developer an incentive payment (the "TIF Payment") equal to (i) seventy five percent
(75%) of the Incremental TIF and (ii) one hundred percent (100%) of the Clawback TIF
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(as defined in Section 5.2). The CRA shall make the TIF Payment to the Developer within
sixty (60) days of the deposit by the City and/or the County of the annual tax increment
revenue into the CRA Trust Fund, which deposit has historically occurred in January of
each year, and (ii) the deposit by the City to the CRA of the Clawback TIF. The term
"Incremental TIF" shall mean, for each tax year after the Project is included on the
Maimi-Dade County tax rolls immediately following the Effective Date, the tax increment
revenues, if any, actually received by the CRA from the County and City with respect to
the improvements compromising the Project, excluding tax increment revenues with
respect to the Property after substantial completion of the Project after deduction for: (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 that certain independent special district authorized
pursuant to Section 1.01.A.11 of the Miami -Dade County Home Rule Charter and Section
125.901 Florida Statutes, for the purpose of providing for children's services throughout
Miami -Dade County (the "Children's Trust"), (iii) other adjustments to the assessed
values of the Project made by the City and/or the County as a result of challenges or tax
contests with respect to the assessed value of improvements compromising the Project, and
(iv) any payments that the CRA is required to make to the City and County under the terms
of that certain Interlocal Agreement between the City of Miami, Miami -Dade County,
Southeast Overtown Park West CRA and Omni CRA dated as of December 31, 2007 (the
"Global Agreement"). For the avoidance of doubt Incremental Revenues do not include
the assessed value of the Property, only the improvements located on the Property.
5.1.2 Developer acknowledges and agrees that Developer shall
bear the entire risk under this Agreement if the Project or the Property is valued at less than
anticipated by 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 Agreement
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 Developer
or CRA of their respective obligations pursuant to this Agreement.
5.2 The term "Clawback TIF" shall mean the Incremental TIF actually
received by the CRA from the City with respect to the Project that relates to the portion of
the Incremental TIF identified in Section 5(e) of the Global Agreement as being set aside
for "the development of affordable housing and related infrastructure in the SEOPW CRA
district" and, pursuant to City of Miami Resolution R-24-0109 (the "City Resolution"),
allocated to the CRA for the purpose of "the development of affordable housing and related
infrastructure at or below sixty percent (60%) AMI within the SEOPW CRA's
Redevelopment Area." The portion of the Clawback TIF paid to the Developer pursuant to
this Agreement shall be applied solely towards the twelve (12) Low Affordable Units set
aside for the Low -Income Tenants.
5.2.1
5.2.2 The payment of the Clawback TIF to Developer pursuant to
Section 5.1.1 is subject to the terms of the City Resolution. If the Certificate of Continuing
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Program Compliance annually submitted by the Developer pursuant to Section 5.4 of the
Residential Housing Restrictive Covenant indicates in any given year that Developer failed
to comply with its obligations set forth in the Residential Housing Restrictive Covenant
related to the Low Affordable Units, then Developer shall repay to the CRA a proportionate
amount of the Clawback TIF amount paid to Developer measured as follows: multiplying
the total amount of Clawback TIF received by the Developer in the applicable year by a
percentage equal to (x) the number of non -compliant Low Affordable Units divided by (y)
12 (the "Clawback Reimbursement Amount"). The Clawback Reimbursement Amount
shall be paid to the CRA within thirty (30) days of delivery of the Certificate of Continuing
Program Compliance to the CRA in accordance with Section 5_4 of the Residential
Housing Restrictive Covenant.
5.3 Bond Proceeds. The CRA issued tax increment revenue bonds (the
"Bond Offering") to further the CRA's goals as set forth in the Redevelopment Plan,
which includes the goal of increasing the stock of affordable housing and stimulating
economic activity within the Redevelopment Area. Consistent with such goal and as a
material inducement to the Developer to provide the Affordable Units, the CRA hereby
agrees to pay to the Developer from the proceeds of the Bond Offering Ten Million Dollars
($10,000,000) in consideration for the Developer providing Twenty-eight (28) Middle Low
Affordable Units (the "Bond Payment"). The Bond Payment shall be made in two
installments: (i) the first installment in the amount of Five Million and no/100 Dollars
($5,000,000.00) shall be made the Effective Date and (ii) the second installment in the
amount of Five Million no/100 Dollars ($5,000,000.00) shall be deposited in escrow with
an escrow agent acceptable to the CRA and Developer (the "Escrow Agent") and
disbursed by Escrow Agent to Developer within ten (10) days after Escrow Agent and the
CRA receives written certification from the Developer that all twenty-eight (28) Middle
Low Affordable Units are subject to leases executed by Middle Low Income Tenants;
provided, however, that the CRA shall have the right to object to such certification and
refer the matter to Dispute Resolution within five (5) days of receipt of certification notice
and, if the CRA delivers such notice, the Escrow Agent shall not disburse the Bond
Payment until receipt of joint written notice from APC and the CRA requesting the release
of the Bond Payment.
5.4 Operating Subsidy. The CRA shall pay to the Developer an annual
operating subsidy in the amount of Seven Hundred Fifty Thousand Dollars ($750,000) to
offset the cost of operating and maintaining the Middle Low Affordable Units (the
"Annual Operating Subsidy"). The CRA shall pay the Annual Operating Subsidy to the
Developer semi-annually in equal installments of Three Hundred Seventy Five Thousand
and no/100 Dollars ($375,000.00) commencing on the first day of the month following the
date on which Developer certifies to the Executive Director that all twenty-eight (28)
Middle Low Affordable Units are first occupied by Middle Low Income Tenants and
continuing each six (6) months thereafter until March 31, 2042.
5.5 Noncompliance Penalty. With respect to the Bond Payment, the TIF
Payment (excluding the Clawback TIF) and the Annual Operating Subsidy, such payments
shall be subject to the following repayment obligation: if the Certificate of Continuing
Program Compliance annually submitted by the Developer pursuant to Section 5.4 of the
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Residential Housing Restrictive Covenant indicates in any given year that Developer failed
to comply with its obligations set forth in the Residential Housing Restrictive Covenant
related to the Middle Low Affordable Units, then Developer shall repay to the CRA an
amount equal to Forty Thousand and no/100 Dollars ($40,000.00) for each Middle Low
Affordable Unit which was not in compliance with the terms of the Residential Housing
Restrictive Covenant Agreement for the prior calendar year (the "Reimbursement
Payment"); provided, however, that APC shall have the right to cure any failure to comply
with the Residential Housing Restrictive Covenant as follows: (i) if the failure relates to
improper rental rates charged to the Middle Low Affordable Unit tenants, then by
reimbursement of 125% of such amounts to the applicable tenants within thirty (30) days
of receipt of a notice of deficiency from the CRA (if such residents cannot be immediately
located, the Developer may pay such Reimbursement Payment to the CRA as an escrow
agent) or (ii) if the failure relates to the failure to rent the Middle Low Affordable Unit to
a qualified Middle Low Affordable Unit, then by renting additional units within the Project
at the rate for Middle Low Affordable Units for 125% of the time that the Middle Low
Affordable Unit was improperly occupied provided that to exercise such cure right the
Developer must provide to the CRA written and enforceable assurances of its intent to cure
within thirty (30) days of receipt of a notice of deficiency from the CRA (each of the cure
periods set forth above, the "Reimbursement Cure Period"). If the Developer fails to cure
in the manner set forth in the preceding sentence, then the Reimbursement Payment shall
be due to the CRA within thirty (30) days of after the end of the applicable Reimbursement
Cure Period. If Developer fails to pay the amount due within such thirty (30) day period,
the CRA may offset the amount due from future TIF Payments and Annual Operating
Subsidy payments.
5.6 Payments After Assignment or Sale. Developer, in its sole and
absolute discretion, may collaterally assign and reassign the TIF Payment(s); the Clawback
TIF and the Annual Operating Subsidy to any lender or bond holder providing financing
or re -financing related to the Project. Developer may also assign the TIF Payment(s); the
Clawback TIF and the Annual Operating Subsidy to any assignee of Developer's entire
interest in the Lease or at any time or from time to time upon written notice given to the
CRA. Any such notice of assignment shall indicate: (i) the name of the assignee and the
assignee's contact information, and (ii) any other terms or provisions applicable thereto
and mutually agreed to as between Developer and the assignee (the "Assignment Notice").
Any assignment by Developer of its rights to the TIF Payment shall not release Developer
of its duties and obligations under this Agreement.
6. SUBORDINATION OF INCENTIVE PAYMENT
6.1 Developer acknowledges and agrees that the obligations of the CRA
under this Agreement 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 or
hereafter 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 tax increment revenues with respect
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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 Incremental 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 Agreement 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 Agreement is junior and
subordinate to any Bond Obligations and Grant Obligations within ten (10) business days
of written request by the CRA.
6.2 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 or Clawback TIF derived from the Project which will be payable to
Developer under this Agreement as collateral for such bonds.
6.3 Additional Agreements Regarding Use of TIF Revenues.
Developer acknowledges and agrees that nothing contained in this Agreement shall be
deemed or construed to prevent the CRA from entering into agreements similar to this
Agreement (each a "TIF Agreement") pursuant to which the CRA commits to pay such
developers a portion of the tax increment revenues generated from their project within the
Redevelopment Area. Developer acknowledges and agrees that tax increment revenue
generated from other projects which are subject to TIF Agreement(s) will not be available
to make up for any shortfall of the TIF Payment, but, to the extent necessary, may be made
available for payment of the Annual Operating Subsidy.
6.4 Approval of CRA Budget. Developer acknowledges that no voter
approval was obtained in connection with this Agreement and that neither the City nor the
County has approved this Agreement. In the event this Agreement is determined to be
unenforceable in whole or in part as a result of (i) the multi -year CRA commitment
regarding the Incentive Payments, the Clawback TIF and the Annual Operations Subsidy
or (ii) the failure to obtain CRA approval, City approval and County approval of the CRA
Budget including a line items for the TIF Payment and the Annual Operating Subsidy on
an annual basis, the Developer acknowledges and, the Clawback TIF agrees that the CRA
shall have no liability to Developer arising under this Agreement. Developer acknowledges
that this provision is a material inducement for the CRA to enter into this Agreement.
6.5 County Approval. Developer acknowledges that this Agreement has
not been submitted to the County Commission for review or approval and that the TIF
Payments, the Clawback TIF and Annual Operating Subsidy contemplated by this
Agreement will be included in the annual budget (subject to CRA board of commission
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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 in the event that City approval and County approval are not obtained.
7. LEASING OBLIGATIONS OF DEVELOPER
7.1 Developer agrees that the tenants of the Affordable Units will not be
charged any (i) administrative fees, (ii) applications fees, (iii) lifestyle fees (for access to
the Project's amenities and the Project's wifi package), (iv) trash fees, (v) pest control fees,
and (vi) property loss insurance fees. For avoidance of doubt, the Landlord may include a
line item for such fees in the rent charged to the tenants of the Affordable Units provided
that such fees are treated as a subset of rent (i.e. does not result in an increase in the rent
that Landlord is permitted to charge the tenants of the Affordable Units). The only
additional fees that Landlord may charge tenants of the Affordable Units consist of the
following: (1) parking, (2) late fees, legal fees, fines and other similar charges resulting
from a default under the tenant's lease agreement, and (3) elective fees such as pet rent and
pet fees, damage charges and other elective/optional services provided through third parties
or the Landlord.
8. REPRESENTATIONS OF CRA.
8.1 The CRA makes the following representations:
8.1.1 The CRA is duly organized and validly existing under the
laws of the State of Florida and has full power and capacity to own its properties, to carry on
its business as presently conducted by the CRA, and to perform its obligations under this
Agreement.
8.1.2 The CRA's execution, delivery and performance of this
Agreement have been duly authorized by all necessary legal actions except as provided in
Sections 6.4 and 6.5 of this Agreement and does not and shall not conflict with or constitute a
default under any indenture, agreement or instrument to which the CRA is a party or by which
the CRA or CRA's property may be bound or affected, except for such approvals required by
this Agreement.
8.1.3 This Agreement constitutes the valid and binding obligation
of the CRA, enforceable against the CRA except as provided in Sections 6.4 and 6.5 of this
Agreement, and its successors and assigns, in accordance with their respective terms, subject
to bankruptcy, insolvency and other similar laws affecting the rights of creditors generally.
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9. THE DEVELOPER'S REPRESENTATIONS.
9.1 The Developer makes the following representations to the CRA as
follows:
9.1.1 The Developer is a limited liability company duly organized
and validly existing under the laws of the State of Florida and has full power and capacity to
own the Property, to carry on its business as presently conducted, and to enter into the
transactions contemplated by this Agreement.
9.1.2 The Developer's execution, delivery and performance of this
Agreement has been duly authorized by all necessary company actions and does not and shall
not conflict with or constitute a default under any indenture, agreement or instrument to which
it is a party or by which it may be bound or affected.
9.1.3 This Agreement constitutes the valid and binding obligation
of the Developer, enforceable against the Developer and its successors and assigns, in
accordance with its terms, subject to bankruptcy, insolvency and other similar laws affecting
the rights of creditors generally.
10. DEFAULT.
10.1 In the event the Developer breaches any terms and provisions of this
Agreement other than as provided in Section 5.2 and 5.5 of this Agreement (which shall,
respectively, be the exclusive remedies for failure by the Developer to provide the Low
Affordable Units and the Middle Low Affordable Units), and fails to cure same within
thirty (30) days of written notice from the Executive Director specifying the breach (or
such longer period of time, not to exceed one hundred fifty (150) days, if the default, by its
nature cannot reasonably be cured within such thirty (30) day period and diligently pursues
same until completion), the CRA, shall be entitled to all remedies available at law or in
equity.
10.2 If Developer breaches the terms and provisions of this Agreement
with respect to the Low Affordable Units the CRA shall have the remedies provided in
Section 5.2.1 of this Agreement without any notice or cure rights.
10.3 If Developer breaches the terms and provisions of this Agreement
with respect to the Middle Low Affordable Units the CRA shall have the remedies provided
in Section 5.5 of this Agreement without any notice or cure rights.
10.4 In the event of a default by the CRA under this Agreement which is
not cured within thirty (30) days of written notice from the Developer specifying the breach
(or such longer period of time, not to exceed one hundred fifty (150) days, if the default,
by its nature cannot reasonably be cured within such thirty (30) day period and diligently
pursues same until completion), the Developer shall be entitled to all remedies available at
law or in equity. In addition, for such period as the CRA shall fail to pay the Incentive
Payments in accordance with the terms of this Agreement, Developer shall be relieved of
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all obligations hereunder and under the Residential Housing Restrictive Covenant, and
CRA's rights to the CRA Retail shall be suspended.
10.5 Notwithstanding anything herein to the contrary, neither party shall
have a claim for exemplary, punitive or consequential damages.
11. NOTICES. Any notices required or permitted to be given under this Agreement
shall be in writing and shall be deemed to have been given if delivered by hand, sent by recognized
overnight courier (such as Federal Express), or mailed by certified or registered mail, return receipt
requested, in a postage prepaid envelope, and addressed as follows:
If to the Developer:
If to CRA:
Block 45, LLC
161 NW 6th Street, Suite 1020
Miami FL 33136
Attn: Kenneth Naylor
knaylor@apcompanies.com
SOUTHEAST OVERTOWN / PARK WEST
COMMUNITY REDEVELOPMENT AGENCY
Attention: James McQueen, Executive Director
819 NW Second Avenue
Third Floor
Miami, FL 33136
Email: jmcqueen@miamigov.com
With a copy (which shall not constitute notice or service of process) to:
William R. Bloom, Esq.
Holland & Knight, LLP
Suite 3300
701 Brickell Avenue
Miami, FL 33131
Email: william.bloom@hklaw.com
Notices personally delivered, delivered by email, or sent by overnight courier shall be
deemed given on the date of delivery and notices mailed in accordance with the foregoing shall be
deemed given upon receipt or the date delivery is refused.
12. CHALLENGES. The Developer acknowledges and agrees that the CRA shall have
no liability whatsoever to the Developer in connection with any challenge to this Agreement and
the transaction contemplated by this Agreement and the Developer hereby forever waives and
releases the CRA from any liability whatsoever, now existing or hereafter arising in connection
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with any challenge and covenant and agree not to initiate any legal proceedings against the CRA
in connection with any challenges to this Agreement by any third parties.
13. MISCELLANEOUS.
13.1 This Agreement shall be construed and governed in accordance with
the laws of the State of Florida. Venue shall be in Miami -Dade County, Florida. All of the
parties to this Agreement have participated fully in the negotiation and preparation hereof,
and, accordingly, this Agreement shall not be more strictly construed against any one of
the parties hereto.
13.2 In the event any term or provision of this Agreement is determined
by appropriate judicial authority to be illegal or otherwise invalid, such provision shall be
given its nearest legal meaning or be construed as deleted as such authority determines,
and the remainder of this Agreement shall be construed to be in full force and effect.
13.3 In construing this Agreement, the singular shall be held to include
the plural, the plural shall be held to include the singular, the use of any gender shall be
held to include every other and all genders, and captions and Section headings shall be
disregarded.
13.4 All of the exhibits attached to this Agreement are incorporated in,
and made a part of, this Agreement.
13.5 Time shall be of the essence for each and every provision of this
Agreement.
13.6 This Agreement shall be recorded in the Public Records of Miami -
Dade County.
13.7 The "Effective Date" shall mean the date this Agreement is last
executed by the Developer and the CRA.
13.8 From time to time and upon written request from the Developer, the
Executive Director, on behalf of the CRA, shall execute an estoppel certificate or similar
certification, in form, scope and substance reasonably acceptable to the requesting party,
confirming Developer's compliance with the conditions set forth in this Agreement (and/or
disclosing any then failure or default).
13.9 Relationship Between Parties. This Agreement 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 Agreement 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 Agreement or
any responsibility or obligation contemplated herein. Developer further represent and
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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 Agreement.
13.10 Budget & Appropriation. CRA covenants and agrees to budget the
TIF Payment and Annual Operating Subsidy as line items 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 TIF Payment and Annual Operating Subsidy as
contemplated by this Agreement, by both the City and County.
13.11 Consultant And Professional Compensation. Developer has retained
consultants and professionals to assist Developer with the negotiation and execution of this
Agreement, 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 Agreement.
13.12 In accordance with the terms of the Interlocal Agreement, Developer
agrees to comply (in the manner set forth in the Lease) with the following Miami -Dade
County ordinances contained in the Miami -Dade County Code with respect to the Project:
(i). Small Business Enterprises (Section 2-8.1.1.1.1 of the Code)
(ii). Community Business Enterprises (Section 2-10.4.01 of the Code)
(iii). Community Small Business Enterprises (Section 10-33.02 of the
Code)
(iv). Conflict of Interest and Code of Ethics Ordinance (Section 2-11.1
of the Code)
(v). Living Wage Ordinance (Section 2-8.9 of the Code)
14. Entire Agreement. This Agreement, the CRA Sublease and the Residential Housing
Restrictive Covenant constitute the entire agreement and understanding between the parties with
respect to the subject matter hereof and there are no other agreements, representations or warranties
other than as set forth in this Agreement, the Residential Housing Restrictive Covenant and the
CRA Sublease. This Agreement may not be changed, altered or modified except by an instrument
in writing signed by the party against whom enforcement of such change would be sought. This
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Agreement shall be binding upon the parties hereto and their respective successors and permitted
assigns.
15. No Third -Party Beneficiary. The provisions of this Agreement are for the benefit
of the Developer and CRA only and are not for the benefit of any third party, and accordingly, no
third party shall have the right to enforce the provisions of this Agreement.
16. Dispute Resolution. Either the Developer or the CRA may submit any controversy
related to the implementation or interpretation of Article 5 and Section 7.2 of this Agreement, or
the breach thereof, for resolution through an arbitration proceeding administered by the American
Arbitration Association and such determination shall be binding on the CRA and Developer
("Dispute Resolution").
[SIGNATURE PAGES TO FOLLOW]
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IN WITNESS hereof the parties have executed this Agreement as of the date first above
written.
DEVELOPER:
BLOCK 45, LLC,
a Florida limited liability company
By:
Kenneth Naylor, Vice President
Date Executed:
CRA:
SOUTHEAST OVERTOWN / PARK WEST
COMMUNITY REDEVELOPMENT AGENCY
By:
James McQueen, Executive Director
Date Executed:
ATTEST:
Clerk of the Board
Approved for legal sufficiency
By:
William R. Bloom, Esq.
Holland & Knight LLP,
Special Counsel to CRA
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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 , 2025, Kenneth Naylor, as
Vice President of Block 45, LLC a Florida limited liability company, on behalf of the limited
liability company. He is personally known to me or has produced
as identification.
STATE OF FLORIDA
)SS:
COUNTY OF MIAMI-DADE
(SEAL)
Notary Public — State of
Commission Number:
The foregoing instrument was acknowledged before me by means of ❑ physical presence
or ❑ online notarization, this day of , 2025, James McQueen,
as 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:
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LIST OF EXHIBITS
A. Legal Description
B. Residential Housing Restrictive Covenant
C. Local Workforce Participation
D. Form of CRA Sublease
E. CRA Retail Space
F. Gray Shell Specifications
G. Grant Obligation
H. Grease Trap Location
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EXHIBIT A
Legal Description
Block 45 North, CITY OF MIAMI, according to the Plat thereof as recorded in Plat Book B, at
Page 41, of the Public Records of Miami -Dade County, Florida.
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#517935072 v8
EXHIBIT B
Residential Housing Restrictive Covenant
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EXHIBIT C
Local Workforce Participation
ATLANTIC SQUARE LOCAL HIRING STATUS
As of 12/20/24
GOAL
STATUS
SUBCONTRACTORS FROM MIAMI-DADE COUNTY
20%
75%
In CRA
0%❑
In Overtown
0%❑
West Coconut Grove
0%❑
City Targeted Areas
6%
City of Miami
3%
County Targeted Areas
30%
Miami -Dade County
35%
MBE/SBE/DBE/Section 3
N/A
27%%
UNSKILLED LABOR FROM MIAMI-DADE COUNTY
30'o
80%
In CRA
6%❑
In Overtown
0%❑
West Coconut Grove
1%
City Targeted Areas
27%
City of Miami
5%
County Targeted Areas
5%
Miami -Dade County
37%
SKILLED LABOR FROM MIAMI-DADE COUNTY
1O:Vu
83%
In CRA
2%
In Overtown
1%
West Coconut Grove
0%❑
City Targeted Areas
27%
City of Miami
6%❑
County Targeted Areas
7%
Miami -Dade County
40%
LABOR COUNT
Laborer
Skilled
1-Redevelopment Area
21
8
2-Overtown
1
5
3-City Targeted Zip Code
92
131
3-West Coconut Grove
3
4-Miami city
16
28
5-County Target Area
19
36
6-Miami-Dade County
127
195
Other
68
81
Grand Total
347
484
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#517935072 v8
EXHIBIT D
Form of CRA Sublease
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#517935072 v8
EXHIBIT E
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EXHIBIT F
Gray Shell Specifications
Pursuant to the terms of the CRA Sublease, Developer will construct and deliver to the CRA the
CRA Retail Space as follows:
Shell building: the building, exterior, roof, service areas, common areas, exterior sidewalk, streets,
and other improvements of the Project.
Walls: exterior walls and glass storefronts, unfinished walls on the interior side, and framed
demising walls (finished on the exterior side. [OPEN]
Floors: unfinished floors with no slab -on -grade. Tenant shall infill.
Mechanical: Tenant will have access to all mechanical infrastructure that is stubbed out in these
retail spaces, however they will need to provide their HVAC unit, ductwork, and exhaust. [OPEN]
Electrical: Tenant will have access to all electrical infrastructure that is stubbed out in these retail
spaces and any additional electrical improvements will be provided by them.
Plumbing (Water & Sanitary Sewer): Tenant will have access to all water and sewer
infrastructure that is stubbed out in these retail spaces. Grease trap infrastructure will be provided
in all retail spaces, except for Retail A.
Fire Alarm/Sprinklers: fire alarms and sprinklers required in these spaces, per Miami -Dade
County code requirements.
Sound attenuation/mitigation: with sound attenuation in demising partitions only.
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EXHIBIT G
Grant Obligation
3
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EXHIBIT H
Grease Trap Location
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