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HomeMy WebLinkAbout23831AGREEMENT INFORMATION AGREEMENT NUMBER 23831 NAME/TYPE OF AGREEMENT OMNI CRA & 14TH STREET DEVELOPMENT, LLC DESCRIPTION ECONOMIC INCENTIVE AGREEMENT/MIXED-USE & MIXED INCOME PROJECT - 14TH STREET DEVELOPMENT PROJECT/FILE ID: 10633/CRA-R-21-0045 EFFECTIVE DATE March 28, 2022 ATTESTED BY TODD B. HANNON ATTESTED DATE 3/28/2022 DATE RECEIVED FROM ISSUING DEPT. 3/28/2022 NOTE 3831 After recording return to: Victoria Mendez, Esq. City Attorney, City of Miami 444 S.W. 2nd Avenue Miami, FL 33130-1910 Tel: (305)416-1800 Property folio numbers: 01-3136-005-1110; 01-3136-005-1070; 01-3136-005-1060; 01-3136-005-1180; 01- 3136-005-1151; 01-3136-005-1150; 01-3136-005-1140; 01-3136-005-1130; 01-3136-005-1090 ECONOMIC INCENTIVE AGREEMENT FOR MIXED -USE AND MIXED -INCOME PROJECT Development of Properties identified by folio numbers 01-3136-005-1110; 01-3136-005-1070; 01-3136- 005-1060; 01-3136-005-1180; 01-3136-005-1151; 01-3136-005-1150; 01-3136-005-1140; 01-3136-005- 1130; and 01-3136-005-1090, Miami, Florida (hereinafter "14th Street Development") THIS ECONOMIC INCENTIVE AGREEMENT FOR MIXED -USE AND MIXED- INCOME PROJECT (the "Agreement") is made as of this 26 day of March, 2022, by and between 14TH STREET DEVELOPMENT, LLC, a Florida Limited Liability Company, and its successors, transferees, or assigns, with a principal office located at 1600 NE 1st Avenue, Suite 3800 Miami, Florida 33136 (the "Developer"), and OMNI REDEVELOPMENT DISTRICT COMMUNITY REDEVELOPMENT AGENCY, a public agency created by the City of Miami pursuant to Florida Statutes Section 163.356, with a principal office located at 1401 N. Miami Avenue, 2' Floor, Miami, Florida 33136 (the "CRA"), and hereby provides: RECITALS: WHEREAS, the CRA was formed for the purpose of removing slum and blight in the Omni Redevelopment Area (the "Redevelopment Area") and to promote redevelopment and employment within the Redevelopment Area; WHEREAS, the CRA's 2010 Redevelopment Plan ("Plan") on page 41, section C lists an objective of the CRA "Provide incentives for the development of a variety of housing choices, including affordable...housing"; WHEREAS, page 42, Section E of the Plan also lists as an objective of the CRA to "Provide incentives for redevelopment of blighted properties"; WHEREAS, Developer submitted a request for an economic incentive agreement and a project grant request ("Proposal") for the 14th Street Development Project to underwrite a portion of the costs to develop a mixed -use and mixed -income project identified by folio numbers: 01-3136-005-1110; 01-3136- 005-1070; 01-3136-005-1060; 01-3136-005-1180; 01-3136-005-1151; 01-3136-005-1150; 01-3136-005- 1140; 01-3136-005-1130; and 01-3136-005-1090, (collectively, "Property"), all located within the boundaries of the CRA consisting of approximately Three Hundred Ninety Eight (398) housing units of which One Hundred Twenty (120) units are affordable or workforce housing units; Page 1 of 24 WHEREAS, the success of the Project will result in accomplishing the stated objectives of the Plan; WHEREAS, on October 28, 2021, the CRA Board (as defined below) adopted Resolution No. CRA- R-21-0045, attached and incorporated herein as Exhibit "C", authorizing this Agreement, where the Project will be rebated in an amount not to exceed 95% of the Incremental TIF (as defined below) collected from the Property annually, in exchange for the restriction of rents on One Hundred Twenty (120) units, until July 7, 2047, for a total amount not to exceed Thirteen Million Six Hundred Thousand and 00/100 Dollars ($13,600,000.00); NOW, THEREFORE, in consideration of the foregoing and of the covenants and agreements hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Developer and the CRA hereby agree as follows: 1. a part hereof. 2. meanings: RECITALS. The Recitals to this Agreement are incorporated herein by reference and made DEFINITIONS. The following terms used in this Agreement shall have the following 2.1 "Affordability Period" shall mean the period of time that the Developer shall maintain the rents charged on all CRA-Assisted Units as described by the Unit Mix in the Rent Regulatory Agreement (as defmed below). The Affordability Period shall begin when Substantial Completion of the Project occurs. The Developer shall maintain the Unit Mix, as defined in the Rent Regulatory Agreement, until July 7, 2047, subject to the terms and conditions of this Agreement, which may include termination of this Agreement (as applicable, the "Expiration of the Affordability Period"). 2.2 "Base Year" shall mean the calendar year preceding the calendar year in which the tax rolls for the County (as defined below) with respect to any Folio Number with respect to a portion of the Property (as defined below) on which the Project has been constructed reflecting an increase in the assessed value of that portion of the Property as a result of the Substantial Completion (as defmed below) of such Project. 2.3 "Bond Obligations" has the meaning ascribed to such term in Section 4. 2.4 "Children's Trust" means that certain independent special district authorized pursuant to Section 1.01.A.11 of the County Home Rule Charter and Florida Statutes Section 125.901, for the purpose of providing funding for children's services throughout the County. 2.5 "City" means the City of Miami, a municipal corporation of the State of Florida. 2.6 "City Approval" means the approval by the City Commission of the City of the CRA Budget (as defined below) for the applicable year, which CRA Budget includes a line item for the applicable Incentive Payment (as defined below) to be paid in accordance with the terms of this Agreement. 2.7 "County" means Miami -Dade County, a political subdivision of the State of Florida. 2.8 "County Approval" means the approval by the Board of County Commissioners of the County of the CRA Budget (as defined below) for the applicable year which includes a line item for the Page 2 of 24 applicable Incentive Payment to be paid in accordance with the terms of this Agreement. 2.9 "Covenant" means the Declaration of Restrictive Covenants, of even date herewith, which is attached hereto and incorporated herein as Exhibit "E," for the benefit of CRA. 2.10 "CRA" shall have the meaning ascribed to the term in the introductory paragraph. 2.11 "CRA Approval" means the approval by the CRA Board (as defined below) of the annual CRA Budget which includes a line item for the Incentive Payment for the applicable year. 2.12 "CRA Assisted Units" are the One Hundred Twenty (120) income -restricted housing units referred to in the Rent Regulatory Agreement (as defined below). 2.13 "CRA Board" means the board of directors of the CRA. 2.14 "CRA Budget" means the annual budget for the operation of the CRA approved by the CRA Board, subject to City Approval and County Approval. paragraph. parties hereto. 2.15 "Developer" shall have the meaning ascribed to such term in the introductory 2.16 "Effective Date" means the date of execution and delivery of this Agreement by all 2.17 "Executive Director" means the executive director of the CRA. 2.18 "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 July 7, 2047 as may be ratified by the City and CRA. 2.19 INTENTIONALLY OMITTED. 2.20 "Global Agreement" means that certain Interlocal Agreement between the City, the County, Southeast Overtown/Park West CRA, and the CRA dated as of December 31, 2007. 2.21 INTENTIONALLY OMITTED. 2.22 "HUD" means the United States Department of Housing and Urban Development. 2.23 "Incentive Payment" shall have the meaning ascribed to such term in Section 3.5.1. 2.24 "Incremental TIF" or "Development 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 development of the Project following Substantial Completion (as such term is defined hereinafter) on the Property after the 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 Improvements made by the City and/or County as a result of challenges or tax contests with respect to the assessed value of any of the Improvements, (iv) any payments that the CRA is required to make to the City and the County under the terms of the Global Agreement and any amendments or modifications thereto, (v) Page 3 of 24 any payment to be made to the City and the County under the Extension Interlocal Agreement with respect to the Property, and (vi) reductions in tax increment revenues to the CRA as a result of (a) dedications made subsequent to December 31, 2021 resulting in any reduction in the tax increment revenues paid to the CRA with respect to the portion of the Property so dedicated and (b) demolition of any improvements located on the Property as of December 31, 2021. For avoidance of any doubt, Incremental TIF specifically does not include any incremental revenues associated with the land comprising the Property or improvements on the Property located on the Property as of December 31, 2021. If the Tax Assessor discontinues having a separate breakdown between the assessed value of the land and the assessed value of the improvements, the assessed value of the land shall be deemed to be either (i) the assessed value of the land as of the Base Year if the Tax Assessor is no longer making a separate breakdown of the assessed value of the land and the assessed value of the improvements as of the Base Year; or (ii) if the change occurs after the Base Year the last year where the Tax Assessor has made a separate breakdown of the assessed value of the land after the Base Year and in either event such assessed value of the land shall be deemed to increase three percent (3%) per annum for each year thereafter, compounded annually. 2.25 "Project" means the improvements constituting a mixed -income and mixed -use development consisting of approximately Eight Thousand Seven Hundred Six (8,706) square feet of ground floor retail and approximately Three Hundred Ninety Eight (398) housing units of which One Hundred Twenty(120) CRA Assisted Units are subject to rent restrictions as detailed in the Rent Regulatory Agreement and Covenant, located on the Property within the Redevelopment Area, also known as 14th Street Development ("Improvements"). 2.26 "Property" means all of the certain real property located in the Redevelopment Area as described above with the legal descriptions of same described on Exhibit `B," attached hereto and made a part hereof, all of which is located within the Redevelopment Area (as defined below). 2.27 "Redevelopment Area" has the meaning of the CRA's designated redevelopment area. 2.28 "Rent Regulatory Agreement" means that certain Rent Regulatory Agreement executed herewith between the CRA and the Developer, is attached hereto and incorporated herein by reference as Exhibit A, and establishes the income -restriction percentages and units, making up the One Hundred Twenty (120) CRA-Assisted Units. 2.29 "Substantially Completed" or "Substantial Completion," or words of like import, means that temporary or permanent certificates of occupancy, or their functional equivalent, have been issued by the City for not less than ninety percent (90%) or One Hundred Eight (108) of the CRA-Assisted Units. 2.30 "Tenn" shall mean the period commencing on the Effective Date and terminating upon the earlier to occur of (A) expiration of the life of the CRA, (B) the Expiration of the Affordability Period or (C) a termination directed by a Court of competent jurisdiction. Notwithstanding the foregoing, if the CRA expiration is not extended to at least July 7, 2047 then this agreement will be terminated. 2.31 "TIF Agreement" has the meaning ascribed to said term in Section 4.3. 3. DEVELOPMENT OF PROJECT, PROJECT DEVELOPMENT INCREMENTAL TIF, GROSS SALES. 3.1 Development of Project. Developer agrees that this Project is contingent on the Page 4 of 24 execution and ratification of the Extension Interlocal Agreement by all parties, being necessary to extend the lifetime of the CRA until 2047, and that no CRA Funds will be disbursed before such execution and ratification. Developer agrees that the Project shall be constructed in compliance with the Covenant, Rent Regulatory Agreement, and this Agreement, executed on or about even date herewith. 3.2 Commencement of Construction of the Project. Developer will commence construction of the Project within eighteen (18) months from the Effective Date of this Agreement, subject to any delays as a result of Force Majeure events or other delays beyond the reasonable control of the Developer ("Commencement of Construction"). Upon the written request of the Developer, the Executive Director has the discretion to extend the date for Commencement of Construction. Such discretion shall not be unreasonably withheld, conditioned or delayed. 3.3 Substantial Completion. Developer will obtain all required certificates, as set forth in Section 2.29, for the CRA-Assisted Units within thirty-six (36) months from the Commencement of Construction, as may be extended as a result of Force Majeure events. 3.4 CRA-Assisted Units Rents. Upon Substantial Completion of the Project, the CRA- Assisted Units will only be used in accordance with the terms and conditions of the Rent Regulatory Agreement. 3.5 Incremental TIF Incentive. Payment of Ninety -Five Percent (95%) of Developmental TIF as follows: 3.5.1 Payment of Incremental 'HP. Subject to the approval of the Extension Interlocal Agreement extending the life of the CRA to 2047, on an annual basis for each calendar year commencing after the Base Year and after Substantial Completion of the Project and continuing throughout the Term of this Agreement, the CRA shall pay to Developer, its assigns or its successors in interest, an incentive payment equal to Ninety Five Percent (95%) of the project's Development Incremental TIF (the "Incentive Payment") annually, or Eight Hundred Sixteen Thousand Seven Hundred Thirty One and 00/100 Dollars ($816,731.00) annually, whichever is less, each year until July 7, 2047. The payment of the TIF annually is subject to the rent restrictions of the CRA-Assisted Units pursuant to this Agreement. The restriction on rent is described in the Rent Regulatory Agreement. All Incentive Payments shall be due and payable within forty-five (45) days of the CRA's receipt of Incremental TIF and an invoice and proof of tax payment from the Developer, subject to the conditions, terms, requirements, and restrictions contained herein. Notwithstanding the foregoing, although the Developer will be entitled to receive the Incentive Payment after the first calendar year after the Base Year and Substantial Completion, the CRA will not issue the first Incentive Payment until Substantial Completion has been achieved. In no event shall the total Incentive Payment amount paid by the CRA under this Agreement exceed Thirteen Million Six Hundred Thousand and 00/100 Dollars ($13,600,000.00). 3.5.2 Assignment of Incentive Payments. The assignment of the right to receive the Incentive Payment by Developer or its assigns or successors in interest shall not release Developer or successors in interest of its duties and obligations under this Agreement, the Covenant, or the Rent Regulatory Agreement. In order for such successor in interest to be eligible to receive Grant or TIF Payments shall not have been previously, debarred or suspended by any government entity. 4. SUBORDINATION OF INCENTIVE PAYMENT. Page 5 of 24 4.1 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 existing as of the Effective Date (such obligations the "Bond Obligations"). 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. 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, 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) and the maximum annual payment of Eight Hundred Sixteen Thousand Seven Hundred Thirty One and 00/100 Dollars ($816,731.00) will be temporarily waived in such subsequent years as necessary to repay any deferred amounts due to Developer pursuant to this Agreement, subject to the Incremental TIF generated by the Project at such time. Any deferred amounts to Developer shall only be paid from Incremental TIF generated by the Project, and notwithstanding anything to the contrary contained herein, under no circumstances shall the CRA be obligated to make deferred payments from its general revenues or any other sources. If requested by the CRA, in its sole and absolute discretion, Developer shall execute a subordination agreement, which shall confirm that this Agreement and the CRA's obligations hereunder are junior and subordinate to any Bond Obligations existing as of the Effective Date, within ten (10) business days of written request by the CRA. 4.2 Pledge of Developmental TIF Revenues. In the event the CRA issues additional bonds or obligations, subsequent to the Effective Date, the CRA covenants and agrees not to pledge the Incremental TIF derived from the development of the Project which will be payable to Developer under this Agreement as collateral for such bonds or obligations. 4.3 Additional Agreements Regarding Use of Incremental TIF. 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 Incremental TIF generated from their project within the Redevelopment Area. Developer acknowledges and agrees that Incremental TIF generated from other projects which are payable under other TIF Agreement(s) will not be available to compensate for any shortfall under Section 4.1. 5. INTENTIONALLY OMITTED. 6. AUDIT AND REPORTING. Developer understands that the use of the Funds and Incentive Payment are subject to specific reporting, record keeping, administrative and contracting guidelines, audit, and other requirements of this Agreement. Upon request of the CRA on or before March 1st of each year during the Term of this Agreement, Developer shall submit an annual statement and report, as applicable describing the Developer's compliance with the Rent Regulatory Agreement, the Covenant, and this Agreement, as may be applicable. Developer warrants and covenant that failure to submit the statement and report annually to the CRA as outlined in the Rent Regulatory Agreement, this Agreement, and the Covenant shall be an event of default, subject to the cure provisions described below. Developer covenants and agrees to comply with any and all such requirements and represents and warrants to the CRA that all CRA Funds shall be used in accordance with all of the requirements, terms and conditions contained herein, as the same may be amended during the Term hereof. Without limiting the foregoing, Developer represents and warrants that it will comply with, and the Funds will be used in accordance with, all applicable federal, state, and local codes, laws, rules, and regulations. Moreover, Developer acknowledges that it shall adhere to any and all state, local, and federal laws, rules, and regulations in undertaking the Project and in Page 6 of 24 complying with this Agreement. 7. CHALLENGES. 7.1 No Liability. Developer, its successors and assigns hereby forever waives and releases the City of Miami and the CRA, and its successors and assigns, from any liability whatsoever, now or hereafter arising in connection with any challenge to this Agreement by a third party and Developer, its successors and assigns covenants and agrees not to initiate any legal proceedings against the City of Miami and the CRA, and its successors and assigns, in connection with any challenges to this Agreement (other than as a result of a default by the CRA with respect to its obligations under this Agreement). Any liability of the CRA, and its successors and assigns, under this Agreement shall be subject to the limitations imposed by Section 768.28, Florida Statutes. 7.2 Waiver of Claim. The Developer waives any and all claims which the Developer now has or may hereafter have against the CRA, the City, or their successors or assigns, as a result of any challenge to this Agreement by any entity or person, and the Developer acknowledges and agrees to assume the risk of any challenge to this Agreement unless such challenge is based on the CRA's willful misconduct, gross negligence, or fraud. Under no circumstances shall the Developer be entitled to any recovery other than the right to terminate this Agreement or the Affordability Period, with respect to any claims or any cause of action against the CRA, the City, or their successors or assigns, resulting from any challenge to this Agreement, all such claims being expressly waived by the Developer except for any claims based on the CRA's willful misconduct, gross negligence, or fraud. Any liability of the CRA, the City, or their successors or assigns, under this Agreement shall be subject to the limitations imposed by Section 768.28, Florida Statutes. This waiver shall survive the expiration, termination, cancellation, and full performance of this Agreement. 8. INSURANCE REQUIREMENTS. Additional Insurance Requirements for the Project are attached and incorporated herein as Exhibit "D". 8.1 Performance and Guaranty. Developer will cause for this Project to be supported by a Payment and Performance Bond by a credit rated issuer to secure the performance of the Developer's General Contractor to complete the Project and pay all subcontractors' and materialmen's work and materials used on the Project. Additionally, Developer hereby guarantees if Developer fails to complete the Project within the time period described in this Agreement, including any extensions for Force Majeure events, Developer will return any and all Incentive Payments and Funds it has received pursuant to this Agreement immediately upon request by the CRA prior to Substantial Completion, and this Agreement, Covenant, Rent Regulatory Agreement and Loan Documents will be deemed terminated and the CRA will deliver releases of the same to be recorded to unencumber the Property. 9. INDEMNIFICATION. Developer hereby agrees to indemnify, protect, save, defend, release, and hold harmless the CRA, the City and their respective officers, employees, agents, representatives, and principals from and against any and all claims, actions, damages, liability and expense (including fees, costs, and expenses of attorneys, investigators and experts) in connection with the loss of life, personal injury, illness, or damage to property arising out of the performance or non-performance of this Agreement and the Project, except to the extent such loss, injury, illness, or damage was caused by the gross negligence or willful misconduct of the CRA, the City, or their respective officers, employees, agents, representatives, and principals. Developer shall also require its contractors to indemnify, save, defend, and hold harmless the CRA, the City or their respective officers, employees, agents, representatives, and Page 7 of 24 principals, and further provide certificates of insurance as stipulated in Exhibit "E." This indemnification shall survive the expiration, termination, cancellation, and full performance of this Agreement. 10. DISPUTES. In the event of a dispute between the CRA and Developer as to the terms and conditions of this Agreement, the Executive Director of the CRA and Developer shall notify each in writing of the dispute and proceed in good faith to resolve the dispute within thirty (30) calendar days of such written notice. If the dispute is not resolved within such thirty (30) calendar days, the dispute shall be submitted to the CRA Board for resolution within ninety (90) calendar days thereof, or such longer period as may be agreed to by the parties to this Agreement. The CRA Board's decision shall be deemed final and binding on the parties. 11. REPRESENTATIONS OF DEVELOPER. Developer makes the following representations to the CRA as follows: 11.1 Developer is a limited liability company, duly organized and validly existing under the laws of its state of formation and has full power and capacity to own its properties, to carry on its business as presently conducted, and to enter into the transactions contemplated by this Agreement 11.2 Developer's execution, delivery and performance of this Agreement has been duly authorized by all necessary company actions and does not conflict with or constitute a default under any indenture, agreement, or instrument to which the Developer is a party or by which it may be bound. 11.3 This Agreement constitutes the valid and binding obligations of the Developer, enforceable against Developer in accordance with its terms, subject to bankruptcy, insolvency and other similar laws affecting the rights of creditors generally. 11.4 Developer, for itself and on behalf of its agents, affiliates, contractors, and sub- contractors, agrees that it shall not discriminate as to race, sex, color, religion, national origin, age, marital status, sexual orientation, or disability in connection with its performance under this Agreement. Furthermore, Developer represents that no otherwise qualified individual shall, solely, by reason of his/her race, sex, color, religion, national origin, age, marital status, sexual orientation, or disability be excluded from the participation in, be denied benefits of, or be subjected to discrimination under any program or activity receiving fmancial assistance pursuant to this Agreement. 11.5 Conflict of Interest. Developer has reviewed and is familiar with the following provisions regarding conflict of interest in the performance of this Agreement by Developer. Developer covenants, represents and warrants that it will comply with all such conflict -of -interest provisions, including, but not limited to the: 11.5.1 Code of the City of Miami, Florida, Chapter 2, Article V; and 11.5.2 Miami -Dade County Code, Section 2-11.1. 11.6 Debarment. Developer certifies to the best of its knowledge and belief, that it and its principals as of the Effective Date of this Agreement: a. Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from transactions by any Federal, State, or local department or agency. Page 8 of 24 b. Have not within a three-year period preceding this Agreement been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State, or local) transaction or contract under a public transaction; violation of Federal or State antitrust statutes or falsification or destruction of records, making false statements, or receiving stolen property; c. Are not presently indicted for or otherwise criminally or civilly charged by a government entity (Federal, State, or local) with commission of any of the offenses enumerated in paragraph 10.6(b) above; and d. Have not, within a three-year period preceding this Agreement, had one or more public transactions (Federal, State, or local) terminated for cause or default. 12. REPRESENTATIONS OF THE CRA. The CRA makes the following representations to Developer: 12.1 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 own properties, to carry on its business as presently conducted by the CRA, and to perform its obligations under this Agreement. 12.2 The CRA's execution, delivery and performance of this Agreement has been duly authorized by all necessary actions and does 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. 12.3 This Agreement constitutes the valid and binding obligations of the CRA, enforceable against the CRA in accordance with its terms, subject to bankruptcy, insolvency and other similar laws affecting the rights of creditors generally. 13. NOTICES. All notices, demands, designations, certificates, requests, offers, consents, approvals, appointments and other instruments given pursuant to this Agreement (collectively called "Notices") shall be in writing and given by (a) hand delivery, (b) recognized express overnight delivery service, (c) certified or registered mail, return receipt requested, or (d) facsimile and shall be deemed to have been delivered upon (i) receipt, if hand -delivered, (ii) the next Business Day, if delivered by express overnight delivery service, (iii) if sent by certified or registered mail, return receipt requested the day evidenced by the return receipt or the day delivery is refused; or (iv) transmittal, if sent on a business day by facsimile and if sent by facsimile on a day other than a business day, on the first business day following transmittal. Notices shall be provided to the parties and addresses specified below: DEVELOPER: 14TH STREET DEVELOPMENT, LLC 1600 NE 1st Avenue, Suite 3800 Miami, Florida 33132 Attention: Nir Shoshani, Manager Copy to: Shutts & Bowen LLP 200 S. Biscayne Blvd., Suite 4100 Page 9 of 24 CRA: Miami, Florida 33131 Attention: Marc D. Sarnoff, Esq. OMNI COMMUNITY REDEVELOPMENT AGENCY 1401 N. Miami Avenue Miami, Florida 33136 Attention: Executive Director Copy to: City of Miami Office of City Attorney 444 SW 2' Avenue, 9th Floor Miami, Florida 33130 Attention: Victoria Mendez, General Counsel 14. COUNTY APPROVAL. Developer acknowledges that this Agreement has not been submitted to the Board of County Commissioners of the County for review or approval and that the Incentive Payments contemplated by this Agreement will be included in the annual budget submitted by the CRA to the City Commission of the City for approval and submitted by the CRA to the Board of County Commissioners of the County for approval, once the CRA Budget is approved by the CRA Board and City's Approval is obtained. The CRA shall use its best efforts to procure the City's Approval and the County's Approval of the CRA Budget. If the City's Approval and County's Approval are not obtained, in a given year, the Incentive Payment for that year will be deferred and added to subsequent years until such deferred payments are paid -in -full. In such years, the maximum annual Incentive Payment will be increased to include such prior years' deferred payments. However, in no event shall any Incentive Payment in a given year be deferred for a period in excess of two (2) years. For the avoidance of any doubt, if in Year 1 the City's Approval and County's Approval are not obtained, then the Year 1 Incentive Payment shall not be deferred beyond Year 3 and in Year 4 the Developer shall not be paid or entitled to the Year 1 Incentive Payment. If Incentive Payments are deferred for a period in excess of two (2) consecutive years, the Developer will reduce the number of the total restricted units by five percent (5%) for each deferred year which will not be paid pursuant to this Section. However, if the CRA is able at a later date to pay back any deferred amounts that were not paid pursuant to this Section, then the Developer shall once again restrict the total number of units that were made unrestricted pursuant to this Section. 15. INTENTIONALLY DELETED. 16. DEFAULT BY DEVELOPER, TERMINATION AND SUSPENSION. 16.1 In the event Developer breaches its duties and obligations under this Agreement with respect to the income -restricted nature of the One Hundred Twenty (120) CRA-Assisted Units as expressed in the Rent Regulatory Agreement, and such failure is not cured within thirty (30) days of the issuance of written notice of default specifying the breach (or such longer period of time, not to exceed one hundred and eighty (180) days, if the default, by its nature cannot reasonably be cured within such thirty (30) day period and if Developer has commenced curative action within such thirty (30) day period and diligently pursues same until completion not to exceed one hundred and eighty (180) days), the CRA may pursue any Page 10 of 24 and all remedies available at law or in equity, including, but not limited to, specific performance, but subject to the provisions and rent restrictions as described in the Rent Regulatory Agreement, Loan Documents and Covenant. Developer hereby acknowledges and agrees that if it is found to have knowingly violated a court order for specific performance issued on behalf of the CRA, or its successors, to enforce the requirements and restrictions required under this Agreement, the Covenant, and/or the Rent Regulatory Agreement, Developer will be liable to the CRA for return of the Funds as provided under the Loan Documents immediately upon request by the CRA, or its successor, subject to the provisions of the Loan Documents. 16.2 In the event that there is a default by the Developer with relation to the Developer's compliance with its duties and obligations under this Agreement with respect to the affordability, as set forth in the Rent Regulatory Agreement and Covenant, of the One Hundred Twenty (120) CRA-Assisted Units, and the Developer's right to cure as provided in Section 16.1, above, has expired, the CRA may withhold any current or future Incentive Payments in escrow until (a) the Developer reasonably demonstrates that it is in compliance with its duties and obligations under this Agreement with respect to the income -restricted nature of the One Hundred Twenty (120) CRA-Assisted Units as expressed in the Rent Regulatory Agreement and Covenant or (b) in the event of litigation, a court of competent jurisdiction has issued an order denying specific performance. If a court of competent jurisdiction issues an order of specific performance in favor of the CRA, the CRA shall continue to withhold the Incentive Payments in escrow until such time that the Developer complies with such order. 16.3 An event of default by the Developer under the Rent Regulatory Agreement or Covenant shall be considered an event of default under this Agreement. 16.4 Notwithstanding anything stated herein to the contrary, the Developer may cure any default hereunder by (a) returning to the CRA an amount equal to the Unamortized Amount multiplied by the number of years remaining in the Term plus a return of payments for any years in which there is a default on the Rent Regulatory Agreement as outlined in Exhibit C, and (b) simultaneously with such payment terminating this Agreement upon written notice to the CRA. As used herein, the term "Unamortized Amount" shall mean the total amount of Funds disbursed to Developer pursuant to the Loan Documents as of the date of such termination divided by the number of the years remaining in the Term. The CRA and Developer hereby agree and acknowledge that upon the termination of this Agreement pursuant to this section, Developer shall not be entitled to any further Incentive Payments from the CRA. For purposes of clarification, attached as Schedule 1 is an example of the Unamortized Amount that would be due from Developer in the event this Agreement is in default and terminated in year 10 of the term in accordance with this Section 16.4. 16.5 It shall be an event of default if the Developer fails to comply with the periods described in Section 3.2 and Section 3.3 of this Agreement unless an extension is agreed upon in writing by both Developer and CRA. 16.6 It shall be an event of default if the Developer fails to submit any documents required by this Agreement and such failure is not cured within thirty (30) days of the issuance of written notice of default specifying such breach (or such longer period of time, not to exceed one hundred and eighty (180) days, if the default, by its nature cannot reasonably be cured within such thirty (30) day period and if Developer has commenced curative action within such thirty (30) day period and diligently pursues same until completion not to exceed one hundred and eighty (180) days). 16.7 Termination. Upon the occurrence of an event of default, as described herein, and Page 11 of 24 the expiration of any grace, notice and/or cure period (in those circumstances for which a grace, notice and/or cure period is otherwise provided in this Agreement, or any other applicable agreement including, without limitation, Section 8.1), and unless the Developer's breach is waived by the CRA in writing, the CRA may, by written notice to the Developer, terminate this Agreement, the Rent Regulatory Agreement, the Covenant and the Loan Documents upon not less than ten (10) days prior written notice. Said notice shall be delivered by certified mail, return receipt requested, or by in person delivery with proof of delivery. Waiver of breach of any provision of this Agreement shall not be deemed to be a waiver of any other breach and shall not be construed to be a modification of the terms of this Agreement. The provisions hereof are not intended to be, and shall not be, construed to limit the CRA's right to legal or equitable remedies. Developer shall not be entitled to lost profits, overhead or consequential damages as a result of a Termination caused by Developer's Event of Default. 16.8 Suspension. The CRA may, for reasonable cause, suspend the Developer's authority to obligate funds under this Agreement or withhold payments to the Developer, pending necessary corrective action by the Developer, and may include, failure of the Developer to materially comply with any other term or provision of this Agreement not expressly provided above in this Section 16 and such failure is not cured within any applicable cure period. The CRA will notify the Developer in writing of the type of action taken pursuant to this provision, by certified mail or email, return receipt requested, or by in person delivery with proof of delivery. The notification will include the reason(s) for such action, any conditions relating to the action, and the necessary corrective action(s). In the event that the suspension occurs for longer than a six (6) month period, the CRA may terminate this Agreement at -will and without penalty and shall be entitled to receive back from Developer any Funds or Incremental Payments that were paid to Developer after the action that caused the suspension occurred. 17. ADJUSTMENT TO FOLIO NUMBERS AND OFFICIAL ADDRESS. Developers and CRA each acknowledge that the current tax folio numbers and addresses with respect to the Property may change as a result of the Development of the Property in connection with the Project. In such event, the Executive Director of the CRA and Developers shall proceed in good faith to agree as to which new folio numbers are applicable to portions of the Project, based upon the adjustment in such new folio numbers by the Miami -Dade County Property Appraiser. 18. 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 represents and acknowledges that no one was paid a fee, commission, or other consideration by such party or such party's agent as an inducement to entering into this Agreement. 19. AGREEMENT TO RUN WITH THE LAND. All rights and obligations herein, shall be binding upon Developer and their respective successors and assigns, shall be reduced to writing and recorded in the Public Records of Miami -Dade County, Florida, and shall run with land. In the event all or any portion of the Property is conveyed to a third party, such successor owner shall be bound by the terms and provisions of this Agreement to the same extent as if such successor owner had executed this Agreement. Page 12 of 24 20. BUDGET & APPROPRIATION. CRA covenants and agrees to budget the Incentive Payment as a line item in its annual operating budget subject to CRA Approval, City Approval, and County Approval. CRA further covenants to use its best efforts to procure annual approval of its operating budget, including the Incentive Payment as contemplated by this Agreement, by both the City and County. 21. CONSULTANT AND PROFESSIONAL COMPENSATION. Notwithstanding anything to the contrary contained herein, in no event shall Developer compensate any consultant or professional in any form with the Grant Funds or the Incentive Payments that would be deemed a "bonus," "success fee" or "finder's fee" or like term in exchange for the CRA's actions or awards with the negotiation and execution of this Agreement and all other Agreements entered into between the CRA and the Developer with respect to this Project. 22. PUBLIC RECORDS. 22.1 Developer understands that the public shall have access, at all reasonable times, to all documents and information pertaining to the CRA, subject to the provisions of Chapter 119, Florida Statutes, and any specific exemptions therefrom, and Developer agrees to allow access by the CRA and the public to all documents subject to disclosure under applicable law unless there is a specific exemption from such access. Developer further understands that this Agreement is subject to disclosure pursuant to the provisions of Chapter 119, Florida Statutes. Should Developer determine to dispute any public access provision required by Florida Statutes, then Developer shall do so at its own expense and at no cost to the CRA. IF THE DEVELOPER HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE DEVELOPER'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS AGREEMENT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT (305) 679-6870, IJONES@MIAMIGOV.COM, AND 1401 NORTH MIAMI AVENUE, 2ND FLOOR MIAMI, FLORIDA 33136. 23. NON-DELEGABILITY. The rights and obligations of Developer under this Agreement shall not be delegated or assigned to any other party without the CRA's prior written consent, which shall not be unreasonably withheld, conditioned or delayed by the CRA. Developer may sell, transfer, convey or assign the Project (or any portion thereof) or the improvements thereon, subject to the terms of this Agreement and subject to the Developer obtaining the CRA's prior written consent, which shall not be unreasonably withheld, conditioned, or delayed. 24. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the parties hereto, and their respective heirs, executors, legal representatives, transferees, successors, and assigns. 25. SURVIVAL. All obligations (including but not limited to indemnity and obligations to defend, save, release, and hold harmless) and rights of any party arising during or attributable to the period prior to expiration or earlier termination of this Agreement shall survive such expiration or earlier termination. 26. MISCELLANEOUS. Page 13 of 24 26.1 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 and shall be interpreted in accordance with its plain meaning. 26.2 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. 26.3 In the event of any claim or dispute between the parties under this Agreement, each party shall bear its own attorneys' fees and costs. 26.4 In construing this Agreement, the singular shall be held to include the plural, the plural shall be held to include the singular, the use of any gender shall be held to include all genders, and captions and Paragraph headings shall be disregarded. 26.5 All of the exhibits attached to this Agreement are incorporated in, and made a part of, this Agreement. 26.6 Time shall be of the essence for each and every provision of this Agreement. 26.7 No provision of this Agreement is intended, nor shall any be construed, as a covenant of any official (either elected or appointed), director, employee or agent of the CRA, in an individual capacity. 26.8 This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. Any action, in equity or in law, with respect to this Agreement must be brought and heard in Miami -Dade County, Florida. 26.9 Developer and the CRA hereby knowingly, irrevocably, voluntarily, and intentionally waive any right either may have to a trial by jury in respect to any action, proceeding, claim, or counterclaim based on this Agreement and/or the Project, or arising out of, under, or in connection with this Agreement, the Project, any renewal(s) hereof, any amendment, extension, or modification of this Agreement, or any other agreement executed between the parties in connection with this Agreement, the Project, or any other course of conduct, course of dealing, statements (whether verbal or written), or any other actions of any party hereto. This waiver is a material inducement for the CRA and the Developer to enter into this Agreement. 26.10 This Agreement shall be recorded in the Public Records of Miami -Dade County at the sole cost and expense of Developer within fifteen (15) calendar days after all parties have executed this Agreement. 26.11 Amendment. This Agreement may not be changed, altered or modified except by an instrument in writing signed by authorized representatives from the Developer and the CRA. The Executive Director of the CRA shall have the authority to enter into any change, alteration, or modification that does not result in the increase of the maximum annual or aggregate Incentive Payment as described in this Agreement or an increase in the Grant proceeds as described in the Loan Agreement without the need for CRA Board approval unless otherwise provided herein, in Resolution No. CRA-R-20-0044 and CRA-R- 0045, or any subsequent action by the CRA Board. Page 14 of 24 26.12 Rent Regulatory Agreement. This Agreement is not intended to and does not amend or alter any of the terms, obligations, rights, duties, covenants, warranties, conditions, representations, or requirements of the Rent Regulatory Agreement or the Covenant, nor shall this Agreement be interpreted to be an amendment or alteration of any of the terms, obligations, rights, duties, covenants, warranties, conditions, representations, or requirements of the Rent Regulatory Agreement. All actions taken in furtherance of this Agreement shall be in compliance with the terms, obligations, and duties of the Rent Regulatory Agreement. Developer further represents and warrants that as of the Effective Date of this Agreement, the Developer is not in default of any other agreements it may have with the CRA. In the event that any term in the Covenant, Loan Documents or Rent Regulatory Agreement conflicts with this Agreement, this Agreement's term shall control. 26.13 From time to time and upon written request from the Developer (or any assignee or successor in interest), 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 such Developer's (or any assignee or successor in interest) compliance with the conditions set forth in this Agreement with respect to the applicable Improvements (and/or disclosing any then failure or default by either such party). 27. FORCE MAJEURE. In the event that either party hereto is prevented from fully and timely performing any of its obligations hereunder due to acts of God, strikes or lock -outs, other industrial disturbances, acts of the public enemy, laws, rules, orders, actions or regulations of governmental authorities, wars or warlike action (whether actual, impending or expected, and whether de jure or de facto), arrest or other restraint of government (civil or military), blockades, insurrections, acts of terrorists or vandals, riots, epidemics or pandemics, landslides, sinkholes, lightning, hurricanes, storms, floods, washouts, fire or other casualty, condemnation, civil commotion, explosion, breakage or accident to equipment or machinery, any interruption of utilities, confiscation or seizure by any government or public authority, accident, repairs or other matter or condition beyond the reasonable control of either party (collectively called "Force Majeure"), financial inability to perform hereby expressly excluded from the definition of Force Majeure, such party, upon receipt of written notice provided to the other party within ten (10) business days of the occurrence of a Force Majeure event, shall be relieved of the duty to perform such obligation and extend the time periods for performance until such time as the Force Majeure has been alleviated. 28. COUNTERPARTS; ELECTRONIC SIGNATURES. This Agreement may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, and such counterparts shall together constitute but one and the same Agreement. The parties shall be entitled to sign and transmit an electronic signature of this Agreement (whether by facsimile, PDF or other email transmission), which signature shall be binding on the party whose name is contained therein. Any party providing an electronic signature agrees to promptly execute and deliver to the other parties an original signed Agreement upon request. 29. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and there are no other agreements, representations or warranties other than as set forth herein. This Agreement shall be binding upon the parties hereto and their respective successors and permitted assigns. 30. ADDITIONAL FINANCING. Developer and the CRA hereby agree and acknowledge that Developer may obtain senior mortgage financing from a lender or lenders secured by a mortgage on the Page 15 of 24 Project to be recorded in the Official Records of Miami -Dade County. Any additional financing shall provide notice to the CRA and such lenders shall acknowledge the rights of the CRA as evidenced by all documents of even date herewith. The Rent Regulatory agreement shall not be subordinated or terminated except upon the terms of the CRA agreements of even date herewith. Notwithstanding the foregoing, the CRA will not subordinate beyond a 3' priority lien to any senior financing. Page 16 of 24 IN WITNESS hereof the parties have executed this Agreement as of the date first above written. WITNESS: P t ame: 4e+b DEVELOPER: 14th Street Development, LLC, a Florida limited liability company �� By: Print Name: 1 1�p ../isi ,�.�- Name: Nir Shoshani Title: Manager Date: STATE OF FLORIDA COUNTY OF MIAMI-DADE The forego'ng instrume w s acknowledged before me by notarization, this ay of , 2022, by Nir Shoshani, LLC, a Florida limited liability company, on behalf of compan has produced as identification. My Commission Expires: o411 (fb eans of 4ysical presence or o online anager, of 1e Street Development, e/she is personally known to me or _Pt (NO' We Nota — ' u. ic, State of Florida i„pp Notary Public State of Flonda Maria Camila Daze .4. My Commission HH 118357 Expires 04/1812025 37608064.9 Page 17 of 24 ATTEST: Todd Hannon of _: oard Date: APPROVED �r REQUI l Ann -Marie Director of '- sk anagement STATE OF FLORIDA COUNTY OF MIAMI-DADE CE CRA: OMNI COMMUNITY REDEVELOPMENT AGENCY of the City of Miami, a public agency and body corporate created p y ant to Florida Statutes Section 163.356 ("C By: H. Bert Gonzalez, Executi APPROVED AS TO FORM AND CORRECTNESS Victoria Mendez General Counsel f"b The foregoing instrument was acknowledged before me by means of jhysical presence or ❑ online notarization, this23day of March, 2022, by H. Bert Gonzalez, Executive Director of OMNI COMMUNITY REDEVELOPMENT AGENCY of the City of Miami, a public agency and body corporate created pursuant to Florida Statutes Section 163.356, on behalf of the agency. He/she is persoally kr iw to me or has produced 92l161?- '1ri C---" ;C as identification. My Commission Expires: D4J 1 3J iv Z- �.otr Notary Public Stale of Ronda Marra Camda Daza e My Commission HH 118357 �,� nor Ada Expires 04118/2025 NY)AA tary Public, State of Florida 37608064.9 Page 18 of 24 Schedule 1 Example of the Unamortized Amount Calculation Due Under Section 16.4 If Developer defaults this Agreement in year 10 of the term and this Agreement is thereby terminated, then the Unamortized Amount due from Developer would be $9,000,000. Effective Date 2/7/2022 End Date 7/7/2047 Total years in Term 25 Years Elapsed in Example 10 Years Remaining in Term 15 Default Year/Year of Termination 10 of Time Unamortized 60% Unamortized Amount $9,000,000 37608064.9 Page 19 of 24 EXHIBIT "A" RENT REGULATORY AGREEMENT 37608064.9 Page 20 of 24 EXHIBIT "B" LEGAL DESCRIPTION Folio 01-3136-005-1110: Lot 7 and the North 20 feet of Lot 10, Block 16, "NORTH MIAMI", (also known as ROBBINS, GRAHAM AND CHILLINGSWORTH SUBDIVISION) according to the plat thereof, as recorded in Plat Book "A", Page 491/2, of the Public Records of Miami - Dade County, Florida, less the West 10 feet of said Lot 7 and further less the West 10 feet of the North 20 feet of said Lot 10, Block 16. Folio 01-3136-005-1060: Lot 2, Block 16, Robbins -Graham & Chillingsworth, also known as North Miami, less the West 10 feet thereof, according to the plat thereof, as recorded in Plat Book A, Page 491/2, of the Public Records of Miami -Dade County, Florida. Folios 01-3136-005-1070 and 01-3136-005-1090: Lots 3 and 6 in Block 16, of ROBBINS, GRAHAM, & CHILLINGSWORTH'S SUBDIVISION, according to the Plat thereof, as recorded in Plat Book "A" at Page 49 1/2, of the Public Records of Miami -Dade County, Florida, less the West 10 feet thereof. Folios 01-3136-005-1130; 01-3136-005-1140; 01-3136-005-1150; 01-3136-005-1151; 01-3136-005-1180: Lots 5, 8, 9 and 12 in Block 16, of ROBBINS, GRAHAM & CHILLINGWORTH'S SUBDIVISION, of the South 1/2 of the South 1/2 of the Northeast 1/2 of the Southeast 1/ of the Northeast % of Section 36, Township 53 South, Range 41 East; the same being commonly known as "North Miami", according to the Plat thereof, as recorded in Plat Book "A", at Page 49 1/2, of the Public Records of Miami -Dade County, Florida. 37608064.9 Page 21 of 24 EXHIBIT C- CRA-R-21-0045 37608064.9 Page 22 of 24 EXHIBIT D- INSURANCE 37608064.9 Page 23 of 24 235"31 EXHIBIT E- COVENANT 37608064.9 Page 24 of 24