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10.21.13 ResolutionI 2 3 4 5 6 7 8 9 10 .. .. .. RESOLUTION NO. _____ _ A Resolution approving the adequate assurances required by Resolution No. 219- 13-14037 which authorizing the South Miami Community Redevelopment Agency ("SMCRA") to convey property owned by the SMCRA to a private developer known as Strategic Green Mills Investments LLC for a purchase price that is less than the fair market value of the property in order to develop the Madison Square Property and to construct mixed-use affordable housing and commercial units on the property. .. I I WHEREAS, the South Miami Community Redevelopment Agency ("SMCRA") adopted a 12 redevelopment plan that identified the Madison Square Project as its cornerstone redevelopment 13 project and as a means of providing a development anchor at this vital historic location; and 14 15 WHEREAS, the redevelopment plan directs the Agency to obtain land-use and zoning 16 amendments required to implement the project; and 17 18 WHEREAS, the SMCRA selected Strategic Green Mills Investments LLC, from a number of 19 firms that responded to the SMCRA's solicitation for qualified affordable housing developers; and 2 0 2 1 WHEREAS, the SMCRA has approved the purchase and sale agreement for the sale of the 22 property to Strategic Green Mills Investments LLC for less than the fair market value of the 23 property; and 24 25 WHEREAS, Strategic Green Mills Investments LLC has agreed to a land use restrictive 2 6 agreement ("LURA") which is a covenant running with the land and binding all owners of the 27 property to the construction and operation of a mixed use affordable residential and commercial 2 8 project in which 90% of the residential units shall be set aside and rented to families whose annual 29 household earnings are at or less than 60% of the Area Median Income as established by United 30 States Department of Housing and Urban Development ("HUD") for Miami-Dade County and as 3 1 adjusted for the size of the tenant's family (hereinafter referred to as "AMI"), and 10% of the 32 residential units shall be rented to families whose annual household earnings are at or less than 33% 33 of the AMI as set forth in the LURA.; and 34 35 WHEREAS, on October 1, 2013, the Mayor and City Commission for the City of South 36 Miami adopted Resolution No. 219-13-14037 which approved the sale provided there are sufficient 37 guarantees to show to the satisfaction of the City or South Miami Community Redevelopment 38 Agency that Strategic Green Mills Investments LLC has adequate resources to make the project 3 9 come to fruition. 40 4 1 WHEREAS, the City's affordable housing expert, Orlando Cabrera, Esq., expressed the 42 opinion that the naming of the South Miami CRA or its affiliate as a .01% limited partner or limited 43 liability company member, as may be applicable, with the right to purchase defaulted construction 44 debt from the lender should protect the City from the outcome it most seeks to assure -that the land 45 and units will be, to the maximum extent possible, affordable units serving low income residents; 46 and 47 48 NOW THEREFORE BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION 49 FOR THE CITY OF SOUTH MIAMI, FLORIDA THAT: 50 5 1 Section 1. The recitals set forth above are true and are adopted as part of this resolution by 52 reference. I .. 2 Section 2. The addition of the text contained in Exhibit A, to the Purchase and Sale 3 Agreement, meets the requirement of Resolution No. 219-13-14037 for providing sufficient 4 guarantees, to the satisfactIOn of the City, that Strategic Green Mills Investments LLC will have 5 adequate resources to make the project come to fruition. 6 7 Section 3. Severability. If any section clause, sentence, or phrase of this resolution is for any 8 reason held invalid or unconstitutional by a court of competent jurisdiction, the holding shall not 9 affect the validity of the remaining portions of this resolution. 10 11 Section 4. Effective Date. This resolution shall become effective immediately upon adoption 12 by vote of the City Commission. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PASSED AND ADOPTED this __ day of _____ , 2013. 29 ATTEST: CITY CLERK READ AND APPROVED AS TO FORM, LANGUAGE, LEGALITY AND EXECUTION THEREOF CITY ATTORNEY APPROVED: MAYOR COMMISSION VOTE: Mayor Stoddard: Vice Mayor Liebman: Commissioner Newman: Commissioner Harris: Commissioner Welsh: .. .. EXHIBIT A 22. Option to Become Partner and Other Protections for the Agency. (a) At the option of the Seller, an affiliate of Seller, or the City of South Miami, as Seller's assignee or successor, may elect to become a .01 % special limited partner of the Buyer or the Buyer's successors and/or assigns as may be applicable and shall have the right, as a partner in Buyer, to: (i) enforce on Buyer's behalf, any ofthe Buyer's agreements relating to the construction of the Project, including, without limitation, the right to enforce the payment and performance bonds required by the Seller for the construction of the Project; and (ii) under all circumstances receive notice and have the right (but not the obligation) to cure any and all loan defaults in a similar manner as notice and cure rights are provided by lenders to equity investors. Seller shall exercise this option, if at all, by written notice to Buyer at least 30 days after Buyer gives Seller notice that Buyer has received a tax credit award, which notice shall be given by Buyer within 30 days after Buyer's receipt of the final award and in any event at least 45 days prior to Closing. lfthe Seller exercises this option, then the City of South Miami or Seller's affiliate shall execute Buyer's (or its successors or assigns) partnership agreement, in a form satisfactory to the applicable tax credit equity investor for the purposes set forth herein; provided (1) Seller's affiliate or the City of South Miami shall have no more than a .01 % interest in any economic or tax benefit from Buyer and shall have no liability for any losses suffered by the Buyer and shall have no voting, approval or control rights and Seller shall not be able to enforce Buyer's construction agreements unless Buyer is deemed in default by a lender or should Buyer have failed to enforce the same in accordance with reasonable practices (2) the Buyer's partnership agreement shall, subject to the approval ofthe equity investor, authorize the Seller's affiliate or the City of South Miami, as a special limited partner (if the Seller exercises its option to become a limited partner hereunder), to cure any uncured default leading to the removal of the Buyer's general partner under the partnership agreement and to assume the role of general partner, at the Agency's option (3) the equity investor shall be institutional investors with a combined net worth in excess of $350,000,000 or an entity comprised substantially thereof or their affiliates and (4) the Buyer's partnership agreement shall provide that if Seller's affiliate or the City of South Miami loans funds to the partnership to cure loan defaults then that partner shall receive repayment of such loan prior to any payment of developer fee or distribution to pat1ners . Nothing herein shall restrict Seller's right to enforce this agreement, the agreement for development or the conditions, covenants and restrictions contained in the warranty deed or any restrictive covenant running with the land. Seller's option shall be null and void if Seller does not comply with the terms hereof and continues such noncompliance for a period of ten (10) days after notice of noncompliance from Buyer. (b) All equity and debt financing ("Financing") documents shall be delivered to the Seller before the closing on said Financing . All Financing documents, including the mortgage, and any .. .. .. amendments to the Financing documents shall be delivered to the Seller before they are recorded. The Seller shall be made a party to the applicable Financing distribution lists so that the Seller is copied on communications to Buyer regarding the closing of the Financing. Any of the Buyer, the Owner, the Developer and their affiliates who provide guarantees to any lender or equity providers ("the Syndicate") shall deliver to the Seller, prior to the closing on any financing of any kind, and yearly thereafter (for as long as the applicable guarantees are in effect), financial statements, which shall be confidential and not part of the Public Record. All financial assurances and protection provided by any of the Syndicate to any person or entity that provides financing for the Property shall also be provided, in a like manner and contemporaneously, to the Seller for its assurance and protection. All Financing documents, including all construction loan documents, as well as the general contract for the construction of the Property, shall include a provision that requires the lender/investor, or contractor, to provide the Seller with contemporaneous copies of all notices of default under such documents. Buyer shall use commercially reasonable efforts to cause all lenders and equity partners to acknowledge that Seller may purchase from the lender any defaulted debt and thereby step in the shoes of such lender. Such purchase shall be on terms as agreed to by Seller and such lender. ( c) The provisions hereof which relate to the period after Closing shall survive Closing and shall be amended only by the agreement of Seller's staff and Buyer. ..