12aCITY OF SOUTH MIAMI
OFFICE OF THE CITY MANAGER
INTER-OFFICE MEMORANDUM THE CITY OF PLEASANT LIVING
To:
FROM:
DATE:
The Honorable Mayor & Members of the City Commission
Steven Alexander, City Manager
Agenda Item NO.:~ a... June 6,2017
SUBJECT: A Resolution relating to Affordable Housing Mixed-Use
Redevelopment; approving, in principal, the form of the Agreements
between the South Miami Community Redevelopment Agency
("SMCRA") and Abreu Development LLC for the conveyance of the
properties known as the Madison Square and Marshall Williamson
parcels in exchange for construction of Low-Income and Workforce
housing as well as a mixture of affordable commercial space and
proprietary commercial space for a Family Dollar store and a 40 year
land use restriction agreement for the rental operations of the mixed use
development.
BACKGROUND:
The redevelopment plan adopted by the SMCRA identifies the Madison Square
Project as its cornerstone redevelopment project and as a means of providing a
development anchor at this vital historic location.
A purchase and sale agreement was entered into with Strategic Green Mills, LLC
that was contingent on the Developer obtaining tax credit financing and which
was terminated when timely tax credit financing was not obtained.
The City Commission and the SMCRA directed the City Manager to contact the
Family Dollar to determine if they had any interest in developing a store at the
Madison Square site. Abreu Development LLC (proprietary licensee of Family
Dollar) was contacted in September 2015 and project negotiations
subsequently commenced.
The SMCRA and the City Commission have conceptually agreed upon opproval
of required land-use and zoning actions, which were approved by the Planning
Board on May 30, 2017 with a vote of 5-1.
THE CITY OF PLEASANT LIVING
CITY OF SOUTH MIAMI
OFFICE OF THE CITY MANAGER
INTER-OFFICE MEMORANDUM
A draft project Development and Land Use Restriction Agreement was
provided to the SMCRA Board for review on May 30, 2017 which has been
generally agreed to by our outside counsel as well as the counsel for the
Developer. A substantially similar set of documents is attached as Exhibit A. The
attachments include:
Draft documents for the sale of the Property, construction of the Madison
Square/Marshall Williamson mixed-use, affordable housing redevelopment
project, including the development of affordable commercial space and a
Family Dollar store, and the 40-year restrictive covenant for operations of the
Development.
Once properly advertised the City Manager along with the Executive Director of
the SMCRA will evaluate all qualified responsive proposals and make a
recommendation along with negotiated business agreements and zoning
actions as necessary. These documents will be provided to the appropriate
Boards of the City for final action.
Recommendation:
It is recommended that the City Commission approve this resolution, which
authorizes the SMCRA to proceed with perfecting the business documents and
advertise the project as required in Florida Statute, Section 163.380.
RESOLUTION NO. _____ _
A Resolution relating to Affordable Housing Mixed-Use Redevelopment;
approving, in principal, the form of the Agreements between the South Miami
Community Redevelopment Agency (IISMCRA") and Abreu Development LLC
for the conveyance of the properties known as the Madison Square and
Marshall Williamson parcels in exchange for construction of Low-Income and
Workforce housing as well as a mixture of affordable commercial space and
proprietary commercial space for a Family Dollar store and a 40 year land use
restriction agreement for the rental operations of the mixed use
development.
WHEREAS, the SMCRA adopted redevelopment plan identifies the Madison
Square Project as its cornerstone redevelopment project and as a means of providing a
development anchor at this vital historic location; and
WHEREAS, the plan directs the Agency to obtain land-use and zoning
amendments required to implement the project; and
WHEREAS, following City Commission approval of required land-use and zoning
amendments, a request for letters of interest and qualifications was published on
January 7, 2013; and
WHEREAS, a purchase and sale agreement was entered into with Strategic Green
Mills, LLC which was contingent on the Developer obtaining tax credit financing and
which was terminated when timely tax credit financing was not obtain; and
WHEREAS, following direction from the City Commission and the SMCRA the City
Manager contacted Abreu Development LLC (proprietary licensee of Family Dollar) in
September, 2015 and project negotiations subsequently commenced; and
WHEREAS, a draft project Development and Land Use Restriction Agreement
was provided to the SMCRA Board for review on May 30,2017; and
WHEREAS, the City Commission desires to fulfill the goals and objectives of the
SMCRA redevelopment plan including the removal of slum and blight by providing
meaningful economic development and affordable housing opportunities in the SMCRA
and surrounding area.
NOW THEREFORE BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF
SOUTH MIAMI, flORIDA THAT:
Section 1. The City Commission approves, in principal, of the form of the
Development Agreement, the Land Use Restriction Agreement and the Purchase and
Sale Agreement between the SMCRA and Abreu Development LLC for construction of
the Madison Square/Marshall Williamson mixed-use, affordable and workforce housing
redevelopment project including the development of affordable commercial space and
a Family Dollar store. This preliminary approval is in anticipation of the prompt
negotiations and completion of the agreements for final Commission approval and
authorization to proceed with the required statutory notice process to solicit
competitive proposals. The form of the documents that are preliminarily approved for
the sale of the Property, construction o~ the Madison Square/Marshall Williamson
mixed-use, affordable housing redevelopment project, including the development of
affordable commercial space and a Family Dollar store, and the 40 year restrictive
covenant for operations of the Development, are attached as Exhibit A
Section 2. In the event that the SMCRA receives alternative or competing
proposals, after advertising the notice required by Florida Statue, Section 163.380, the
SMCRA board may negotiate with the new Developer but it shall not execute any
documents committing itself to the sale of the property to the new Developer without
first obtaining final approval of the sale from the City Commission.
Section 3. Severability. If any section clause, sentence, or phrase of this
resolution is for any reason held invalid or unconstitutional by a court of competent
jurisdiction, the holding shall not affect the validity of the remaining portions of this
resolution.
Section 4. Effective Date. This resolution shall become effective immediately
upon adoption.
PASSED AND ADOPTED this __ day of _____ , 2017.
ATTEST:
CITY CLERK
READ AND APPROVED AS TO FORM,
LANGUAGE, LEGALITY AND
EXECUTION THEREOF
CITY ATTORNEY
APPROVED:
MAYOR
COMMISSION VOTE:
Mayor Stoddard:
Vice Mayor Welsh:
Commissioner Harris:
Commissioner Edmond:
Commissioner Liebman:
Page 2 of2
AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT OF PURCHASE AND SALE ("Agreement") is made this day of
_____ , 2017 (the "Effective Date") by and between South Miami Community Redevelopment Agency
("Seller"), and , and/or its assigns ("Buyer").
WITNESSETH:
WHEREAS, Seller owns certain real property comprised of approximately 2.4 acres located in the
City of South Miami, Miami-Dade County, Florida, as more particularly described in Exhibit "A" attached
hereto and made a part hereof ("Property"),
WHEREAS, Buyer wishes to purchase the Property and any and all improvements located thereon,
from Seller, for the purpose of developing and constructing thereon the improvements described in that
agreement for Development (the "Development Agreement") attached hereto in Exhibit "B" (with such
modifications as may be agreed to by the Seller and Buyer in writing and hereinafter referred to as the
"Project") and Seller wishes to sell the Property and any and all improvements located thereon to Buyer,
pursuant to the terms and conditions set forth herein. '
NOW, THEREFORE, in consideration of the mutual promises hereinafter set forth, Seller and Buyer
agree as follows:
1. Purchase and Sale. Seller agrees to sell and convey and Buyer agrees to purchase the Property, which
shall include all of right, title and interest of Seller in and to (i) all easements, rights of way, privileges,
licenses, appurtenances and any other rights, privileges and benefits belonging to the owner of, running with
title to, or in any way related to, the Property; (ii) all land use or other consents, authorizations, variances,
waivers, licenses, permits, approvals, development orders, or any other entitlements issued or granted by or
from any governmental authority with respect to the Property; (iii) all percolation, soil, topographical, traffic,
engineering and environmental reports or studies in the possession or control of the Seller, and all riparian,
littoral rights, title to submerged lands and other water rights related to or benefiting the Property; (iv) all utility
mains, service laterals, hydrants, connections, hook-ups and valves located on, or adjacent to, and servicing or
available to service the Property; and (v) any and all other agreements, contracts, covenants, variances and
rights, benefits and privileges related to or benefiting the Property.
2. Purchase Price. The purchase price for the Property ("Purchase Price"), which Buyer agrees to pay and
Seller agrees to accept, is Ten and NollOO Dollars ($10.00), and shall be paid at Closing as well as the
promises of the Buyers as contained in the attached Development Agreement and Land Use Restriction
Agreement ("LURA"). The cash Purchase Price shall be payable by check
1, Title Insurance/Survey.
(a) Within three (3) business days following the Effective Date, Seller shall deliver to
Buyer a copy of Seller's title insurance policy insuring Seller's fee simple title to the Property, if any, and a copy
of Seller's existing boundary survey of the Property, if any. Within twenty (20) days after the Effective Date,
Buyer, at its sole cost and expense, shall obtain an owner's title insurance commitment ("Title Commitment")
from a nationally recognized title insurance company acceptable to Buyer. Marketable title shall be determined
according to the Title Standards adopted by authority of The Florida Bar and in accordance with Florida law.
Following the Effective Date, Buyer may order an ALTAlACSM surveyor an update of Seller's existing survey,
prepared by a Florida licensed surveyor and depicting the Property and all of the plottable exceptions to the
Title Commitment ("Survey"). Buyer shall have until the expiration of the Inspection Period within which to
examine the condition of Seller's title to the Property. If the Title Commitment or the Survey reflects that title
to the Property is subject to any exceptions or other survey matters unacceptable to Buyer, Buyer shall, prior to
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the expiration of the Inspection Period, notifY Seller in writing ofthe specific title defects ("Title Objections").
Any exceptions listed in the Title Commitment to which Buyer has not timely objected shall be deemed to be
"Permitted Exceptions." Seller, at Seller's sole cost and expense, shall use commercially reasonable efforts to
correct or remove such Title Objections within thirty (30) days after receipt of notice from Buyer. If Seller is
not successful in correcting or removing the Title Objection within such thirty (30) day period, Buyer shall
have the option of either accepting the title in its existing condition, or of terminating this Agreement by
sending written notice of termination to Seller. In the event that Buyer elects to terminate this Agreement, then
neither Buyer nor Seller shall have any further liabilities or obligations hereunder except with respect to those
obligations which expressly survive termination.
(b) Seller covenants and agrees that after the Effective Date it shall not enter into or record any
document or instrument, or enter into any lease or other agreement, affecting or burdening the Property, unless
Buyer has consented in writing to the execution or recordation of such document, instrument, lease or
agreement. If any updated endorsement to the Title Commitment or any update of the Survey obtained prior to
Closing reveals any exception or survey defect not reflected on the Title Commitment or the Survey that was not
consented to by Buyer, Seller, at Seller's sole cost and expense, shall have such exception deleted from the Title
Commitment, or such survey defect removed or cured prior to Closing. If Seller is not successful in removing
the same by the Closing Date, Buyer shall have the option of either proceeding to Closing or terminating this
Agreement by sending written notice of termination to Seller. In the event Seller fails to remove an exception
revealed in the Title Commitment, or any update thereof (whether or not objected to by Buyer), in the form of:
(1) a mortgage or other security interest entered into by Seller; (2) a lien or encumbrance of any kind or nature
voluntarily created by Seller at any time on or after the date of this Agreement; or (3) a mechanic's or
materialman's lien or a judgment docketed against the Property, in any case resulting from the non-payment by
Seller of any sums alleged to be due and owing by Seller to a contractor or materialman or otherwise voluntarily
caused or created by Se,1ler, then Buyer shall be entitled to recover from Seller all third party costs incurred by
Buyer, including reasonable attorneys' fees and costs, in connection with this Agreement and the Property and,
in the case Buyer proceeds to Closing, any and all sums to be expended by Buyer to cure any such title exception
(which recovery may include a credit to the Purchase Price).
4. Inspection Period.
(a) For the period (the "Inspection Period"), beginning with the Effective Date and
continuing until 11 :59 PM Eastern Time on the date that is one hundred and t\venty sixty (-hW60) calendar
days after the Effective Date, Seller hereby grants to Buyer the right to make or obtain any and all
investigations, tests, studies, evaluations, assessments and reports Buyer deems necessary or desirable with
respect to the Property.
(b) During the Inspection Period, Seller hereby grants to Buyer and its agents, employees,
contractors and representatives, a right of entry upon every portion of the Property, and aright to examine all
records, documents, data or information of any kind or nature relating to or concerning the Property in the
possession or under the control of Seller or other matters pertaining to the Property (and Seller hereby agrees
to make any and all records, documents, data or information of any kind or nature relating to or concerning the
Property in the possession or under the control of Seller available to Buyer) from time to time at all reasonable
times for the purpose of making surveys, engineering studies, drainage studies, appraisals, zoning and land use
studies, impact studies, surface and subsurface explorations, tests, excavations, borings and such other
investigations, inspections, assessments or reports as Buyer, in its sole and absolute discretion, may elect to
make. Seller shall deliver to Buyer, within within a reasonable time after the Effective Date, and upon written
request identifYing with specificity such documents as are known to exist such as. grants used by Seller to
acquire the Property and any other document that contains restrictions and requirements encumbering the
development, construction and use of the Property.
(c) Buyer assumes liability for all acts of its agents who enter onto the Property and agrees to
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indemnifY and hold harmless the Seller from any loss, damage, cost or expense incurred by Seller as a result
of such acts of Buyer and its agents that cause injury to persons or damage to the Property.
(d) A condition to the sale is that all utilities, including, without limitation, water, sewer,
electricity, telephone, gas and cable television which are necessary or desirable and in the capacities or size
required for development of the Property are available at or near the boundaries of the Property at the rates
generally chargeable to developers in Miami-Dade County, Florida;
(e)
(f) Notwithstanding any provision in this Agreement to the contrary, at any time on or before the
end of the Inspection Period, Buyer may, without liability to Seller and for any reason or no reason
whatsoever, terminate this Agreement by written notice to Seller. Upon such termination, both parties shall
be released from all further obligations or liability under this Agreement except for those obligations which
expressly survive termination.
(g) If Buyer has not terminated this Agreement, as provided herein, the right of entry and
investigation granted herein shall continue unabated through Closing.
5. Government Approvals.
(a) Buyer's obligation to purchase the Property from Seller is contingent upon obtaining
the final issuance of: (i) all zoning and other governmental approvals from applicable governmental authorities
having jurisdiction over the Property, to permit the construction, completion and operation of the Project; (ii)
final site plan approval, for which all appeal periods have expired with no appeal having been filed, for the
Project from the applicable governmental and regulatory authority(ies); (iii) concurrency and utility
approvals; (iv) storm water drainage permit issued by the relevant drainage district; (v). building permits
issued by the relevant municipality or county; and (v) any other governmental and regulatory approvals
and/or permits required in connection with the construction of the Project (collectively the "Government
Approvals"). Buyer shall direct the process of obtaining the Government Approvals and Seller agrees to
cooperate with Buyer in performing its due diligence with respect to the Property and in seeking any and all
Government Approvals regarding the Property as Buyer may request, and Seller shall promptly cooperate
with Buyer in all applications for Government Approvals and other permits or approvals, the granting of or
entry into which, by any governmental or quasi-governmental authority having jurisdiction over the Property,
is, in Buyer's reasonable opinion, necessary to permit the development, construction, use or occupancy of the
Project. Buyer shall pay all reasonable and documented costs incurred by Buyer, in obtaining the
Government Approvals necessary to proceed to Closing.
(b) Final issuance of the Government Approvals shall be deemed to occur only when all of the
Government Approvals have been issued or granted by the applicable governmental and quasi-governmental
boards and agencies, all appeal periods have expired and any appeals filed have been finally and favorably
determined. If this condition precedent is not satisfied on or before the Closing Date then Buyer shall be
entitled to extend the Closing Date, for up to three (3) periods of up to thirty (30) days each, in which to
obtain the Government Approvals, or in the alternative, Buyer may terminate this Agreement and upon such
termination by Buyer, the parties shall be relieved of all further liability under this Agreement, except for
those obligations which expressly survive termination of this Agreement.
6. Intentionally Omitted
7. Equity and Debt Financing Approvals. Buyer's obligation to purchase the Property from Seller is
contingent upon Buyer obtaining the final issuance of a sufficient amount of debt and equity financing to
finance the development, construction and operation of the Project on terms acceptable to Buyer ("Financing
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Approvals"). Buyer shall direct the process of obtaining the Financing Approvals. Seller agrees to cooperate
with Buyer and shall take such actions as Buyer shall reasonably request in making its application for the
Financing Approvals and closing the debt and equity financing obtained in connection therewith. If this
condition precedent is not satisfied on or before the Closing Date then Buyer shall be entitled to extend the
Closing Date, for up to three (3) periods of up to thirty (30) days each, in which to obtain the Financing
Approvals, or in the alternative, Buyer may terminate this Agreement and upon such termination by Buyer,
the parties shall be relieved of all further liability under this Agreement, except for those obligations which
expressly survive termination of this Agreement.
8. Covenants of Seller; Operation ofthe Property. Seller hereby covenants and agrees that
from and after the Effective Date:
(a) Seller will not, without the Buyer's prior written consent, create by its consent any
encumbrances on the Property. For purposes of this provision the term "encumbrances" shall include, but not
be limited to, any liens, claims, options, or other encumbrances, encroachments, rights-of-way, easements,
covenants, conditions or restrictions.
(b) Seller shall pay all assessments and taxes prior to becoming delinquent.
(c) Seller will not create or consent to the creation of any special taxing districts or associations
with the authority to impose taxes, liens or assessments on the Property. Seller will not remove any fill or
cause any change to be made to the condition of the Property without the prior written consent ofthe Buyer.
(d) Seller shall take no action with respect to the Property that would alter or affect any of the
representations or warranties of Seller under this Agreement or which would in any manner affect Buyer's
future use and development of the Property.
9. Closing Conditions.
(a) Buyer's obligation to close this transaction shall be subject to the satisfaction of each ofthe
following conditions on or before the Closing Date:
(i) Seller shall not be in default under any term, covenant or conditions of this Agreement
or shall have cured such default within 30 days of prior written notice from Buyer.
(ii) Each ofthe representations and warranties of Seller set forth in this Agreement shall be
true, complete and correct at the date of the Closing as if made at that time, and the Seller shall have
delivered its certificate to such effect.
(iii) Buyer shall have received all necessary Government Approvals, FHFC Approval and
Financing Approvals.
(iv) There shall not be a sewer, water, building or other moratorium in effect which would
interfere with the immediate construction and occupancy of the Project ("Moratorium").
(v) At the Closing, the Title Insurance Company shall irrevocably commit to issue to
Buyer an ALTA Owner's Policy of title insurance, dated as of the date and time of the recording of
the deed, in the amount of the Purchase Price, insuring Buyer as owner of good, marketable and
indefeasible fee simple title to the Property, free and clear of liens and encumbrances, and subject
only to the Permitted Exceptions ("Title Policy") including easements, restriction and limitations of
record.
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(vi) Sole and exclusive possession of the Property shall be delivered to Buyer at Closing.
In the event that any of the foregoing conditions precedent to Closing have not been satisfied as of the
Closing Date, Buyer shall have the right to waive any or all of the foregoing conditions and close this transaction
or Buyer shall have the right to terminate the Agreement, and in such event neither party shall have any further
rights or obligations hereunder, except those obligations which survive termination of the Agreement. If at the
time of Closing, there is a Moratorium in effect with respect to the Property as described herein, then at Buyer's
option (by written notice to Seller): (i) this Agreement shall be terminated and neither party shall have any
further rights or obligations hereunder, except those obligations which survive termination of the Agreement; or
(ii) the Closing Date may be extended to the earlier of twenty (20) days after the date the Moratorium is lifted or
six (6) months from the scheduled Closing. Ifthe Closing Date is extended and if the Moratorium is still in effect
six (6) months from the scheduled Closing, then unless Buyer waives the existence of such Moratorium as a
Closing condition and elects to close this transaction, this Agreement shall be terminated and neither party shall
have any further rights or obligations hereunder, except those obligations which survive termination of the
Agreement. If Buyer waives such condition, the Closing shall take place within twenty (20) days after expiration
of such six (6) month period.
(b) Seller's obligation to close this transaction shall be subject to the satisfaction of
each of the following conditions on or before the Closing Date:
(i) Buyer shall not be in default under any term, covenant or conditions of this Agreement
or shall have cured such default within 30 days of prior written notice from Seller.
(ii) Buyer shall have met all of the conditions precedent set forth in the Development
Agreement
(iii)
(iv) Buyer shall have acknowledged and agreed to assume and be bound by the restrictions
imposed on the owner of the Property pursuant to the grant agreements described in the Development
Agreement.
(v) Buyer's financing shall (A) allow the construction of a project which does not
materially deviate from the Project (B) allow for a payment and performance bond or letter of credit
supporting completion of construction of the Project (C) allow insurance requirements meeting the
conditions set forth in the Development Agreement, at a minimum (D) allow the Developer/Owner to
commit to completion of construction no later than 15 months after the date of Closing, subject to
such extensions as the lender or equity provider may agree to for matters outside the control of the
Buyer (E) allow for compliance with applicable building codes and (F) allow applicable affordable
housing restrictions (G) allow the Seller to enforce the rights and remedies provided to the Seller in
the LURA.
(vi) Each of the representations and warranties of Buyer set forth in this Agreement shall be
true, complete and correct at the date of the Closing as if made at that time, and the Buyer shall have
delivered its certificate to such effect. These representations and warranties shall survive the closing.
In the event that any of the foregoing conditions precedent to Closing have not been satisfied as of the
Closing Date, Seller shall have the right to waive any or all of the foregoing conditions and close this
transaction or Seller shall have the right to terminate the Agreement, and in such event neither party shall have
any further rights or obligations hereunder, except those obligations which survive termination of the
Agreement.
10. Closing Documents. The Closing documents shall be provided by the parties as set forth
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below, in form acceptable to Buyer:
(a) At Closing, Seller shall execute and/or deliver to Buyer:
(i) Special Warranty Deed. A special warranty deed in recordable form, duly executed by
the Seller, conveying to the Buyer good, marketable and insurable fee simple title, as set forth, limited
and described in the Development Agreement, to the Property subject to the Permitted Exceptions,
with the legal description provided in the Commitment.
(ii) Affidavit. An owner's and contractor's affidavit adequate for title insurance to be issued
by the Title Company without exception for parties in possession, mechanics' or materialmens' liens,
taxes and assessments which are not shown as existing liens in the public records and to permit the
Title Company to delete the "gap" in the Title Commitment. '
(iii) FIRPTA Affidavit. In order to comply with the requirements of the Foreign Investment
Real Property Tax Act of 1980 ("FIRPTA"), Seller will deliver to Buyer at Closing Seller's affidavit
under penalty of perjury stating the Seller is not a "foreign person," as defined in Section 1445 of the
Internal Revenue Code of 1986 and the U.S. Treasury Regulations thereunder, setting forth Seller's
taxpayer identification number, and that Seller intends to file a United States income tax return with
respect to the transfer, if required.
Seller represents and warrants to Buyer that it has not made nor does Seller have any
knowledge of any transfer of the Property or any part thereof that is subject to any provisions of
FIRPT A that has not been fully complied with by either transferor or transferee.
(iv) A duly executed certification that every representation and warranty of Seller under this
Agreement is true and correct as of the Closing as if made by Seller at such time;
"(v) Any and all documents reasonably requested by Buyer or the title company in
connection with Seller's authority to execute this Agreement, the deed and all other documents
contemplated under this Agreement;
(vi) A closing statement prepared by the Buyer's closing agent setting forth all amounts
paid, credited and otherwise due, payable and paid hereunder ("Closing Statement"); and
.'
(vii) Such additional documents or instruments as may be required to effectuate the terms,
conditions and provisions hereof and to carry out the intent of the parties hereto, or as may be
reasonably required by the title insurance company, so as to be able to delete at Closing all of the
requirements of Schedule B-Section I of the Title Commitment and all of the standard printed
exceptions (other than the exception for taxes and assessments for the current year not yet due and
payable, and the survey exception, which shall be limited to the specific matters affecting the Property
reflected on the Survey) from Schedule B-Section 2 of the Title Commitment, and to insure the gap
between the effective date of the Title Commitment and the recording of the deed conveying title to
the Property from Seller to Buyer.
(b) At Closing, Buyer shall deliver to Seller:
(i) Closing Statement executed in counterpart setting forth all amounts paid, credited and
otherwise due, payable and paid hereunder ("Closing Statement");
(ii) The Purchase Price (as adjusted for all credits, adjustments and prorations set forth in
this Agreement);
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(iii) Fully executed Development Agreement
(iv) Such additional documents or instruments as may be reasonably required or requested
by Seller to effectuate the terms, conditions and provisions of this Agreement;
(v) A duly executed certification that every representation and warranty of Buyer under
this Agreement is true and correct as of the Closing as if made by Buyer at such time; and
(vi) An Agency Land Use RestrictionAgreement in the form attached to the Development
Agreement attached hereto, which shall be recorded immediately following the recording of the deed
and before the recording of any encumbrance.
11. Closing/Closing Expenses. Except as otherwise provided herein, the consummation of the transaction
described in this Agreement ("Closing") shall take place at the offices of Buyer's counsel in Miami-Dade
County, Florida or by mail no later than one hundred eighty (180) days after the Effective Date ("Closing
Date"). At Closing, Buyer shall pay all closing costs including the cost of state documentary stamps and
surtax on the warranty deed, all title search fees and other costs pertaining to the Title Commitment and for
the title insurance premium on the owner's title insurance policy to be issued to Buyer pursuant to the Title
Commitment in an amount equal to the Purchase Price (or such other amount as Buyer requires), the fee for
recording the warranty deed, and the costs of the Survey. Each party shall pay its own attorneys' fees. If
Closing does not occur by the Closing Date, then any party not in" material default hereunder may terminate
this Agreement, subject to provisions which survive termination. Provided however, if closing does not occur
as a result of Buyer's inability to obtain the Government Approvals or the Financing Approvals, Buyer shall
be entitled to extend the Closing Date, for up to three (3) periods of up to thirty (30) days each, in which to
obtain the Government Approvals and/or Financing Approvals or in the alternative, if Buyer does not request
an extension, either party may terminate this Agreement and upon such termination by Buyer or Seller, the
parties shall be relieved of all further liability under this Agreement, except for those obligations which
expressly survive termination of this Agreement.
12. Prorations. The following items shall be adjusted, apportioned, and allowed as ofthe
Closing Date:
{ill Special Assessment Liens. If, on the Closing Date, the Property or any part thereof, shall be or
shall have been affected by any certified, confirmed, and ratified special assessment liens, the same shall be
paid and discharged by Seller. Pending liens shall be assumed by Buyer; provided, however, that once the
amount of a pending special assessment lien has been finally determined, the amount of the special
assessment lien shall be prorated and Seller shall reimburse J?uyer for any amounts paid by Buyer which are
allocable to the period of time Seller owned the Property within thirty (30) days of Buyer's delivery to Seller
of the proration statement.
(Q} Real Estate Taxes. If the Closing shall occur before the tax rate is fixed, the apportionment of
taxes shall be based upon the real estate taxes for the previous year. If the tax rate is not fixed at Closing, the
parties agree to make an appropriate adjustment upon the issuance of the actual statement for the taxable year.
Thus, if at the time of Closing, the taxes for the current year have not been finally determined, Seller or
Buyer, as the case may be, agree to pay any balance later found to be due on the reproration ofthe actual taxes
for the year in which the Closing occurred, within thirty (30) days of the determination thereof.
(c) The provisions of this section shall survive the Closing.
13. Representations and Warranties.
(a) Seller represents and warrants to Buyer and covenants and agrees with Buyer as
follows:
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(i) Except as disclosed in wntmg to Buyer, Seller has not entered into <l:ny contracts,
subcontracts, arrangements, leases, licenses, concessions, easements, or other agreements, either
recorded or unrecorded, written or oral, affecting all, or any portion of, or any interest in the Property,
which will not have been terminated or expired prior to Closing;
(ii) Except as disclosed in writing to Buyer, there are no: (1) existing or pending
improvement or special assessment liens affecting the Property; (2) violations of building codes and/or
zoning ordinances or other governmental or regulatory laws, ordinances, regulations, orders or
requirements affecting the Property; (3) existing, pending or threatened lawsuits, or appeals of prior
lawsuits, affecting the Property; (4) existing, pending or threatened condemnation proceedings
affecting the Property; (5) existing, pending or threatened zoning, building or other moratoria,
downzoning petitions, proceedings, restrictive allocations or similar matters that could adversely affect
the development ofthe Project; or (6) unrecorded easements, restrictions or encumbrances affecting all
or any part of the Property; Seller has not used, manufactured, stored, or released any "Hazardous
Materials" (as hereinafter defined) on, in or around the Property, and, to the best of Seller's knowledge,
no other person or entity has ever used, manufactured, stored or released any Hazardous Materials on,
in or around the Property, and, to the best of Seller's knowledge, no Hazardous Materials are present
in, on, under or around the Property. As used herein, "Hazardous Materials" shall mean (i) any
hazardous, toxic, or dangerous waste, substance or material, as defined for purposes of the Comprehensive
Environmental Response Compensation and Liability Act of 1980, as amended, the Resource Conservation and
Recovery Act of 1976, as amended, or any other federal, state or local law, ordinance, rule or regulation
applicable to the Property and establishing liability, standards, or requiring action as to discharge, spillage,
storage, uncontrolled loss, seepage, filtration, disposal, removal, use or existence of a hazardous, toxic, or
dangerous waste, substance or material (collectively, "Environmental Laws") and (ii) any waste, substance or
material which, even if not so regulated, is known to pose a hazard to the health and safety of the occupants or
future occupants of the Property, or of the property adjacent to the Property. Seller further represents and
warrants that, to the best of Seller's knowledge, no portion of the Property has ever been used as a
landfill or a dump;
(iii) Except as disclosed in writing to Buyer. there are no agreements currently in effect which
prohibit or restrict the sale of the Property;
(iv) Seller has the right, power and authority to execute and deliver this Agreement, to perform each
and every obligation of Seller hereunder, and to consummate the transactions contemplated by it; no consent is
required for the execution of this Agreement or the consummation of the transactions set forth herein other than
that which has already been given; neither the execution and delivery of this Agreement, and, to the best of
Seller's knowledge, neither the performance or consummation of the obligations and transactions contemplated
by it, nor the fulfillment of, nor the compliance with, the terms, conditions and provisions of this Agreement
will conflict with, or result in a violation or breach of, any relevant law, or any other instrument or agreement of
any nature to which Seller is a party or by which it is bound or may be affected, or constitute (with or without
the giving of notice or the passage of time) a default under such an instrument or agreement; no consent,
approval, authorization or order of any person is required with respect to the execution or delivery of this
Agreement or the performance and consummation of the transactions contemplated by this Agreement other
than the City of South Miami and the SMCRA;
(v) Except as disclosed in writing to the Buyer, no .commitments or agreements have been or will
be made by Seller to any governmental authority, utility company, school board, church or other religious
body, any homeowners or homeowners' association, or any other organization, group or individual, relating
to the Property which would impose an obligation upon Buyer to make any contributions or dedications of
money, land, or any interest in land, to construct, install or maintain any improvements of a public or private
nature on or offthe Property, or otherwise impose any obligations or liability on Buyer or the Property;
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8
(vi) The Property known as Madison Square, under the applicable zoning ordinance affecting the
Property, is currently zoned for mixed use and allows for multifamily other than one lot under folio number
09-4025-010-0050 that is currently zoned RS-4 and the property known as the Marshall Williamson parcel is
zoned RT-9 and allows for the construction of a maximum of 8.7 duplexe units per arce or a maximum of 6
townhouses per .acre. ;
(vii) Seller has received no notice of and to its knowledge there IS no violation of any law,
regulation, ordinance, order or judgment affecting the Property;
(viii) Seller owns the Property in fee simple, subject only to those matters disclosed
in the Title Commitment.
At all times during the term of this Agreement and as of the Closing Date, all of Seller's
representations, warranties and covenants in this Agreement shall be true and correct, to the best of Seller's
knowledge; no representation or warranty by Seller contained in this Agreement and no statement delivered or
information supplied to Buyer pursuant to this Agreement contains any untrue statement of a material fact or
omits to state a material fact necessary in order to make the statements or information contained in them or in
this Agreement, to the best of Seller's knowledge. In the event that any of the foregoing representations or
warranties becomes untrue as a result of an act of a third party which is unrelated to and unaffiliated with
Seller then such inaccuracy shall not be deemed to be a breach by the Seller, but such material inaccuracy
shall permit Buyer to terminate this Agreement. The provisions of this section shall survive the Closing.
(b) Buyer represents and warrants to Seller and covenants and agrees with Seller as follows:
(i) that Buyer has the right, power and authority to execute and deliver this Agreement, to
perform each and every obligation of Buyer hereunder, and to consummate the transactions
contemplated by it; no consent is required for the execution of this Agreement or the consummation of
the transactions set forth herein; neither the execution and delivery of this Agreement, and, to the best
of Buyer's knowledge, neither the performance or consummation of the obligations and transactions
contemplated by it, nor the fulfillment of, nor the compliance with, the terms, conditions and
provisions of this Agreement will conflict with, or result in a violation or breach of, any relevant law,
or any other instrument or agreement of any nature to which Buyer is a party or by which it is bound or
may be affected, or constitute (with or without the giving of notice or the passage of time) a default
under such an instrument or agreement; no consent, approval, authorization or order of any person is
required with respect to the execution or delivery of this Agreement by Buyer or the performance and
consummation of the transactions contemplated by this Agreement by Buyer;
(ii) that Buyer shall diligently pursue all matters required in the debt and equity financing
commitments, preliminary plans, preliminary construction quotes and certain Governmental Approvals;
(iii) that Buyer acknowledges the restrictions and requirements imposed by the Grant
Agreements, Miami-Dade County Directives and SMCRA requirements, to the extent disclosed to the
Buyer and/or set forth in Agreement for Development, the documents attached to the Agreement and
in the Land Use Restriction Agreement; that Buyer shall make such reports to Seller from time to time
as Seller shall reasonably request in a manner sufficient to inform Seller of Buyer's compliance with
the terms hereof.
(iv) The Buyer shall not discriminate upon the basis of race, color, religion, creed, ethnicity,
sex, sexual orientation, age, familial status, disability or national origin in the performance of its duties
hereunder; and this covenant shall be binding to the fullest extent permitted by law and equity, for the
benefit and in favor of, and enforceable by the Seller.
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9
At all times during the term of this Agreement and as of the Closing Date, all of Buyer's
representations, warranties and covenants in this Agreement shall be true and correct. The provisions of this
section shall survive the Closing.
14. Broker. Seller and Buyer represent and warrant each to the other that they have not dealt with any real
estate broker, sales person or finder in connection with this transaction. Each of Seller and Buyer shall pay,
through separate agreement, their own broker, if any. In the event of any claim for a broker's or a finder's fee or
commission in connection with the negotiation, execution or consummation ofthis Agreement or the
transactions contemplated hereby, each party shall defend, indemnifY and hold harmless the other party from
and against any such claim based upon any statement, representation or agreement of such party. The mutual
indemnities and representations and warranties of each of Seller and Buyer in this section shall survive the
Closing.
15. Condemnation.
(a) If the Property, or any part thereof, or any interest therein, shall be taken by eminent domain
. or condemned prior to the Closing Date, or if Seller shall receive any notice or knowledge that any agency or
entity having the power of eminent domain is contemplating or is seeking the taking or condemnation of the
Property, or any part thereof, or any interest therein, Seller shall promptly notifY Buyer thereof
("Condemnation Notice").
(b) Subject to the provisions of subsections (c) and (d) bf this section, if Buyer pays the fair value
of the property, Buyer shall be entitled to the proceeds of any condemnation proceeding relating to any taking
after the Closing Date.
(c) If a condemnation, eminent domain or other taking proceeding shall have been overtly
threatened or commenced against the Property, or a portion thereof, or an interest therein, then in any such
event, Buyer shall have the option within thirty (30) days after receiving each Condemnation Notice, either to:
(i) notifY Seller of Buyer's election to terminate this Agreement in which case the parties shall thereafter be
relieved of any further obligation or liability hereunder; or (ii) complete the sale without any adjustments to
the Purchase Price.,
(d) Notwithstanding anything in this Agreement to the contrary, unless Buyer has elected to
terminate this Agreement, as provided in subsection (c) above, the Closing Date shall be thirty (30) days
after receiving any Condemnation Notice, or the date set forth in Section 9, whichever is later.
(e) The provisions of this section shall survive the Closing.
16. Default. In the event that Buyer shall fail to perform its obligations or otherwise default hereunder
and continue to fail to perform its obligations or fail to cure such default hereunder after 30 days notice of
such failure, unless such default is of a nature that it cannot be remedied in thirty days and Buyer is diligently
working towards curing such d~fault from Seller and such 'failure or default is through no fault or failure of
Seller to comply with its obligations hereunder and after the time to cure has expired and if the default
continues, Seller may, as its sole, exclusive and absolute remedy, terminate this Agreement or seek any other
remedy available at law or equity .. If Seller shall refuse to close, despite its obligation to close hereunder, or if
any of the representations, warranties and covenants of Seller shall at any time on or before Closing be found
to be false or misleading in any material respect, or if Seller is otherwise in default in any material respect
under the terms and provisions of this Agreement and Seller shall fail to cure any such default after 30 days
notice of such default from Buyer, unless such default is of a nature that it cannot be remedied in thirty days
. and Buyer is diligently working towards curing such default, and if such failure or default is through no fault
or failure of Buyer to comply with its obligations hereunder and after the time to cure has expired and if the
default continues,: Buyer may (i) terminate this Agreement, or (ii) Buyer may seek specific performance of
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10
Seller's obligations hereunder, unless specific performance is not available to Buyer, in which case Buyer may
seek any other refll:edy available at law or equity.
17. Limitation of Liability.
(a) Notwithstanding anything to the contrary herein, the Seller desires to enter into this
Agreement only if in so doing the Seller can place a limit on the Seller's liability for any cause of action
arising out of this Agreement, so that its liability never exceeds its maximum potential monetary contribution
of the current tax assessor's valuation of the Property. The Buyer expresses its willingness to enter into this
Agreement with recovery from the Seller for any action arising out of this Agreement to be limited to the
value of the Property provided by the Seller. Accordingly, the Buyer agrees that the Seller shall not be liable
for any claim, or damage in connection with the Project in excess of the Seller's maximum potential monetary
contribution as provided under this Agreement, for any action or claim arising out of this Agreement. The
Seller does not waive sovereign immunity and nothing contained in this paragraph or elsewhere in this
Agreement is in any way intended to be a waiver of the limitation placed on the Seller's liability as set forth
in Chapter 768, Florida Statutes.
(b) Neither party shall hold the other responsible for damages or for delays in performance caused
by force majeure, acts of God, or other acts or circumstances beyond the control of a party orthat could not
have been reasonably foreseen, prevented or avoided. For this purpose, such acts or circumstances shall
include, but not be limited to, weather conditions affecting performance, floods, epidemics, war, riots, strikes,
lockouts, or other industrial disturbances, or protest demonstrations. Should such acts or circumstances occur,
the parties shall use their best efforts to overcome the obstacles at hand and to resume performance hereunder
with dates and times adjusted accordingly.
18. Notice. All notices, consents, approvals, waivers and elections which any party shall be
required or shall desire to make or give under this Agreement shall be in writing and shall be sufficiently
made or given only when delivered in person, or sent by facsimile or email, as provided below:
If to the SELLER:
With a copy to:
If to the BUYER:
#5733607 vi PSA ver2 42746-0001
Director, Stephen David
South Miami Community Redevelopment Agency
6130 Sunset Drive
Miami, Florida 33143
Fax: 305-668-7356
E-mail: SDavid@southmiamifl.gov
City Manager
City of South Miami
6130 Sunset Drive
Miami, Florida 33143
Fax: 305-668-7356
E-mail: salexander@southmiamifl.gov
Daniel Abreu
Candela Developers, Inc.
9828 NW135th Street
Hialeah, FL 33018
Phone: 305-345-7475
11
With copy to:
E-mail: DG@CANDELADEV.COM
Stearns Weaver Miller Weissler Alhadeff
& Sitterson, P.A.
150 West FlaglerStreet, Suite 2200
Miami, FL 33130
Attn: Brian J. McDonough
Phone: 305-789-3200
Email: bmcdonough@stearnsweaver.com
Notices, consents, approvals, waivers and elections given or made as aforesaid shall be deemed to have been
dated, given and received: (i) on the date of actual receipt if transmitted by overnight courier, hand delivery,
or u.S. Mail, return receipt requested, if a signed receipt is obtained; (ii) on the date of transmission, if
transmitted by telecopier/facsimile transmission and confirmation of successful transmission is provided by
such telecopier/facsimile transmission or by email, provided the recipient mails acknowledgement of receipt,
in the absence of which a copy shall also be sent via overnight courier, effective as of the date of delivery to
the overnight courier. All notices and other documents, sent to the addresses listed above that are retuned by
the postal service, or delivery service, as undeliverable, or if sent by facsimile transmission or email, and the
transmission fails due to a change in the recipient's address or facsimile transmission number, shall be
considered delivered, for all purposes of this Agreement, as of the date sent.
19. Assignment. It is acknowledged and agreed that as a result of the anticipated financing: (1) .
an affiliate of the Buyer will serve as the actual owner of the Property and the Project; (2) an affiliate of the
Buyer will serve as a manager or developing member of the owner (the "Manager Affiliate"); and (3) an
affiliate of the Buyer will serve as a manager of the actual developer of the Project (the "Developer
Affiliate"). Accordingly, if this Agreement is assigned by Buyer to an affiliate of Buyer, the Buyer will be
responsible for compliance by its affiliates with the terms of the Development Agreement and the LURA.
The Buyer's affiliates as well as the City of South Miami shall be third party beneficiaries of this PSA. Upon
termination of the Seller's authority to act as a Redevelopment Agency all rights that the Seller has to enforce
this Agreement, the Development Agreement, the LURA and the conditions, covenants and restrictions
contained in the warranty deed shall automatically be assigned to the City of South Miami. The City of South
Miami ("City") shall be named as an intended third party beneficiary to all agreements signed by the Seller
concerning this sale, including the conditions, covenants and restrictions contained in the warranty deed.
Nothing contained in this Agreement shall be construed to benefit any other third parties not named herein.
Each and every affiliate of the Buyer who shall serve as the owner of the property, the manager of the owner
and the manager of the actual developer of the Project, as a condition precedent to the sale of the property
shall sign this Agreement Development Agreement and the LURA. The actual owner, the Manager Affiliate
and the Developer Affiliate, shall be jointly and severally liable to the Seller and the City, for the faithful
performance of all of the terms and conditions of this Agreement, as well as to the duties owed by the
developer of the property to comply with the terms and conditions of the Development Agreement, the
LURA and of the duties of the actual owner to comply with the conditions, covenants and restrictions
contained in the warranty deed. The City of South Miami and the Seller shall be an additional obligee on all
construction bonds
20. Radon Gas Notice. Pursuant to Florida Statutes Section 404.056(5), Seller hereby makes, and Buyer
hereby acknowledges, the following notification:
RADON GAS: Radon is a naturally occurring radioactive gas that, when it has accumulated in a
building in sufficient quantities, may present health risks to persons who are exposed to it over time.
Levels of radon that exceed federal and state guidelines have been found in buildings in Florida ..
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12
Additional information regarding radon and radon testing may be obtained from your county public
health unit.
2.L General Provisions. The following general terms and conditions apply to this Agreement:
(a) Singular/Plural -Masculine/Feminine. Words used herein in the singular shall include the
plural. and words in the masculine/feminine/neuter gender shall include words in the
masculine/feminine/neuter where the text of this Agreement requires.
(b) Titles. Headings in this Agreement are for convenience only and shall not be used or relied
upon in the interpretation of this Agreement.
(c) Successors. The terms, covenants, and conditions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs, successors, and assigns, except as herein
limited.
(d)
Florida.
Choice of Law. This Agreement shall be interpreted according to the laws of the State of
(e) Time. Time is of the essence in the performance of each and every one of the obligation of
the parties to this Agreement. Unless otherwise specified, in computing any period of time described herein,
the day of the act or event for which the designated period of time begins to run is not to be included and the
last day of the period so computed is to be included, unless such last day is a Saturday, Sunday or legal
holiday, in which event the period shall run until the end ofthe next day which is neither a Saturday, Sunday
or legal holiday. The word "day" or "days" shall mean calendar days.
ill Intentionally Omitted
(g) Jury Trial Waiver. .In the event that it becomes necessary for either party to bring suit to
enforce the terms of this Agreement, then each party hereby irrevocably and unconditionally waives any
right it may have to a trial by jury.
(h) Liability Joint and Several. If more than one party is named herein as Seller or Buyer, then
such parties hereby agree that the liability of each hereunder shall be joint and several.
(i) Entire Agreement; Construction; Severability. This Agreement integrates and supersedes all
other agreements and understandings of every character of the parties and comprises the entire agreement
between them. This Agreement may not be changed, except in writing signed by the duly authorized
representative of the parties and, as to Seller, it shall not be changed without a written resolution of Seller
and the City approving the change. No waiver of any rights or obligations hereunder shall be deemed to
have occurred unless in writing signed by the party against whom such waiver is asserted in the same
manner as required in this section for a change in the Agreement and no waiver shall be deemed a waiver of
any other or subsequent right or obligations. The parties acknowledge that the parties and their respective
counsel have reviewed and revised this Agreement and, therefore, the normal rule of construction of
contracts that any ambiguities are to be resolved against the drafting party shall not be employed in the
interpretation of this Agreement and any exhibits or amendments thereto. If any portion of this Agreement is
held to be invalid or inoperative, the remainder of it shall be deemed valid and operative. However, the
portion held invalid or inoperative may be used to prove the intent of those portions of the Agreement held
to be valid and enforceable, to the extent possible.
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13
22. Option to Become Partner and Other Protections for the Agency.
(a) Intentionally Omitted
(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
including the communication regarding the closing of the Financing and regarding any default or potential
default.
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, if allowed by law, 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.
Buyer shall provide Seller with Buyer's certified pro forma within 30 days of the signing of this Agreement,
yearly thereafter until closing and quarterly thereafter. I
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 req)..lires the lender/investor, or contractor, to
provide the Seller with contemporaneous copies of written communication [ s] regarding allegations of default
under such documents as well as all written communication[s] regarding threatened and/or actual
litigation/arbitration. 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 ard thereby step in the shoes of
such lender as to the debt purchased. Such purchase shall be on terms as the Seller and Lender may agree. As
between the Seller and the Buyer, if the Seller, or its successors and/or assigns, purchase from the lender any
defaulted debt, the purchaser shall thereby step in the shoes of such lender for the purpose of enforcing the
same rights that the Lender has against the Buyer under similar conditions.
(c) The provisions hereof which relate to the period after Closing shall survive Closing as
hereinabove stated and shall be amended in the same manner as other amendments to this Agreement.
(signatures continue onto the next page)
#5733607 vI PSA ver2 42746-0001
14
below.
IN WITNESS WHEREOF, each of the parties has executed this Agreement on the dates set forth
BUYER:
By: ________________________ _
Print Name:
----------------~--
Title: ------------------------
Date:
----------------------~
SELLER:
SOUTH MIAMI COMMUNITY
REDEVELOPMENT AGENCY
By: _--'-____________________ _
Print Name: -------------------
Title: ------------------------
Date: ------------------------
15
EXHIBIT "A"
Legal Description of the Property
16
EXHIBIT "B"
Agreement for Development
17
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AGREEMENT BETWEEN DEVELOPER AND THE CITY OF SOUTH
MIAMI COMMUNITY REDEVELOPMENT AGENCY
This AGREEMENT BETWEEN ("DEVELOPER")
AND THE CITY OF SOUTH MIAMI COMMUNITY DEVELOPMENT
AGENCY ("AGENCY" or "SMCRA") ("Agreement") is made on this _ day
of ,2017.
WHEREAS, pursuant to the DEVELOPER's submittal of its letter of
interest and qualifications for the development of Madison Square the AGENCY
and the DEVELOPER desire for the DEVELOPER to develop Madison Square in
accordance with the terms hereof;
WHEREAS, the AGENCY and the DEVELOPER desire for a mixed use
development to be undertaken at the site whose address is
_-----,------,----_______ , South Miami, Florida and is legally described on
Exhibit A, attached hereto and made a part hereof ("Property");
WHEREAS, the AGENCY is the current owner of the Property having
acquired same for the purpose of providing affordable housing and affordable
commercial space for rent and to eliminate the blight within the AGENCY
boundaries ("SMCRA Area");
WHEREAS, the AGENCY has elected to enter into this Agreement with
the DEVELOPER to provide affordable housing and commercial space to
residents of the SMCRA area; and
WHEREAS, the DEVELOPER proposes to construct a mixed affordable
residential and affordable commercial use project ("Project") on the eastern
Madison Square parcel in Building No. 2 consisting of approximately 3,566
square feet of ground floor affordable commercial space and to construct forty
(40) residential rental units on the eastern and western Madison Square parcel in
Building No.1 & 2, , as designated in the site plans, with each residential unit
having approximately 850 square feet of livable space, , and maximum number of
townhouses or duplexes allowed by current zoning, (approximately 8.7 duplex
units and 6 townhouses) on the parcel known as the Marshal Williamson property,
as well as all residential appurtenances, fixtures, and improvements
("Improvements") and as further set forth in the Project Schematics that is
attached to this Agreement as Exhibit _, as may be amended by written
agreement of the AGENCY and DEVELOPER; and
WHEREAS, the DEVELOPER proposes to construct 400 square feet of
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ground floor space on the western Madison Square parcel in Building No.1, as·
designated in the site plans, to be used exclusively as management office for the
housing and affordable commercial component of the Project; and
WHEREAS, the consideration being provided to the DEVELOPER
includes the right of the DEVELOPER to construct approximately 8,868 square
feet of ground floor commercial space on the western Madison Square parcel in
Building No.1, as designated in the site plans as an integral part of the Project,
and to be used exclusively and solely as a Family Dollar store.
NOW, THEREFORE, in consideration of the covenants, mutual
promises stated herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties, the parties agree as
follows:
Section 1. Recitals. Each of the above stated recitals are true and
correct and are hereby incorporated by reference into this Agreement. The
following list of documents shall comprise the Agreement between the parties and
shall constitute, collectively, the "Contract Documents":
This Agreement;
Legal description in the form as found in Exhibit A;
Bonds, Performance and Payment in the form as found in Exhibit B
(which shall be subject to modification as approved by AGENCY staff
and DEVELOPER);
Special Warranty Deed, Land Use Restriction Agreement
("LURA") and Purchase and Sale Agreement (the "PSA") found in
Exhibit C; [Note: the special warranty deed shall solely warrant the title to
the extent of that the AGENCY and DEVELOPER'S title insurance insure
the title and liability is limited to that coverage. Also, the warranty is only
good for one year following closing.] .
Project Schematics described in Exhibit D, as may be amended;
Insurance Requirements found in Exhibit E (which shall be subject to
modification as approved by Agency staff and DEVELOPER);
HUD Guidelines Affordable Income Guidelines as found in Exhibit F;
Grants and Miami-Dade County Directives -Exhibit G;
Solicitation for Letters of Interest ("LO!") is attached as Exhibit H.
Section 2. Title and Certain Property Matters. The AGENCY shall
provide the DEVELOPER with title to the Property in the form herein described
in exchange for the DEVELOPER's express commitment, as evidenced by this
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2
Agreement, to undertake the activities set forth in this Agreement and performing
the covenants and duties set forth in this Agreement. The AGENCY shall
transfer the Property to the DEVELOPER by Special Warranty Deed in the form
as found in Exhibit C and in accordance with the Purchase and Sale Agreement
(the "PSA") also found in Exhibit C.
The Property is conveyed AS IS, WHERE IS with NO
REPRESENTATIONS AND WARRANTIES other than those set forth in the
Special Warranty Deed. It is understood and acknowledged that the Property
surrounds a lot owned by a separate, private and unrelated person or entity and
that neither the City, SMCRA nor any other party related to the City or the
SMCRA shall have any duty, obligation or right to acquire the surrounded parcel,
undertake any action-to aid the DEVELOPER in any way with respect to the
surrounded parcel, or undertake any effort at all with respect to the surrounded
parcel;
Section 3. Definitions.
(a) "City" means the City of South Miami, Florida.
(b) "DEVELOPER" means the entity executing this Agreement, its
officers, directors, managers, agents, representatives, subsidiaries, successors,
and/or successors and assigns and any other party that owns the Property or who
lets any portion of the Property to a commercial or residential tenant, including,
without limitation, any real estate agent working on behalf of the DEVELOPER
or any of its officers, directors, managers, agents, representatives, subsidiaries,
successors, and/or assigns. McDonough: This definition is far too broad. Why?
OC: Because the concept of Developer might mean a bunch of thngs here.
Section 4. Conditions Precedent to the AGENCY conveying the
Property to the DEVELOPER or any other party. (a) Regardless of the terms
set forth in the PSA, SMCRA shall not convey the Property to the DEVELOPER
and the DEVELOPER shall have no rights under this Agreement or otherwise
whatsoever until:
(i) the DEVELOPER provides evidence acceptable to SMCRA
that each and everyone 'of the DEVELOPER'S Representations set forth
hereinbelow in Section _ of this Agreement made by the DEVELOPER
are true and correct;
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(ii) the DEVELOPER has prepared a full, final, unamended or
unchanged, and complete set of construction plans that have been
approved by the City's Planning and Zoning Department and Building
Department as well as by the Miami-Dade County Building and Zoning
Departments before any permit is issued permitting any commencement
of construction, including site preparation and grading;
(iii) the DEVELOPER first provides the AGENCY with evidence
acceptable to the SMCRA, in its reasonable discretion, of commerically
reasonable and adequate financing that will allow the development and
construction of the Project; and
(iv) the closing of the conveyance of the Property pursuant to the
PSA, including the terms of this Agreement, after or
contemporaneously with the execution of this Agreement.
(b) Neither the City nor SMCRA shall have any duty whatsoever to act
reasonably with respect to any request to extend the time by which the
DEVELOPER's shall undertake performance of the conditions precedent, any
DEVELOPER request to amend the conditions precedent, or any other request
relating to the Conditions Precedent. McDonough: Why so harsh? OC: Do you
have any suggestion that will give the SMCRA assurances that extensions of time
will not be abuses
(c) No closing of the PSA shall occur until such time as the
DEVELOPER provides evidence to the CITY and/ the AGENCY, in such form
as is satisfactory to the CITY and the AGENCY, that the DEVELOPER has met
all conditions precedent in this Section 4.
Section 5. Project Scope. The DEVELOPER, after meeting the conditions
precedent set forth in section 4, shall professionally and diligently construct (by the
DEVELOPER itself or, at the DEVELOPER's option, through the engagement of
third party contractors) and provide (or cause to be provided) construction services
to complete the Improvements entire Project, including the commercial space and
residential housing in accordance with this Agreeement and the building plans
approved by the City including, without limitation, a finished grade and
landscaping as set forth in any landscaping plans approved by the City. The
Improvements Project shall be constructed in substantial accordance with the
Project Schematics as set forth in Exhibit D, or as may be amended by
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agreement of the parties to this Agreement. The DEVELOPER'S obligation to
construct the Improvements Project substantially in accordance with the Project
Schematics as set forth above shall be· secured, in addition to a payment and
performance bond, by a guaranty of completion by the DEVELOPER (or such
other person or entity that provides a similar guaranty to the first mortgage
lender)
Section 6. Termination; Survival of this Agreement's Provisions. This
Agreement shall automatically terminate if the DEVELOPER fails to close on the
purchase of the Property under the terms set forth herein and in the PSA on or by
____ ,2017. The DEVELOPER waives any and all rights of action upon such
termination and shall have no right of legal action of any kind, whether at law or in
equity, against the City or SMCRA whatsoever. This Agreement shall terminate
prior to closing under the PSA if the DEVELOPER breaches any of the terms,
conditions and provision hereof and fails to cure such noncompliance within thirty
(30) days after the AGENCY provides DEVELOPER with written notice of default
and demand to cure and provided the cure is accomplished prior to closing. The
failure of the DEVELOPER to cure such default prior to closing shall result in a
termination of this Agreement. The AGENCY may, in its sole and absolute
discretion, provide such longer period of time to close and by which the
DEVELOPER must cure a default of this Agreement if the DEVELOPER
demonstrates to the AGENCY's sole and exclusive satisfaction that the
DEVELOPER is diligently pursuing efforts to .cure all such defaults in a timely
manner and in good faith. If the AGENCY grants any extension of time to cure a
default beyond the initial thirty (30) day cure period, then the DEVELOPER shall
report weekly in writing to the SMCRA Agency Chairman and the SMCRA
Director detailing all efforts that were taken during that week. The contents of such
report must be reasonably satisfactory to the SMCRA Chairman and Director.
Failure to provide a report as set forth in this Section 6 in any given week or failure
to timely report such actions shall, in SMCRA's sale and exclusive discretion, be
deemed an uncureable breach of this Agreement. This Agreement shall survive the
completion of the construction solely for the purpose of enforcing any breaches of
the agreement including any breaches of any represenations and warranties as
provided elsewhere in this Agreement.
Section 7. Limitation of Liability. The AGENCY shall not be liable
for any claim or damage in connection with the Project in excess of the
AGENCY's maximum potential contribution as provided under this Agreement,
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for any action or claim arising out of this Agreement. The AGENCY does not
waive sovereign immunity and nothing contained in this Agreement is in any
way intended to be a waiver of the limitation placed on the AGENCY's liability
as set forth in Chapter 768, Florida Statutes.
Section 8. Right to Enforce and Project Financing Documents. In
addition to any other provision in this Agreementagreement, all financing
agreements with third parties, including (as may be applicable) all insurance
policies and surety bonds, shall include a provision that gives the AGENCY, at
its sole and exclusive discretion, the right to enforce the Land Use Restriction
Agreement ("LURA"), attached as Exhibit C, including the right, at the
AGENCY's option, to cure any default of the DEVELOPER upon notice and
within a reasonable period of time. Further, the Special Warranty Deed will
contain a provision that specifically provides for a reverter of title to the
property in the event that the DEVELOPER does not complete the Project as
contemplated by this Agreement. Upon satisfactory completion of the Project,
the Agency shall record a notice of completion which shall also provide that
any right of reverter that the Agency may have relating to completion of the
Project has been terminated. DEVELOPER agrees that any and all financing
agreements and/or mortgages shall contain a provision that grants the
AGENCY such a right and acknowledges the restrictions set forth in the LURA.
The Agency will give institutional lenders the right to cure any defaults of the
Developer to complete the Project.
Section 9. Risk of Loss. Subsequent to the conveyance of the property
by the Agency to the Developer, risk of loss from any casualty, whether before
or after construction upon the Property is commenced, shall be entirely upon
the DEVELOPER and the DEVELOPER shall maintain adequate limits for all
insurance, including builders' risk, general liability, construction, workers
compensation, property and casualty, and all other applicable lines for a sum
not less than the full replacement value of the Project to be constructed. The
DEVELOPER shall not commence work under this Agreement until it has
obtained and submitted proof, to the satisfaction of the Agency, that all
insurance required by the AGENCY, including the insurance requirements set
forth in Exhibit E has been obtained and is in full force and effect.
Section 10. Independent Contractor. The AGENCY, the City and the
DEVELOPER are not partners in any way and have no business affiliation
whatsoever. The DEVELOPER is not an agent of the City or SMCRA. The
DEVELOPER, its officers, shareholders, principals, owners, directors, partners,
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employees,agents, licensees, invitees or affiliates have no rights whatsoever as
employees, agents, contractors, partners, licensees, invitees, affiliates or any
other kind of role whatsoever because of the existence of this Agreement.
Section 11. AGENCY's Duties. The AGENCY shall:
(i) use reasonable efforts to assist DEVELOPER in the
DEVELOPER's application for permitting and in obtaining the permits
necessary to develop the Project.
(ii) assign any interest it may have III the permits to
DEVELOPER at closing.
(iii) at closing under the PSA, at its expense, deliver any
improved portions of the Property vacant of tenants and without any
claim by any former tenant; and,
(iv) prior to closing under the PSA and upon request by the
DEVELOPER, the AGENCY, at its expense will apply for and/or support a
special exception or special use approval for the construction of an
improvement of not less than three (3) stories along 64th Street between
60th Avenue and 59th Court in the City, a parking space variance, an
impervious coverage variance and such other necessary approvals to be
granted, without further condition, by the' City to permit the DEVELOPER
to build the Proj ect.
Section 12. DEVELOPER'S Duties. The DEVELOPER shall:
(i) Prepared a full, final, unamended or unchanged, and
complete set of construction plans that have been' approved by the
City's Planning and Zoning Department and Building Department as
well as by the Miami-Dade County Building and Zoning Departments
before any permit is issued permitting any commencement of
construction, including site preparation and grading;
(ii) other than in connection with Project financing, not permit
any liens to be recorded against the Property regarding the Project. If a
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construction, materialmen, labor or other construction-related lien is
placed against the Property, the DEVELOPER shall have the right to
remove such lien to surety bond as allowed by Florida law within thirty
(30) days of recording of the lien provided that (i) the City and Agency
areadditional obligees, and (ii) the amount of the bond shall be not less
than one hundred and fifty percent (150%) of the amount claimed under
the recorded and asserted lien.
(iii) make timely payment(s) to subcontractors or suppliers for
materials or labor regarding the Project unless the DEVELOPER has
reasonable grounds to withhold payment.
(iv) maintain the construction sources of financing in balance in
accordance with the applicable project financing documents.
(v) timely start construction and complete the Project and obtain
all applicable certificates of occupancy and applicable certificates of use
in accordance with the terms hereof.
(vi) obtain all construction financing; to design the
ProjectJ\1adison Square project to the reasonable satisfaction of the
AGENCY and construct the project in accordance with the plans
approved by the AGENCY; to prepare all of tile construction
documents, including but not limited to the plans, working drawings,
specifications and all necessary as-built drawings; to obtain all
necessary permits for the construction of the approved design on the
properties identified in Exhibit A (the "Property"); to do all things
necessary to complete construction; to obtain permanent financing; to
lease the residential and affordable commercial properties that are part
of the Projectproject; to comply with the terms and conditions of the
Purchase and Sale Agreement as well as all grants, whose funds were
used by the AGENCY to purchase and/or develop the property, and all
Miami-Dade County mandates, copies of which are attached as
Exhibit G; to provide affordable housing and affordable commercial
space to tenants who meet the guidelinesas set forth in the LURA.
(vii) lease only to SMCRA Qualified Tenants (as herein defined)
provided the selection does not violate any ]lIill be selected in
. accordance 'vvitb applicable Federal, State? County and local laws and
guidelines.
(viii) construct the affordable housing rental project with the
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designated residential rent for each residential unit not to exceed
applicable rental restrictions together with approximately Three thousand
five hundred (3,500) square feet of affordable commercial space. The
commercial space shall be divided into four (4) separate units. The parties
desire is to lease each of the affordable commercial units to South Miami
community-based tenants ("Local Tenants") that will benefit from the
reduced rent being charged by the DEVELOPER or Owner for such units.
To that end, the DEVELOPER and Agency will use all reasonable efforts
to locate such Local Tenants to occupy the commercial space. However,
if the parties are unable to find suitable Local Tenants for any of the
affordable commercial units, the DEVELOPER may lease such
commercial units to other tenants reasonably acceptable to the Agency for
a period not to exceed five (5) years, and which initial five (5) year term
may not be extended without the City's prior written consent. The
affordable rent restrictions otherwise imposed on the DEVELOPER for
leasing to Local Tenants will not apply to the leasing of such commercial
units to other, non-Local Tenants. The rent that the DEVELOPER may
charge Local Tenants seeking the commercial units shall not exceed $14
per· square foot unless adjusted upward by vote of the SMCRA at th~
request of DEVELOPER. The rent for the commercial units may
otherwise be adjusted based on the yearly change in the consumer price
index applicable to the City, but when based on the Consumer Price Index
(All Urban Consumers Cities) the rent shall never increase at a greater rate
than 2% per annum
Each rental agreement shall receive an annual adjustment based on the
Consumer Price Index -All Urban Consumers 12-Month Percent Change
for the Miami-Ft. Lauderdale FL area as establish and/or published by the
United States Department of Labor, Bureau of Labor Statistics (CPI) that
shall have the effect of increasing or decreasing the annual rental amount
for each tenant to maintain appropriate rental amounts, taking inflation
into account; and
(ix) perform the covenants set forth in the the Land Use
Restriction Agreement, the form of which is attached hereto as Exhibit
C (the "LURA"). The DEVELOPER and any tenant shall be obligated
to comply with and acknowledge the restrictions set forth in such
LURA. The restrictions shall include a level of income for tenants of
residential space. It shall require that 80% of the residential units in the
Project shall be rented to tenants whose annual household earnings are
no greater than 60% of the Area Median Income and 20% of the
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residential units shall be rented to tenants whose annual household
earnings are greater than 60% but no greater than 80% of the Area
Median Income as established by BUD and applicable to Miami-Dade
County the r..1iami Fort Lauderdale West Palm Beach r..1etropolitan
Statistical Area (as set forth in the LURA and as may be adjusted from
time to time) and as adjusted for the size of the tenant's family,
(hereinafter referred to as "AMI"). The initial rents to be charged to
such residential tenants shall be set forth as an exhil?it to the LURA
which will be entered into between the Agency and the DEVELOPER
(or its affiliate) contemporaneously with the transfer of the Property
pursuant to the terms of the PSA and will be based on rents established
by BUD for tenants that are restricted to income no greater than either
60% or 80% of AMI, as applicable. All such tenantsrenters shall
hereinafter be referred to as "SMCRA Qualified Tenants". In addition,
the Property shall be subject to the above rental restrictions for a 40
year period from the date a certificate of occupancy is issued for the
Project (the "Compliance Period"). The Project may not be sold or
resold by DEVELOPER or its affiliates, or any of their grantees,
successors or assigns, during such period without the buyer's written
assumption of the preferences, affordability and use restrictions set forth
herein and as set forth in the LURA. The assumption document shall be
in a form and substance reasonably satisfactory to the AGENCY or,
once the Agency is dissolved, the CIty.
(x) maintain all audits, books, records, documents and other
evidence pertaining to all costs and expenses incurred and revenues
acquired under this Agreement to the extent and in such detail as
reasonably required by the AGENCY and make such audits, books,
records, documents and other evidence immediately available to the
AGENCY within 72 hours after DEVELOPER receives written
demand to inspect the records or for copies by the AGENCY. All
costs of copying such records incurred by the DEVELOPER shall be
paid by the Agency. Agency shall have the right to make its own
copies of these records without cost to DEVELOPER.
Section 13. DEVELOPER REPRESENTATIONS AND
WARRANTIES:
(a) The DEVELOPER represents and warrants that:
(i) the DEVELOPER is a limited liability company
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organized under the laws of the State of Florida in good standing
and shall remain in good standing throughout the term of this
Agreement;
(ii) this Agreement is signed by persons who have been
duly authorized to sign on the DEVELOPER's behalf;
(iii) it will perform each of the duties set forth in Section 12
using best efforts and commercial diligence;
(iv) the DEVELOPER'S rights, duties and obligations may
not be assigned (other than as expressly permitted herein such as to
an affiliate), sold, leased, optioned, conveyed, gifted or otherwise
alienated from the DEVELOPER ("Transfer") and any such
Transfer shall be void ab initio without the prior written consent of
the SMCRA;
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(vi) there are no proceedings or actions pending, threatened or
contemplated against the DEVELOPER including but not limited
to any action for the liquidation, termination or dissolution of
DEVELOPER;
(vii) DEVELOPER shall apply for construction permits
within sixty (60) days of the date of this Agreement;
(viii) DEVELOPER shall cause the Property to be
developed in substantial accordance with the Proj ect Schematics
and the building plans that are to comply with the City'S Code
and are to be approved by the South Miami Planning and
Zoning Department, its Building Department and the Miami-
Dade County Building and Zoning Department and any other
agency having jurisdiction over the approval of building plans
and the development of the Property;
(ix) DEVELOPER shall complete construction within the time
allowed by the construction schedule set forth in the Project
financing documents but no later than as set forth in Section_ of
this Agreement;
(x) all residential leases of the Property shall be to a SMCRA
Qualified Tenant, and that the leases issued by DEVELOPER
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shall contain language that prevents a sublease to anyone who is
not a SMCRA Qualified Tenant and all subleases shall contain
similar prohibitions;
0QLthe construction of the Project and compliance with this
Agreement shall be in accordance with all applical;>le codes,
ordinances, statutes, regulations of the federal government, the
State of Florida, the CIty and Miami -Dade County; and
(xii) the use of the Property shall be in compliance with this
Agreement shall be in accordance with all applicable codes,
ordinances, statutes, regulations of the federal government, the
State of Florida, the CIty and Miami-Dade County.
(b) All of the Representations and Warranties set forth in
the Section 13 shall survive this Agreement.
(c) Warranty: The Developer shall repair or replace (or
caused to have repaired or replaced) all work that was not performed in a
workmanlike fashion or not furnished in accordance with the terms, condition
and provision of the Contract and Contract Documents. The Developer shall
repair or replace (or cause to have repaired or replaced) all defective materials
and equipment furnished. The Developer shall repair or replace (or cause to
have repaired or replaced) all patent defects that have become apparent before
the expiration of one (1) year following the date of Final Acceptance as
indicated in the CONSULTANT Letter of Recommendation of Acceptance, if
issued, the Certificate of Occupancy, if issued, or the Certificate of
Completion, ifissued by the City, whichever is applicable and if more than one
is applicable, the one that is issued last and correct any and all latent defects
that are discovered before the expiration of the third (3rd) year following the
date of Final Acceptance as indicated in the CONSULTANT Letter of
Recommendation of Acceptance, if issued, the Certificate of Occupancy, if
issued, or the Certificate of Completion, if issued· by the City, whichever is
applicable and if more than one is applicable, the one that is issued last. The
Developer shall have a reasonable amount of time to proceed against third
parties, such as the contractor, to cure any such defects. The Developer agrees
to diligently pursue all rights and remedies against third parties for patent and
latent defects. The changes to this section is under review by my
construction partner.
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Section 14. Force Majeure. Neither party shall hold the other
responsible for damages or for delays in performance caused by Acts of God,
war, terrorist actions in the City or in Miami-Dade County, riots, violent civil
disturbances or strikes declared by any union pursuant to existing and executed
collective bargaining agreement but excluding any strike, work stoppage or
work slow down undertaken by any individual union hall regardless of trade.
For this purpose, Acts of God include tornados, hurricanes named by the the
National Weather Service, tropical storms identified by the National
Weather Service, floods that have been declared Part A and B disaster by the
President of the United States of America under the Stafford Act, and
epidemics declared by the Untied States Center for Disease Control. Should
such acts or circumstances occur, the parties shall use their commercially
reasonable best efforts to overcome the difficulties and to resume the work
as soon as reasonably possible and the construction schedule shall be
adjusted accordingly.
Section 15. Default. (a) The DEVELOPER shall be in default of this
Agreement if the DEVELOPER:
(i) fails to start construction within 90 days following the
issuance of construction permits.
(ii) abandons or substantially suspends construction for a period
of more than 30 days. A delay caused by force majeure or by a
subcontractor or supplier shall not be included in the calculation of the
30-day period, provided the delay of the subcontractor or supplier is not
due, in anyway, to the fault or negligence of the DEVELOPER.
(iii) fails to cure any breach of this Agreement. DEVELOPER
shall have thirty (30) days, after receipt of written notice of any breach
to cure any notice of default sent by the AGENCY. Such period may be
extended by the AGENCY, at its reasonable discreation, provided that
the DEVELOPER demonstrates to the AGENCY's reasonable
satisfaction t~at it is diligently pursuing a cure to such breach. If the
time is extended beyond 30 days, then the DEVELOPER shall report
weekly in writing to the CRA Agency Chairman and the CRA Director
as to all efforts that were taken during that week. Failure to take action
in any given week or failure to timely report such action shall be a
substantial and material breach of this Agreement.
(iv) fails to apply for any building permit necessary for the
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commencement of construction, within sixty (60) days of the date of the
delivery of the deed to the Property,
(v) fails to complete construction within three hundred and sixty
five (365) days from the date of the delivery of the SpecialWarranty Deed
to the Property other than due to force majeure. In the event of force
majeure, such delay shall extend the number of days for completion of
construction accordingly. Notwithstanding the foregoing, Agency shall
provide DEVELOPER a reasonable period of additional time to complete
the Project provided that DEVELOPER is reasonably and diligently
pursuing completion of same with all due haste. In such event, the
DEVELOPER shall report weekly in writing to the CRA Agency
Chairman and the CRA Director as to all efforts that were taken during
that week. Failure to timely report such action shall be a substantial and
material breach of this Agreement.
(vi) breaches any warranty made under this Agreement, including
without limitation those made under Section 13.
(vii) partially or entirely assigns, leases, sells, options, conveys,
gifts or otherwise alienates its interest in this Agreement without the
express prior written consent of AGENCY other than as expressly
permitted hereunder.
(b) All notices of default may be made by U.S. Mail or hand delivered
by courier or other party and be deemed received on the date such notice is
posted or made, as may be applicable.
Section 16. Venue, Law and Attorney's Fees and Costs. All legal
and/or equitable actions concerning or arising out of this Agreement shall have
original jurisdiction solely in courts of the State of Florida located in Miami-
Dade County, Florida. In any action brought by either party, the prevailing
party shall be entitled to recover all costs of such actions through all appellate
levels and all appeals, to the fullest extent allowed by the laws of the State of
Florida however, each party shall bear their own attorney fees in any such
action. This Agreement and all legal causes of action hereunder, if asserted,
shall be governed and construed in accordance with the laws of Florida without
regard to the State of Florida's conflicts oflaw provisions.
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Section 17. Best Efforts on Construction Timetable. DEVELOPER
agrees to use its commercially reasonable best efforts to complete the
construction on or before the schedule provided by this Agreement.
Section 18. Notices. All notices, demands, correspondence and
communications between the AGENCY and DEVELOPER shall be
deemed sufficiently given under the terms of this Agreement if sent by
facsimile transmission, e-mail, or dispatched by registered or certified
mail, postage prepaid, return receipt requested, and addressed as follows:
If to the AGENCY:
If to DEVELOPER:
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Director, Stephen David
South Miami Community Redevelopment
Agency
6130 Sunset Drive
Miami, Florida 33143
Fax: 305-668-7356
E-mail: SDavid@southmiamifl.gov
With a copy to:
City Manager
City of South Miami
6130 Sunset Drive
Miami, Florida 33143
Fax: 305-668-7356
David Abreu
Candela Developers, Inc.
9828 NW135th Street
Hialeah, FL 33018
Phone: 305-345-7475
Email: DG@CANDELADEV.COM
with copy to me.
Stearns Weaver Miller Weissler Alhadeff
& Sitterson, P .A.
150 West Flagler Street, Suite 2200
Miami, FL 33130
15
Attn: Brian J. McDonough
Phone: 305-789-3200
Email: bmcdonough@steamsweaver.cOlTI
Section 19. Records and Costs. The books and accounts, files and.
other records of the DEVELOPER, which are applicable to this Agreement,
shall be available for inspection, review and audit by the AGENCY and its
representatives, at all reasonable times. DEVELOPER and all of its
subcontractors are required to comply with the public records law
(s.119.0701) while providing goods and/or services on behalf of the CITY
and the DEVELOPER, under such conditions, shall incorporate this
paragraph in all of its subcontracts for this Project and shall:
(a) Keep and maintain public records required by the public agency to
perform the service;'
(b) Upon request from the public agency's custodian of public records,
provide the public agency with a copy of the requested records or allow the
records to be inspected or copied within a reasonable time at a cost that does
not exceed the cost provided in this chapter or as otherwise provided by law;
( c) Ensure that public records that are exempt or confidential and
exempt from public records disclosure requirements are not disclosed except
as authorized by law for the duration of the Contract term and following
completion of the Contract if DEVELOPER does not transfer the records to
the public agency; and
(d) Upon completion of the Contract, transfer, at no cost, to the public
agency all public records in possession of DEVELOPER or keep and
maintain public records required by the public agency to perform the
service. If DEVELOPER transfers all public records to the public agency
upon completion of the Contract, DEVELOPER shall destroy any duplicate
public records that are exempt or confidential and exempt from public
records disclosure requirements. If DEVELOPER keeps and maintains
public records upon completion of the Contract, DEVELOPER shall meet all
applicable requirements for retaining public records. All records stored
electronically must be provided to the public agency, upon request from the
public agency's custodian of public records, in a format that is compatible
with the information technology systems of the public agency.
IF DEVELOPER HAS QUESTIONS REGARDING THE
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APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE
DEVELOPER'S DUTY TO PROVIDE PUBLIC RECORDS
RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN
OF PUBLIC RECORDS AT 305-663-6340; E-mail:
mmenendez@southmiamifl.gov; 6130 Sunset Drive, South Miami, FL
.33143.
Section 20. Indemnification. OC to provide a more robust
indemnification. The parties agree that 1 % of the total value of the property
deeded to the DEVELOPER shall represent the specific consideration for
the DEVELOPER'S agreement to indemnify the AGENCY. To the fullest
extent allowed by law, DEVELOPER shall indemnify, defend, save and
hold harmless the AGENCY, its officers, agents and employees, from or on
account of all third party claims and any and all actual out of pocket
damages, losses, liabilities and expenses incurred by the AGENCY and
arising,out of this Agreement including, but not limited to, fees and charges
of purchasers, engineers, architects, attorneys, consultants and other
professionals and court costs at all trial and appellate levels.
Indemnification shall specifically include, but not be limited to third party
claims, and any and all actual out of pocket damages, losses, liabilities and
expenses incurred by the AGENCY arising out of or from:
(a) the negligent or defective work of the DEVELOPER;
(b) any negligent act or omission of the DEVELOPER, its
subcontractors, agents, invitees, servants or employees;
(c) any damages, liabilities, or losses received or sustained by any
person or persons during or on account of any negligent operations under
the care custody or control of DEVELOPER connected with the
construction of this Project;
(d) failure to timely complete the work;
( e) the violation of any federal, state, or county or city laws, ordinances
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or regulations by DEVELOPER, its subcontractors, agents, servants,
independent contractors or employees;
f) the breach or alleged breach by DEVELOPER of any term of this
Agreement;
(g) the failure to comply with any requirement of any grant used to
finance the purchase of the Property by the SMCRA or for the design, plans,
drawings ,construction and/or completion of the Project. . As a condition to
this indemnity, the Agency agrees that it shall give the DEVELOPER notice
of any obigations or requirements imposed on the Project or Property by
virtue of any grants received in connection the Property and with this
agreement to indemnify the AGENCY for failure to comply with such
requirements and provide the DEVELOPER with a reasonable time to cure
the default
In any and all claims against the AGENCY, or any of its agents or employees
by any employee of the DEVELOPER, any subcontractor, any person or
organization directly or indirectly employed by any of them to perform or
furnish any of the work or anyone for whose acts any of them may be liable,
the indemnification obligation under this section shall not be limited in any
way by any limitation on the amount or type of damages, compensation or
benefits payable by or for DEVELOPER or any such subcontractor or other
person or organization under workers or workman's compensation acts,
disability benefit acts or other employee benefit acts.
It is the specific intent of the parties hereto that the foregoing
indemnification complies with Florida Statute 725.06 (Chapter 725), if
applicable. It is further the specific intent and agreement of the parties that
all of the Contract Documents on this Project shall include the foregoing
indemnification and the specific consideration therefore in the same
percentage as provided in this section as between the AGENCY and
DEVELOPER. McDonough: ??This indemnity is far too broad. There is
a section on warranties that covers a lot of the subject matter of this
indemnity. Thus, I have removed several of the sections.
Section 21. Assignment. DEVELOPER shall not partially or entirely
assign (other than to an affiliate in which the principals of the Developer
hold a controlling interest), sell, lease, option, convey,· gift, or otherwise
alienate its interest, in whole or in part, in this Agreement without the
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express prior written consent of AGENCY. AGENCY shall have the right to
assign all of its rights and obligations under the provisions of this Agreement
to the City. The DEVELOPER's right, if any, to assign this Agreement to
an affiliate is subject to the affiliate agreeing in writing to abide by all of the
terms, conditions and provision of this Agreement. Any assignment
authorized by this Agreement shall be first be executed by the assignee,
acknowledged before a notary public and shall include the following
statement:
"This assignment is subj ect to the terms, conditions and provIsIOn of the
Development Agreement dated entered into by and between the
South Miami Community Redevelopment Agency, the Land Use Restriction
Agreement dated , and the Purchase and Sale Agreement dated
______ , to the extent applicable to the assignee, and the assignee, by
accepting this assignment, agrees to comply with all applicable terms,
conditions and provision of those agreements. Thi's assignment shall not
become effective until (a) it is accepted by the assignee, (b) the acceptance is
acknowledged before a notary public by a person with authority to execute the
acceptance of the assignment and (c) a duplicate original of the fully executed
and notarized assignment, as well as a duplicate original of an appropriate
resolution of the entity in question, acknowledging the authority of the person
signing the acceptance of the assignment, is delivered to the AGENCY."
If SMCRA consents to the assignment of this Agreement in writing, the
DEVELOPER shall not be released from performing all of the obligations
hereunder and will remain responsible for compliance by its affiliates with the
terms of this Agreement unless the City or SMCRA specifically release the
DEVELOPER from its obligations hereunder. Upon termination of the
AGENCY's authority to act as the South Miami Redevelopment Agency, all
rights that the AGENCY has to enforce the Purchase and Sale Agreement, this
Agreement for development, the Land Use Restriction Agreement and the
conditions, covenants and restrictions contained in the warranty deed shall
automatically be assigned to the City by operation of this Agreement
without the prior or other consent of any party. The City shall be named as
an intended third party beneficiary to all agreements signed by the
AGENCY concerning the sale, development and operations of the Property,
including this Agreement, the Land Use Restriction Agreement and the
conditions, covenants and restrictions contained in the Warranty Deed.
Other than the City which is a third party beneficiary of this Agreement,
nothing contained in this Agreement shall be construed to benefit any other
third parties not named herein. The City shall be an additional obligee on
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all construction surety bonds.
Section 22. Taxes, Mortgage and Obligations. The DEVELOPER (or
successor in interest), shall pay the real estate taxes or assessments on the
Property or any part thereof when due. DEVELOPER shall not suffer any levy
or attachment to be made, or any lien, or any unauthorized encumbrance that is
not transferred to a bond within thirty (30) days of the recording with the
exception of the following:
(i) Any mortgagees) in favor of any institutional lender for the
purpose of financing any hard costs or soft costs relating to the construction
of the Improvements in an amount(s) not to exceed the value of the
Improvements as determined by an appraiser chosen by the lender; and
(ii) Any mortgagees) in favor of any institutional lender refinancing
or converting to permanent financing any mortgage of the character
described in clause (a) hereof, in an amount(s) not to exceed the value of the
Improvements as determined by an apprmser chosen by the
AGENCYinstitutionallender; and
Section 23. Severability. If any provision or provisions of this Agreement
shall, to any extent, be invalid or unenforceable, the remainder of this Agreement
shall not be affected thereby and the remaining provisions shall be valid and
enforceable to the fullest extent allowed by law.
Section 24. Miscellaneous Provision. In the event a court must interpret
any word or provision of this Agreement, the word or provision shall not be
construed against either party by reason of their involvement in the drafting or
negotiating of this Agreement.
Section 25. Inspection. AGENCY may make or cause to· be made
reasonable entries upon and inspections of the Property. The AGENCY will
indemnify and hold the DEVELOPER and its affiliates harmless from any and all
damages relating to such inspection. However, nothing contained herein shall be
construed to be a waiver of the AGENCY's right to immunity as provided by
Florida Statutes.
Section 26. Nondiscrimination. The DEVELOPER agrees for itself, its
subcontractors, its successors and assigns, to or of the Property or any part thereof,
that the DEVELOPER and such subcontractors, successors or assigns shall
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comply with the Americans with Disabilities Act and, in addition, shall not
discriminate upon the basis of race, creed, color, ethnicity, religion, sex, sexual
orientation, age, familial status, or national origin in the sale, lease or rental or in
the use or occupancy of the Property or in any act or omission arising out of the
construction of any improvements erected or to be erected in or on any part
thereof; and this covenant shall be binding to the fullest extent permitted by law
and equity, for the benefit and in favor of, and enforceable by the AGENCY, its
successors and assigns, and any successor in interest to the Property, or any part
thereof. The AGENCY shall have the right, in the event of any breach of any
such covenants, to exercise all the rights and remedies and to maintain any
actions or suits at law or in equity or other proper proceedings to enforce the
curing of such breach of covenant, to which it or any other beneficiaries of such
covenant may be entitled.
Section 27. Authorized Agent. The AGENCY and the DEVELOPER
shall each designate one person who shall be their authorized representative
with respect to this Agreement. The representative of the AGENCY shall be the
City Manager; the representative of the DEVELOPER shall be provided at the
time of the joint execution of this Agreement. However, the City Manager shall
not have the authority to amend, modify or waive any of the provisions of this
Agreement without the approval of the AGENCY's board by written resolution
of the board.
I
Section 28. Waiver. The passing, approval and/or acceptance of any part
of the work or material by the AGENCY, its Architect or Engineer, if any, or by
any agent or representative of the AGENCY shall not operate as a waiver of the
AGENCY's right to demand strict compliance with the terms and conditions of
this Agreement. No act or omission or verbal-representation or statement shall
be treated as an express or implied waiver and all waivers shall be in writing
signed by the party who is alleged to have waived any of the terms and/or
conditions of this Agreement and, as to AGENCY, by a resolution passed by the
SMCRA and as to the CIty, by a resolution passed by the City Commission.
This Agreement contains the entire Agreement of the parties and no modification
or amendment of any terms or provisions of this Agreement shall be valid or
binding unless it complies with this paragraph. This Agreement in general and
this paragraph in particular, shall not be modified, amended or waived except in
writing signed by both parties after being approved by resolution of the
appropriate party. The waiver of any breach or default of any of the terms of this
Agreement shall not act as a waiver of any subsequent breach or default. This
Agreement shall be binding upon the heirs, guardians, personal representatives
and assigns of both of the parties.
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Section 29. Waiver of Jury Trial. AGENCY and DEVELOPER
knowingly, irrevocably voluntarily and intentionally waive any right either may
have to a trial by jury in State or Federal Court proceedings in respect to any
action, proceeding, lawsuit or counterclaim arising out of this Agreement and the
Contract Documents or the performance of the Work thereunder.
Section 30. Termination of SMCRA. In the event of the
termination or expiration of the AGENCY's authority, the CIty shall have the
right to enforce this Agreement.
Section 31. Grants, Directives and SMCRA Requirements.The
DEVELOPER shall, after delivery of the deed, comply with all grant and Miami-
Dade County Directives, including the requirements of any grants that were used
to purchase the Property by the AGENCY which remain in effect. All applicable
grants, directives and requirements are found in the attached Exhibit G.
DEVELOPER shall timely provide the AGENCY with all information reasonably
required by the AGENCY for it to timely file all reports required by the terms of
the grant, directives, and SMCRA requirements. In all respects that the
DEVELOPER fulfills the terms of the grants, directives and requirements, such as
in the hiring of Section 3 residents for construction and in the commercial
business located on the developed Project, the DEVELOPER shall report such
efforts to the AGENCY as frequently as required by the grants, directives and
SMRCRA requirements, but not less frequently than· quarterly. In addition, the
DEVELOPER shall establish a paid construction apprentice program for SMCRA
residents and shall comply with the requirements of the First Source Job Registry
and Hiring Referral Program ("Referral Program") established by the SMCRA by
resolution. For the purposes of the Referral Program and the requirements
established for that program by the SMCRA, the Project and this Agreement shall
be treated as if it involved "tax generated revenue" and those guidelines shall
apply whether or not the Referral Program is funded or in operation at the time the
project is being constructed and during its operations. Notwithstanding the
provisions of the Referral Program, the DEVELOPER will use all reasonable
efforts to hire residents located in the SMCRA or the City to fill at least fifty
(50%) of all construction jobs and fifty (50%) of all permanent jobs.
Notwithstanding the foregoing, the DEVELOPER will not be obligated to hire
individuals that it reasonably believes are not qualified to handle such job
responsibilities but it shall comply with the requirements of the Grant agreements
in question concerning job creation. Notwithstanding anything to the contrary in
this Agreement, neither DEVELOPER nor its affiliates shall be responsible for
any defaults or breaches under the terms of the Grant Agreements caused by the
fault of the AGENCY. Dan-please review and confirm that you can conform
to the above hiring requirements.
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Section 32. Land Use. The AGENCY shall apply for a modification as is
appropriate to allow the development of mixed use commercial residential land use
and SR zoning (4 stories) to allow for development of up to at least a height of
three (3) stories in areas 1 and 2.
Section 33. Design. The DEVELOPER shall submit the conceptual site plan
and renderings to the AGENCY for the AGENCY's approval at least thirty (30)
days prior to the date that the DEVELOPER submits its first permit application.
No permit application shall be submitted until the AGENCY approves the
conceptual site plan and renderings. Such approval shall not be withheld if the
conceptual site plan is materially similar to the Project Schematic.
Section 34. Recording. This Agreement may be recorded by either party.
Section 35. Specific Performance. The parties hereto shall have the right
to enforce this Agreement by specific performance.
Section 36. Remedies. All remedies provided by this Agreement or
allowed in law or equity to the AGENCY shall be exercisable by the AGENCY.
All remedies shall be cumulative and the enforcement of one remedy shall not
prevent the enforcement of any other of the AGENCY'S remedies.
IN WITNESS WHEREOF, the AGENCY and DEVELOPER have caused
this Agreement to take effect on the day and year first above written.
DEVELOPER:
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OJ 7694 v3 42.746-0001
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AGENCY:
SOUTH MIAMI
COMMUNITY
REDEVELOPMENT
AGENCY
By: _____ ~_~ _______________ _
Name: The Honorable Philip K. Stoddard
Title: Chairperson
LAND USE RESTRICTION AGREEMENT
TIDS LAND USE RESTRICTION AGREEMENT (this "Agreement") is made and entered
into by the SOUTH MIAMI COMMUNITY REDEVELOPMENT AGENCY (the
"Agency"), and , a Florida (the "Owner").
PREAMBLE
WHEREAS, the Agency has been created and organized pursuant to and in accordance
with the provisions of section 163.330 et seq., Florida Statutes, with legal authority to sell Land to
the DEVELOPER and enter into this Agreement as set forth in sections 163.345, 163.370(2) (e) 7,
163.380(3) (a) (requiring 30 days of public notice), Florida Statutes; and
WHEREAS, the Agency has agreed, under certain conditions, to sell to the Owner the
land described on Exhibit "A" attached hereto (the "Land"); and
WHEREAS, the Owner has entered into that certain Agreement Between Developer and
the City of South Miami Community Redevelopment Agency (the "Development Agreement");
and
WHEREAS, the Owner ,shall develop the Development (as herein defined) substantially as
described in Exhibit "D" to the Development Agreement; and
WHEREAS, the Agency and the Owner desire to memorialize as a covenant running with
the Land, certain Agency requirements relating to the improvements that Owner must develop and
construct on the Land and the use of such improvements for affordable housing purposes.
NOW, THEREFORE, in consideration of the mutual covenants and undertakings set
forth herein, and other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Agency and the Owner do hereby contract and agree as follows:
AGREEMENT'
Section 1. Definitions and Interpretation.
(a) Unless otherwise expressly provided herein or unless the context clearly requires
otherwise, the following terms shall have the respective meanings set forth below for all purposes of
this Agreement.
"Agency" shall mean the South Miami Community Redevelopment Agency until such time
as it ceases to exist and thereafter the word "Agency" shall mean the City of South Miami.
"Code" shall mean the Internal Revenue Code of 1986 as amended, and any successor statute
as it applies to the Tax Credits described herein, together with all applicable final, temporary or
proposed Treasury Regulations and Revenue Rulings thereunder. Reference in this Agreement to any
specific provision of the Code shall be deemed to include any applicable successor provision of such
provision of the Code that may apply to the Tax Credits described herein.
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"Commercial Space" means that portion of the Development to be leased or used for
commercial (non-residential) purposes, consisting of a minimum of 4,000 ground floor square feet.
"Compliance Period" shall mean, with respect to any building that is included in the
Development, a period of 40 years beginning on the date the Development is placed in service for
lease to Low-Income and Workforce Tenants and ending on the 40 th anniversary thereof.
"County" shall mean Miami-Dade County, Florida.
"Development" means the Land, the Commercial Space and the Residential Space and all
improvements ancillary thereto.
"Gross Rent" shall mean any amount paid by a tenant in connection with the occupancy of a
residential rental unit, plus the cost of any services that are required to be paid by a tenant as a
condition for occupancy, plus the cost of any utilities, other than telephone, for such unit. If any
utilities (other than telephone, cable or internet) are paid directly by the tenant, "gross rent," also
includes a utility allowance determined as set forth in this paragraph. "Gross Rent" does not include
any payment under Section 8 of the United States Housing Act of 1937 or any comparable federally
funded tenant or project based rental assistance program with respect to such unit or to the occupants
thereof, or any fee for supportive service that is paid to the owner of the unit on the basis of the low
income status of the tenant of such unit by any governmental program of assistance or by any tax-
exempt organization if such program or organization provides assistance for rent and the amount of
assistance provided for rent is not separable from the amount of assistance provided for supportive
services within ~he meaning of Section 42(g)(2)(13) of the Code. For purposes of the foregoing, the
allowable utility allowance is: (i) the United States Department of Housing and Urban Development
("HUD")-published utility allowances (except as provided in clause (iv) hereof) in the case of a
building whose rents and utility allowances are reviewed by HUD on an annual basis; (ii) the
applicable Public Housing Agency ("PHA") utility allowances established for the Section 8 Housing
Choice Voucher Program (except as provided in clause (iv) hereof) in the case of a building occupied
by one or more tenants receivin,g BUD rental assistance payments ("BUD Tenant Assistance"): (iii) in
the case of a building for which there is neither BUD Tenant Assistance, nor an applicable BUD or
RD utility allowance, the applicable PHA utility allowance; however, utility allowances based on
estimates from local utility providers certifying the estimated costs of all covered utilities for units of
comparable size and construction in the county where the building is located, determined in
accordance with Internal Revenue Service Notice 89-6, may be obtained, in which case those
estimates shall apply to all units of similar size and construction in the building; or (iv) the applicable
RD utility allowance in the case of any unit in a building where either the building receives RD
housing assistance (including a building that is BUD-regulated) or any tenant receives RD housing
assistance (including any Low-Income Tenant receiving BUD Tenant Assistance who resides in a
building where the building or any other tenant receives RD housing assistance).
"Low-Income Tenants" shall mean individuals whose income is no greater than sixty
(60%) of the area median gross income (adjusted for family size) as established by BUD applicable
to Miami-Dade County and as published from time to time. In no event, however, shall occupants
of a unit be considered to be of low income if all the occupants are students, but excluding from
such definition the following: (x) single parents who are students with all children also being
students and the household receives Aid to Families with Dependent Children ("AFDC") payments,
or if the students are enrolled in certairi federal, state or local job training programs and are
considered lower income, or (z) for developments receiving credit allocations after June 30, 1992, a
housing unit occupied exclusively by full-time students may qualify as lower income if the students
are a single parent and his/her minor children and none of the tenants are a dependent of a third
party.)
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"Low-Income Unit" shall mean any unit in a building if: (i) the unit is a Rent-Restricted Unit
satisfYing the requirements of Section 2 hereof, and (ii) the individuals occupying the unit are Low-
Income Tenants (or the unit is held available for rental to Low-Income Tenants if previously rented to
and occupied by Low-Income Tenants) as set forth in Section 3(a) hereof. However, Low-Income
Units may be exchanged for Workforce Units and vice versa, provided the total Workforce Units do
not exceed 20 percent of all of the Units available for residential tenants and the total of the available
Low-Income Units is never less than 80 percent of all of the Units available for residential tenants.
Furthermore, the type of units, such as a one, two or three bedroom apartment, a townhouse unit and
aduplex units, shall be proportionally distributed so that at least 80% of each type is available to Low-
Income Tenants and the remainder of each type is available to Workforce Tenants.
"Owner" shall mean the Owner and the Owner's grantees, successors and/or assigns and all
future grantees, successors and/or assigns whose right, title and/or interest stems from the Owner.
"Proprietary Commercial Space" shall mean that portion of the Property anticipated to be
occupied by Family Dollar Store and to consist of one unit totaling approximately 8500 square feet.
"Related Person" shall mean, to a person, a relationship such that the "related person" bears a
relationship to such person specified in Section 267(b) or Section 707(b)(1) ofthe Code, or the related
person and such person are engaged in trades or businesses under common control within the meaning
of Section 52(a)-(b) of the Code, except that for purposes hereof, the phrase "10 percent" shall be
substituted for the phrase "50 percent" in applying Section 267(b) and Section 707(b )(1).
"Rent-Restricted Unit" shall mean a Residential Rental Unit where the Gross Rent with
respect to such unit does not exceed thirty percent (30%) of the imputed income limitation
applicable to such unit. For purposes of the foregoing, the imputed income limitation applicable to
a Residential Rental Unit is the income limitation set forth for Low-Income Tenants and Workforce
Tenants occupying the unit if the number of individuals occupying the unit are (x) one (1)
individual, in the case of a unit that does not have a separate bedroom, and (y) one and one-half
(1.5) individuals for each separate bedroom, in the case of a unit that has one or more separate
bedrooms. The Owner and any tenant shall be obligated to comply with the restriction set forth in
this Agreement. The level of income for residential tenants shall be based on the Area Median
Income (AMI) as determined by the Miami Dade Public Housing Agency, as modified from time to
time. The Owner shall require that the residential units shall be rented to tenants whose annual
household earnings, as defined by the Miami Dade Public Housing Agency, are at or less than the
following levels, or as required to qualifY for the current revitalization grant, the latter of which
shall take precedence, unless revised by amendment to this Agreement and approved by resolution
of the Agency or its successor.
• 80% of residential units shall be rented to households whose annual household earnings are
at or below 60% of the Adjusted Area Median Income.
• 20% ofthe residential units shall be rented to households whose annual household earnings
are at or below 80% of the Adjusted Area Median Income.
"Residential Rental Units" shall mean dwelling units made available for rental, and not
ownership, by Low-Income Tenants and Workforce Tenants, each of which units shall contain
complete living facilities that are to be used other than on a transient basis together with facilities
that are functionally related or subordinate to the living facilities. The units shall at all times be
constructed and maintained in substantial accordance with the applicable building code standards of
the County. For purposes of the foregoing, a unit that contains sleeping accommodations and
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kitchen and bathroom facilities and that is located in a building used exclusively to facilitate the
transition of homeless individuals to independent living and in which a governmental entity or
qualified nonprofit organization provides such individuals with temporary housing and supportive
services designed to assist such individuals in locating and retaining permanent housing shall not be
deemed to be a unit occupied on a transient basis within the meaning hereof.
"Residential Space" shall mean residential apartment units townhome and! or duplexunits
(b) The terms and phrases used in the Recitals of this Agreement have been
included for convenience of reference only, in the meaning, construction and interpretation of all
such terms and phrases shall be determined by reference to this Section 1. The titles and headings
in this Agreement have been inserted for convenience of reference only and shall not be deemed to
modifY and restrict any other provisions ofthis Agreement.
(c) Unless the context clearly requires otherwise, words of masculine, feminine or
neuter gender, as the case may be, shall be construed as including the other genders, and words of
the singular number shall be construed to include the plural number, and vice versa. This
Agreement and all of the terms and provisions hereof shall be construed to effectuate the purposes
set forth in this Agreement and to sustain the validity hereof.
"Student" shall mean an individual who is attending an educational institution as a full-time student
for some part of each of five calendar months during the year. The phrase "attending an educational
institution as a full-time student" includes any part of a month that the individual is registered in school for
the number of hours considered by the school to be full-time attendance, regardless of whether classes are
actually attended in that month.
"Workforce Tenants" shall mean individuals whose income is no greater than eight (80%)
of the area median gross income (adjusted for family size) as established by HUD.
"Workforce Units" shall mean any unit in a building if: (i) the unit is a Rent-Restricted Unit
for individuals whose income is no greater than eight (80%) of the area median gross income
(adjusted for family size) as established by HUD.
Section 2. Low-Income and Workforce Housing Development.
The Agency and the Owner hereby declare their understanding and intent that, during the Compliance
Period, the Residential Space is to be owned, managed, and operated as a low income and Workforce
housing development. To that end, the Owner hereby represents, covenants and agrees as follows:
(a) The Residential Space is being constructed for purposes of providing for 80 percent
of its units for Low-Income Tenants and for 20 percent of its units for Workforce and Low-
Income Tenants, and the Owner shall own, manage and operate the Residential Space
accordingly; and
(b) That there shall be 40 apartment type Residential Rental Units and 8 townhouses and/or
duplex type Residential Rental Units and that all of the Residential Rental Units of the same type
shall be similarly constructed, other than for number of bedrooms in the apartment Residential
Rental Units, and each and every Residential Rental Unit shall contain complete facilities for
living, sleeping, eating, cooking and sanitation for at least a single individual or a family; provided,
however, that a unit that contains sleeping accommodations and kitchen and bathroom facilities and
that is located in a building used exclusively to facilitate the transition of homeless individuals to
independent living and in which 'a governmental entity or a qualified nonprofit organization
provides such individuals with temporary housing and supportive services designed to assist such
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individuals in locating and retaining permanent housing, shall not be deemed to be a unit occupied
on a transient basis within the meaning of this Section 2(c); and
(c) That all of the Residential Rental Units shall be contructed and maintained in
accordance with the design originally approved in the Development Agreement unless the design is
modified in writing and approved by written resolution of the Agency and the City of South Miami.
(d) That, during the Compliance Period, none of the Residential Rental Units in the
Development shall at any time be utilized on a transient basis; except as provided in this Section
2(d), none of the Residential Rental Units in the Development shall ever be leased or rented for an
initial period of less than one hundred eighty (180) days; and neither the Residential Space nor
any portion thereof shall ever be used as a hotel, motel, dormitory, fraternity house, sorority
house, rooming house, hospital, sanitarium, nursing home, rest home, trailer court or trailer park.
or health club or recreational facility (other than recreational facilities that are available only to
tenants and their guests; and
(e) That, during the Compliance Period, the Owner shall not convert the Development
to condominium ownership; and
Ef) . reserved and
(g) That, during the Compliance Period, the Residential Rental Units in the
Development shall be leased and rented, or made available for rental on a continuous basis, to
members of the general public who meet the income requirements of this Agreement.
Notwithstanding the foregoing, to the extent permissible under federal and state fair housing laws,
the Owner shall use reasonable effOlis in its tenant application process and selection process to
rent units in the Project as follows: (i) first to current and former SMCRA residents, (ii) social
workers who provide a minimum of 40 hours per week working with children who reside within
the CRA boundaries; (iii) existing South Miami residents (iv) professional "Role-Model" as
defined in the SMCRA Homeowner Assistant Program (v) non-resident working in South Miami;
and (vi) then, to non-residents of South Miami. The Owner shall not give preference in renting
Residential Rental Units in the Development to any other particular class or group of persons,
other than Low-Income and Workforce Tenants as provided in this Agreement;and
(h) That the Residential Space shall consist of and shall provide, at a
minimum, the features, amenities and programs described in Exhibit "D" to the Development
Agreement.
(i) That, during the Compliance Period, the Development shall not include a
unit in a building where all Residential Rental Units in such building are not also included in the
Development; and
G) That, during the Compliance Period, no part of the Development shall at
any time be owned or used by a cooperative housing corporation; and
(k) That, during the Compliance Period, Owner shall not refuse to lease a unit
to a holder of a voucher or certificate of eligibility under Section 8 of the United States Housing
Act of 1937 because of the status of the prospective tenant as such a holder; and
(1) That the Owner shall not discriminate on the basis of age, race, creed,
religion, color, sex, marital status, family status, handicap, disability, sexual orientation or
national· origin in the lease, use or occupancy of the Residential Space or in connection with the
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5
employment or application for employment of persons for the operation and management of the
Development; provided, however, that nothing herein shall be deemed to preclude the Owner
from discrimination based on income in renting Residential Rental Units set aside for Low-
Income and Workforce Tenants; and
(I) That the Owner shall submit to the Agency all reports required to be submitted to
the Florida Housing Finance Corporation pursuant to the Grants and Miami-Dade County
Directives made a part of Exhibit G of the Development Agreement; and
(n~j That, during the Compliance Period, the Owner shall comply with the following
commitments that were the basis of the Agency's award of the project to the Owner:
(i) 80% of the residential units shall be rented to families whose annual
household earnings are at or less than 60% of the Area Median Income as established by
United States Department of Housing and·Urban Development ("BUD") for Miami-Dade
County and as adjusted for the size of the tenant's family (hereinafter referred to as
"AMI"), and 20% of the residential units shall be rented to families whose annual
household earnings are at or less than 80% of the AMI. In addition, the Development
shall not be sold or resold by the Owner over the next 40 years without the buyer's
purchase of the entire Development and written assumption of all of the commitments,
including the commitment of the affordability and use restrictions, set forth herein. The
assumption document shall be in a form and substance reasonably satisfactory to the City
of South Miami and AGENCY if it is in exisitence at said time.
Eii1 (ii) For purposes of complying with the requirements in Section 2(m) (i) above, a
tenant shall be allowed to maintain the tenant's status as a qualified Low-Income Tenant, or, as the case
may be, a qualified Workforce Tenant and may continue to occupy the designated rental unit until such time
as the tenant's income verification shows that the tenant's household annual income (adjusted for family
size) exceeds 140 percent of the income limits for that rental unit. However, if the tenant does exceed the
income limit and should any unit with a higher income limit be available for rent, the tenant may remain in
the same unit provided his or her household annual income (adjusted for family size) does not exceed 140
percent of the income limit for the available unit with the higher income limit. In that case, the Owner shall
adjust the accounting of available units so one more unit is available at the lower income limit and one
fewer unit is available at the higher income limit.
(iii) The Owner shall obtain from all tenants, and maintain on file, an Income
Certification pursuant to the requirements and procedures reasonably required by the
Agency. The Owner shall thereafter also obtain, 90 to 120 days before the anniversary
date of each lease and maintain on file an Income Certification from each Tenant (to
determine whether the then current income of such tenants residing in the Development
exceed the applicable income limits, adjusted for family size. In addition, the Owner shall
require each tenant to notifY the Owner of any material change of information in his, her
or their, as the case may be, most recent Income Certification.
(iv) The Owner shall maintain complete and accurate records pertaining to the
Residential Rental Units and affordable commercial space for at least six (6) years, or
within the retention period set forth in the state of Florida public records retention rules,
whichever is a greater retention period, following the indicated date of each such record
and shall permit any duly authorized representative of the Agency to inspect the books and
records of the Owner pertaining to all tenants residing in the Development upon
reasonable notice and at reasonable times. Agency shall have the right to make its own
copies of these records using its own copier and without cost to Owner.
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(v) Public Records: OWNER and all of its subcontractors are required to
comply with the public records law (s.119.0701) while providing goods and/or
services on behalf of the SMCRA and the OWNER, under such conditions, shall
incorporate this paragraph in all of its subcontracts for this Project and shall: (a) Keep
and maintain public records required by the public agency to perform the service; (b)
Upon request from the public agency's custodian of public records, provide the public
agency with a copy of the requested records or allow the records to be inspected or
copied within a reasonable time at a cost that does not exceed the cost provided in this
chapter or as otherwise provided by law; (c) Ensure that public records that are
exempt or confidential and exempt from public records disclosure requirements are not
disclosed except as authorized by law for the duration of the Contract term and
following completion of the Contract if OWNER does not transfer the records to the
public agency; and (d) Upon completion of the Contract, transfer, at no cost, to the
public agency all public records in possession of OWNER or keep and maintain public
records required by the public agency to perform the service. If OWNER transfers all
public records to the public agency upon completion of the Contract, OWNER shall
destroy any duplicate public records that are exempt or confidential and exempt from
public records disclosure requirements. If OWNER keeps and maintains public records
upon completion of the Contract, OWNER shall meet all applicable requirements for
retaining public records. All records stored electronically must be provided to the
public agency, upon request from the public agency's custodian of public records, in a
format that is compatible with the information technology systems of the public
agency.
IF OWNER HAS QUESTIONS REGARDING THE APPLICATION OF
CHAPTER 119, FLORIDA STATUTES, TO THE OWNER'S DUTY TO
PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT
THE CUSTODIAN OF PUBLIC RECORDS AT 305-663-6340; E-mail:
mmenendez@southmiamifl.gov; 6130 Sunset Drive, South Miami, FL .33143.
(vi) Background Screening. All personnel and volunteers that will provide
any service with vulnerable persons, as defined in Section 435.02, Fla. Stat., must be
in compliance with Level II Background Screening and fingerprinting requirements as
per, Florida Statute Ch. 435 prior to the scheduled start of any employee or volunteer.
OWNER shall prevent any and all of its personnel, including volunteers, from
engaging in any such related activities without having passed a background screening
to the satisfaction of the Agency. A violation of this requirement shall constitute a
substantial breach of this Contract.
(vii)
(viii) The Owner shall immediately notifY the Agency if at any time the Residential
Rental Units in the Development are not occupied or available for occupancy as provided in
Section 2(m) (i) above.
ill} The Residential Space shall be LEED certified (or the equivalent thereof).
(cl That, during the Compliance Period, the Owner shall obtain and maintain all
insurance set forth in Exhibit E, attached to the Development Agreement, as well as fire,
windstorm and general hazard insurance consistent with local industry standards for similar
properties. Subject to the provisions of applicable loan documents evidencing a loan secured by
the Development, casualty insurance proceeds shall be used to repair the damage done by the
insured event to the condition existing immediately prior to such event.
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7
Section 3. Community Commercial Space.
(a) Owner shall divide the Community Commercial Space into four (4) separate units to
be leased to four (4) separate and distinct lessees as approved initially by the Agency, who shall not
unreasonably deny such leases. The type of commercial tenant that the Agency desires to occupy
the commercial space is a community based tenant as further described in the Development
Agreement ("Agency Approved Commercial Tenant" or "AACT"). Notwithstanding the foregoing,
in the event that the Owner is unable to find a separate AACT to lease each of the four separate
units after reasonable efforts to do so, the Owner may be permitted to lease such vacant unit or
units to a separate tenant of the Owner's choosing ("Owner's Tenant") for each of such vacant
units. Each of the Owner's Tenants shall only be allowed to lease one of the vacant units at a time
(unless otherwise permitted by the Agency in its sole but reaonsble discretion) and if there is more
than one vacant unit avalilable to Owner's Tenants, none of the Owner's Tenants may be affiliated
with each other and each must be financially and organizationally separate and independent of the
other.
(b) \ The AACT rent (on a triple net basis) shall initially be $14.00 per square foot, which
amount shall be adjusted upward by the yearly change in the cpr applicable to the City of South
Miami. Each rental agreement shall receive an annual adjustment based on the Consumer Price
Index -All Urban Consumers 12-Month Percent Change for the Miami-Ft. Lauderdale FL area as
establish and/or published by the United States Department of Labor, Bureau of Labor Statistics
(CPI) that shall have the effect of increasing or decreasing the annual rental amount for each tenant
to maintain appropriate rental amounts, taking inflation into account.
(c), Further, this below market rent is intended to attract community based tenants that
will benefit from such below market rent and provide them with quality commercial space in the
South Miami neighborhood for their use in providing affordable services to the residents of such
neighborhood. In the event that the Owner is unable, after using commercially reasonable efforts,
to attract an AACT tenant for such Commercial Space it may lease such Commercial Space to other
tenants for a term not to exceed 5 years and without the rent restrictions herein set forth. If it does
so, it must market such space to community based tenants during the last year of such lease for a
period of no less than 6 months as a condition to any renewal of the lease to such non-AACT. The
affordable rental rate shall be adjusted upward or downward based on the applicable cpr
adjustmentTom---I don't understand this downward adjustment language. TFP: It has been
my experience that when rent is tied to the CPI that rent inceases beyond the fair market rate
unless the downward adjustment is made.
(d) The Community Commercial Space shall be LEED certified (or the equivalent
thereof).
Section 4. Proprietary Commercial Space.
(e) Owner shall provide the Proprietary Commercial Space as a single unit of
approximately 8,500 square feet to be occupied initially by a Family Dollar retail store.
Section 5. Sale, Lease or Transfer of the Development or any Building. The Owner
shall not enter into a sale, exchange, assignment, conveyance, transfer or other disposition
(collectively, a "Disposition of the Development, or any sale, transfer, assignment, encumbrance of,
or addition of partnership or membership interests in, the Owner if the Disposition of the
Development or the Disposition of the Owner lessens the Owner's, or the successor owner's,
#5550296 v4 42746-0001
8
financial ability to perfonn the Owner's duties under the terms of this Covenant during the
Compliance Period, without the prior written consent of the Agency. Notice of such Disposition
shall be given to the Agency 60 days prior thereto for the purpose of investigating the worth of the
person to whom the Disposition is to be made and provided that the current owner, the proposed
successor owner and the principal person or parties involved in the Disposition of the Owneer
cooperate with the Agency and provide the Agency with the financial information necessary to
establish that the successor owner's financial ability is equal to or greater than the current owner or,
in the case of a Disposition ofthe Owner, that the Disposition will not lessen the fianancialability of
the current owner, and further provided that the parties involved in the Disposition agree to and
assumes the covenants hereof by an instrument recorded concurrent with the Disposition If any of
these conditions are not met, then the Disposition shall not be valid unless approved by written
resolution of the Agency. It is hereby expressly stipulated and agreed that any Disposition of the
Development or of any building in the Development by the Owner in violation of this Section 5 shall
be null, void and without effect, shall cause a reversion of title to the transferor Owner, and shall be
ineffective to relieve the Owner of its obligations under this Agreement. The Owner shall include,
verbatim or by incorporation by reference, all requirements and restrictions contained in this
Agreement in any deed or other documents transferring any interest in the Development or in any
building in the Development to any other person or entity. If the Owner has received a written
riotice of default hereunder from Agency, and such default has not been materially cured, then
Owner shall not be entitled to refinance any existing mortgage debt without the prior consent of
Agency, which consent shall not be unreasonably withheld provided the debt does not exceed the
amount of the initial indebtedness.
The restrictions contained above shall not be applicable to any of the following:
(1) any transfer pursuant to or in lieu of a foreclosure or any exercise of remedies (including,
without limitation, foreclosure) under any mortgage on the Development; provided, however, that
neither the Owner nor any Related Person to the Owner shall acquire any interest in the
Development during the remainder of the Compliance Period and provided that the Agency shall
have been given an opportunity to cure a mortgage default and step into the shoes of Owner, or its
grantees, successors or assigns and their grantees, successors or assigns with a concomitant transfer
of all of their rights, title and interest in the Property from the Owner to the Agency. The Agency
acknowledges that such cure may include the repayment of any debt owed by the Owner to a lender·
seeking foreclosure of its mortgage. The Agency shall have a right to enforce this provision by
specific perfonnance and/or by injunctive relief;
(2) (3) grants of utility-related easements and governmental easements, shown on the title policy
approved by the Agency and any other easement and use agreements which may be consented to by
the Agency and service-related leases or easements, such as laundry service leases or television cable
easements, over portions of the Development; provided, however, the same are granted in the
ordinary course of business in connection with the operation of the Development as contemplated by
this Agreement;
(4) leases of affordable commercial space and apartment units to tenants, including Low-Income
Tenants, in accordance with this Agreement; provided that no apartment units may be subleased to
anyone.
(5) any sale or conveyance to a condemning governmental authority as a direct result of a
condemnation or a governmental taking or a threat thereof;
(6) the placing of a subordinate mortgage lien, assignment of leases and rents or security interests on
or pertaining to the Development if made expressly subject and subordinate to this Agreement and
provided the total debt that encumbers or liens the property does not exceed the tax assessed value of
the property; or
(7) any change in allocations or preferred return of capital, depreciation or losses or any final
adjustment in capital accounts (all of which may be freely transferred or adjusted by Owner pursuant
to Owner's partnership agreement).
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9
However, notwithstanding anything contained herein to the contrary, the Agency shall have the right,
at the Agency's option, to cure any default of the Owner (for a reasonable period of time) under any
financing agreements entered into by the Owner in connection with theDevelopment in order to
avoid a default that could result in foreclosure of any security interest and that such rights of the
Agency may be enforced by specific performance or otherwise. In the event that the Agency cures a
default, the Owner or any of Owners grantee, successor or assigns, or their grantees, successors
and/or assigns shall assign all of their rights, title and interest in and to the Development to the
Agency. The Agency shall have a right to enforce this provision by specific performance and/or by
injunctive relief.. Moreover, in the event that the Owner's interest is foreclosed upon, and if the
Development, or any part thereof, is sold as a consequence of the foreclosure, all proceeds of
the sale in excess of the foreclosure judgment shall be the property of and paid to the SMCRA
or its sussessor and/or assigns. The Agency shall have the right to intervene in any foreclosure
proceeding to protect the Agency's interest and to enforce the terms of this LURA [Steve / Tom
-open item] Owner agrees that any and all financing agreements and/or mortgages shall contain a
provision that grants the Agency such rights. In addition, all deeds, mortgages and other documents
conveying any interest in, or lien on, the Property, shall contain a reference to this Agreement.
Section 6. Development within Agency's Jurisdiction. The Owner hereby represents and
warrants that each building in the Development shall be located entirely within the limits of the
County at location described in Exhibit "A".
Section 7. Term of this Agreement.
(a) This Agreement shall become effective upon the date the Owner and the Agency
executes this Agreement, and shall remain in full force and effect until the expiration of the
Compliance Period or as otherwise provided in this Section 7. Upon the termination of this
Agreement, upon request of any party hereto, the Agency and the Owner or any successor party
hereto shall execute a recordable document prepared by the Agency or its Counsel further
evidencing such termination.
(b) The restrictions contained in Section 2 and Section 3 of this Agreement regarding the
use and operation of the Development and of each building in the Development shall automatically
terminate temporarily pending repair or reconstruction in the event of involuntary noncompliance
caused by fire, or permanently due to: (i) a change in a federal law or an action of a federal authority
after the date hereof prevents compliance with the covenants expressed herein but only to the extent
necessary to comply with federal law or action of a federal authority (as determined by the Agency
upon the advice of Counsel); (ii) condemnation or an event similar to a condemnation; or (iii)
foreclosure or transfer of title by deed in lieu of foreclosure to an entity other than the Owner or a
Related Person of the Owner, provided Agency does not exercises its right to step into the shoes of
the Owner when a foreclosure is threatened or commenced. In such event, upon the request and at
the expense of the Owner, the parties hereto shall execute an appropriate document in recordable
form prepared by the Agency or its Counsel to evidence such termination, if any. This Section 7(b)
shall not apply (and the restrictions contained in Sections 2 and 3 shall thereafter apply) to the
Development in the event that, subsequent to any involuntary noncompliance as described in this
Section 7(b) but prior to the expiration of the Compliance Period, (x) a Related Person to the Owner
obtains an ownership interest in the Development for tax purposes, or (y) the Secretary of the United
States Treasury, or a court of competent jurisdiction determines that such an event that attempts to or
does cause a transfer of title is part of an arrangement to terminate this Agreement.
(c) Notwithstanding the termination of the restrictions contained in Section 2 and Section
3, if allowed, prior to the expiration of the Compliance Period, the Owner (including any successor or
#5550296 v4 42746-0001
10
assignee of the Owner) shall not, prior to the end of the three (3) year period following such
termination: (i) evict or terminate the tenancy of any existing tenant (including any tenant whose'
income is treated as continuing not to exceed the applicable income limit as provided in Section 3(a)
above) of any Low-Income Unit, other than for good cause, or (ii) increase the Gross Rent with
respect to such Low-Income Units in excess of the amounts allowable as Rent-Restricted Units.
(d) Notwithstanding any other provisions of this Agreement, this entire Agreement, or
any of the provisions or sections hereof, may be terminated upon agreement by the Agency and the
Owner.
Section 8. Indemnification. [TO BE MODIFIED BY ORLANDO CABRERA)
The Owner hereby covenants and agrees to indemnifY and hold the Agency, and their respective
members, directors, officers, employees, attorneys, agents and representatives (any or all of the
foregoing collectively referred to as the "Indemnified Persons") harmless from and against any and all
losses, damages, judgments (including specifically punitive damage awards), arbitration awards,
amounts paid in settlements, costs and expenses and liabilities of whatsoever nature or kind
(including, but not limited to, reasonable attorneys' fees, whether or not suit is brought and whether
incurred in connection with settlement negotiations, investigations of claims, at trial, on appeal, in
bankruptcy or other creditors' proceedings or otherwise, expert witness fees and expenses and court
costs) directly or indirectly resulting from, arising out of or in connection with any act or omission to
act by the Owner or any of its partners, directors, officers, employees, attorneys or agents or other
persons under direct contract to the Owner or acting on its behalf, resulting from, arising out of or
relating to the interpretation or enforcement of any provision of this Agreement (including but not
limited to any action by any tenant to enforce the provisions hereof) or the design, construction,
installation, operation, use, occupancy, maintenance or ownership of the Development. Each
indemnified Person will promptly, and after notice to such Indemnified Person (notice to the
Indemnified Persons being serviced with respect to the filing of an illegal action, receipt of any
claim in writing or similar form of actual notice) of any claim as to which he asserts a right to
indemnification, notifY the Owner of such claim. Each Indemnified Person will provide notice to the
Owner promptly, but in no event later than thirty (30) days following its receipt of a filing relating to
a legal action or sixty (60) days following his receipt of any such other claim.
If any claim for indemnification by one or more Indemnified Persons arises out of a claim for
monetary damages by a person other than the Indemnified Persons, the Owner shall undertake to
conduct any proceedings or negotiations in connection therewith which are necessary to defend the
Indemnified Persons and shall take all such steps or proceedings as the Owner in good faith deems
necessary to settle or defeat any such claims, and to employ counsel to contest any such claims;
provided, however, that the Owner shall reasonably consider the advice of the Indemnified Persons
as to the defense of such claims, and the Indemnified Persons shall have the right to participate, at
their own expense, in such defense, but control of such litigation and settlement shall remain with
the Owner. The Indemnified Persons shall provide all reasonable cooperation in connection with
any such defense by the Owner. Counsel (except as provided above) and auditor fees, filing fees and
court fees of all proceedings, contests or lawsuits with respect to any such claim or asserted liability
shall be borne by the Owner. If any such claim is made hereunder and the Owner does not undertake
the defense thereof, the Indemnified Persons shall be entitled to control such litigation and
settlement and shall be entitled to indemnity for all costs and ,expenses incurred in connection
therewith pursuant to the terms of this Section 7. To the extent that the Owner undertakes the
defense of such claim, the Indemnified Persons shall be entitled to indemnity hereunder only to the
extent that such defense is unsuccessful as determined by a final judgment of a court of competent
jurisdiction, or by written acknowledgment of the parties. The Owner reserves the right to appeal
any judgment rendered. Notwithstanding the above, the Owner shall not provide any indemnity to
the Indemnified Persons arising out of their own negligence or misconduct.
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11
Section 9. Reliance.
In performing their duties and obligations hereunder, the Agency may rely upon statements
and certificates of the Owner and Low-Income Tenants believed in good faith to be genuine and to
have been executed by the proper person or persons, and upon audits of the books and records of
the Owner pertaining to occupancy of the Development. No interlineations or manual alteration to
the typed version of this Agreement shall be permitted unless initialed by all parties to the
Agreement. In addition, the Agency may consult with counsel, and the opinion of such counsel shall
be full and complete authorization and protection with respect to any action taken or suffered by the
Agency hereunder in good faith and in conformity with the opinion of such counsel. The Owner
shall reimburse the Agency for reasonable attorneys' fees and expenses incurred in obtaining the
opinion of such counsel. In performing its duties and obligations hereunder, the Owner may rely
upon certificates of Low-Income Tenants reasonably believed to be genuine and to have been
executed by the proper person or persons, provided the Owner takes reasonable steps to verify
Income.
Section 10. Enforcement by the Agency and by Tenants.
If the Owner defaults in the performance of its obligations under this Agreement or breaches any
covenant, agreement or warranty of the Owner set forth in this Agreement, and if such default or
breach remains uncured for a period of sixty (60) days (or ninety (90) days for any default not caused
by a violation of Section 2 or 3 hereof) after written notice thereof shall have been given by the
Agency to the Owner (or for an extended period approved in writing by Agency's General Counsel (x)
if such default or breach stated in such notice can be corrected, but not within such sixty (60) day (or
ninety (90) day) period, and (y) if the Owner commences such correction within such sixty (60) day (or
ninety (90) day) period and thereafter diligently pursues the same to completion within such extended
period), then the Agency may terminate all rights of the Owner under this Agreement and step into the
shoes of Owner, with a concomitant transfer of all of its rights, title and interest in the Development
from it to the Agency. TheAgency may take whatever other action at law or in equity or otherwise,
whether for specific performance of any covenant in this Agreement or such other remedy as may be
deemed most effectual by the Agency to enforce the obligations of the Owner under this Agreement.
Notwithstanding any of the foregoing, the Agency shall have the right to seek specific
performance of any of the covenants, agreements and requirements of this Agreement concerning the
construction and operation of the Development and any person who satisfies the income limitations
applicable to Low-Income and Workforce Tenants hereunder (whether prospective, present or
former occupants of any Residential Rental Unit in any building included in the Development,
including any tenant whose income is treated as continuing not to exceed the applicable income limit
as provided in Section 3(a) above) shall separately have the right to seek specific performance and
otherwise enforce the requirements of Section 2 or 3 with respect to such building that is part of the
Development. A default that does not result in the transfer of all right, title and interest in the
Development to the Agency shall result in an increase in the number of days of the Compliance
Period by the same number of days during which the Owner was in default, including the number of
days during which the Owner is proceding to cme the default.
The Owner must obtain the Agency's approval of the management company selected to
manage the Development. The Agency must be advised of any change in the Owner's selection of a
management company, and the company must be approved by the Agency prior to the firm assuming
responsibility for the Development. Such approval shall not be unreasonably withheld or delayed.
Agency may make or cause to be made reasonable entries upon and inspections of the
Property upon reasonable prior notice. The Agency will indemnify and hold the Developer and its
affiliates harmless from any and all damages relating to such inspection. However, nothing
#5550296 v4 42746-0001
12
contained herein shall be construed to be a waiver of the Agency's right to immunity as provided by
Florida Statutes.
Section 11. Recording and Filing; Covenants to Run with the Land.
(a) Upon execution and delivery by the parties hereto, the Owner shall cause this
Agreement and all amendments and supplements hereto to be recorded and filed in the official
public records of the County in such manner and in such other places as the Agency may reasonably
request and shall pay all fees and charges incurred in connection therewith.
(b) This Agreement and the covenants herein shall run with the land and shall bind, and
the benefits shall inure to the Owner and the Agency and their respective successors and assigns
during the term of this Agreement.
(e) Upon reasonable notice, if there has been no event of default under this Agreement, the
Agency shall furnish to the Owner a statement in writing certifying that the Agreement is not in
default.
Section 12. Amendments.
This Agreement constitutes the entire agreement of the parties as to the recorded Land Use
Restrictions on the property and supersedes any prior agreements, understandings, representation or
negotiation, written or oral concerning Land Use Restrictions. This Agreement may not be modified
or amended except in writing, signed by both parties hereto. This Agreement shall be binding upon
and inure to the benefit of the Agency, the Owner and to their respective heirs, successors and
assigns. Nothing contained herein shall modify the duties and obligations of the parties to the
Development Agreement concerning the property in question. The term "party" as used in this
agreement shall incl.ude the City Commission and the Agency Board.
Section 13. Governing Law and Venue.
This Agreement shall be governed by and construed in accordance with the laws of the State
of Florida and venue shall be in a court of competent jurisdiction located in Miami-Dade County,
Florida.
Section 14. Notice.
Any notice required to be given hereunder shall be given by personal delivery, by registered
or certified U.S. Mail or by expedited delivery service at the address as specified below or at such
other addresses as may be specified by notice to the other parties hereto, and any such notice shall be
deemed received on the date of delivery, if by personal delivery or expedited delivery service, or
upon actual receipt if sent by registered or certified U.S. Mail to the following addresses:
If to the Agency:
#5550296 v4 42746-0001
Chairman of the
South Miami Community Redevelopment Agency
6130 Sunset Drive, Miami FL 33143 Fax: 305-668-7356
Email: mmenendez@southmiamifl.gov
13
City Manager
City of South Miami
6130 Sunset Drive
Miami FL 33143
Fax: 305-668-7356
If to the Owner: Attn: IIi-put information in here. Thanks.
Fax:
Phone: 305-
Email:
With a copy to: Attn:
Telephone:
Facsimile:
Email:
Delivery to the address set forth hereinabove, or as changed in accordance with this section, that is
returned by the United States postal service as undeliverable, unclaimed or as addressee unknown
shall be considered delivered, as of the date of such postal serviced notice, for all purposed required
by this Agreement provided delivery is also attempted by facsimile transmission and email to the
address provided hereinabove or to the address as changed in accorqance with this section. Either
party may change its address by giving notice as provided in this section.
Section 15. Severability.
If any provision of this Agreement shall be held by any court of competent jurisdiction to be
invalid, illegal or unenforceable, such provision shall be deemed omitted from this Agreement and the
validity, legality and enforceability of the remaining, portions of this Agreement shall remain in full
force and effect, but such holding shall not affect the validity, legality or enforceability of such provision
under other, dissimilar facts or circumstances.
Section 16. Multiple Counterparts.
This Agreement may be executed in multiple counterparts, all of which shall constitute one
and the same instrument and each of which shall be deemed to be an original.
Section 17. Binding Effect.
This Agreement shall be binding upon and inure to the benefit of each of the parties and their
successors and assigns, but this provision shall not be construed to permit assignment by the Owner
without the written consent of the Agency. All obligations of Owner shall apply to any person or
entity that receives any right, title or interest in the property whether by conveyance, assignment or
otherwise and they shall each have the same obligations to the Agency and its successors and assigns
as does the Owner.
Section 18. Non-Waiver.
Agency and Owner agree that no failure to exercise and no delay in exercising any right,
power or privilege under this Agreement on the part of either party shall operate as a waiver of any
right, power, or privilege under this Agreement. No waiver of this Agreement, in whole or part,
including the provisions of this paragraph, may be implied by any act or omission and will only be
valid and enforceable if in writing and duly executed by each of the parties to this agreement. Any
waiver of any term, condition or provision of this Agreement will not constitute a waiver of any other
#5550296 v4 42746-0001
14
term, condition or provision hereof, nor will a waiver of any breach of any term, condition or
provision constitute a waiver of any subsequent or succeeding breach.
Section 19. Rules of Interpretation.
Throughout this Agreement the male pronoun may be substituted for female and neuter and
the singular words substituted for plural and plural words substituted for singular wherever
applicable.
Section 20. Cumulative Remedies.
The duties and obligations imposed by this Agreement and the rights and remedies available
hereunder, and, in particular but without limitation, the warranties, guarantees and obligations
imposed upon Owner by this Agreement and the rights and remedies available to the Agency
hereunder, shall be in addition to, and shall not be construed in any way as a limitation of, any
rights and remedies available by law, in equity, by special guarantee or by other provisions of this
Agreement. In order to entitle any party to exercise any remedy reserved to it in this Agreement, or
existing in law or in equity, it shall not be necessary to give notice, other than such notice as may be
herein expressly required.
Section 21. Waiver of Jury Trial.
Agency and Owner knowingly, irrevocably voluntarily and intentionally waive any right
either may have to a trial by jury in State or Federal Court proceedings in respect to any action,
proceeding, lawsuit or counterclaim arising out of this Agreement.
IN WITNESS WHEREOF, each of the parties has executed this Agreement on the dates
set forth below.
#5550296 v4 42746-0001
AGENCY:
SOUTH MIAMI COMMUNITY REDEVELOPMENT
AGENCY
By:
Print Name: Title:
Date:
Notary section
OWNER:
By:
Print Name: Title:
15
Date:
Notary section
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16