Proposed Amendment - Madison Square Development AgreementCArevps
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DEVELOPMENT AGREEMENT BETWEEN DEVELOPER AND
SOUTH MIAMI COMMUNITY REDEVELOPMENT AGENCY
This Agreement between ABREU DEVELOPMENT, LLC (“DEVELOPER”) and the
SOUTH MIAMI COMMUNITY DEVELOPMENT AGENCY (“AGENCY”)
(“Agreement”) is made on this __ day of _______________, , 2018.
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 the property commonly known as Madison Square and
the property known as the Marshall Williamson property in accordance with the terms hereof;
WHEREAS, the AGENCY and the DEVELOPER desire for a mixed use
development to be undertaken at a site in South Miami, Florida and that is 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 use development of Very
Low-Income and Low-Income residential units and affordable and proprietary commercial uses
("Project") consisting of approximately 3,600 square feet of ground floor affordable commercial
space, approximately 8,400 square feet of ground floor commercial space, 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, and forty (40) residential rental units on the eastern and western Madison Square
parcels, as designated in the site plans, with each residential unit having approximately 850
square feet of livable space, 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 D, as may be amended by written agreement of the AGENCY and
DEVELOPER. The development plan for the Marshall Williamson property has not yet been
approved and the DEVELOPER has not yet made a specific proposal for the development of
and the maximum number of townhouses or duplexes allowed by zoning, (approximately 8.7
duplex units or 6 townhouses, or a mix of both or as mutually agreed upon, in writing, between
the parties and approved by written resolution of the Agency and the City. ). on the parcel known
as the Marshall 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 D, as may be amended by written agreement of the
AGENCY and DEVELOPER; and
WHEREAS, the DEVELOPER proposes to construct approximately 300 square feet of
ground floor space in addition to the deliniations above, as designated in the site plans, t o be
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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 8,400 square feet of ground floor commercial
space on the western Madison Square parcel, 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, mu tual 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, 100% Performance and Payment Bond (the “Bond”) or a letter of credit
(“LOC”) in an amount equal to no less than fifteen (15%) percent of the projected
cost of constructing the project, supporting completion of construction of the
Project, in the form as found in Exhibit B (which shall be subject to modification as
to form (but not as to content or substance) as approved by AGENCY General
Counsel and DEVELOPER) within ten days of Closing;
Special Warranty Deed, Land Use Restriction Ag reement (“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.]
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;
Advertised Notice, required by Florida Statue, Section 163.380, is attached as
Exhibit H.
Section 2. Title and Certain Property Matters. The AGENCY shall provide the
DEVELOPER, or the entity that is designated in the Purchase and Sale Agreement, with title to
the Property in the form described in Exhibit C in exchange for the DEVELOPER’s express
commitment, as evidenced by this 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
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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 Madison Square parcels surround a lot owned by a separate, private and
unrelated person or entity and that neither the City, AGENCY, nor any other party related to the
City or the AGENCY, 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.
“AGENCY” shall mean the South Miami Community Redevelopment Agency
until such time as its authority expires an d, thereafter it shall mean the City of South Miami.
“City” means the City of South Miami, Florida.
”DEVELOPER” means the entity executing this Agreement, its officers,
directors, managers, affiliates, successors, and/or successors and assigns and any ot her party
that owns the Property or owns any interest in the title to the Property.
“Project” means the design and construction of the proprietary commercial
space, the community commercial space and the residential housing in accordance with this
Agreem ent .
“Shell Unit” shall mean as concrete floor slab, exterior walls, roof, storefront
and electric (w/o panel),HVAC Curb mount(w/o unit) gas, water and sewer services stubbed to
the premises. Fire sprinklers to meet shell building code and installed with the shell.
Section 4. Conditions Precedent to the AGENCY conveying the Property to the
DEVELOPER or any other party.
4.1 Regardless of the terms set forth in the PSA, AGENCY shall not convey the
Property to the DEVELOPER or other party designated to rece ive title in the Purchase
and Sale Agreement , and the DEVELOPER shall have no rights under this Agreement
or otherwise whatsoever, until DEVELOPER provides evidence to the CITY and the
AGENCY, in such form as is satisfactory to the CITY and the AGENCY, tha t the
DEVELOPER has met all of the following conditions precedent:
4.1.1 the DEVELOPER provides evidence acceptable to AGENCY that each
and every one of the DEVELOPER’S Representations set forth hereinbelow in this
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Agreement made by the DEVELOPER are true and correct;
4.1.2 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 Bu ilding and Zoning Departments before the property is conveyed and before
any permit is issued permitting any commencement of construction, including site
preparation and grading;
4.1.3 the DEVELOPER first provides the AGENCY with evidence acceptable
to the AGENCY, in its reasonable discretion, of commercially reasonable and adequate
financing that will allow the development and construction of the Project; and
4.1.4 the closing of the conveyance of the Property pursuant to the PSA, shall
take place after or contemporaneously with the execution of this Agreement .
4.2 Neither the City nor AGENCY shall unreasonably withhold or delay any
request to extend the time by which the DEVELOPER shall undertake performance of the
conditions precedent. The request for an extension of time, after a prior extension was granted
and abused, shall be deemed to be an unreasonable request and may be withheld or delayed by
the AGENCY and under such circumstances the AGENCY shall be deemed to have acted
reasonably in withholding or delaying such request and in withholding or delaying any
subsequent request for extension of time.
Section 5. Project Scope. The DEVELOPER, after meeting the conditions precedent set
forth in Section 4 of this Agreement, 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 entire
Project, including the commercial space and residential housing in accordance with this
Agreement 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 Project shall be constructed in substantial accordance with the Project Schematics as set
forth in Exhibit D, or as may be amended by agreement of the parties to this Agreement.
5.1 The DEVELOPER'S obligation to construct the Project substantially in
accordance with the Project Sch ematics as set forth above shall be secured, in addition to a
payment and performance bond, or Letter of Credit, by a guaranty of completion by the
DEVELOPER (or such other person or entity that provides a similar guaranty to the first
mortgage lender). All security in the form of bonds and guaranties or Letters of Credit, as
approved by the AGENCY as to form, and as required by this Agreement , shall be in place ,
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and in full force and effect , before any construction commences.
5.1.1 Each Bond or Letter of Credit, shall guarantee to AGENCY the completion and
performance of the Work covered in this Agreement as well as full payment of all suppliers,
material man, laborers, or subcontractor employed pursuant to this Project. The Bond and/or
Letter of Credit shall be issued by a surety company in the case of bonds and a financial
institution in the case of letters of credit. The letter of credit shall be reasonably acceptable to the
Agency and the bond shall be in a form used by the City of South Miami for its public works
projects. The qualifications shall meet the requirements of Sections 5.1.4, 5.1.5, and 5.1.6.
5.1.2 Each Bond or Letter of Credit shall continue in effect for one year after final
completion and acceptance of the Work .
5.1.3 Pursuant to t he requirements of Section 255.05(1), Florida Statutes,
DEVELOPER shall ensure that the Bond or Letter of Credit (s) referenced above shall be
recorded in the public records of Miami -Dade County and provide CITY with evidence of
such recording.
5.1.4 Each Bond must be executed by a surety company authorized to do business in
the State of Florida as a surety, having a resident agent in the State of Florida and having
been in business with a record of successful continuous operation for a least five (5) years.
5.1.5 The surety company shall hold a current certificate of authority as acceptable
surety on federal bonds in accordance with the United States Department of Treasury
Circular 570, current revisions.
5.1.6 The AGENCY shall only be required to accept a s urety bond from a company
with a rating of A. VII or better or a letter of credit from a financial institution that is rated
by Bankrate.com with a rating of 4 stars or better, or BauerFinancial’s Bank Star Ratings with a
rating of 4 stars or better , or such other surety or financial institution whose financial rating is
acceptable to Agency and City.
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. The DEVELOPER waives any and all rights of
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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 AGENCY whatsoever. This Agreement shall terminate prior to
closing under the PSA if the DEVELOPER breaches any of the terms, conditions or provision
hereof or if the Owner breaches any of the terms, conditions or provisions of the PSA and fails to
cure such noncompliance within thirty (30) days after the AGENCY provides DEVELOPER
with written notice of default and demand to cure. If the cure period extends beyond the closing
date, the closing date shall be extended to a date 10 days following the end of the cure period
The AGENCY may, in its sole and absolute discretion, provide such longer period of time to
close, and the time 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
AGENCY’S Chairman and the AGENCY Director detailing all efforts that were taken during
that week. The contents of such report must be reasonably satisfactory to the AGENCY
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 AGENCY’s sole and exclusive discretion,
be deemed an uncureable breach of this Agreement.
Section 7. Limitation of Liability. The AGENCY shall not be liable for an y claim
or damage in connection with the Project in excess of the AGENCY's maximum potential
contribution as provided under this Agreement, 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. Project Financing Documents. In addition to any other provision in this
Agreement, all financing agreements with third parties, shall include a provision that gives
the AGENCY, at its sole and exclusive discretion, the rights provided to the AGENCY in 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 not to exceed thirty (30) days; provided, however, if such default
cannot reasonably be cured within such thirty (30) day period and Agency has diligently
commenced to cure such default promptly within such thirty (30) day period, such thirty (30)
day period shall be extended for so long as it shall require Agency, in the exercise of due
diligence, to cure such default, but, unless the parties otherwise agree, in no event shall the
entire cure period be more than sixty (60) days. 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 in a substantially similar manner as
contemplated by this Agreement, subject to the extension of time periods as a result of force
majeure. For the avoidance of doubt, non-material changes and changes approved by the
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Agency shall not trigger the reverter. 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 rights, remedies and restrictions set forth in the LURA. Likewise, the
AGENCY will give institutional lenders the right to cure any defaults of the DEVELOPER to
complete the Project, which opportunity to cure such defaults shall be the longer of (i) thirty
(30) days after the cure period provided under the applicable mortgage, (ii) thirty (30) days
from the institutional lender’s receipt of Agency’s notice to the institutional lender of a
Developer default, or (iii) if the cure of such default requires possession of the Property,
thirty (30) days after the institutional lender has obtained possession of the Property;
provided that, in each case, if such default cannot reasonably be cured within such thirty (30)
day period and institutional lender has diligently commenced to cure such default promptly
within the time contemplated by this Agreement, such thirty (30) day period shall be
extended for so long as it shall require the institutional lender, in the exercise of due
diligence, to cure such default, but, unless the parties otherwise agree, in no event shall the
entire cure period be more than ninety (90) days. Institutional lender acknowledges that it is
not obligated to cure any Developer default, but if the institutional lender elects to do so,
Agency agrees to accept cure by the institutional lender as that of the Developer under the
applicable mortgage and will not exercise the reversionary interest. Upon satisfactory
completion of the Project, which shall be evidenced by temporary certificates of occupancy,
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.
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 AGENCY. The DEVELOPER, its officers, shareholders,
principals, owners, directors, partners, 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:
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11.1 use reasonable efforts to assist DEVELOPER in the DEVELOPER’s
application for permitting and in obtaining the permits necessary to develop the Project.
11.2 assign any interest it may have in the permits to DEVELOPER at closing.
11.3 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 . Currently, the
AGENCY is renting two homes that are on the Property. The AGENCY shall provide these
tenants with whatever notice is required to allow the tenants time to move so that the
Developer can demolish the existing structures without delay caused by the existence of
these tenant s living on the Property following the closing. Any delay in the vacating of these
homes that prevents the DEVELOPER from demolishing these homes, after the
DEVELOPER has obtained all the necessary permits and after the DEVELOPER is ready
and able to start the demolition process, shall toll any time frames established for the
DEVELOPER to commence and for it to complete construction. It is understood and agreed
that the Agency is the party responsible for the tenants vacating such premises ; and
11.4 the current zoning, parking requirements and impervious coverage requirements
as set forth in the City’s Land Development Code are sufficient for the Project. The
AGENCY, at its expense will apply for and/or support any special exception or special use
approval for the construction of the Project as necessary, without further condition by the City,
to permit the DEVELOPER to build the Project as currently designed.
Section 12. DEVELOPER’S Duties. The DEVELOPER shall:
12.1 prepare a full, final, unamended or unchanged, and complete set of
construction plans that have been approved by the City's Planning and Zoning Depar tment
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; and
12.2 other than in connection with the lien or encumbrance of Project financing, not
permit any liens to be recorded against the Property regarding the Project. If a construction,
materialmen, labor, or other person authorized to record a construction lien, records a
construction lien or if a construction-related lien, is recorded against the Property, and if the
DEVELOPER has chosen to secure the construction with a LOC, DEVELOPER shall remove
such lien to bond as provided and allowed by Florida law within thirty (30) days of recording
of the lien. The City and AGENCY shall be made additional obligees on such bond and the
amount of the bond shall be not less than one hundred percent (100%) of the amount claimed
under the recorded and asserted lien; and
12.3 make timely payment(s) to subcontractors or suppliers for materials or labor
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regarding the Project unless the DEVELOPER has reasonable grounds to withhold payment;
and
12.4 maintain the construction sources of financing in balance in accordance with the
applicable project financing documents; and
12.5 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; and
12.6 obtain all construction financing necessary to design the Project , to the
reasonable satisfaction of the AGENCY , and to construct the Project in accordance with the
plans approved by the AGENCY; prepare all of the construction documents, including but
not limited to the plans, working drawings, specifications and all necessary as -built
drawings; obtain all necessary permits for the construction of the approved design on the
properties identified in Exhibit A (the "Property"); do all things necessary to complete
construction; obtain permanent financing; lease the r esidential and affordable commercial
properties that are part of the Project; 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 al l Miami-Dade County mandates, copies of
which are attached as Exhibit G; provide affordable housing and affordable commercial
space to tenants who meet the guidelines as set forth in the LURA.
12.7construct the affordable housing rental project with the designated residential rent
for each residential unit not to exceed applicable rental restrictions as set forth in the LURA,
together with approximately three thousand six hundred (3,600) square feet of Commercial
Community Space as defined in the LURA. The space set aside for community based
commercial tenants shall be divided into four (4) separate Shell Units.
12.8 perform or comply with the covenants set forth in the Land Use Restriction
Agreement, the form of which is attached hereto as Exhibit C (the “LURA”). The
DEVELOPER shall be obligated to comply with and acknowledge the restrictions set forth in
such LURA. The initial rents to be charged to such residential tenants shall be as set forth in
the LURA. The LURA shall be entered into between th e AGENCY and the DEVELOPER
(or its affiliate) contemporaneously with the transfer of the Property pursuant to the terms of
the PSA. 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, success ors or assigns, during such period without the new
buyer's written assumption of the preferences, affordability and use restrictions set forth in
the LURA. The assumption document shall be , as to form and substance , reasonably
satisfactory to the AGENCY or, once the Agency is dissolved, the City.
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12.9 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 th e right to make its own copies of
these records without cost to DEVELOPER.
Section 13. DEVELOPER REPRESENTATIONS AND WARRANTIES:
13.1 The DEVELOPER represents and warrants that:
13.1.1 the DEVELOPER is a limited liability company organized under the
laws of the State of Florida in good standing and shall remain in good standing throughout
the term of this Agreement;
13.1.2 this Agreement is signed by persons who have been duly authorized to
sign on the DEVELOPER’s behalf;
13.1.3 it will perform each of th e duties set forth in Section 12 using best
efforts and commercial diligence;
13.1.4 the DEVELOPER’S rights, duties and obligations may not be
assigned, 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 AGENCY; provided, however, the Developer’s rights hereunder
may be assigned to an institutional lender and a subsequent buyer in connection with the
possession of the property by either in connection with a foreclosure, a deed in lieu or
with a subsequent sale of the Property by an institutional lender ;
13.1.5 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;
13.1.6 DEVELOPER shall apply for site plan approval within 60 days of the
date of this Agreement and construction permits within sixty (60) days of site plan
approval. However, in the event that DEVELOPER is diligently pursuing the approval of
the site plan and construction permits and if DEVELOPER is in need of additional time, a
request for an extension of time will not be unreasonably withheld by the Agency to obtain
either site plan approval or for the issuance of the permits;
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13.1.7 DEVELOPER shall cause the Property to be developed in substantial
accordance with the Project 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;
13.1.8 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 this Agreement;
13.1.9 the construction of the Project and compliance with this Agreement s hall
be in accordance with all applicable codes, ordinances, statutes, regulations of the federal
government, the State of Florida, the City and Miami-Dade County; and
13.1.10 the use of the Property shall be in compliance with this Agreement and
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.
13.2 All of the Representations and Warranties set forth in this Section shall survive
the termination of this Agreement and the closing on the sale of the property in question.
13.3 Warranty: 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 shall be considered defective work. All work that is not in substantial compliance
with the Project Schematics shall be considered defective work. The DEVELOPER shall
repair or replace (or caused to have repaired or replaced) such defective work. 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, if issued 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. This provision shall
survive the completion of the project and the termination of this Agreement.
Section 14. Force Majeure. Neither party shall hold the other responsible for
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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
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 Un ited States
Centers for Disease Control. Should such acts or circumstances occur, the parties shall
use their commercially reasonable best efforts to overcome the diffic ulties and to resume
the work as soon as reasonably possible and the construction schedule shall be adjusted
accordingly.
Section 15. Default.
15.1The DEVELOPER shall be in default of this Agreement if the DEVELOPER:
15.1.1 fails to apply for site plan approval within sixty (60) days of the date of the
delivery of the deed to the Property (or within the extended time period allowed, if any) or
fails to apply for any building permit necessary for the commencement of construction
within sixty (60) days of site plan approval (or within the extended time period allowed, if
any); or
15.1.2 fails to start construction within 90 days following the issuance of
construction permits; or
15.1.3 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; or
15.1.4 fails to timely 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
discretion, provided that the DEVELOPER demonstrates to the AGENCY’s reasonable
satisfaction that 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; or
15.1.5 fails to complete construction within four hundred fifty five (455) days from
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the date of the delivery of the Special Warranty 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; or
15.1.6 breaches any warranty made under this Agreement, including without
limitation those made under Section 13; or
15.1.7 partially or entirely assigns, leases, sells, options, conveys, gifts or
otherwise alienates its interest in this A greement without the express prior written
consent of AGENCY which must be approved by written resolution of the AGENCY,
other than as expressly permitted hereunder.
15.2 All notices of default may be made by U.S. Mail or hand delivered by courier
or other party or sent by e-mail 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 of law provisions.
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
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registered or certified mail, postage prepaid, return receipt requested, and addressed as follows:
If to the AGENCY: Director, Evan Fancher
South Miami Community Redevelopment
Agency
6130 Sunset Drive
Miami, Florida 33143
Fax: 305-668-7356
E-mail: EFancher@southmiamifl.gov
With a copy to:
City Manager
City of South Miami
6130 Sunset Drive
Miami, Florida 33143
Fax: 305-668-7356
If to DEVELOPER:
Daniel Abreu
Abreu Development, LLC
14011 SW 20TH STREET
MIAMI, FL 33175
Phone: 305-345-7475
Email: DG@CANDELADEV.COM
with copy to:
Stearns Weaver Miller Weissler Alhadeff
& Sitterson, P.A.
150 West Flagler Street, Suite 2200
Miami, FL 33130
Attn: Brian J. McDonough
Phone: 305-789-3200
Email: bmcdonough@stearnsweaver.com
Section 19. Records and Costs. The books and accounts, files and other record s
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:
19.1 Keep and maintain public records r equired by the public agency to perform
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15
the service;
19.2 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;
19.3 Ensure that public records that are exempt or confidential and exempt from
public records disclosure requirements are not disclosed except as aut horized 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
19.4 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 dupli cate 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 pub lic 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 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 S unset Drive, South Miami, FL .33143 .
Section 20. Indemnification.
20.1 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. I ndemnification shall
specifically include, but not be limited to third party claims and any and all actual out
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16
of pocket damages, losses, liabilities and expenses incurred by the AGENCY arising out
of or from:
20.1.1 any negligent or defective work or any defective design of the Project ;
20.1.2 any negligent act or omission of the DEVELOPER, its subcontractors,
agents, invitees, servants or employees;
20.1.3 any damages, liabilities, or losses received or sustained by any person or
persons during or on a ccount of any negligent operations under the care custody or
control of DEVELOPER connected with the construction of this Project;
20.1.4 the use of any improper materials;
20.1.5 any construction defect including both patent and latent defects;
20.1.6 failure to timely complete the work;
20.1.7 the violation of any federal, state, or county or city laws, ordinances or
regulations by DEVELOPER, its subcontractors, agents, servants, independent
contractors or employees;
20.1.8 the breach or alleged bre ach by DEVELOPER of any term of this
Agreement;
20.1.9 the failure to comply with any requirement of any grant used to finance the
purchase of the Property by the AGENCY 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 ob ligations or requirements imposed on
the Project or Property by virtue of any grants received in connection the Property and
with this agreement to indemnif y the AGENCY for failure to comply with such
requirements and provide the DEVELOPER with a reasonable time to cure the default
20.2 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
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17
organization under workers or workman's compensation acts, disability benefit acts or other
employee benefit acts.
20.3 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 Docum ents 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.
Section 21. Assignment.
21.1 DEVELOPER shall not partially or entirely assign sell, lease, option, convey,
gift, or otherwise alienate its interest, in whole or in part, in this Agreement without the
express prior written consent of AGENCY which consent shall be governed by the
provisions for transfer set forth i n the LURA. 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 writin g to abide by all of the terms, conditions and provision of this
Agreement, the PSA and the LURA. 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 subject 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
___________, an d 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. This assignment shal l 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 notariz ed 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."
21.2 If AGENCY or the City acting as its successor, 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 unles s the City or AGENCY 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, t his Agreement for development, the Land Use
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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 conditi ons, 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 Cit y shall be an
additional obligee on all construction surety bonds.
Section 22. Taxes, Mortgage and Obligations.
22.1 DEVELOPER (or successor in interest), shall pay the real estate taxes or
assessments on the Property or any part thereof when due subject to proration of same at
closing. DEVELOPER shall not allow any lien to be recorded, or any levy or attachment to
be made, that is not transferred to a bond within thirty (30) days of the recording of the lien,
levy or attachment. DEVELOPER shall not all ow any encumbrances to be recorded other
than the following:
22.1.1 A mortgage(s) 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)
that does not exceed the fair market value of the Development as determined by an MAI
appraiser, chosen by the institutional lender with the approval of the AGENCY which will
not be unreasonably withheld or delayed, who regularly conducts appraisals in Miami-Dade
County of both commercial and residential properties of the type contemplated by this
Agreement.; and
22.1.2 A mortgage(s) in favor of any institutional lender refinancing or converting to
permanent financing any mortgage, in an amount(s) that does not exceed the fair market
value of the Development as determined by an MAI appraiser, chosen by the institutional
lender with the approval of the AGENCY which will not be unreasonably withheld or
delayed, who regularly conducts appraisals in Miami-Dade County of both commercial and
residential properties of the type contemplated by this Agreement.”
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.
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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 comply with the Americans with Disab ilities
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
an y 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 e ach
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 t his
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.
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 cond itions 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 AGENCY 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 provisi ons 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
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this Agreement shall not act as a waiver of any subsequent breach or default. This Agreement
shall be binding upon the heirs, guardians, personal representativ es and assigns of both of the
parties.
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 AGENCY . 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 AGENCY Requirements. The DEVELOPER
shall, after delivery of the deed, comply with all grant and Miami -Dade County Directives, as
set forth herein. 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 AGENCY requirements. In all respects that the DEVELOPER fulfills the terms
of the grants, directives and requirements, including the goal of hiring of SMCRA Area
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 as applicable. The
DEVELOPER will use all reasonable efforts to hire residents located in t he SMCRA Area or,
secondarily, in the City to fill at least fifty (50%) of all construction jobs and fifty (50%) of all
permanent jobs to the greatest extent possible. 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.
Section 32. 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 33. Recording. This Agreement may not be recorded by either party.
Section 34. Specific Performance. The parties hereto shall have the right to enforce
this Agreement by specific performance.
Section 35. Remedies. All remedies provided by this Agreement or allowed in law or
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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.
Section 36. Letter of Credit. The Letter of Credit (“LOC”) authorized by this
Agreement shall be an irrevocable standby letter of credit in a form that is substantially similar to
the form attached to this Agreement. No permit shall be issued unless the LOC is approved as to
form by the Agency’s general counsel, which approval shall not be unreasonably denied. A
condition of the LOC shall be that the DEVELOPER and Contractor comply with all of the terms
and conditions of this Development Agreement, including timely completion of the Project. A
Notice of Commencement shall be recorded naming the AGENCY as an additional party having
an interest in the property pursuant to a Development Agreement and LURA, naming the
financial institution issuing the irrevocable standby letter of credit and stating the amount of the
LOC. A copy of the recorded Notice of Commencement shall be delivered to AGENCY before
any permits are issued.
Section 37. Consent, Approval or other Action. All action of the Agency or the City
required or contemplated by this agreement, including acceptance, approval and consent, shall
require that such action, to be enforceable, must be done by written resolution or, in the case of
the City, by resolution or ordinance.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the AGENCY and DEVELOPER have caused this
Agreement to take effect on the day and year first above written.
DEVELOPER:
ABREU DEVELOPMENT, LLC, a Florida limited
liability company
By:__________________________________
Daniel Abreu, Manager
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AGENCY:
SOUTH MIAMI COMMUNITY
REDEVELOPMENT AGENCY
By: ____________________________
Name: The Honorable Philip K. Stoddard
Title: Chairperson