Proposed Amendment -Madison Square LURA-CArev
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LAND USE RESTRICTION AGREEMENT
THIS 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.
1.1. The meaning, construction and interpretation of all terms and phrases listed in
this Section 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 of this Agreement.
1.2. 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.
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1.3. 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.
“Agency approval” or “Agency consent” shall mean that the Agency has approved
or consented by written resolution.
“City approval” or “City consent” shall mean that the City has approved or
consented by written resolution, or ordinance.
"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.
"Community Commercial Space" means that portion of the Development to be
leased or used for commercial (non-residential) purposes, consisting of approximately of
3,600 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 and ending on the 40th 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.
“Entire Development” shall mean the Development and the Proprietary
Commercial Space.
"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 telecommunications, 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 the 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
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(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 receiving HUD rental
assistance payments ("HUD Tenant Assistance"): (iii) in the case of a building for which
there is neither HUD Tenant Assistance, nor an applicable HUD 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 HUD-regulated) or any tenant receives
RD housing assistance (including any Very Low-Income Tenant receiving HUD Tenant
Assistance who resides in a building where the building or any other tenant receives RD
housing assistance).
"Low-Income Tenants" shall mean an individual or a family whose annual income
does not exceed eighty percent (80%) of the area median income as determined by HUD
and as published annually for Miami-Dade County by Florida Housing Finance
Corporation based upon figures provided by HUD, as adjusted for family size. 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 certain
federal, state, or local job training programs and are considered lower income, or (z) 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.
"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 2 hereof. However, Low-Income Units may be exchanged for Very Low-Income
Units and vice versa, provided the Owner complies with the distribution rules set forth in
Section 2 of this Agreement.
“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 a Family Dollar Store and to consist of one unit totaling approximately
8,400 square feet which shall be maintained in substantial accordance with the applicable
building code standards of the County and in good condition and repair at all times.
"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)
of the 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).
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"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 Very
Low-Income Tenants or Low-Income 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, unless revised by amendment to this Agreement and approved by
resolution of the Agency or its successor:
• 50% of Residential Rental Units shall be rented as Very Low-Income Units
• 50% of the Residential Rental Units shall be rented as Low-Income Units
The rent that may be charged by the Owner is determined annually by HUD and is
published by Florida Housing Finance Corporation.
"Residential Rental Units" shall mean dwelling units made available for rental,
and not ownership, by Very Low-Income Tenants and Low-Income 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 and in good
condition and repair at all times. For purposes of the foregoing, 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 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 duplex
units that were constructed pursuant to the terms of the Development Agreement.
“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 12 or more hours of class time per week if in
high school or college, and 9 hours or more if in graduate school.
“Very Low-Income Tenants” shall mean an individual or a family whose annual
income does not exceed fifty percent (50%) of the area median income as determined by
HUD and as published annually for Miami-Dade County by Florida Housing Finance
Corporation based upon figures provided by HUD, as adjusted for family size. In no event,
however, shall occupants of a unit be considered to be of Very Low- Income if all the
occupants are students, but excluding from such definition the following: (x) single parents
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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
certain federal, state, or local job training programs and are considered lower income, or (z)
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).
“Very Low-Income Units” 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 Very Low-Income Tenants (or the unit is held available for rental to
Very Low-Income Tenants if previously rented to and occupied by Very Low-Income
Tenants) as set forth in Section 2 hereof. However, Very Low-Income Units may be
exchanged for Low-Income Units and vice versa, provided the DEVELOPER complies with
the distribution rules set forth in Section 2 of this Agreement.
Section 2. Very Low-Income and Low-Income Housing Development.
2.1. 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 Very Low-Income and Low-Income housing development. To that end, the Owner hereby
represents, covenants and agrees as follows:
2.1.1. Fifty (50%) percent of the Residential Space shall be rented to Very Low-
Income Tenants and Fifty (50%) percent shall be rented to Low-Income and/or Very
Low-Income Tenants. The Owner shall own, manage and operate the Residential Space
accordingly. Furthermore, all of the various types of units, such as a one, two or three
bedroom apartment, a townhouse and a duplex unit, will be made available to Very
Low-Income Tenants and Low-Income Tenants to the greatest extent practicable, so that
50% of each type is available to Very Low-Income Tenants and the remainder of each
type is available to Low-Income Tenants. Additionally, the fifty (50%) percent quota
for the type of unit to be made available to Very Low-Income Tenants shall be
prioritized for rental to Very Low-Income Tenants, unless insufficient qualified
applicants can be found to fill the Very Low-Income quota for all of the different types
of units set aside for Very Low-Income Tenants. If a type of unit has been made
available to qualified Very Low-Income applicants and remains unrented because no
qualified Very Low-Income applicants can be found who desire to rent such unit, the
Owner may rent such unit to a qualified Low-Income Tenant. The Owner shall keep an
updated inventory of all available types of units (“Inventory Application Form”) which
shall be presented to all residential rental applicants and the inventory shall be signed by
the applicant to indicate the units available and the unit chosen by the applicant. These
signed inventory sheets shall be kept and maintained as a public record subject to
inspection but such records shall not be released without the appropriate redaction of
exempt and/or confidential information. Nothing contained herein shall be construed to
change the requirement to rent at least fifty percent (50%) of the units to Very Low-
Income Tenants; and
2.1.2. That there shall be 40 apartment type Residential Rental Units and, if agreed
to in a written development agreement and if the Marshall Williamson property is conveyed
to Abreu Development, LLC with the same conditions and covenants as the Land in
question, 6 townhouses or 8 duplex type Residential Rental Units or a mix of townhouses
and duplex units as set forth in the such development agreement or as mutually agreed
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upon, in writing, between the parties and approved by written resolution of the Agency and
the City. All of the Residential Rental Units of the same type (i. e. apartments, townhouses
or duplex units) 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; and
2.1.3 That all of the Residential Rental Units shall be constructed 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.
2.1.4. That, during the Compliance Period, none of the Residential Rental Units
in the Development shall at any time be utilized on a transient basis; 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, or similar
uses, nor shall any portion of the Entire Development be used as a health club or
recreational facility, or similar uses (other than recreati onal facilities that are available
only to tenants and their guests). Nothing contained in this subsection shall be construed
to mean that any portion of the Entire Development shall be used for any purpose other
than for the main purposes set forth in this Agreement.
2.1.5. That, during the Compliance Period, the Owner shall not convert the Entire
Development, or any portion thereof, to condominium ownership; and
2.1.6. 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, and to the extent permissible under federal
and state fair housing laws, the Owner shall use reasonable efforts in its tenant
marketing, application process and selection process to market and rent units in the
Project as follows: (i) first to those who reside, or who have resided, within the
geographical boundaries of the South Miami Neighborhood Revitalization Strategy
Areas (“SM-NRSA”),, (ii) social workers who provide a minimum of 40 hours per week
working with children who reside within the SM-NRSA boundaries; and (iii)
professional “Role-Model” as defined in the SMCRA Homeowner Assistant Program
(collectively referred to as “SMCRA Qualified Tenants”). The Owner shall include in
the Inventory Application Form the above categories, as well as the final category of
“None of the above”, and the applicant shall check off or otherwise indicate the
applicable category. 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
Very Low-Income and Low-Income Tenants as provided in this Agreement; and
2.1.7. 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.
2.1.8. 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
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2.1.9. That, during the Compliance Period, no part of the Entire Development, or
any portion thereof, shall at any time be owned or used by a cooperative housing
corporation; and
2.1.10. That, during the Compliance Period, Owner shall not unreasonably 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 if they are residents or former residents of the SM-NRSA; and
2.1.11. 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 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 Very Low-Income and Low-Income Tenants; and
2.1.12. That the Owner shall submit to the Agency all reports required to be
submitted pursuant to the Grants and Miami-Dade County Directives that are made a part
of Exhibit G of the Development Agreement and Owner shall comply with the
requirements of the Grant agreements in question concerning job creation. In addition,
the Owner shall provide the Agency with an annual report that shall include (w) the
names, unit number, monthly rent of all Agency Approved Commercial Tenants; (x) the
names and addresses of all employees who fulfill the job creation required by the grant
agreement; (y) the names, residential unit number, number of bedrooms, monthly rent and
household income of all residential tenants; and (z) the names of all commercial tenant,
their commercial space address or unit number and their monthly rent; and
2.1.13. That, during the Compliance Period, the Owner shall comply with the
following commitments that were the basis for the Agency's award of the project to the
Owner:
2.1.13.1. 50% of the residential units shall be rented to qualified Very Low
Income individuals or families and 50% of the residential units shall be rented to
qualified Low Income individuals or families and/or Very Low-Income
individuals or families or as mutually agreed upon, in writing, between the parties
and approved by written resolution of the Agency and the City. In addition, no
portion of the Entire Development shall be sold or resold by the Owner during the
Compliance Period 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 existence at said time.
2.1.13.2. For purposes of complying with the requirements in this Section
2.1.13, a tenant shall be allowed to maintain the tenant’s status as a qualified
Very Low-Income Tenant, or, as the case may be, a qualified Low-Income
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)
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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.
2.1.13.3. 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 end of the lease term, and maintain on file, an Income Certification
from each Tenant to determine whether the then current income of such tenant’s
household, 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 whenever there is any material change in the information
provided in the most recent Income Certification.
2.1.13.4. 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’s
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 co pies of
these records using its own copier and without cost to Owner.
2.1.13.5. 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 SMCR A 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 agen cy'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 provid ed 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 i f 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 OWN ER
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 RELA TING TO THIS CONTRACT,
CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT Office of the
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City Clerk, City of South Miami, 6130 Sunset Drive, South Miami, FL
33143, T el: 305-663-6340; E -mail: mmenendez@southmiamifl.go v or
npayne@southmiamifl.gov .
2.1.13.6. 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 finge rprinting 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
Florida law . This section 2.1.13.6 does not apply to the persons who are
involved in the construction of the Development. A violation of this
requirement shall constitute a substantial breach of this Contract.
2.1.13.7. The Owner shall immediately notify the Agency if at any time the
Residential Rental Units in the Development are not occupied or become available
for occupancy as provided in Section 2 above. Additionally, when applicable, the
Owner will develop an Affirmative Fair Housing Marketing Plan, in compliance
with HUD regulations. When HUD regulations do not apply and during the
Compliance Period, Owner will publicize openings in Residential Rental Units in
in newspapers of general circulation including, The Miami Herald, El Nuevo
Herald, The Miami Times and Community Newspaper - South Miami Edition.
2.1.14. The Residential Space shall be maintained as LEED certified (or the
equivalent thereof, e.g. Florida Green Building Coalition certified).
2.1.15. That, during the Compliance Period, the Owner shall obtain and
maintain, in full force and effect, 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.
Section 3. Community Commercial Space.
3.1. Owner shall keep the Community Commercial Space divided into four (4)
separate units to be leased to four (4) separate and distinct lessees (unless otherwise
permitted by the Agency in its reasonable discretion) which shall be maintained in
substantial accordance with the applicable building code standards and City Land
Development and Code of Ordinances, and in good condition and repair at all times.
The type of commercial tenant that the Agency desires to occupy the commercial
space is a South Miami community based tenant (“Agency Approved Commercial
Tenant” or “AACT”). The below market rent imposed by this Agreement 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 order to facilitate
that intent, the DEVELOPER and Agency will use all reasonable efforts to locate such
Local Tenants to occupy the commercial space. Notwithstanding the foregoing, in the event
that the Owner and Agency is unable to find a separate AACT for each of the four units
after reasonable efforts to do so, but not exceeding nine months, the Owner shall be
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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, provided the tenant is approved by the
Agency. However, the Agency shall not unreasonably withhold or delay its approval of the
Owner’s Tenant. 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 reasonable
discretion) and if more than one vacant unit is available to rent to an Owner’s Tenants, then
each must be financially and organizationally separate and independent from one another
(unless otherwise permitted by the Agency in its reasonable discretion). The term of the
lease of an Owner’s Tenant shall not exceed five (5) years, and the initial five (5) year term
may not be extended without the City’s prior written consent and such consent shall be in its
sole and absolute discretion. At the end of the next to last year of the Owner’s Tenant’s
lease term, Owner shall market such space to community based tenants, for a period of no
less than nine (9) months as a condition to the lease to such space to a non-AACT.
3.1.1. The affordable rent restrictions otherwise imposed for leasing to Local
Tenants will not apply to the leasing of such commercial units to Owner’s Tenants.
The AACT base rent shall initially be $14.00 per square foot. In addition to the base
rent, AACT shall pay a proportionate share of the property taxes , insurance, and
maintenance (“triple net basis rent”) which is independent of the base rent. The base
rent of each rental agreement with an AACT 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 established 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 base rental amount for each tenant to maintain
appropriate rental amounts, taking inflation into account, but the maximum increase
shall never exceed two percent per year, within a valid lease term.
3.2. The Community Commercial Space shall be LEED certified (or the equivalent
thereof, e.g. Florida Green Building Coalition certified).
3.3 The Owner shall require all commercial tenants to advertise job openings in
CareerSource. If CareerSource ceases operation, the Owner will work with the Agency to
locate suitable alternatives.
Section 4. Proprietary Commercial Space.
4.1. Owner shall provide the Proprietary Commercial Space as a single unit of
approximately 8,400 square feet to be occupied initially by a Family Dollar retail store.
Any change in the use of the Proprietary Commercial Space sh all be approved by the
Agency, which approval shall not be unreasonably withheld.
4.2. Owner shall be encouraged to install art on the building facade ("Art Space").
Notwithstanding the permitted Art Space on the building façade, the windows of the
Proprietary and Community Commercial Space shall not be covered with any form of
advertising or promotional materials for seventy-five percent (75%) of the window space.
Furthermore, no advertisement of tobacco products shall be permitted and Owner shall
comply with the applicable sections of the City’s Land Development Code. No sign, design
or writing shall be placed within the Art Space or windows without prior approval of the
City Manager, which approval shall not be unreasonably withheld. However, in no case
shall any sign, design or writing shall be placed within the Art Space or on the windows that
the City Manager determines is immoral, obscene or lascivious. In addition, no
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advertisements shall be placed within the Art Space and the Art Space shall not be
commercialized in any manner.
Section 5. Sale, Lease or Transfer of the Development or any Building.
5.1. 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 (collectively, a "Disposition of the Owner”), if the Disposition of the
Development, or any portion thereof, or the Disposition of the Owner lessens the Owner’s,
or the successor owner’s, financial ability to perform the Owner’s duties under the terms of
this Covenant, 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 Owner cooperate with the Agency and provide the Agency with the financial
information necessary to establish that the reconstituted owner or successor owner’s
financial ability is equal to or greater than the current owner or, in the case of a Disposition
of the Owner, that the Disposition will not lessen the financial ability of the current owner,
and further provided that the parties involved in the Disposition agree to and assume 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 and the City Commission. It is hereby expressly stipulated and
agreed that any Disposition of the Development, or of any building in, or portion of, the
Entire Development, or any Disposition of the Owner, in violation of this Section 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.
5.2. 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 Entire Development or in any building in, or portion of, the
Entire Development to any other person or entity.
5.3. If the Owner has received a written notice 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 by written resolution of Agency and
the City, which consent shall not be unreasonably withheld, provided the debt does not
exceed the amount of the initial indebtedness.
5.4. The restrictions contained above shall not be applicable to any of the following:
5.4.1. any transfer pursuant to or in lieu of a foreclosure or any exercise of
remedies (including, without limitation, foreclosure) under any mortgage, including, a
subsequent sale of the Entire Development by an institutional lender; provided,
however, that neither the Owner nor any Related Person to the Owner shall acquire any
interest in the Entire Development, or any portion thereof, during the remainder of the
Compliance Period and provided that the Agency shall have the right, at the Agency’s
option, to cure any default of the Owner (for a reasonable period of time not to exceed
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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) under the mortgage in order to avoid a foreclosure.
If the Agency cures the Owner’s default, the Agency shall have the right to step into the
shoes of Owner and all of the Owner’s right, title and interest in the Entire Development
shall revert back to the Agency; provided, however, this reversionary interest shall only
take effect after the Agency has paid off or assumed any mortgage secured by the Entire
Development or any part thereof, which assumption must be in form and substance
reasonably acceptable to the lender of any such mortgage. The Agency acknowledges
that such Agency cure may include the repayment of any debt owed by the Owner to a
lender seeking foreclosure of its mortgage or the assumption of the Owner’s debt. 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 Entire Development, or any part thereof, is sold as a consequence of the
foreclosure, all proceeds of the sale in excess of the foreclosure judgment (including
principal, interest, legal fees and other fees and costs) shall be the property of and paid
to the Agency or its successor 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. 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 Entire
Development, or any part thereof, shall contain a reference to this Agreement;
5.4.2. 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 Entire
Development; provided, however, the same are granted in the ordinary course of business
in connection with the operation of the Entire Development as contemplated by this
Agreement;
5.4.3. leases of affordable commercial space and apartment units to tenants,
including Very Low-Income Tenants, in accordance with this Agreement; provided that
no apartment units may be subleased to anyone.
5.4.4. any sale or conveyance to a condemning governmental authority as a direct
result of a condemnation or a governmental taking or a threat thereof;
5.4.5. the placing of a subordinate mortgage lien, assignment of leases and rents
or security interests on or pertaining to the Entire Development, or any portion thereof, if
made expressly subject and subordinate to this Agreement and provided the total debt
that encumbers or liens the property does not exceed the fair market value of the
property; or
5.4.6. 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).
5.5 any assignment authorized by this Agreement shall first be executed by
the assignee, acknowledged before a notary public and shall include the following
statement:
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"This assignment is subject to the terms, conditions and provision of the
Development Agreement dated __________, 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 tho se agreements. This 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 origin al 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."
Section 6. Development within Agency's Jurisdiction. The Owner hereby
represents and warrants that each building in the Entire Development shall be located
entirely within the limits of the County at location described in Exhibit “A”.
Section 7. Term of this Agreement.
7.1. 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.
7.2. The restrictions contained in Section 2 and Section 3 of this Agreement
regarding the use and operation of the Entire Development, and of each building thereof,
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 (when foreclosure is threatened) to an entity other than the Owner
or a Related Person of the Owner, provided Agency or successor does not exercise 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 7.2 shall not apply (and the restrictions contained in
Sections 2 and 3 shall thereafter apply) to the Entire Development in the event that,
subsequent to any involuntary noncompliance as described in this Section 7.2 but prior to the
expiration of the Compliance Period, (x) a Related Person to the Owner obtains an ownership
interest in the Entire Development, or any portion thereof, for tax purposes, or (y) 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.
7.3. 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 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
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any tenant whose income is treated as continuing not to exceed the applicable income limit as
provided in Section 3) of any Very Low-Income Unit or Low-Income Unit, other than for
good cause, or (ii) increase the Gross Rent with respect to such Very Low-Income Units or
Low-Income Unit, in excess of the amounts allowable as Rent-Restricted Units.
7.4. 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 and Warranty.
8.1. 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, (x)
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 any
other proceedings (y) expert witness fees and expenses and (z) 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 ,agents or affiliates,
or other persons under direct contract with or under the control of the Owner or acting on its
behalf, and resulting from, arising out of or relating to 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
Entire Development, or any portion thereof. 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 a legal 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.
8.2. 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 and any other costs 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 timely 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
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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.
8.3 Warranty. Owner hereby warrants the improved property to be free from
construction defects including defects in the workmanship. The failure of the improvement
to be in substantial compliance with the construction documents shall be considered to be a
defect.
Section 9. Reliance. In performing their duties and obligations hereunder, the
Agency may rely upon statements and certificates of the Owner and Low-Income and Very
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 Entire Development, or any portion thereof. 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 and Very Low-Income Tenants reasonably believed to be genuine and to have
been executed by the proper person or persons, provided the Owner take s reasonable steps
to verify income.
Section 10. Enforcement by the Agency and by Tenants.
10.1. Owner Defaults.
10.1.1. 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 after written notice thereof has been given by the Agency to the
Owner, and if such default or breach remains uncured for a period of fifteen (15) days
with respect to a violation of Sections 2 or 3 hereof and a period of sixty (60) days
with respect to all other defaults (or for such extended period as may be approved in
writing by the Agency’s General Counsel), then the Agency may terminate all of the
Owner’s rights under this Agreement and step into the shoes of Owner and, in such
event, the Owner shall assign to the Agency all of the Owner’s rights, title and
interest in and to the Property; provided, however, the Agency may only step into the
shoes of the Owner after the Agency has either paid off or assumed all of the
Owner’s liabilities under any mortgage (provided the lender has accepted the
Agency as the obligor under the terms of any mortgage), which assumption must be
in form and substance reasonably acceptable to the lender of such mortgage,
provided the form and substance, and any refusal to accept the Agency is reasonable.
Notwithstanding the foregoing, if there is an Owner default and so long as there has
not been more than one same or similar default in a sixty (60) day period, and
provided the Owner commences to cure such default within the time periods above,
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but the cure cannot reasonably be cured within such time period, the Agency shall
extend the time period for a reasonable period not to exceed ninety (90) days.
10.1.2. Notwithstanding the foregoing, if there are two (2) material defaults
of the same type or nature that have occurred within a sixty (60) day period, and a
third default of the same type or nature occurs, the Agency is not required to give the
Owner any opportunities to cure the third default and then the Agency may
thereafter terminate all of the Owner’s rights under this Agreement, the Owner shall
assign to the Agency all of the Owner’s rights, title and interest in and to the
Property and the Agency shall be allowed to step into the shoes of the Owner,
subject to the conditions in this Section.
10.1.3. Notwithstanding anything contained in this Section 10.1, the Agency
will give institutional lenders the right to cure any defaults of the Owner hereunder,
which opportunity to cure such defaults shall be the longer of (i) thirty (30) days
after the cure period provided hereunder, (ii) thirty (30) days from the institutional
lender’s receipt of Agency’s notice to the institutional lender of an Owner 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 the
institutional lender takes action to obtain possession within the cure period and
diligently pursues action to take possession; and 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 Owner default, but if the
institutional lender elects to do so, Agency agrees to accept cure by the institutional
lender as that of the Owner under the applicable mortgage.
10.1.4. The Agency 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.
10.2. Notwithstanding any of the foregoing, the Agency and any person who
satisfies the income limitations applicable to Very Low-Income and Low-Income Tenants
hereunder (whether prospective or current tenants, including any Community Commercial
Tenant or tenant whose income is treated as continuing not to exceed the applicable income
limit as provided in Section 3 above), shall have the right to seek specific performance of
any of the covenants, agreements, warranties and requirements of this Agreement
concerning the construction and operation of the Entire Development, or any portion thereof.
A default that does not result in the transfer of all right, title and interest in the Entire
Development to the Agency shall result in an increase in the number of days of the
Compliance Period that is equal to the same number of days during which the Owner was in
default, including the number of days during which the Owner was proceeding to cure the
default.
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10.3. 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. After such approval is obtained, the Owner will
directly hire and employ the management company who will be responsible for property
maintenance and the day-to-day operation of the Development.
10.4. Agency may make or cause to be made reasonable entries upon and inspections
of the Property and the records of the Owner 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 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.
11.1. 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.
11.2. 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.
11.3. 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 include 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 no tice 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:
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If to the Agency: Evan Fancher, Director
South Miami Community Redevelopment Agency
6130 Sunset Drive, Miami FL 33143 Fax: 305-668-7356
Email: EFancher@southmiamifl.gov
City Manager
City of South Miami
6130 Sunset Drive
Miami FL 33143
Fax: 305-668-7356
If to the OWNER: Daniel Abreu
Abreu Developers LLC
9828 NW135th Street
Hialeah, FL 33018
Phone: 305-345-7475
E-mail: 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
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 accordance 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.
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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 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.
Section 22. Agency Security Interest. If the Agency expends any funds to remedy
any default by Owner hereunder or to enforce the provisions of this Agreement it shall have
a lien against the Property in the amount of such expended funds which lien will be
subordinate to the lien of any permitted institutional financing.
Section 23. Alternative language and Financing Approval. The parties agree that
the Owner will be obtaining financing for the Project and the Agency hereby approves such
financing (the “Financing”). The parties understand and agree that the financial institution
from whom such financing will be obtained may request certain revision to the Agreement.
The parties agree that they will reasonably consider such requests as long as the intent and
purpose of this Agreement is not materially diminished by making any such requested
changes.
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Section 24. Notices to Lender. Agency agrees to provide the lender of the
Financing with contemporaneous copies of written communication regarding allegations of
default hereunder or under the Development Agreement, as well as all written
communication regarding threatened and/or actual litigation/arbitration.
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IN WITNESS WHEREOF, each of the parties has executed this Agreement on the
dates set forth below.
AGENCY:
SOUTH MIAMI COMMUNITY
REDEVELOPMENT AGENCY
By:
Print Name: Title:
Date:
Notary section
OWNER:
By:
Print Name: Title:
Date:
Notary section