MBCDC Purchase Docs for the Lottie Apartments- aa~D-x733 S"
CITY OF MIAMI BEACH
OFFICE OF THE CITY ATTORNEY
MEMORANDUM
T0:' Robert Parcher
City Clerk
~~ FROM: Raul J. ~Aguila
Deputy City Attor ~ y
SUBJECT: MBCDC Purchase of The Lotti Apartments (530 75t" Street)
DATE: August 11, 2010 ~ ~.
. Bob: ~ .
Attached are the final closing documents for the Lotti Apartments (Mortgage, -Note, and
Closing Statement). We are waiting on the recorded copy of the Mortgage which I will
forward to you once received. I am transmitting the ORIGINAL NOTE to Anna Parekh for
safekeeping.. ~ .
This Instrument Was Prepared By, Record
and Return to:
Raul J. Aguila, Esq. `
Office of the City Attorney
City of Miami Beach
1`700 Convention Center Drive
Miami. Beach, Florida 33139
MORTGAGE AND SECURITY AGREEMENT
THIS MORTGAGE AND SECURITY AGREEMENT (the "Mortgage") executed this
.day of ~,. ~~t `{ 2010, by MBCDC: LOTTIE APARTMENTS, LLC, a Florida Limited
Liability Company, whose sole member is Miami Beach Community .Development Corporation
(the "Mortgagor"), and whose address is 945 Pennsylvania Avenue, Miami .Beach, Florida
33139, and the CITY OF MIAMI BEACH, a Florida municipal corporation (the "Mortgagee")
(which term as used in every instance shall include the Mortgagee's successors and assigns),
whose address is 1700 Convention Center Drive,, Miami Beach, Florida 33139. .
WITNESSETH:
That for valuable consideration, and' also in consideration of the aggregate sum of
money described in that certain Promissory Note (the "Note") of even date herewith, executed
_ by Mortgagor in favor of Mortgagee, in the original Principal Amouht of $1,864,000.00 (the
"Principal Amount"); the Mortgagor does grant, bargain, sell, alien, remise, release, convey and
confirm unto the Mortgagee, in fee simple a lien upon~and security interest in that. certain parcel
of real property located in Miami-Dade County, Florida, which is described in Exhibit "A"
attached hereto and made a part hereof. Hereinafter said real estate, buildings, improvements
(including improvements to be made hereafter), fixtures herein below described and located on
said real estate are sometimes collectively referred to as the "Premises".
TO HAVE- AND TO HOLD the. Premises and. alV parts, rights, members and
appurtenances thereof, to the use, benefit and behalf of the Mortgagee, its successors and
assigns in fee simple forever, and the Mortgagor covenants that the Mortgagor is lawfully seized
and possessed of the Premises in fee simple and has good right to convey the same, and that
the Mortgagor will warrant and defend the title thereto against the claims of all persons
whomsoever, except as hereinafter expressly provided.
PRDVFDED ALWAYS that if the Mortgagor shall pay .unto the Mortgagee all sums
required under the terms of the Note,. and shall comply with and abide by each and every one of
-the stipulations, agreements, conditions and covenantscontained herein (as such term is
defined below), then in such event this Mortgage .and the estate hereby created shall cease and
be null and void,
NOTE TO RECORDER; Intangible tax is not required in connection with this Mortgage pursuant to Florida Statue
Section 199.183(1).
The Mortgagor covenants with the Mortgagee as follows:
A. Payment of Indebtedness. The Mortgagor will pay the Note according to the terms
thereof and all other sums secured hereby promptly as the same shall become due.
B. Taxes, ,Liens and Other Charges.
(a) In the event of the passage of any state, federal, municipal or other
governmental law, order, rule or regulation, subsequent to the date hereof, in any
manner changing or modifying the laws now in force governing the taxation of
debts secured by mortgages or the manner- of collecting. taxes so as to affect
adversely the Mortgagee, the Mortgagor will promptly pay any such .tax; if the
Mortgagor fails to make such prompt payment. or if any such state, federal,
municipal or other governmental law, order, rule or regulation prohibits the
Mortgagor from making such payment or would penalize the Mortgagee, from
making such payment or would penalize the .Mortgagee if the Mortgagor makes
such payment, then the entire balance of the principal sum secured by this
A Mortgage and all interest accrued thereon shall, without notice, immediately
become due and payable at the option of the Mortgagee_
(b) The Mortgagor will pay, before the same become delinquent, all taxes,
liens, assessmerits and charges of every character already levied or assessed or
that may hereafter be levied or assessed upon or against the Premises and all
utility charges, whether public or private; and upon demand will furnish the
Mortgagee receipted bills evidencing such payment.
(c) The .Mortgagor will not suffer any mechanic's, materialmen's, laborer's,
statutory- or other lien which might or could be prior to or equal to the security
interest and mortgage liens of this Mortgage to be created or to remain
outstanding upon any part of the Premises.
C. Intentionally Deleted.
D. Lnsurance. The Mortgagor will keep all buildings and .improvements now or hereafter on
the Premises insured against loss or damage by fire, extended. coverage and other
perils, and agrees to deliver-said policy or policies to the `Mortgagee when issued with
the receipts for the payment of the premium therefore; and in the event any sum of
money becomes payable under such policy or policies, the Mortgagee shall permit the
Mortgagor to receive and use it, or any part thereof, for repair or restoration of the
Premises, subject to terms reasonably acceptable to Mortgagee, without thereby waiving
or impairing any equity; lien or right under or by virtue of this Mortgage; and the
Mortgagee if it deems necessary may place and pay for such insurance, or any part
thereof, without losing, waiving or affecting Mortgagee's option to foreclose for breach of
this covenant, or any part thereof, or any right or option under this Mortgage, and every
such payment shall bear interest from date thereof until paid at the default interest rate,
and all such payments with interest as aforesaid shall be secured by the {ien hereof. In
the event any loss or damage is suffered Mortgagor shall notify .Mortgagee of such loss
or damage within seven (7) days after the happening thereof; the failure to give such ~
notice shall constitute a default and the Mortgagee shall have the rights herein given for ~
all defaults.
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E. Care of Premises.
(a) The Mortgagor will keep the improvements now or hereafter erected on
.the Premises in good condition and repair, wile not commit or suffer any waste
and wilt not do or suffer to be done anything which will increase the risk of fire or
other hazard to the Premises or any part thereof.
(b) The Mortgagor will not remove or demolish nor alter the design. or
structural character of any building (now or hereafter erected), fixture or chattel
which are part of the security or other part of the Premises without the- prior
written consent of the Mortgagee.
(c) If the Premises or any part thereof is damaged by fire or any other cause,
- the Mortgagor will give written notice of the same to the Mortgagee.
(d) The Mortgagee or its representative is hereby authorized to enter upon
and inspect the Premises at any time during normal business hours.
(e) The Mortgagor will promptly comply with all present and future laws,
ordinances, rules and regulations of any governmental authority affecting the
Premises or any part thereof.
(f) If all or any part of the Premises shall be damaged by fire or other
casualty, the Mortgagor will, upon request of the Mortgagee, promptly restore the
Premises to the equivalent of its condition immediately prior to such damage, and
if a part of the Premises shall be damaged through condemnation, the Mortgagor
will, upon request of Mortgagee, promptly restore, repair or alter the remaining
part of the Premises in a manner reasonably satisfactory to-the Mortgagee.
F. Further Assurances; Modifications. At any time, and .from time to. time, upon the
reasonable request by the Mortgagee, the Mortgagor will make, execute .arid deliver or
cause to be made, executed and delivered, to the Mortgagee, any and all other further
instruments, certificates and other documents as may, in the opinion of the Mortgagee,
be necessary or desirable in order to effectuate, complete, or perfect or to continue and
preserve (i) the .obligations of the Mortgagor under the Note, (ii) the security interest of
this Mortgage, and (iii) the mortgage lien hereunder.
G, Expenses. The Mortgagor will pay or reimburse the Mortgagee for all reasonable
attorney's fees, costs and expenses, of any action, legal proceeding or dispute of any
kind- in which the Mortgagee is victorious, .affecting the indebtedness secured hereby,
this Mortgage or the interest created herein, or the Premises, including. but not limited to
the foreclosure of this Mortgage, any condemnation action involving the Premises or any
action to protect the security .hereof; and any such amounts paid by the Mortgagee shall
be secured by this Mortgage.
(a) Estoppel Affidavits. The Mortgagor, upon ten (10) days prior written
notice,., shall furnish the Mortgagee with a written statement, duly acknowledged,
setting forth the unpaid principal of, -and interest on, the indebtedness secured
hereby and vvhether or .not any off-sets or defenses exist against such principal
and interest. .The Mortgagee .shall provide a similar estoppel affidavit to
Mortgagor; upon ten {10) days prior written notice to Mortgagee.
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H. Performance by Mortgagee of Defaults by Mortgagor. If the Mortgagor shall default in
the payment of any tax, lien, assessment or charge levied or assessed against the
Premises; in the payment of any utility charge, whether public or private; in the payment
of.any insurance premium.; in the procurement of insurance coverage and the delivery of
the insurance policies required hereunder; in the performance of any covenant, term or
condition of any leases affecting all or any part of the Premises; or in the performance or
observance of any covenant, condition or term of this Mortgage; then the Mortgagee, at
. its option, may perform or observe the same, and all payments made or costs incurred
by the Mortgagee in connection therewith, shall be secured hereby and shall be, without
. demand,. immediately repaid by the Mortgagor to the Mortgagee. The Mortgagee is .
.hereby empowered to enter and to authorize others to enter upon the Premises or any
part thereof for the purpose o'f performing or observing any such defaulted covehant,
` condition or term, without thereby becoming liable' to the Mortgagor or any other. person
in possession .holding under the Mortgagor.
;:I. Restrictive Covenants. Mortgagor shall -be subject to the following recapture provisions,
covenants and restrictions; all of which shall also be deemed covenants running with,
and binding upon, the Premises:
a) Notwithstanding Mortgagor's covenant to pay the Note and .comply with any and
all other terms and conditions of this Mortgage, Mortgagor further covenants that;
as additional and substantial consideratiori, and as further incentive for
Mortgagee to approve, grant and disburse the Principal Amount in accordance
with the. terms hereof, Mortgagor shall. acquire, improve, renovate, rehabilitate, .
and; thereafter, upon issuance of a finale Certificate of Completion (C.C.) or final
Certificate of Occupancy (C.O.) by the City of Miami Beach, use the. Premises
solely and exclusively as an affordable residential rental ,property. The ,rents
charged and the tenants thereof must qualify under the rules and regulations
. ~ promulgated by the United .States Department of Housing and .Urban
Development (HU'D), at CFR Part 92 (as same may be amended from time to
time):
b) The Principal Amount and the Mortgage shall remain a Lien on the Premises;
superior in dignity to all other liens, titles; claims, mortgages, and/or other
encumbrances, until paid and/or or otherwise satisfied in accordance with the
terms and conditions hereof.
c) .Mortgagor covenants that it will oven, open, and maintain the Premises as an
affordable residential rental apartment building. (in accordance with subsection
' (a) above) for a term of thirty (30) years,. commencing upon the issuance by the
City of Miami Beach of a final C.C. or; C.O. for the Premises {hereinafter, the
"Affordability Period").
d) If at any time during the Affordability Period the Premises are no longer used as
an affordable residential. rental property (in accordance with,. subsection (a)
above); then Mortgagor shall be deemed to be in default under Article il. (A) of
this Mortgage and Security Agreement and, should such default remain uncured
for a period of thirty (30) days after notice thereof shall have been given by
Mortgagee to Mortgagor, the Mortgagee shall avail itself of any and all remedies.
_ under this Mortgage and/or any other- Loan Documents (as defined in Article II.
hereof), including full and immediate repayment of the Principal Amount.
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e) If at any time during the Affordability Period the Premises are sold, transferred, or
refinanced, the Mortgagor ahall be responsible for the full and immediate
payment to Mortgagee of the Principal Amount (i.e. for purposes of this
subsection "immediate payment" shall be defined as delivery and receipt of
payment in full of the Principal Amount to Mortgagee no later than on the date of
closing of the proposed sale, transfer, or re-finance):
f) With regard to a sale of, the Premises pursuant to subsection (e) above, in
addition to repayment of the Principal Amount, part of the equity produced by the
sale shall also be paid to Mortgagee as follows:
i. If'the Premises are sold between the first and the tenth year of the
- Affordability Period, Mortgagee shall be entitled to fifty percent (50%)
of the profits resulting from such sale; or
ii. If the Premises are sold between the eleventh and thirtieth year of the
Affordability Period, Mortgagee shall be entitled to twenty-five percent
(25%) of the profits resulting from such sale.
g) In the event of sale (or foreclosure) of the Premises at any time prior to the
expiration of the Affordability Period,- Mortgagee shall also be given a right of first
refusal to purchase the Premises'.
h) Notwithstanding the prohibition in subsection (e) hereof, Mortgagor may be
allowed to refinance the Premises during the Affordability Period, ,subject to
Mortgagor's compliance with the following conditions:
i. .that any re-financing is subject to prior written approval by the City of
Miami Beach City Manager,. in his sole and reasonable direction;
ii. that if subordination of this Mortgage is required as a condition of the
' re-finance, it shall be approved by resolution of the Miami Beach City
Commission, which approval, if given at all, shall be in the City.
Commission's sole and reasonable discretion;
iii. that -the amount of the re-financing shall not exceed the then
outstanding balance ofthe Principal Amount; and
iv. that no "cash outs" will be permitted.
i) Notwithstanding subsections (a) through (h) above, and provided that Mortgagor
continues to own the Premises, immediately upon expiration of the .term of the
Affordability Period, Mortgagor further covenants that .it will continue to own and
maintain the Premises as an affordable residential rehtal apartment building (in
accordance with subsection (a) above) for an additional term of thirty (30)
years, commencing upon the expiration- of the initial Affordability Period.
(hereinafter, the "Additional Affordability Period"). The Additional Affordability
Period shall remain in full force and effect, shall be binding upon Mortgagor, and
its successors in interest and/or assigns, and shall be automatically extended for
successive periods of thirty (30) years (the "Additional Affordability Periods"),
unless modified, amended or released, prior to the expiration thereof, by duly
adopted Resolution of the Mayor and City Commission of the City of Miami
Beach.
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(j) If at any time during the Additional Affordability Period, or any of~ the
subsequent Additional Affordability Periods, the Premises are no longer
used as an affordable residential rental property (in accordance with
subsection (a) above), then Mortgagee, at its sole option and discretion,
.may require Mortgagor to automatically, and without further action
required by Mortgagee, promptly, on written demand by Mortgagee, convey
fee simple marketable title to the Premises, by execution and delivery of a
Special Warranty Deed (subject to no liens or encumbrances created by,
through,. or under Mortgagor) to Mortgagee. Mortgagor shall be
responsible for the cost of documentary stamps and/or other tax(es)
imposed as a result of the conveyance contemplated by this subsection (j).
In order to further ensure the enforcement of the Restrictive Covenants contained in this
Section I, any and all successors, heirs, and assigns herein must obtain the prior written
consent of the City Manager prior to the resale of the Premises.
The Mortgagee reserves the right to review compliance with all affordability
requirements.
Notwithstanding anything to the contrary cohtained herein, in the event of a foreclosure
. (and subsequent resale) of the Premises, or a deed in lieu of foreclosure, the Restrictive
Covenants shall .lapse and be of no further force and effect.
The Principal Amount and the Mortgage shall remain a lien. superior in dignity to all other
liens, titles, claims, mortgages, and/or other encumbrances, .until -paid or otherwise
satisfied; provided, however, that upon expiration of the Affordability,Periods, (as set
± forth in Section I (c) and (i) hereof), and provided further that Mortgager has complied -
with all terms and conditions of the Loan Documents including, without limitation, the
terms and conditions of the Restrictive Covenants, then the Restrictive Covenants shall
be deemed satisfied, and shall therefore be of no further force and effect.
The foregoing Restrictive Covenants (as set fourth in this Section I) shall be considered
and construed as covenants and restrictions recorded against the Premises, and the
same shall bind all persons claiming ownership of all or any portion. of the Premises.
The Mortgagor hereby acknowledges and agrees that the Mortgagee is a beneficiary of
• these Restrictive Covenants and the Mortgagor shall not release or amend any of these
. Restrictive Covenants without the prior written consent of the City Manager.
Invalidation of all or any of these covenants by a court of competent jurisdiction shall in
noway affect any of the other covenants,- which shall remain in full force and effect.
J. Condemnation. If all or any material part of the Premises shall be damaged or taken
through condemnation (which term when used in this Mortgage shall include any
damage or taking by any governmental authority, and any transfer by private sale in lieu
thereof), either temporarily or permanently, the entire indebtedness secured hereby shall
at the option of the .Mortgagee, become- immediately due and payable.. The Mortgagee
shalt be entitled to all compensation awards, and other payments or relief therefore and
is hereby authorized, at its option, to commence, appear in and prosecute.; in its own or
the Mortgagor's name, any action or proceeding relating to any condemnation, and to
settle or compromise any claim in connection therewith.. All such- compensation, awards,
damages, claims, rights of action and proceeds and the right thereto are hereby
assigned. by the Mortgagor to the Mortgagee, who,. after deducting there from all its
6
'expenses, including attorney's fees, may release any moneys so .,received by it to
Mortgagor without affecting the lien of this Mortgage or may apply the same to the
reduction of the sums secured hereby, and to any prepayment charge herein provided,
and any balance of such moneys then remaining shall be paid to the Mortgagor: The
Mortgagor agrees to execute such further assignments of .any compensation, awards,
damages, claims, rights of action -and proceeds as the Mortgagee may reasonably
require. Notwithstanding the foregoing,. Mortgagee shall allow any proceeds or other
sums payable from a condemnation proceeding to be applied for restoration of the
Premises, subject to such terms and conditions as are reasonably satisfactory to
Mortgagee.
. K, Hazardous Waste Storage. The Mortgagor covenanfs with the Mortgagee that the
Premises have not .been, used and will not be used in whole or in part for the storage of
hazardous waste other than in accordance with all ,applicable governmental
requirements.
II. ,
A. Default. A default shall have occurred hereunder if:
(a) The Mortgagor shall fail to .pay iri full within fifteen (15) days from when
due any installment of principal, interest, or late charges required by the Note,
this Mortgage and otherwise; or
(b) The Mortgagor shall fail to duly observe on time any other covenant,
(including without Limitation, failure to comply with. or the breach of the Restrictive
Covenants in Section I hereof), condition or agreement of this Mortgage or of any
other instrument evidencing, securing or executed in connection with the
indebtedness secured. hereby, .(herein this Mortgage, Note and said .other
. instruments are sometimes collectively called the "Loan Documents") and such.
failure remains uncured for a period of thirty (30) days after notice thereof shall
have been given by the Mortgagee to the Mortgagor (or for an extended period
approved by Mortgagee if such default, stated in such notice can be corrected,
but not within such thirty (30) day period, and if the Mortgagor commences such
correction within such thirty (30) day period and thereafter diligently pursues the
same to completion within such extended period)..
(c) Any warranties or representations made or agreed to be made in any of
.the Documents executed in connection with the Note shall be breached by the
Mortgagor or shall prove to be false or misleading in any material respect; or
(d) Any lien for labor or material. or otherwise shall be filed against the
Premises,. and such lien is not canceled,. removed, transferred, or bonded off .
within thirty (30) days; or
(e) A levy shall be made under any. process on, or a receiver be appointed.
-for, the Premises or any other property of the Mortgagor; or
(f) The Mortgagor shall file a voluntary petition in bankruptcy, or any other
petition or answer seeking or acquiescing in -any reorganization, arrangement,
. composition, readjustment, liquidation or similar relief for the Mortgagor under
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any present or future federal, state or.other statute, law or regulation relating to
bankruptcy, insolvency or other relief for debtor; or
(g) Thee Mortgagor shall seek or consent to or acquiesce in the appointment
of any trustee, receiver or liquidator of the Mortgagor or of all or any: part of the
Premises or of any or all of the rents, revenues, issues, earnings, profits or
income thereof; or
(h) -The Mortgagor. shall make any general assighrnent for the benefit of
creditors; or
(i) In any legal proceeding the Mortgagor shall be adjudged to be insolvent
or unable to pay the Mortgagor's debts as they become due; or
Q) The Mortgagor shall do, or shall omit to do, any act, or any event shall
_ occur, as a result of which any obligation of the Mortgagor, not arising hereunder,
may be declared immediately due and payable by the holder thereof; or
(k) Failure by Mortgagor to comply with the Restrictive Covenants set forth in
Section I hereof (see also subsection (b) hereof); or
(I) An Event of Default occurs under the terms of the documents executed in
connection with the Note.
B". Acceleration of Maturity. If a default shall have occurred hereunder, then the whole
unpaid principal sum of the indebtedness secured hereby with interest accrued thereon
shall, at the option of the Mortgagee, become due and payable without notice or ,
demand, time being of the essence of this Mortgage and of the Note secured hereby;
and no omission on the part of the Mortgagee to exercise such option when entitled so
to do shall be considered as a waiver of such right.
C. Right of Mortgagee to Enter and Take Possession.
(a) If any default shall have occurred and be continuing beyond any
applicable grace period, the Mortgagor, upon demand of the Mortgagee, shall
forthwith surrender to the Mortgagee the actual possession of the Premises and
if, and to the extent permitted by law, the Mortgagee may enter ..and take
possession of the Premises and may exclude .the Mortgagor and the Mortgagor's
f agents and employees wholly.there from.
(b) For the purpose of carrying out the provisions of this paragraph, the
Mortgagor hereby constitutes and appoints the Mortgagee the true and lawful
attorney in fact of the Mortgagor to do and perform, from time to time, an,y and all
actions necessary and. incidental to such purpose and does, by these presents,
ratify and confirm any.and all actions of 'said attorney in fact in the Premises.
i (c) Whenever all such defaults have been cured and satisfied; the Mortgagee
shall surrender possession of the Premises to the Mortgagor, provided that the
right of the Mortgagee to take possession, from time to time, pursuant fo this
subparagraph shall exist if any subsequent default shall occur and be continuing.
s
D. Appointment of a Receiver and Foreclosure.
(a) If a default shall have occurred hereunder, then the whole debt secured
by this Mortgage, with all interest thereon, and all other amounts hereby secured
shall, at the option of Mortgagee, become immediately due and payable, and
may forthwith or at any time thereafter be collected by suit at law, foreclosure of
. or other proceeding upon this Mortgage or by any other proper, legal or equitable
procedure without declaration of such option and without notice.
(b) Upon, or at any time after, the filing of a complaint to foreclose this
Mortgage, the court in which such complaint is filed may appoint a receiver of the
Premises. Such appointment may be made either before or after sale; without
notice, without regard to the solvency or insolvency of Mortgagor at the time of
application for such receiver and without regard ~to the then value of the
_ ~ Premises. Such receiver shall .have power to collect the rents, issues and profits
of the Premises during the pendency of such foreclosure suit, and in case of a
sale and a deficiency, during the full statutory period of redemption, if any,
whether there be redemption or not, as well as during any further times when
Mortgagor except for the intervention of such receiver, would be entitled to collect
such rents, issues and profits, and all other powers which maybe necessary or
are usual in such cases for the protection, possession, control, management and
operation of the Premises during the whole of said period.
(c) Mortgagor shall deliver to Mortgagee at any time on its request, all
agreements for deed, contracts, leases, abstracts, title insurance policies,
muniment of title, surveys and other papers relating to the Premises, grid in case
of foreclosure thereof and failure to redeem, the same shall be delivered to and
become the property of the person obtaining a deed to the Premises by reason of
such foreclosure.
E. Discontinuance of Proceedings and Restoration of the Parties. In case the Mortgagee
shall have proceeded to enforce any right or remedy uhder this Mortgage by receiver,
entry or otherwise, and such proceedings shall. have .been discontinued or abandoned
for any reason or shall have been determihed adverse to the Mortgagee, then and in
every such case the Mortgagor and the Mortgagee shall be restored to their former
positions and rights hereunder, and all rights, powers and remedies of the Mortgagee
• shall continue as if no such proceeding had been taken.
F. Remedies Cumulative. No right, power or remedy conferred upon or reserved by the
Mortgagee by this Mortgage is intended to be exclusive of any other right, power or
remedy, but each and every such right, power and remedy shall be cumulative and
concurrent and shall be in addition to any other right, power and remedy given
hereunder or now or hereafter existing at law or in equity or by statute.
A. Successors and Assigns Included in Parties. Whenever in this Mortgage one of the
parties hereto is named or referred to, the heirs, legal representatives, successors and
assigns of such parties shall be included and all covenants and agreements contained in
this indenture by or on .behalf of the Mortgagor and by or on behalf of the Mortgagee
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shall .bind and inure to the benefit of their respective heirs, legal representatives,
successors and assigns, whether so expressed or not. Provided, however, that the
Mortgagor shall have no right to .assign its obligations hereunder without the prior written
' .consent of the Mortgagee, which consent shall not be unduly withheld, conditioned or
delayed.
B. Headings. The headings of the sections, paragraphs and subdivisions of this Mortgage
are for the convenience of reference only, are not to be considered a part hereof and
shall not limif or otherwise affect any of the terms hereof.
C.Invalid Provisions to Affect No Others. If fulfillment of any. provision hereof or any
transaction related hereto or to the Note, at the time performance of .such provisions
shall be due, shall involve transcending the limit of validity prescribed by law, then ipso
facto, the obligation to be fulfilled. shall be reduced to the limit of such validity; and if any
clause or provision herein contained operates or would .prospectively operate to
invalidate this Mortgage in whole or in part, then such clause or provision only shall be
- held for. naught, as though note herein contained, and the remainder of.this Mortgage
shall remain operative and in full force and effect.. Notwithstanding any provision
contained herein, the total liability of Mortgagor for payment of interest, including service
charges, penalties or any other fees pursuant to this Agreement, shall not exceed the
maximum amount of such interest permitted by applicable law to be charged, and if .any
. payments by Mortgagor include interest in excess of the maximum allowable amount
then said excess shall be applied to the reduction of the unpaid Principal Amount due
pursuant hereto.
D. Number and Gender. Whenever the singular or plural number, masculine or feminine or
- ' neuter gender is used herein, it shall equally include the other.
E. Future Advances. (Any loan of money from Mortgagee to Mortgagor made from the date
hereof). The total amount of the loan from Mortgagee to Mortgagor may decrease or
increase from time to time, but the total unpaid aggregate balance secured by this
Mortgage at any one time shall not. exceed $1,864,000.00, plus interest thereon and any,
disbursements made for the payment of taxes, levies, insurance or other liens on the
' Premises, with interest on such disbursements.
IV.
A. Notice. Any notice or other communication required or permitted to be given hereunder
shall be sufficient if in writing and delivered in person or sent by United States Certified
- Mail, postage prepaid, to the parties being given such notice at the following addresses:
MORTGAGOR: MBCDC: LOTTIE APARTMENTS, LLC
945 Perinsylvania Avenue
Miami Beach, FL 33139
Attention:. Roberto Datorre, Registered Agent
_ MORTGAGEE: CITY OF MIAMI BEACH
1700 Convention Center Drive
.. ~ Miami Beach., Florida 33139
. Attention: City Manager
I~
With a copy to: CITY OF MIAMI BEACH
Office of Real Estate,
Housing & Community Development
CITY OF MIAMI. BEACH
1700 Convention Center Drive
Miami Beach, Florida 33139
Attention: Director
Any party may change said address by giving the other parties hereto notice of such change of
address. Notice .given as hereinabove provided shall be deemed given on the date of its
deposit in the United States Mail and, unless sooner received, shall be deemed received by the
party to whom it is addressed on the third. calendar day following the date on which said notice
is deposited in the mail; or if an courier system is used, on the, date of delivery of the notice.
. V.
A. Assignment of Rents and Leases. As further. security for payment of principal interest
and other amounts due Mortgagee now or hereafter secured hereby, Mortgagor hereby
transfers, assigns and sets- over unto Mortgagee all leases, if any, now or hereafter
entered into by Mortgagor with respect to all or any part of the Premises, and all
renewals, extensions, subleases or assignments thereof, and all other written or oral
occupancy agreements, by concession, license or otherwise, together with all of -the
rents, income, receipts, revenues, issues and profits arising there from. Mortgagee shall
have, in addition to all other rights and remedies hereunder, those rights of a mortgagee
under Florida Statutes Section 697.07, as now or hereafter in effect.
$. Security Agreement. This instrument also creates a security. interest in any' and all
equipment and furnishings as are considered or determined to be personal property or
fixtures, together with all replacements, substitutions, additions, products and proceeds
thereof, in favor of the Mortgagee under the Florida Uniform Commercial Code to secure
payment of principal, interest and other amounts due. Mortgagee now or hereafter
secured hereby, and Mortgagee shall also have all the rights and remedies of a secured
party under the Florida Uniform Commercial Code, and without limitation upon or in
derogation of the rights and remedies created and accorded to the Mortgagee by this
Mortgage pursuant to the common law or any other laws of the State of Florida or any
other jurisdiction, it being understood that the rights and remedies of Mortgagee under
the Florida Uniform Commercial Code shall be cumulative and in addition to all other
rights and' remedies of Mortgagee arising under the common law or any other laws of the
State of Florida or any other jurisdiction. .
C: Choice of Law. This Mortgage is to be construed in all respects and enforced according
to the laws of the State of Florida.
D. Binding Effect. This Mortgage shall be binding upon and inure to the benefit. of the
Mortgagor and Mortgagee hereto., and their respective heirs, successors and assigns.
F:\RHCD\$ALL\HSG-CDWLL\NSP 1\530 75 Street\Closing\Mortgage and SecurityAgreement.doc
11
rt a or has caused this Mortgage to be executed on the
IN WITNESS WHEREOF, Mo g g
date first above written.
MORTGAGOR:
WITNESSES: LLC, a
MBCDC: • iced TabEityAo po aMonNTS,
Florida lim
MIAMI BEACH COMMUNITY.
By: INC., a
- ~ DEVELOPMENT CoORP o poralt on, Managing
Florida not for p
Member
Signature
~~~~ ~C
Print Name
By. ~ resident
Ro ert Da re,
STATE OF FLORIDA )
COUNTY OF MIAMI-DADE ) ed before me this
e and Security Agreement was acknowledg
d The forego Mortg Roberto Datorre, as President of Miami Beach
` 2010, by Managing Member of
d ~ day of ersonally
munit Develop nt Corporation, a alOFloaidatlimited liab~ ty otmpany. He is p as
Com Y LLC,
MBCDC: LOTTIE APARTMENTS,
or has produced Florida Driver's License No.
identification.
ELIZ~E'~ ~V~EZ
,.a~'^~••. Comrrl#DDQ6299®S
` Expires: 2/3/ZO t l
.,.'~Q~'~ Florida Notary Assn., INC.
Na
Notary Public
State of Florida at Large
r\/ly commission expires: APPROVED AS TO
FORM ~CUTION
~ F4t~
12 ~-''- J,,/ i
,. ..--
EXHIBIT "A"
LEGAL DESCRIPTION
530 75 Street, Miami Beach, FL 33141
LEGAL DESCRIPTION (from survey):
Lot 8, Block 4, THE PLAT OF THE TOWNSITE OF HARDING, according to the Plat
thereof, as recorded in Plat Book 34, Page 4, of the Public Records of Miami-Dade
County, .Florida. .
I;
PROMISSORY NOTE
($1,864,000.00) ~~ , 2010
Miami. Beach, Florida
FOR -VALUE RECEIVED the undersigned,. MBCDC: LOTTIE APARTMENTS, LLC, a
Florida limited liability company whose sole member is Miami Beach Community Development
Corporation, a Florida not for profit corporation, and having its principal office at 945
Pennsylvania Avenue, Miami Beach, Florida ("Maker"), promises to pay to the order of the CITY
OF MIAMI BEACH, a Florida municipal corporation, together with any other holder of this Note
("Holder"), at 1700 Convention Center Drive, Miami Beach, Florida 33139, Attention: City
Manager, or such other place as Holder may from time to time designate in writing, the principal
sum of ONE MILLION EIGHT HUNDRED SIXTY-FOUR THOUSAND AND NO/100 DOLLARS
($1,864,000.00) (the "Principal Amount"), to be paid in lawful money of the United States of
America in accordance with the terms of this Note.
This Note may be prepaid in whole or in part at any time, without any fee, penalty or
premium. Any prepayment hereunder shall be applied first to unpaid costs of collection,
servicing fees, and late charges, if any, then to accrued, deferred and unpaid interest and the
balance, if any, to the principal balance.
This Note is secured by a Mortgage and Security Agreement of even date herewith from
Maker in favor of Holder (the "Mortgage") encumbering. certain real property (the "Property")
located in Miami-Dade County, Florida. The foregoing and all other agreements, .instruments
and documents delivered in connection with the Mortgage and with this Note are collectively
referred to as the "Loan Documents."
This Note shall not bear interest. The entire unpaid Principal Amount shall be due and
payable upon. the sale or transfer of the Property during the "Affordability Period" (as said term
is defined in the Mortgage) by the Maker in accordance with the terms of Article 1, Section I of
the Mortgage.
In the event of a default by the Maker .under this Note, the Holder's sole remedy shall be
.limited to exercising its rights under the Loan Documents, including foreclosure and the exercise
of .the power of sale or other rights granted thereunder, but shall not include a right to proceed
directly against the Maker, or any of its partners, or the right to obtain a deficiency judgment
after foreclosure against the Maker or any of its partners.
This Note has been executed and delivered in, and is to be governed. by and construed
under the laws of, the State of Florida, as amended, except as modified by the laws and
regulations of the United States of America.
The "Default Interest Rate" and, in the event no specific Maximum Rate is applicable,
the Maximum Rate shall be twelve percent (12%) per annum.
Holder shall have the right to declare the total unpaid balance hereof to be immediately
due and' payable in advance of the Maturity Date upon the failure of Maker to comply with the
Restrictive Covenants set forth in the Mortgage; or upon the occurrence of an event of default
pursuant to any one of the Loan Documents now or hereafter evidencing, securing or
Page 1 of 3
guaranteeing payment of the indebtedness evidenced by this Note. Exercise of this right shall
be without notice to Maker or_to any other person liable for payment of this Note, notice of such
exercise is expressly waived.
Any payment under this Note not "paid when due (at maturity, upon. acceleration or
otherwise) taking into account applicable grace periods shall bear interest at the Default Interest
Rate from. the due date until paid..
Time. is of the essence. In the event that this Note is collected by law or through
attorneys at law, or under their advice therefrom, Maker agrees, to pay all costs of collection,
including reasonable attorneys' fees, whether or not suit is brought, and whether incurred in
connection with collection, trial, appeal, bankruptcy or other creditors proceedings or otherwise.
Acceptance of partial payments or payments marked "payment in full" or "in satisfaction"
or words to similar effect shall not affect the duty of Maker to pay all. obligations due under this
Note, and shall not affect the right of Holder to pursue all remedies available to it under the Loan
Documents.
The remedies of Holder shall be cumulative and concurrent, and may be pursued
singularly, successively or together, at the sole discretion of Holder, and may be exercised as
often as occasion therefore shall arise. No action or omission of Holder, including specifically
any failure to exercise or forbearance in the exercise of any remedy, shall be deemed to be a
waiver or release of the same, such waiver or release to be effected only to the extent
specifically recited in a written document executed by Holder. A waiver or release with
reference to any one event shall not be construed as continuing or as constituting a cause of
dealing, nor shall it be construed. as a .bar to, or as a waiver or release of, any subsequent
remedy as to a subsequent event.
Any notice to be given or to be served upon the Maker or the Holder in connection with
this Note; whether required or otherwise, may be given in any manner permitted under the Loan
Documents.
The term "other person liable for payment hereof' shall include any endorser, guarantor,
surety or-other person now or hereafter primarily or secondarily liable for the payment of this
Note, whether by signing this or another instrument.
Whenever the context so requires, the neuter gender includes the feminine and/or
masculine, as the case may be, and -the singular number includes the plural, and the plural
number includes the singular..
.Maker and any other person liable for the payment hereof respectively, hereby (a)
expressly waive any valuation and appraisal, presentment, demand for payment, notice of
dishonor, protest, notice of nonpayment or protest, all other forms of notice whatsoever; and
diligence in collection; and (b) consent that Holder may, from time to time and without notice to
any of them or demand, (i) extend, rearrange, renew or postpone any or all payments, (ii)
release, exchange, add to or substitute all or any part of the collateral for this Note, and/or (.iii)
release Maker (or any co-maker) or any other person ,liable for payment hereof, without in any
way modifying, altering, releasing, affecting or limiting their respective liability or the lien. of any
security instrument.
Page 2 of 3
BY EXECUTING. THIS NOTE, MAKER KNOWINGLY, VOLUNTARILY AND
.INTENTIONALLY WAIVES ITS RIGHTS OR THE RIGHTS OF ITS HEIRS, ASSIGNS,
SUCCESSORS OR PERSONAL REPRESENTATIVES TO A TRIAL BY JURY, IF ANY, IN ANY
ACT10N, PROCEEDING OR SUIT, WHETHER ARISING IN CONTRACT, TORT OR
OTHERWISE, AND WHETHER ASSERTED BY WAY OF COMPLAINT, ANSWER,
CROSSCLAIM, COUNTERCLAIM, AFFIRMATIVE DEFENSE OR OTHERWISE, BASED ON,
ARISING OUT OF, UNDER OR IN CONNECTION WITH, THIS NOTE OR ANY OTHER
INSTRUMENT, DOCUMENT OR AGREEMENT TO BE EXECUTED IN CONNECTION
HEREWITH OR WITH THE INDEBTEDNESS OR THE RENEWAL, MODIFICATION OR
EXTENSION OF ANY OF THE FOREGOING OR ANY FUTURE ADVANCE THEREUNDER.
THIS PROVISLON IS A MATERIAL INDUCEMENT. FOR HOLDER'S EXTENDING CREDIT TO
A BORROWER AND NO WAIVER OR LIMITATION OF HOLDER'S .RIGHTS HEREUNDER
SHALL. BE EFFECTIVE UNLESS IN WRITING AND MANUALLY SIGNED ON HOLDER'S
BEHALF.
Maker acknowledges that the above paragraph has .been expressly bargained for by
Holder as part of the transaction with Maker and that, but for Maker's agreement to such
paragraph, Holder would not have loaned the Principal Amount to the Maker pursuant to the
terms of this Note.
THE PROPER FLORIDA DOCUMENTARY STAMP TAX HAS BEEN PAID ON THIS
NOTE AND EVIDENCE OF SUCH PAYMENT APPEARS ON THE MORTGAGE SECURING
THIS NOTE.
IN WITNESS WHEREOF, Maker has executed this Note on the day and year first above
= written.
MORTGAGOR:
MBGDC: LOTTIE APARTMENTS, LLC, a
Florida limited liability corporation
By: MIAMI BEACH COMMUNITY
DEVELOPMENT CORPORATION, INC., a
Florida not for profit corporation, Managing
Member
B'
rre, President
F:\RHCD\$ALL\HSG-CD\ALL\NSP 1\530 75 Street\Closing\Promissory Note.doc
Page3of3
r_. ,+~ - yea.
HUD-1' ~~ ~ U.S. Department of Housing
A. Settlement Statement and Urban Development OMB No. 2502-0265
B. `Type of Loan
1. FHA- ~ 2. FmHA ~ 3. Conv. Unins. 6. File Number 7. Loan Number 8. Mortg. Ins. Case Num.
DA-0935-07 `
4: V.A. ~" 5. Conv. Ins.
ID:
C. NOTE: This form is furnished to give you a statement of actual settlement costs. Amounts paid to and by the settlement agent are shown. Items
marked "(p.o:c.)" were paid outside the closing; they are shown here for informational purposes and are not. included in the totals..
D. NAME OF BORROWER: MBCDC: Lottie Apartments, LLC., a Florida limited liablity company
Address of Borrower: 945 Pennsylvania Avenue ,Miami Beach, Florida 33139
E.-NAME OF SELLER: BL Asset Holding Florida IV, a Florida limited liability company
Address of Seller: 5295 Town Center Road ,Boca. Raton, Florida 33486 TIN:
F. NAME OF LENDER: City of Miami Beach
• Address of Lender: 1700 Convention Center Drive ,Miami Beach, Florida 33139 -
G. PROPERTY LOCATION: 530 75th Street ,Miami Beach, Florida 33139
H. SETTLEMENT AGENT: Gerald K. Schwartz, P.A. TIN: 26-2582997
Place of Settlement: 1691 Michigan Avenue ,Suite 320, Miami Beach, Florida 33139 Phone: 305-673-1101
I. SETTLEMENT DATE: 8/10/10 DISBURSEMENT DATE: 8/10/10
.~ ~•
i7- i - ~7 ~' ~tt~ I
,~
' ' - ,
..
- Y - - -
101. Contract sales price 1,185,000.00
~ - ....
~ rt
±'~ '' -- -- ~; M ,
401. Contract sales price 1,185,000.00
102. Personal property 402. Personal property
403. Settlement charges to borrower (Line 1400) 675,437:83 403.
104. 404.
105.
- - - --
~~,~u ~.iM
-
-
106. City/town taxes
- - 405.
- .. <~ .,:
~ ~. - -
~ ;.
406. City/town taxes
107. County taxes 407. County taxes
108. City of M Beach Bill (Water/Storm/Sewer) from 06/08/10 i 573:91 408. Cityof M Beach Bill (Water/StormlSewer) from 06/08/101 573.91
109. Ins-Flood-.Property-Wind from 06/08/10 to 08/10/10 12,031.29 409. Ins-Flood-Property-Wind from 06/08/10 to 08/10/10 12,031:29
110. Lawn Care from 06/08/10 to 08/10/40 521.74 410. Lawn Care from 06/08/10 to 08/10/10 521.74
114. Property Management from 06/08/10 to 08/10/10 2,608.69 411. Property Management from 06/08/10 to 08/10/10 2,608.69
112. Repair & Maintenance: (Paint, Graffin, Secure Building) fi 730.43 412. Repair & Maintenance: (Paint, Graffin, Secure Building) fi 730.43
120. Gross amount due from borrower: 1,876,903.89 420. Gross amount du
e to seller: 1,201,466.06
_
201. Depositor earnest money 5;000.00 501. Excess deposit (see instructions)
202. Principal. amount of new loan(s) 1,864,000.00 502. Settlement charges to seller (line 1400) 71,749.50
.203: Existing. loan(s) taken subject to 503. Existing loan(s) taken subject to
204. Principal amount of second mortgage 504. Payoff of first mortgage loan
205. *Hold back $608957.89 505. Payoff of second mortgage loan
206. Escrow Deposit $5000.00 506. Deposits held by seller
207. Principal amt of mortgage held by seller 507.. Principal amt of mortgage held by seller
208. Closing Funds from CMB $1,255,042.11 508. Utilities Escrow.
209. 509.
,, . ,
.-,
21D. City/town taxes- 510. City/town taxes
211. County taxes from 01/01/1.0 to 06/08/10 7,903.89 511. County taxes from 01/01!40 to 06/08/40 7,903.89
212. Assessments 512. Assessments
213. 543.
21.4.... 514.
215. 515.
216. 516. -
.217. ~ 517.
218: 518.
219. 519.
220. Total paid by/for borrower: 1,876,903.89 520. Total. reductions in amount due seller: 79,653.39
_
---
_- 1 1 ' - - - - o o . ® `. ` - • - ~
301. Gross amount due from borrower 1,876,903.89
(line 120) _ mod: a :''C-Y'~'~ ~ ._ ~ ~ i _ _ _
601. Gross amount due to seller
(line 420) ._
1,201,466.06
302. Less amount paid by/for the borrower
(line 220) (1,876,903.89) 602. Less total reductions in amount due seller
(line 520) (79,653.39).
303. Cash ( ^' from ^ Tb )Borrower. 0:00 603. Cash (~ To ^ From )Seller: 1,121,812:67
Substitute Form 1099 Seller Statement: The information contained in blocks E, G, H, and I and on line 401 is important tax information and is being
furnished to the IRS. If you are required to file a return, a negligence penalty or other sariction will be imposed on you if this item is required to be reported and
the IRS determines that it has not been reported.
Seller Instructions: If this real estate was your principal residence, file Form 211'9, Sale or Exchange of Principal Residence, for any gain, with your tax
return; for other transactions,. complete the applicable parts of Form 4797, Form 6262 and/or Schedule D (Form 1040).
B 's Initials : Seller's Initials
DoubleTime®
Ci .}'
HUD-1
U.S. Department of Housing and Urban Development
Page 2
~_, _ _ ~L :o _ . ,,4 , _. ~ °,
------- -- - -------------
700. Total Sales/Brokers Com. based on price $1,185,000.00 @ 5.0000 % = 59,250.00 Paid from
Borrower's Paid from
Seller's
701. 29,625.00 2.5000 % to U Realty Group, LLC- Funds at
S
ttl
t Funds at
S
ttl
t
702. 29;625.00 2.5000 % to Universal Realty Services,. Inc. e
emen e
emen
703. Commission paid at settlement 59,250.00
704. to
_ .,.
801. Loan origination fee % to
~
802. Loan discount . % to
803. Appraisal fee to
804. Credit report to
805. Lender's inspection fee to
806. Mortgage insurance application fee to
807. Assumption Fee to
.808.. to
809. to
810. to
811. to
`~ ~-'' r Its ' • ' ~'`s~t ,i~e< sda-' ,; - -- -_ - - _ - - --
901. Interest from ~ to /da
902. Mortgage insurance premium for months to ~~
-903. Hazard insurance premium for 1 ears to Colony Insurance Company 6,084.84
904. Flood insurance premium for 1 ears to Hartford Insurance Company 2,068.00
905 Wihdstorm/Hail insurance premii 1 years to Citizens Insurance Company 20,675.00
--
- -
,,
~„
.-,.~.ri_~~~°~~~~ ~g.~i.i.
1001. Hazard insurance months er month
.1002. Mortgage insurance months er month
1003. City property taxes months er month.
1004: County property taxes months er month
1005. Annual assessments months er month
1006. Flood insurance months er month
1007. months er month
.1008. months er month
1009. Aggregate accounting adjustment
., i -- - --- ------
1101. Settlement or closing fee to Gerald K. Schwartz, P.A. 550.00
1102. Abstract or title search to Gerald K. Schwartz, P.A. 350.00
1103. Title examination to
1404. Title insurance binder to
1105. Document preparation to
1106. Notary fees to
1107. Attorney's Fees to Gerald K. Schwartz, P.A. 5,000.00
(includes above item numbers:
1108. Title Insurance to Old Republic Nat. Title/Gerald K. Schwartz 7,260.00
(includes above item numbers:
1109. Lender's covera a Premium : $1,864;000.00 ($1,722.50)
1110. Owner's covera a Premium : $1,185,000.00 ($5,537.50)
1111. Endorse: 8.1-25;F9-726.00 751.00
1112. Storage/Courier/-Federal Express and (to Gerald K. Schwartz, P.A. 250.00
1'113. Wire Fee. to Gerald K. Schwartz, P.A. 50.00
- - - -- 30.00
---
1201. Recording fees Deed $18.50 Mort a e s $1.71:50 Releases 190.00
1202. City/county tax/stamps Deed $5,332.50 Mort a e s 5,332.50
1203. State tax/stamps Deed $7,110.00 Mort a e s $6,524.00 6,524:00 7,110.00
1204. Record Corporate Resolution to Clerk of Court 27.00
1205. to
- -
- -
-
--
-
1301. Survey to Mlami Beach Development Corporation 1,000.00
1302. Lien Search Fee to Florida Property Search, Inc. 850.00
1303. Return of Deposit to Mlami Beach Development Corporation 5,000.00
1304. Corporate Formation to Gerald K. Schwartz, P.A. 450.00
1305. Builders Risk Cross Wind Ins. 12 month to United National Insurance Company 5,904.68
1306. CMB Holdback Fee to .City of Miami Beach 608,957.89
1307. Architectural Plans to GF55 Partners 3,522.42
4308. to
1309.
-- -, _
--
~, t
_, _, -- .
_
Enter on lines 103 Section J and 502 Section K
675,437.83
71,749.50
I have carefully reviewed the HUD-1 Settlement Statement and to the best of my knowledge and belief, it is a true and accurate statement of all receipts and disbursements made on
my account or by mein this transaction. I further certify that I have received a copy of the HUD-1 Settlement Statement.
MBCDC: Lottie Apart
By: Borrower
Robert Datorre, Mana
Borrower
Seller
The HUD-1 Settlement Statement which I have prepared is a true a accurate account of this transaction. I have caused, or will cause, the funds to be disbursed in accordance
with this stateme
Ger wartz, P.A. ,,,..
Bv: ..ate"" ~~~~' /C~
s Authorized Represe ti ~ Date
ING: It is a crime to knowingly make false statements to the United States on this or any other similar form. Penalties upon conviction can include a DoubleTime®
fine and imprisonment. For details see: Title 18 U.S. Code Section 1001 and Section 1D10.
BL Asset Holding Florida IV, a Florida limited liability company
By: Seller
Authorized By: