Release Agreement With MBCDC: Lottie Apartments, LLC g(w-- b91117C—C3,
RELEASE AGREEMENT
HIS RELEASE AGREEMENT ("Release Agreement") is made and entered into as of
the --day of January, 2015, by and between MBCDC: LOTTIE APARTMENTS, LLC, a
Florida limited liability company ("Seller") and CITY OF MIAMI BEACH, Florida, a municipal
corporation organized and existing under the laws of the State of Florida("City").
WITNESSETH:
WHEREAS, contemporaneously with the execution hereof, Seller has transferred to the
City certain real property located at 530 75th Street, Miami Beach, Miami-Dade County, Florida,
known as the Lottie Apartments and more particularly described on Exhibit "A" attached hereto
(the "Property") pursuant to that certain Real Estate Sales Contract dated December 3, 2014
between Seller and the City (the "Contract");
WHEREAS, Seller and/or its manager and sole member, Miami Beach Community
Y
Development Corporation, Inc., a Florida not for profit corporation ("MBCDC"), have
previously received and/or been awarded public funding pursuant to the Mortgage and Security
Agreement between Seller and the City, dated August 10, 2010, recorded in Official Records
Book 27389, Page 1007, of the Public Records of Miami-Dade County, in the original principal
amount of$1,864,000.00 (the "Mortgage and Security Agreement"), attached hereto as Exhibit
"B", entered into for the purpose of purchasing and developing the Property as an affordable
multi-family residential housing project; and
WHEREAS, the parties desire to enter into this Release Agreement to provide mutual
releases in connection with the Mortgage and Security Agreement as set forth below.
NOW, THEREFORE, for and in consideration of the sum of Ten and No/100 Dollars
($10.00) and other good and valuable consideration, the receipt, adequacy and sufficiency of
which are hereby acknowledged, the parties hereby covenant and agree as follows:
1. The City and Seller for themselves, and for their respective officers, directors,
employees, managers, members, owners, shareholders, representatives, affiliates and agents
hereby remise, release, acquit and forever discharge each other from and against any and all
claims, demands (including demands for repayment of the Mortgage and Security Agreement),
damages, debts, liabilities, obligations, contracts, agreements, causes of action, suits and costs, of
whatever nature, character or description, including, without limitation, reasonable attorneys'
fees, whether known or unknown, which the parties may have or claim to have against each
other in connection with, arising from, or in any manner relating to the Mortgage and Security
Agreement.
2. This Release Agreement shall inure to the benefit and be binding upon Seller and
the City and their respective legal representatives, successors and assigns. No modification of
this Release Agreement shall be valid unless in writing and signed by both parties.
3. Any suit, action or proceeding seeking to enforce any provision of or based on
any matter arising out of or in connection with this Release Agreement shall be settled according
to Florida law and venue for any action in connection with this Release Agreement shall be in
Miami-Dade County, Florida. This Release Agreement shall be governed by, and construed in
accordance with, the laws of the State of Florida, without regard to principles of conflict of laws.
The exclusive venue for any litigation arising out of this Release Agreement shall be Miami
Dade County, Florida, if in state court, and the U.S. District Court, Southern District of Florida,
if in federal court. BY ENTERING INTO THIS RELEASE AGREEMENT, SELLER AND
THE CITY EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL
BY JURY OF ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF, THIS
RELEASE AGREEMENT.
4. Should any part, clause, provision, or condition of this Release Agreement be held
to be void, invalid, or inoperative, the parties agree that such invalidity shall not affect any other
part, clause, provision, or condition thereof, and that the remainder of this Release Agreement
shall be effective as though such void part, clause, provision, or condition had not been contained
herein.
5. In the event of any litigation arising from this Release Agreement the prevailing
party shall be entitled to recover attorney's fees and costs incurred therewith.
6. This Release Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, and said counterparts shall constitute but one and the same
instrument which may be sufficiently evidenced by one such counterpart.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the duly authorized representatives of Seller and the City
have caused this Release Agreement to be properly executed under seal as of this day and year
first above written.
MBCDC: LOTTIE APARTMENTS, LLC, a
Florida limited liability company
By: Miami Beach Community Development
Corporation, Inc., its manager and sole member
Attest:
By:
C• - ell , - s Belkis Beatriz Cuenca-Barberio
Chairman of the Board Executive Director
STATE OF FLORIDA )
COUNTY OF MIAMI-DADE )
On January 2015 before me, the undersigned Notary Public, in and for the State
aforesaid, personally appeared Cornell Crews, as Chairman of Miami Beach Community
Development Corporation, Inc., a Florida not-for-profit corporation, and Belkis Beatriz Cuenca-
Barberio, as Executive Director of Miami Beach Community Development Corporation, Inc., a
Florida not-for-profit corporation, which is the manager and sole member of MBCDC: Lottie
Apartments, LLC, a Florida limited liability company, in the capacity aforestated. They are
personally known to me or have produced a valid Florida d : -_'_ nse as ide tification.
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On January /a2 , 2015 before me, the undersigned Notary Public, ii arc'for the State
aforesaid, personally appeared Jimmy L. Morales, as the City Manager for the City of Miami
Beach, Florida, and Rafael E. Granado, as the City Clerk of the City of Miami Beach, Florida, in
the capacity aforestated. They are personally known to me or have produced a valid Florida
driver's license as identification.
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Exhibit A
Legal Description
Lot 8, Block 4, the TOWNSITE OF HARDING, according to the Plat
thereof, as recorded in Plat Book 34, at Page 4, of the Public Records
of Miami-Dade County, Florida,
a/k/a 530 75th Street, Miami Beach, Florida 33141
EXHIBIT B
Mortgage and Security Agreement
11111111111111111111111111111111111111i11 Ill;
CF11 201080553952
OR Bk 27389 Pes 1007 - 1019; (13pss)
RECORDED 08/16/2010 15:02:55
1T6 DOC TAX 6:524.00
HARVEY RUVIN: CLERK OF COURT
This Instrument Was Prepared By, Record MIAMI-DADS COUNTY: FLORIDA
and Return to:
•
Raul J. Aguila, Esq.
Office of the City Attorney
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
MORTGAGE AND SECURITY AGREEMENT
THIS MORTGAGE AND SECURITY AGREEMENT (the "Mortgage") executed this a
day of A,& PC , 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 Amount 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 includin 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 all 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.
PROVIDED 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 covenants contained 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).
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Book27389/Page1007 CFN#20100553952 Page 1 of 13
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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
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, assessments 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. Insurance. 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 lien 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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Book27389/Page1008 CFN##20100553952 Page 2 of 13
E. Care of Premises.
(a) The Mortgagor will keep the improvements now or hereafter erected on
the Premises in good condition and repair, will not commit or suffer any waste
and will 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 and 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 whether 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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Book27389/Page1009 CFN#i¢20100553952 Page 3 of 13
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 of performing or observing any such defaulted covenant,
condition or term, without thereby becoming liable to the Mortgagor or any other person
in possession holding under the Mortgagor.
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 consideration, 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 final 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 (HUD), 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 own, 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 II. (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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Book27389/Page1010 CFN#20100553952 Page 4 of 13
e) If at any time during the Affordability Period the Premises are sold, transferred, or
refinanced, the Mortgagor shall 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 of the 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 rental 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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Book27389/Page1011 CFN##20100553952 Page 5 of 13
•
0) 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 contained 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
no way 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
shall 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
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Book27389/Page1012 CFN#20100553952 Page 6 of 13
•
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 covenants 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 in 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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Book27389/Page1013 CFN#20100553952 Page 7 of 13
any present or future federal, state or other statute, law or regulation relating to
bankruptcy, insolvency or other relief for debtor; or
(g) The 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 assignment 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
(j) 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
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, any 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.
(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 to this
subparagraph shall exist if any subsequent default shall occur and be continuing.
8
Book27389/Page1014 CFN#20100553952 Page 8 of 13
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 may be 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, and 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 under this Mortgage by receiver,
entry or otherwise, and such proceedings shall have been discontinued or abandoned
for any reason or shall have been determined 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.
Ill.
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
9
Book27389/Page1015 CFN#20100553952 Page 9 of 13
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 limit 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 not 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 $1,664,000.00, 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 Pennsylvania 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
10
Book27389/Page1016 CFN#20100553952 Page 10 of 13
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.
B. 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:IRHCDI$ALL\HSG-CDIALLWSP 11530 75 Street\ClosingWlortgage and Security Agreement.doc •
11
Book27389/Pagel 017 CFN##20100553952 Page 11 of 13
IN WITNESS WHEREOF, Mortgagor has caused this Mortgage to be executed on the
date first above written.
WITNESSES: MORTGAGOR:
MBCDC: LOTTIE APARTMENTS, LLC, a
Florida limited liability corporation
By: MIAMI BEACH COMMUNITY
DEVELOPMENT CORPORATION, INC., a
Florida not for profit corporation, Managing
Member
•
Ark L� �% By: �
Signature / Ro•ert Da • resident
iliffardi/dit � �
Pi Name
kqt fin
ignature
Grp . tJ
Print Name
STATE OF FLORIDA )
COUNTY OF MIAMI-DADE )
�0The foreg• :-. Mortgage and Security Agreement was acknowledged before me this
day of °, 2010, by Roberto Datorre, as President of Miami Beach
Community Develop `-nt Corporation, a Florida not-for-profit corporation, Managing Member of
MBCDC: LOTTIE APARTMENTS, LLC, a Florida limited liability company. He is personally
nnval or has produced Florida Driver's License No. as
identification.
ELIZABETH ALVAREZ r,
�r1
f Comm#DD0629905 Na Q _ -iMeligI!!7 ►
: Expires:2/3/2011 Notary Public /
Flaida Notaly ABEL,MC. State of Florida at Large
My commission expires:
APPROVED AS TO
FORM&LANGUAGE
FOR EXECUTION
.` `1 r. 1'( .8,,,
Book2738.9/Page1018 CFN#20100553952 Page 12 of 13
r
OR BK 27389 PG 1019
, . LAST PAGE
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.
13
Book27389/Page1019 CFN#20100553952 Page 13 of 13