Release Agreement With MBCDC: Madeleine Village, LLC do/ y
RELEASE AGREEMENT
THIS RELEASE AGREEMENT ("Release Agreement") is made and entered into as of
the Ty day of January, 2015, by and between MBCDC MADELEINE VILLAGE, LLC, a
Florida limited liability company ("Seller"), MIAMI BEACH COMMUNITY DEVELOPMENT
CORPORATION, a Florida not-for-profit corporation ("MBCDC"), as Seller's manager and sole
member, 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 7871 Crespi Boulevard, Miami Beach, Miami-Dade County,
Florida, known as the Madeleine Village 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 MBCDC have previously received and/or been awarded public
funding pursuant to that certain Neighborhood Stabilization Project (NSP1) Agreement between
the City and MBCDC, dated January 27, 2010, in the amount of$2,376,181.53, secured by that
certain Mortgage and Security Agreement ("Mortgage") between the City and MBCDC, dated
January 29, 2010, recorded in O.R. Book 27170, Page 2725, of the Public Records of Miami-
Dade County, Florida, in the original sum of $2,376,181.53, subsequently modified by that
certain Modification of Promissory Note and Florida Real Estate Mortgage ("Modification of
Note and Mortgage"), between the City and Madeleine Village, LLC, a Florida limited liability
not for profit corporation, dated January 25, 2011, and recorded in O.R. Book 27586, Page 147,
of the Public Records of Miami-Dade County, Florida, and corrected by virtue of that certain
Modification of Promissory Note and Florida Real Estate Mortgage ("Corrective Modification of
Note and Mortgage"), between the City and MBCDC Madeleine Village LLC, a Florida limited
liability not for profit corporation, dated August 8, 2011, and recorded in O.R. Book 27792, Page
2672, of the Public Records of Miami-Dade County, Florida (the NSP1, Mortgage, Modification
of Note and Mortgage and Corrective Modification of Note and Mortgage shall be collectively
referred to herein as "Funding Agreements"), attached hereto as composite Exhibit"B"; and
WHEREAS, the parties desire to enter into this Release Agreement to provide mutual
releases in connection with said Funding Agreements, 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, Seller and MBCDC, 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 Funding Agreements), damages,
debts, liabilities, obligations, contracts, agreements, causes of action, suits and costs, of whatever
{28298849;1}
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 Funding Agreements.
2. This Release Agreement shall inure to the benefit and be binding upon Seller,
MBCDC, 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 all 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]
{28298849;1}
IN WITNESS WHEREOF, the duly authorized representatives of Seller, MBCDC, and
the City have caused this Release Agreement to be properly executed under seal as of this day
and year first above written.
MBCDC MADELEINE VILLAGE, LLC, a Florida
limited liability company
By: Miami Beach Community Development
Corporation, Inc., a Florida not-for-profit
Corporation, its manager and sole member
Attest:
By �1 _
Co i-1 cr. • :elkis Beatriz Cuenca-Barberio
Chairman of the Board Executive Director
MIAMI BEACH COMMUNITY DEVELOPMENT
CORPORATION, INC., a Florida not-for-profit
Corporation
Attest:
BY: / /0 -1
Coral raw. 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., and Belkis Beatriz Cuenca-Barberio, as Executive Director of Miami Beach
Community Development Corporation, Inc., on its behalf and as the manager and sole member
of MBCDC MADELEINE VILLAGE, LLC, in the capacity aforestated. They are
personally known to me or have produced a valid Florida driver's license as
identification. �
2/7140) Tie
Notary Public
My Commission Expires
[Notary Public Seal]
,P• p`8f, GISELA NANSON TORRES
* �% * MY COMMISSION#EE 150933
EXPIRES:April 6,2016
{28298849;1} >°p Bonded Thru Budget FOR F1.�'Q Budget Notary Services
THE CITY OF MIAMI B T ACH
ATTEST:
By: —iso■ /� 'l- ■..
Ji L. Mo ales fael E."anado 4.1,1,
City +anager eity Clerk � ' A \ 1.4
ler
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STATE OF FLORIDA ) - INCORF ORATED:
COUNTY OF MIAMI-DADE ) ,9 :? � '
On January a, 2015 before me, the undersigned Notary Public, in a ok I
aforesaid, personally appeared Jimmy L. Morales, as the City Manager of the City o\ iami
Beach, Florida, and Rafael E. Granado, as 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.
7,7
_ t/_/. _ � 1
(otary Public
My Commission Expires
[Notary Public Seal] r:" ;,, UUACARDILLO
*• gm MY COMMISSION#FF 155322
V.774,—.,41"�
Bonded Nu Notary August
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APPROVED AS TO
FORM & LANGUAGE
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City Attorney `If Diet
{28298849;1)
EXHIBIT A
Legal Description
Lots 26 and 27, Block 10, of BISCAYNE BEACH SUBDIVISION, according to the map or plat
thereof, as recorded in Plat Book 44, Page 67, of the Public Records of Miami-Dade County,
Florida,
a/k/a 7871 Crespi Boulevard, Miami Beach, Florida 33141.
{28298849;1}
•
■
EXHIBIT B
Funding Agreements• r - -
3
•
•
•
•
ti
}•
1�
•
•
{28298849;1} - t_• ..
•
I 111111 11111 11111 11111 11111 11111 11111 1111 I!!I
CFh1 2011R0544-215
OR Bk 27792 R9S 2672 — 2676; (5pss)
RECORDED 08/15/2011 15:31:30
Return to: (enclose self-addressed stamped envelope) HARVEY RUE N► CLERK OF COURT
MIAMI—DADE COUNTYr FLORIDA
Name:
Gerald K.Schwartz,Esquire
Address:
1691 Michigan Avenue Suite 320
Miami Beach,Florida 33139
This Instrument Prepared by:
Gerald K.Schwartz,Esquire
1691 Michigan Avenue Suite 320
Miami Beach,Florida 33139
SPACE ABOVE THIS LINE FOR PROCESSING DATA SPACE ABOVE THIS LINE FOR PROCESSING DATA
STATE OF FLORIDA INTANGIBLE TAXES AND DOCUMENTARY
STAMPS IN THE AMOUNT REQUIRED BY LAW WITH REGARD
TO THE INDEBTEDNESS BEING EXTENDED HEREBY WERE
AFFIXED TO OR PROOF OF PAYMENT NOTED ON THE
FLORIDA REAL ESTATE MORTGAGE RECORDED IN OFFICIAL
RECORDS BOOK 27170 PAGE 2725-27371 OF THE PUBLIC
RECORDS OF MIAMI-DADE COUNTY,FLORIDA. THE AMOUNT
OF INDEBTEDNESS UNDER THE NOTE IS NOT BEING
INCREASED BY THIS MODIFICATION.DOCUMENTARY STAMPS
OR INTANGIBLE TAX ARE NOT DUE IN CONNECTION
HEREWITH.
MODIFICATION OF PROMISSORY NOTE AND FLORIDA REAL
ESTATE MORTGAGE
THIS MODIFICATION OF NOTE and MORTGAGE dated as of AU6 ,
2011 ("Agreement"), by and among MIAMI BEACH COMMUNITY DEVELOPMENT
CORPORATION, a Florida not for profit corporation ("Borrower" or "Mortgagor"),
MBCDC MADELEINE VILLAGE LLC,a Florida limited liability not for profit corporation
whose sole Member and Managing Member is the Mortgagor("Madeleine") and the CITY OF
MIAMI BEACH,FLORIDA,a Florida municipal corporation("Mortgagee").
WITNESSETH:
The circumstances which give rise to this Agreement are as follows:
WHEREAS,Mortgagee is owner and holder of a certain Florida Real Estate Mortgage,and
Security Agreement executed by Mortgagor on January 10, 2010 encumbering certain property
located in Miami-Dade County, Florida, as described therein and also described in Exhibit "A"
attached hereto(the"Property"),which Mortgage secured the payment of that certain Promissory
Note dated January 29, 2010 in the original principal sum of TWO MILLION, THREE
HUNDRED,SEVENTY SIX THOUSAND,ONE HUNDRED EIGHTY ONE DOLLARS and
FIFTY THREE CENTS($2,376,181.53))(the"Note"),and which Mortgage was filed for record
Book27792/Page2672 CFN#201 1 054421 5 Page 1 of 5
a '
on February 3,2010 in Official Records Book 27170,Page 2725-27371 Public Records of Miami-
Dade County,Florida(the "Mortgage");and
WHEREAS, Mortgagor has requested and Mortgagee has agreed to permit Mortgagor to
simultaneously herewith convey the Property to MADELEINE.
NOW,THEREFORE,for and in consideration of TEN AND 00/100 DOLLARS($10.00)
and other good and valuable consideration,the receipt,sufficiency and adequacy of which is hereby
acknowledged,the parties hereto hereby agree as follows:
1. The above recitals are true and correct and are incorporated herein by reference.
2. Except as specifically modified hereby,all of the terms,provisions and representations of the
Note, and Mortgage together with all other loan documents executed by Mortgagor in connection
therewith, (collectively sometimes hereafter referred to as the "Loan Documents") are hereby
specifically reaffirmed by Madeleine and are incorporated herein by this reference.
3. Simultaneous with the conveyance of the Property to Madeleine,Miami Beach Community
Development Corporation is hereby released from all obligations set forth in the Note,Mortgage
and other Loan Documents and Madeleine does hereby assume all obligations of the Mortgagor and
as the new successor mortgagor, agrees to comply with the terms and conditions as set forth in the
Note, Mortgage and other Loan Documents in the same manner and to the same extent as if
Madeleine were the original mortgagor.
4. The provisions of this Agreement shall control in the event of any conflict with the provisions
of the Loan Documents, the unaffected provisions of which are specifically reaffirmed and
incorporated herein by reference. Madeleine further agrees that,except as specifically provided by
this Agreement, no part of the Note, Mortgage or other Loan Documents are in any way altered,
amended or changed. Madeleine hereby affirms and validates the full force and effect of the Note,
Mortgage and other Loan Documents as modified hereby.
5. Madeleine and Mortgagor hereby affirm,warrant and represent that all of the warranties and
representations made in the Note,Mortgage and any other documents or instruments recited herein or
executed with respect thereto directly or indirectly,are true and correct as of the date hereof and that
Mortgagor is not in default of any of the foregoing nor aware of any default with respect thereto,and
that Mortgagor has no defense or right of offset with respect to any indebtedness to Mortgagee.
Madeleine and Mortgagor hereby releases Mortgagee from any cause of action against it existing as
of the date of execution hereof. The rights and defenses being waived and released hereunder
include without limitation any claim or defense based on the Mortgagee having charged or collected
interest at a rate greater than that allowed to be contracted for by applicable law as changed from
time to time,provided,however,in no event shall such waiver and release be deemed to change or
modify the terms of the Note or Mortgage which provide that sums paid or received in excess of the
maximum rate of interest allowed to be contracted for or by applicable law,as changed from time to
time,reduce the principal sum due,said provision to be in full force and effect.
6. During the term of the Mortgage,Miami Beach Community Development Corporation,as the
sole member of Madeleine,shall not,without the written consent of the Mortgagee,which consent
2
Book27792/Page2673 CFN#201 1 054421 5 Page 2 of 5
may be unreasonably withheld, sell, assign, transfer or encumber any portion of its membership
interest in Madeleine.
7. Paragraph I.c)of the Mortgage be and is hereby modified and amended to provide that the
Affordability Period is extended from a term of fifteen(15)years to a term of 30 years.
8. This Agreement shall not be construed more strictly against either party by virtue of the
preparation hereof and defined terms in the Note shall be like wise defined herein.
IN WITNESS WHEREOF, the Mortgagor, Madeleine and Mortgagee have executed this
Agreement effective as of the day and year noted above.
MIAMI BEACH COMMUNITY
DEVELOPMENT CORPORATION, a
Florida not for profit corporation
By:
ROBER 0 DATORRE,President
STATE OF FLORIDA ) SS
COUNTY OF MIAMI-DADE )
I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State
aforesaid and in the County aforesaid to take acknowledgments, the foregoing instrument was
acknowledged before me by ROBERTO DATORRE, as President of MIAMI BEACH
COMMUNITY DEVELOPMENT CORPORATION, a Florida not for profit corporation,freely
and voluntarily under authority duly vested in them by said limited liability company and that the
seal affixed thereto is the true seal of said limited liability company.They are pe sr onallly_bomi tQ
me or have produced as identification.
WITNESS my hand and official seal in the County and State last aforesaid this 05 day of
ZUI9 ,2011.
My Commission Expires: No- N' 1', dab
rnav r co. 'Q1Cl2 a
Typed,printed or stamped name of Notary Public
�
U Notary Public Stated Florida
f 4 I Andrea Diaz
My Commission EE0e3385
3 ppw Expires 04/1212015
Book27792/Page2674 CFN#20110544215 Page 3 of 5
MBCDC MADELEINE VILLAGE LLC,a Florida
limited liability not for profit corporation
By: MIAMI BEACH COMMUNITY
DEVELOPMENT CORPORATION, a Florida not
for profit corporation,the Managing Member
By:
,President
STATE OF FLORIDA ) SS:
COUNTY OF MIAMI-DADE )
I HEREBY CERTIFY that on this day,before me,an officer duly authorized in the State aforesaid
and in the County aforesaid to take acknowledgments,the foregoing instrument was acknowledged
before me by ROBERTO DATORRE, President of MIAMI BEACH COMMUNITY
DEVELOPMENT CORPORATION a Florida not for profit corporation,the Managing Member
of MBCDC MADELEINE VILLAGE LLC,a Florida limited liability not for profit corporation
freely and voluntarily under authority duly vested in him by said corporation and that the seal affixed
thereto is the true corporate seal of said corporation. He islersonall known to me or has provided
as identification.
WITNESS my hand and official seal in the County and State last aforesaid this a5 day of
tIU1 ,2011. 1►. a alo
No . Pu. ,'.tate o orida at Large
My Commission Expires: And vr-0, fl CO,
Typed,printed or stamped name of Notary
Notary Public Slats of Florida
. Andrea Diaz
� ay Cornmistiorl EE089385
0,wf Expires 04x1212015
4
Book27792/Page2675 CFN#20110544215 Page 4 of 5
OR BK. 27792 PG 2676
LAST PAGE
THE CITY OF MIAMI BEACH,
FLORIDA,a Florida municipal corporation
By: Ailiii■■ ��%
4. sO)
STATE OF FLORIDA ) SS:
COUNTY OF MIAMI-DADE )
I HEREBY CERTIFY that on this day,before me, an officer duly authorized in the State
aforesaid and in the County aforesaid to take acknowl dgments, the foregoing instrument was
acknowledged before me by is 8�rj2,oe�- of the CITY OF MIAMI
BEACH,FLORIDA, a Florida munica c ration,freely and voluntarily under authority duly
vested in them by said limited liability company and that the seal affixed thereto is the true seal of
said limited is ility company. They are personally known to me or have produced
/V /7 as identification. W -
WI ESS my hand and official seal in the County and State last aforesaid this day of
,2011.
' / fi i / i S-4/4-.
My Commission Expires: N7-e, Public
a• A.' A' C . c,
typed,printed or stamp;a name of Notary Public
Guadalupe C. Ramos
Tom. Notary Public,State of Florida
• � Commission#DD807512
,,,-'- Expires:Sept. 8, 2012
'` Bonded Thru Atlantic Bonding Co.,Inc.
APPROVED Ai TO
FORA i LANG UAGE
&FOR EXECUTION
qty oil
5
Book27792/Page2676 CFN#20110544215 Page 5 of 5
111111111111111111111111 111111111111111111111
CFN 201180099090 .
OR l'k 27586 Pss 0147 - 152; (6pss)
• RECORDED 02/14/2011 08:53:20
Return to: (enclose self-addressed stamped envelope) HARVEY RUVIN, CLERK OF COURT
MIAMI-DADE COUNTY► FLORIDA
Name:
Gerald K.Schwartz,Esquire
Address:
1691 Michigan Avenue Suite 320
Miami Beach,Florida 33139
This Instrument Prepared by:
Gerald K.Schwartz,Esquire
1691 Michigan Avenue Suite 320
Miami Beach,Florida 33139
SPACE ABOVE THIS LINE FOR PROCESSING DATA SPACE ABOVE THIS LINE FOR PROCESSING DATA
STATE OF FLORIDA INTANGIBLE TAXES AND DOCUMENTARY
STAMPS IN THE AMOUNT REQUIRED BY LAW WITH REGARD
TO THE INDEBTEDNESS BEING EXTENDED HEREBY WERE
AFFIXED TO OR PROOF OF PAYMENT NOTED ON THE
FLORIDA REAL ESTATE MORTGAGE RECORDED IN OFFICIAL
RECORDS BOOK 27170 PAGE 2725-27371 OF THE PUBLIC
RECORDS OF MIAMI-DADE COUNTY,FLORIDA. THE AMOUNT
OF INDEBTEDNESS UNDER THE NOTE IS NOT BEING
INCREASED BY THIS MODIFICATION.DOCUMENTARY STAMPS
OR INTANGIBLE TAX ARE NOT DUE IN CONNECTION
HEREWITH.
MODIFICATION OF PROMISSORY NOTE AND FLORIDA REAL
ESTATE MORTGAGE
MORTGAGE dated as o l e7L
THIS MODIFICATION OF NOTE and MO t�JG�IVGI
'� BEACH COMMUNITY DEVLOPMENT
2011 ("Agreement"), by and among MIAMI BEAC
CORPORATION a Florida not for profit corporation ("Borrower" or "Mortgagor"),
MADELEINE VILLAGE,LLC, a Florida limited liability not for profit corporation whose
sole Member and Managing Member is the Mortgagor("Madeleine")and the CITY OF MIAMI
BEACH,FLORIDA, a Florida municipal corporation("Mortgagee").
WITNESSETH:
The circumstances which give rise to this Agreement are as follows:
WHEREAS,Mortgagee is owner and holder of a certain Florida Real Estate Mortgage,and
Security Agreement executed by Mortgagor on January 10, 2010 encumbering certain property
located in Miami-Dade County, Florida, as described therein and also described in Exhibit "A"
attached l}ereto(the"Property"),which Mortgage secured the payment of that certain Promissory
Note dated January 29, 2010 in the original rincipal sum of TWO MILLION, THREE
ry principal
Book27586/Page147 CFN#20110099090 Page 1 of 6
HUNDRED,SEVENTY SIX THOUSAND,ONE HUNDRED EIGHTY ONE DOLLARS and
FIFTY THREE CENTS($2,376,181.53))(the"Note"),and which Mortgage was filed for record
on February 3,2010 in Official Records Book 27170,Page 2725-27371 Public Records of Miami-
Dade County,Florida(the"Mortgage"); and
WHEREAS, Mortgagor has requested and Mortgagee has agreed to permit Mortgagor to
simultaneously herewith convey the Property to MADELEINE.
NOW,THEREFORE,for and in consideration of TEN AND 00/100 DOLLARS($10.00)
and other good and valuable consideration,the receipt,sufficiency and adequacy of which is hereby
acknowledged,the parties hereto hereby agree as follows:
1. The above recitals are true and correct and are incorporated herein by reference.
2. Except as specifically modified hereby,all of the terms,provisions and representations of the
Note, and Mortgage together with all other loan documents executed by Mortgagor in connection
therewith, (collectively sometimes hereafter referred to as the "Loan Documents") are hereby
specifically reaffirmed by Madeleine and are incorporated herein by this reference.
3. Simultaneous with the conveyance of the Property to Madeleine,Miami Beach Community
Development Corporation is hereby released from all obligations set forth in the Note,Mortgage
and other Loan Documents and Madeleine does hereby assume all obligations of the Mortgagor and
as the new successor mortgagor, agrees to comply with the terms and conditions as set forth in the
Note, Mortgage and other Loan Documents in the same manner and to the same extent as if
Madeleine were the original mortgagor.
4. The provisions of this Agreement shall control in the event of any conflict with the provisions
of the Loan Documents, the unaffected provisions of which are specifically reaffirmed and
incorporated herein by reference. Madeleine further agrees that,except as specifically provided by
this Agreement, no part of the Note, Mortgage or other Loan Documents are in any way altered,
amended or changed. Madeleine hereby affirms and validates the full force and effect of the Note,
Mortgage and other Loan Documents as modified hereby.
5. Madeleine and Mortgagor hereby affirm,warrant and represent that all of the warranties and
representations made in the Note,Mortgage and any other documents or instruments recited herein or
executed with respect thereto directly or indirectly,are true and correct as of the date hereof and that
Mortgagor is not in default of any of the foregoing nor aware of any default with respect thereto,and
that Mortgagor has no defense or right of offset with respect to any indebtedness to Mortgagee.
Madeleine and Mortgagor hereby releases Mortgagee from any cause of action against it existing as
of the date of execution hereof. The rights and defenses being waived and released hereunder
include without limitation any claim or defense based on the Mortgagee having charged or collected
interest at a rate greater than that allowed to be contracted for by applicable law as changed from
time to time,provided,however,in no event shall such waiver and release be deemed to change or
modify the terms of the Note or Mortgage which provide that sums paid or received in excess of the
maximum rate of interest allowed to be contracted for or by applicable law,as changed from time to
time,reduce the principal sum due,said provision to be in full force and effect.
2
Book27586/Page148 CFN#20110099090 Page 2 of 6
6. During the term of the Mortgage,Miami Beach Community Development Corporation,as the
sole member of Madeleine,shall not,without the written consent of the Mortgagee,which consent
may be unreasonably withheld, sell, assign, transfer or encumber any portion of its membership
interest in Madeleine.
7. Paragraph I.c)of the Mortgage be and is hereby modified and amended to provide that the
Affordability Period is extended from a term of fifteen(15)years to a term of 30 years.
8. This Agreement shall not be construed more strictly against either party by virtue of the
preparation hereof and defined terms in the Note shall be like wise defined herein.
IN WITNESS WHEREOF, the Mortgagor, Madeleine and Mortgagee have executed this
Agreement effective as of the day and year noted above.
MIAMI BEACH COMMUNITY
DEVELOPMENT CORPORATION., a
Florida N or Profit corporation
By:
ROBER DATORRE,President
STATE OF FLORIDA ) SS
COUNTY OF MIAMI-DADE )
I HEREBY CERTIFY that on this day,before me, an officer duly authorized in the State
aforesaid and in the County aforesaid to take acknowledgments, the foregoing instrument was
acknowledged before me by ROBERTO DATORRE. as President of MIAMI BEACH
COMMUNITY DEVELOPMENT CORPORATION a Florida Not For Profit corporation,freely
and voluntarily under authority duly vested in them by said limited liability company and that the
seal affixed thereto is the true seal of said limited liability company.They are personallyjin to
nee r have produced as identification.
WITNESS my hand and official seal in the County and State last aforesaid this Z5 day of
aVIVavL (J ,2011.
My Commission Expires: Note Public
1`i 019k 60iQ ,
Typed,printed or stamped name of Notary Public
j,r Pot Notary Public State of Florida
• Bianga Fonseca
'�j� j My Commission EE027487
o,ao Expires 09/19/2014
3
Book27586/Page149 CFN#20110099090 Page 3 of 6
MADELEINE VILLAGE, LLC., a Florida limited
liability not for profit corporation
By: MIAMI BEACH COMMUNITY
DEVELOPMENT CORPORATION a Florida Not
For Profit corporation,the Managing Member
By:
ROBERTO ORRE,President
STATE OF FLORIDA ) SS:
COUNTY OF MIAMI-DADE )
I HEREBY CERTIFY that on this day,before me,an officer duly authorized in the State aforesaid
and in the County aforesaid to take acknowledgments,the foregoing instrument was acknowledged
before me by ROBERTO DATORRE, President of MIAMI BEACH COMMUNITY
DEVELOPMENT CORPORATION a Florida Not For Profit corporation,the Managing Member
of MADELEINE VILLAGE, LLC.,a Florida limited liability not for profit corporation freely and
voluntarily under authority duly vested in him by said corporation and that the seal affixed thereto is
the true corporate seal of said corporation. He is personally known to me or has provided
as identification.
WITNESS my hand and official seal in the County and State t aforesaid this 25 day of
tit-VW ti..✓∎J_ ,2011.
il' 1 -
Notary Public, State of Florida at Large
My Commission Expires: / J GAV19 k �t1 h Vet .
Typed,printed or stamped name of Notary
YP p
ep'"°i_ Notary Public State of Florida THE CITY OF MIAMI BEACH,
• Bianga Fonseca
o►1 ExpC s 09/19/201:027"7 FLORIDA,a Florida municipal corporation
By: . A ' _
STATE OF FLORIDA ) SS:
COUNTY OF MIAMI-DADE )
I HEREBY CERTIFY that on this day,before me, an officer duly authorized in the State
aforesaid and in the County aforesaid to take acknowledgments, the foregoing instrument was
acknowledged before me by Z'oRa.E G orb z_A-Lpjz�- of the CITY OF MIAMI
BEACH,FLORIDA, a Florida Municipal corporation,freely and voluntarily under authority duly
vested in them by said limited liability company and that the seal affixed thereto is the true seal of
said limi ed liability company. They are ers •nally known to me or have produced
A/ A- as identification.
4
Book27586/Page150 CFN#20110099090 Page 4 of 6
WITNESS my hand and official seal in the County and State last aforesaid this a S ay of
∎sow 14 Ai2.I/ ,2011.
o P,erLT cr . PALCHETL-
My Commission Expires: Notary Public
Zce 27, tt..A.
NOTARY PUBLIC-STATE OF FLORIDA
,•••'' ''•, Robert E. Parcher
:Commission#DD896080 Type ,printed or stamped name of Notary Public
Expires: JUNE 03,2013
BONDED THRU ATLANTIC BONDING CO.,INC.
5
Book27586/Page151 CFN#20110099090 Page 5 of 6
OR B K. 27586 PG 0152
L...AST PAGE
EXHIBIT "A"
LEGAL DESCRIPTION
Lots 26 and 27, in Block 10, of BISCAYNE BEACH SUBDIVISION,
according to the Plat thereof, as recorded in Plat Book 44, at Page 67,
of the Public Records of Miami-Dade County, Florida.
Book27586/Page152 CFN#20110099090 Page 6 of 6
111111 1 1111 1111111111 11111 11111 11111 11111111
CFN 201080074-4-00
OR Bk 27177 Pss 2725 - 2737; (13pss)
RECORDED 02/03/2010 12:33:01
MTG DOC TAX 87316.70
IHTANG TAX 4,752.36
This Instrument Was Prepared By, Record MIAMI- ADEIC CLERK OF COURT
MIAMI-DARE 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 ND SECUIIY AGREEMENT (the "Mortgage" or the "Senior
Mortgage") executed this da day of J , 2010, by MIAMI BEACH COMMUNITY
DEVELOPMENT CORPORATION, a Florida not-for-profit corporation (the "Mortgagor"), whose
address is 945 Pennsylvania Avenue, Miami Beach, FL 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 $2,376,181.53 (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 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).
Book27170/Page2725 CFN#20100074400 Page 1 of 13
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.
olow
2
Book27170/Page2726 CFN#20100074400 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.
3
Book27170/Page2727 CFN#20100074400 Page 3 of 13
(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.
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 Senior 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 fifteen (15) 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)
4
f.67
Book27170/Page2728 CFN#20100074400 Page 4 of 13
above), then Mortgagor shall be deemed to be in default under Section 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 Section II
hereof), including full and immediate repayment of the Principal Amount.
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 fifteenth 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 the Senior 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.
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.
lehr Arab.
5
Book27170/Page2729 CFN#20100074400 Page 5 of 13
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 Senior 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 Period,
(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
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.
6
Book27170/Page2730 CFN#20100074400 Page 6 of 13
Il.
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
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
7
Book27170/Page2731 CFN#20100074400 Page 7 of 13
(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 herein (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.
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.
002;i•e"
8
Book27170/Page2732 CFN#20100074400 Page 8 of 13
(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.
II1.
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
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.
/%41
9 --✓/I
Book271701Page2733 CFN#20100074400 Page 9 of 13
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 within fifteen
(15) years 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 $2,549,551.00, 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: MIAMI BEACH COMMUNITY DEVELOPMENT
CORPORATION
945 Pennsylvania Avenue
Miami Beach, FL 33139
Attention: Roberto Datorre, President
MORTGAGEE: CITY OF MIAMI BEACH
1700 Convention Center Drive
Miami Beach, Florida 33139
Attention: City Manager
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
10
Book27170/Page2734 CFN#20100074400 Page 10 of 13
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.
[REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK]
ASi
11
Book27170/Page2735 CFN#20100074400 Page 11 of 13
IN WITNESS WHEREOF, Mortgagor has caused this Mortgage to be executed on the
date first above written.
•
. WITNESSES: • MORTGAGOR:
MIAMI BEACH COMMUNITY DEVELOPMENT
CORPORATION, a Florida not-for-profit
corporation
A Ma
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P tiol ame Print Name and Title
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Print Name
STATE OF FLORIDA )
COUNTY OF MIAMI-DADE )
KThe for 'ng Mortgage and Security Agreement was acknowledged before me this
yi day of rJ , 2010, by Roberto Datorre, as President of Miami Beach Community
Development Corporation, a Florida not-for-profit corporation. He is personals known to me or
has produced Florida Driver's License No. as iden i Ica .ri /IA‘,46
10111411010/"LI*,
mons s. ram
CertfeWien#11072550
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tate of Fl.rida at Large
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My commission expires:
APPROVED AS TO
F:IRHCDI$ALL\HSG-CD\Templates.Mortgage security agreement 7871 Crespi.doc FORM&LANGUAGE
&F ` ECUTION
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12
Book27170/Page2736 CFN#20100074400 Page 12 of 13
1
,
OR BK 27170 PG 2737
LAST PAGE
EXHIBIT "A"
LEGAL DESCRIPTION
7871 Crespi Boulevard, Miami Beach, Florida 33141
2-3 53 42, Biscayne Beach Sub PB 44-67, LOTS 26 & 27, BLK 10, Lot
Size 100,000 x 115 OR 16617-4098 1294 1 COC 24310-0623 02 2006 1 4j,
13
Book27170/Page2737 CFN#20100074400 Page 13 of 13
S • a069-.1-703?
NEIGHBORHOOD STABILIZATION PROJECT(NSP1)AGREEMENT
BETWEEN THE CITY OF MIAMI BEACH AND
MIAMI BEACH COMMUNITY DEVELOPMENT CORPORATION
v
This Agreement made and entered into this day of -S4h k or , 200, by and between
the CITY OF MIAMI BEACH, a Florida municipal corporation having ifb principal office at 1700
Convention Center Drive, Miami Beach, Florida, 33139, (hereinafter referred to as "City"), and
MIAMI BEACH COMMUNITY DEVELOPMENT CORPORATION, a non-for profit corporation
having its principal office at 945 Pennsylvania Avenue, Miami Beach, Florida, 33139(hereinafter
referred to as "Developer").
WHEREAS, on July 31, 2008, the United States Congress enacted the Housing and
Economic Recovery Act of 2008(HERA), thereby creating the NSP1; and
WHEREAS, on December 1, 2008, the State of Florida, acting through its Department of
Community Affairs (DCA), published its NSP1 Substantial Amendment, pursuant to the
requirements of HERA; and
WHEREAS, on March 18, 2009, the City Commission adopted Resolution No. 2009-
27039, approving the City's planned use and application for NSP1 funds, and related application
to DCA, which was the purchase and rehabilitation of one or more foreclosed or abandoned
multi-family buildings in the City of Miami Beach target areas, to be kept as rental properties to
benefit income-qualified households; and
WHEREAS, on May 6, 2009, the City issued a Request for Proposals (RFP)for qualified
housing developers to purchase foreclosed and/or abandoned residential units in Miami Beach,
and to oversee any needed rehabilitation, resale, management, and renting of affordable
housing units in compliance with all the rules required by NSP1 and administered by the State
of Florida's NSP1 Substantial Amendment; and _
WHEREAS, on July 31, 2009, three (3) applications were received in response to the
RFP, but only the application from Developer was deemed responsive; and
WHEREAS, the Developer's application was for the acquisition and rehabilitation of a
sixteen (16) unit residential property located at 7871 Crespi Boulevard (the Crespi Project), with
any remaining funds to be utilized for homeownership scattered sites secondary strategy
(Secondary Objective Project) (hereinafter, the Crespi Project and the Secondary Objective
Project may also be referred to collectively as the Project); and
WHEREAS, on September 9, 2009, the City Commission adopted Resolution No. 2009-
27194, accepting Developer's proposal for the use of NSP1 funds, and authorizing the Mayor
and the City Clerk to execute an agreement with Developer.
NOW, THEREFORE, in consideration of the mutual benefits contained herein, the City
and Developer agree as follows:
Section 1. Agreement Documents: Agreement documents shall consist of this Agreement
and the following nine (9) attachments, all of which are attached hereto and
incorporated into this Agreement:
• Attachment I-A describes the proposed acquisition of.the. Crespi
Project.
1 i'
® •
• Attachment I-B itemizes the projected costs for the rehabilitation and
soft costs of the-Crespi Project.
• Attachment II is the Operating Proforma for the Crespi Project.
• Attachment III contains the Secondary Objective Project description
• and budget, which is subject to NSP1 fund availability after final cost
of the Crespi Project is established.
• Attachment IV outlines applicable NSP 1 statutes and regulations
• Attachment V contains Certification of NSP 1 funded
Construction/Rehabilitation and other Certifications
• Attachment VI contains the 2009 NSP 1 Income Eligibility
Requirements
• Attachment VII contains required Reports
• Attachment VIII contains the Florida's 2008 NSP1 Substantial
Amendment.
•. . Attachment IX contains the Federally-funded Subgrant
Agreement/Neighborhood Stabilization Program Agreement(Contract
Number 10DB-4X-11-23-02-F16)between the DCA and the City,
dated October 5th, 2009.
Section 2. Project/Statement of Work: The Developer agrees to implement the Project as
follows:
Crespi Project(Primary objective)- Rental Housing Activity:
Purchase and rehabilitation of a four-building residential apartment
complex containing four (4) units each (16 units total), located at 7871
Crespi Boulevard, Miami Beach, Florida.
Secondary Objective Project—Home Ownership Activities
Balance of NSP1 funds remaining after the purchase and rehabilitation of
the Crespi Project will be used for the purchase and rehabilitation of up to
five (5) residential properties to sell to income qualified households
according to NSP1 and HUD regulations.
Section 3. Agreement Amount: Subject to the availability of funds, the City agrees to
• make available, according to the terms and conditions contained within this
Agreement, the amount not to exceed TWO MILLION, THREE HUNDRED
SEVENTY-SIX, ONE HUNDRED EIGHTY ONE DOLLARS AND 53/00
($2,376,181.53)(herein referred to as"the Funds").
Section 4 Alterations: Any changes to the Project, including, without limitation, the
descriptions and budgets in Attachments I-A, I-B, and III, shall first be submitted,
reviewed, and approved, in writing, by the City Manager which approval, if given
at all, shall be at the Manager's sole and reasonable judgement and discretion.
Section 5. Method of Payment and Reporting Requirements: The Developer may
request a drawdown of a portion of the Funds for 1.) the acquisition costs of the
Crespi Project property, as per Attachment 1-A; and 2.)the expected cash needs
within the first three (3) months of the Term (as defined herein), in accordance
with the projections itemized in Attachment 1-B. Any advance payment is subject
to Federal OMB Circulars A-87, .A-10, A-22, and the Cash Management
Improvement Act of 1990.
2
Throughout the Term, the Developer shall be required to submit monthly Project
progress reports to the Director of the City's Real _Estate, Housing and
Community Development Division, on the 10th day of each month. The
Developer shall also submit a Project close-out report thirty (30) days after
completion of the Crespi Project ("completion" being herein defined as the
issuance of a final Certificate of Use (CO) or Certificate of Occupancy (CC), for
the Crespi Project), covering the agreed-upon Project goals and objectives;
expenditures during the Term; and performance data on client feedback.
Attachment VII contains reporting forms to be used in fulfillment of this
requirement.
Other reporting requirements may be required by DCA or the City if the Project
changes; the need for additional information or documentation arises; and/or if
legislative amendments are enacted.
Reports and/or requested documentation not received by the due date shall be
considered delinquent, and may be cause for default and/or termination of the
Agreement.
• Section 6. Monitoring: The City shall monitor Developer's performance, including, without
limitation, that of any of Developer's subcontractors which are paid from Funds.
The Developer shall comply and cooperate with any monitoring
procedures/processes, as reasonably deemed necessary and appropriate by the
City Manager or his/her authorized designee. Notwithstanding the preceding, the
City's monitoring of Developer's performance shall not create any affirmative or
other duty, obligation, or assumption on the part of the City, whether as to the
Project or as to any ways, means, and/or methods that Developer chooses to
undertake with respect thereto.
Section 7. Additional Conditions and Compensation: The parties acknowledge that the
Funds originate from NSP1 funds from the U.S. Department of Housing and
Urban Development (HUD), through the DCA, and must be implemented in full
compliance with all applicable rules and regulations of HUD and DCA,
respectively.
In the event of curtailment or non-availability of all or any portion of the Funds,
the financial sources necessary to pay the Developer hereunder will not be
available. In that event, this Agreement may be terminated by the City, without
any liability to the City; such termination being effective as of the date that it is
determined by the City Manager(in his/her sole discretion and judgment)that the
Funds are no longer available. In the event of such termination, the Developer
agrees that it will not look to, nor seek to hold liable, the City, nor any individual
member of the City Commission and/or the City Administration, for the
performance of this Agreement, and that the City shall be released from any and
all liability to Developer under the terms of this Agreement.
Section 8. Compliance with Local, State and Federal Regulations: The Developer shall
comply with all applicable Federal regulations as they may apply to Project
administration, and to carry out each .activity. in _compliance. with the laws and .
regulations as described in 24 CFR 570 Subpart K, as same may be amended
from time to time. Additionally, the Developer will comply with all applicable
3
•
State and local (City and Miami-Dade County) laws, ordinances, rules and
regulations.. It shall be the Developer's sole and absolute responsibility to
continually familiarize itself with any and all applicable laws, ordinances, rules
and/or regulations.
Developer(and this Agreement) shall also comply with any applicable provisions
of that that certain Federally-funded Subgrant Agreement/ Neighborhood
Stabilization Program Agreement (Contract Number 10DB-4X-11-23-02-F 16)
between the DCA and the City, dated October 9th, 2009(Attachment IX hereto).
Section 9. Restriction for Certain Resident Aliens: Certain newly legalized aliens, as
described in 24 CFR Part 49, are not eligible for benefits under covered activities
funded by the NSP1 Program. "Benefits" under this section means financial
assistance, public services,jobs, and access to new or rehabilitated housing and
other facilities made available under activities funded by the NSP1 Program.
"Benefits" do not include relocation services and payments to which displaces
are entitled by law.
Section 10. Assignment/Subcontract: No part of this Agreement may be assigned or
subcontracted without the prior written consent of the City, which consent, if
given at all,shall be at the City's sole discretion and judgment.
Section 11. Term: The term of this Agreement shall commence upon the last date of
execution by the parties hereto (the Execution Date), and shall terminate
eighteen (18) months after said Execution Date (the Term). Any costs incurred
by the Developer prior to the Execution Date which were not approved by the
City, will not be reimbursed by the City.
Any extension of the Term will be at the City Manager's sole discretion, and shall
also be contingent upon approval by the State of Florida, in accordance with the
guidelines established in the 2008 State of Florida Action Plan Substantial
Amendment(Attachment VIII).
Section 12. Termination of Agreement:
12.1 Termination for Convenience: This Agreement may be terminated, for
convenience and without cause, by the City, through its City Manager,
upon thirty (30) days prior written notice to Developer. In the event of
Termination for convenience, the. City shall cease any payments to
Developer, and shall not be responsible and/or liable for payment of costs
or obligations incurred after the effective date of termination (as set forth in
the City's notice); or for payment of costs resulting from obligations which
were not properly incurred before the effective date of termination.
Developer shall be responsible for submitting a final report, as provided in
• Section 5 hereof, within five (5)days from the effective date of termination,
detailing all Project objectives, activities and expenditures (up to the
effective date of termination).
Notwithstanding.anything in this subsection or_Agreement, the.City, at its
sole discretion, shall determine the amount of any Funds to be returned to
the City as a result of termination, including without limitation as a result of
4
•
1110 1111
any unused or incomplete Project items, and/or items not satisfactorily
performed. The City shall provide Developer--with written notice of any
monies due, which shall be due and payable immediately upon receipt of
such notice by Developer.
Notwithstanding the preceding, the City reserves any and all legal rights
and remedies it may have with regard to recapture all or any portion of the
Funds, or any assets acquired or improved in whole or in part with said
Funds, including without limitation, the any property acquired pursuant to
the Project described herein.
12.2 Termination for Cause: Notwithstanding Subsection 12.1 above, the City,
through its City Manager, may also terminate this Agreement for cause.
"Cause" shall include, but not be limited to, the following:
a. Failure to comply and/or perform in accordance with the terms of
this Agreement, or any Federal, State, County or City law, or
regulation.
b. Submitting reports to the City which are late, incorrect, or
• incomplete in any material respect. •
c. Implementation of this Agreement, for any reason, is rendered
impossible or infeasible.
d. Failure to respond in writing to any concerns raised by the City,
including substantiating documents when required/requested by the
City.
e. Any evidence of fraud, mismanagement, and/or waste, °.as
determined by the City's monitoring, and applicable rules and
regulations.
The City shall notify the Developer in writing when the Developer has
been placed in default. Such notification shall include: (i)actions taken by
or to be taken by the City, such as withholding of payments; (ii) actions to
be taken by the Developer as a condition precedent to curing the default;
and (iii) a reasonable cure period, w hi ch shall
be no less than thirty Y (30
) •
days from notification date. In the event the Developer fails to cure such
default within the aforetasted cure eriod, this Agreement shall be
P 9
considered terminated for cause by the City, without further notice to
Developer, and Developer shall be solely responsible for repayment to
the City of all or any portion of the Funds, as determined by the City.
Said monies shall be immediately due and payable by Developer upon
demand from City.
Notwithstanding the preceding, the City reserves any and all legal rights
and remedies it may have with regard to recapture of all or any portion of
the Funds, or any assets acquired or improved in whole or in part with
said Funds.
a. Termination for Lack of Funds: In the event of curtailment of, or
regulatory constraints placed on all or any portion of the Funds
(including, without. limitation, any..curtailment.of the Funds by . .
HUD), this Agreement may be terminated by the City, through its
City Manager, effective as of the time that it is determined by the
5
•
City Manager that such Funds are no longer available. Costs of
the Developer resulting from obligations which were not properly
incurred before the effective date of termination, or which were
incurred after termination, will not be allowed, unless the City
Manager expressly authorizes them in writing (whether in the
notice of termination or subsequent thereto).
Section 13. Equal Employment Opportunities: The Developer shall comply with equal
employment opportunities as stated in Executive Order 11246, entitled "Equal
Employment Opportunity" as amended Executive Order 11375, and as
supplemented in Department of Labor regulations.
Section 14. Program Income: All "Program Income" (as such term is defined under
applicable Federal regulations) gained from any activity of the Developer funded
by the Funds shall be returned to the State for reallocation based on greatest
need and capacity to obligate and spend NSP1 funds. Any generated Program
Income must be reported to DCA and must comply with the requirements set out
in 24 CFR 489(3)(3)and the Federal Register Notice that states the requirements
of NSP1 funds.
Any Program Income received on or after July 30, 2013, may not be
retained by the City and must be remitted to the State to be returned to
HUD.
Section 15. Religious Organization or Owned Property: NSP1 funds may be used by
religious organizations or on property owned by religious organizations, subject
to prior written approval from the City Manager and only in accordance with the
requirements set in 24 CFR§570.200(j).
The Developer shall comply with First Amendment Church/State principles, as
follows:
a. It will not discriminate against any employee or applicant for
employment on the basis of religion and will not limit employment
or give preference in employment to persons on the basis of
religion.
b. It will not discriminate against any person applying for public
services on the basis of religion and will not limit such services or
give preference to persons on the basis of religion.
c. It will retain its independence from Federal, State, and local
governments, and may continue to carry out its mission, including
the definition, practice, and expression of its religious beliefs,
provided that it does not use NSP1 funds to support any inherently
religious activities, such as worship, religious ,instruction, or
proselytizing.
d. The Funds shall not be used for the acquisition, construction, or
rehabilitation of any structures, to the extent that those structures
are used for inherently religious activities. Where a structure is . .
used for both eligible and inherently religious activities, NSP1
funds may not exceed the cost of those portions of the acquisition,
6
construction, or rehabilitation that are attributable to eligible
activities in accordance with the cost accounting requirements
applicable to NSP1 funds in this part. Sanctuaries, chapels, or
other rooms that religious congregation uses as its principal place
of worship; however, are ineligible for NSP1-funded
improvements.
Section 16. Reversion of Assets: In the event of a termination of this Agreement or upon
expiration of the Agreement, the Developer shall immediately return any Funds to
the City on hand at the time of termination or expiration, and any account
receivable attributable to the use of NSP1 funds. The preceding requirement
shall not negate the City's right to recapture all or any other portion of the Funds
as the City deems necessary and as it may otherwise be allowed to recover
same under this Agreement.
Any real property that was acquired or improved in whole or in part with Funds
(including NSP1 funds provided to the Developer in the form of a loan) in excess
of$25,000 must either:
a. Be used to provide activities that meet one of the national
objectives in 24 CFR 570.208(a), "Activities benefitting low- and
moderate-income persons" for a period of at least fifteen (15)
years after Project completion ("Project Completion" shall be
defined as the issuance of a Final Certificate of Occupancy or
Certificate of Completion); or
b. If not used in accordance with the above subsection (a), the
Developer shall pay to the City an amount equal to the current
market value of the Property, less any portion of the value
attributable to expenditures of Funds for the acquisition of, or
improvement to, the Property. No payment shall be required after
the compliance with the affordability requirement for the period of
time specified in subsection (a).
Section 17. Conformity to HUD regulations: The Developer shall abide by guidelines set
forth by HUD for the administration and implementation of the NSP1 Program,
including applicable Uniform Administrative Requirements set forth in 24 CFR
570.502, and applicable federal laws and regulations in 24 CFR 570.600, et seq.
Developer agrees that duly authorized representatives of HUD and/or the City
shall have access to any books, documents, papers and records of the
Developer that are directly pertinent to this Agreement for the purpose of making
audits, examinations, excerpts and transcriptions. The Developer shall comply
with the requirements and standards of OMB Circular No. A-122, "Cost Principles
for Non-profit Organizations", or OMB Circular No. A-21, "Cost Principles for
Educational Institutions" as applicable. The Developer shall comply with the
following provisions of the Uniform Administrative requirements of OMB Circular
A-110 (implemented at 24 CFR Part 84, "Uniform Administrative Requirements
for Grants and Agreements With Institutions of Higher Education, Hospitals, and
Other Non-Profit Organizations") or the related NSP1 provision, as specified in
this section:
a. Subpart A-"General";
b. Subpart„B - "Pre-Award Requirements", except for.84.12, ;'Forms for
Applying for Federal Assistance";
c. Subpart C-"Post-Award Requirements", except for:
(1) Section 84.22, "Payment Requirements" - Grantees shall follow
the standards of 85.20(b)(7) and 85.21 in making payments to
sub-recipients;
(2) Section 84.23, "Cost Sharing and Matching";
(3) Section 84.24, "Program Income" - In lieu of 84.24, NSP1 sub-
recipients shall follow. 570.504;
(4) Section 84.25, "Revision of Budget and Program Plans";
(5) Section 84.32, "Real Property" - In lieu of.84.32, NSP1 sub-
recipients shall follow 570.505;
•
(6) Section 84.34(g), "Equipment” - In lieu of the disposition
provisions of 84.34(g), the following applies:
a. In all cases in which equipment is sold, the proceeds shall
be program income (pro-rated to reflect the extent to which
NSP1 funds were used to acquire the equipment); and
b. Equipment not needed by the sub-recipient for NSP1
activities shall be transferred to the recipient for the NSP1
Program or shall be retained after compensating the
recipient;
(7) Section 84.51(b), (c), (d), (e), (f), (g), and (h), "Monitoring and
Reporting Program Performance";
. (8) Section 84.52, "Financial Reporting";
(9) Section 84.53(b), "Retention and access requirements for
records". Section 84.53(b)applies with the following exceptions:
a. The retention period referenced in. 84.53(b) pertaining to
individual NSP1 activities shall be four(4)years; and
b. The retention period starts from the date of submission of
the annual performance and evaluation report, as .
prescribed in 24 CFR 91.520, in which the specific activity is
reported on for the final time rather than from the date of
submission of the final expenditure report for the award;
(10) Section 84.61, "Termination" - In lieu of the provisions of. 84.61,
NSP1 sub recipients shall comply with. 570.503(b)(7); and
d. Subpart D "After-the-Award Requirements" - except for.
84.71, "Closeout Procedures".
8
® •
Section 18. Sponsorships: The.Developer agrees that all notices, informational pamphlets,
press releases, advertisements, descriptions of the sponsorship of the Project,
research reports, and similar public notices prepared and released by the
• Developer for, on behalf of, and/or about the Project, shall include the statement:
"FUNDED BY THE CITY OF MIAMI BEACH, STATE OF FLORIDA
DEPARTMENT OF COMMUNITY AFFAIRS, AND U.S.
DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT
NEIGHBORHOOD STABILIZATION PROJECT"
Section 19. Recordkeeping: Developer shall be subject to federal "Common Rule: Uniform
Administrative Requirements for State and Local Governments" (53 Federal
Register 8034) or OMB Circular No. A-122, "Cost Principles for Nonprofit
Organizations" and all applicable laws, ordinances, rules and regulations. This
documentation shall include, but not be limited to, the following:
a. Books, records and documents in accordance with generally accepted
accounting principles, procedures and practices, which sufficiently and
• properly reflect all revenues and expenditures of funds provided directly
or indirectly by this Agreement, including matching funds and Program
Income. These records shall be maintained to the extent of such detail as
will properly reflect all net costs, direct and indirect labor, materials,
equipment, supplies and services, and other costs and expenses of
whatever nature for which reimbursement is claimed under the provisions
of this Agreement.
b. Time sheets for split-funded employees, which work on more than one
activity, in order to record the NSP1 activity delivery cost by Project and
the non-NSP1 related charges.
c. The Developer shall retain sufficient records to show its compliance with
the terms of this Agreement, as well as the compliance of all of its
subcontractors or consultants paid under this Agreement, for a period of
six (6) years from the date the audit report is issued. Developer shall
allow the City Manager or his/her designee, the State Chief Financial
Officer, or the State Auditor General access to the records upon request.
The Developer shall ensure that audit working papers are available to
them upon request for a period of six (6) years from the date the audit
report is issued, unless extended by the City or the State for the following
exceptions:
•
1. If any litigation, claim or audit is started before the six (6) year
period expires, and extends beyond the six(6)year period, the
records shall be retained until all litigation, claims and audit
findings involving the records have been resolved. The City
shall be informed, in writing, of the address where the records
are to be kept.
2. Records for the disposition of non-expendable property valued ..
at$5,000 or more at the time it is acquired shall be retained for
six years after final disposition.
I '
r 3. Records relating to real property acquired shall be retained for -
six(6)years after the closing on the transfer of title.
d. The Developer shall maintain all records for all subcontractors or
consultants to be paid from the Funds, including documentation of all
Project costs, in a form sufficient to determine compliance with the
requirements and objectives of all applicable laws and regulations.
e. The Developer, shall allow access to its records to the City and/or it's
authorized representatives, during reasonable times. "Reasonable time"
shall mean during normal business hours of 9:00 a.m. to 5:00 p.m., local
time, Monday through Friday.
Section 20. Audits and Inspections: The Developer shall maintain financial procedures
and supporting documents, in accordance with generally accepted accounting
principles, to account for the receipt and expenditures of the Funds. At any time
during reasonable times, and as often as the City, DCA, and/or HUD
representatives may deem necessary, the Developer shall make available all
records, documentation, and any other data relating to all matters covered by the
Agreement for review, inspection, or audit.
If the Developer is a non-profit organization, as defined in OMB Circular A-133,
(as revised), and in the event that the Developer expends $500,000 or more in
Federal awards in its fiscal year, a single audit or program-specific audit shall be
conducted for each fiscal year for which Federal awards attributable to the
Project have been received by the Developer. If this Agreement is closed-out
prior to the receipt of an audit report, the City reserves the right to recover any
disallowed costs identified in an audit after such closeout.
Section 21. Indemnification/Insurance Requirements: The Developer shall indemnify and
hold harmless the City, its officers, employees, contractors, and agents, from any
and all claims, liability, losses, and causes of action which may arise out of any
act, error, omission, negligence or misconduct on the part of Developer or any of
its officers, directors, employees, contractors, consultants, agents, patrons,
guests, clients, licensees, invitees, or any persons under the direction, control or
authority of Developer, in connection with, as a result of, or related to this
Agreement and/or the Project. The Developer shall pay all claims and losses of
any nature whatsoever in connection therewith and shall defend all suits in the
name of the City, and shall pay all costs (including attorney's fees) and
judgments which may issue thereon. This Indemnification shall survive the
termination and/or expiration of the Term of this Agreement.
The Developer shall maintain and carry in full force during the Term and/or
through Project completion, whichever is later, the following insurance:
a. General Liability Policy with coverage for Bodily Injury and Property
Damage, in the amount of $1,000,000 single limit. The policy must
include coverage for contractual liability to cover Developer's
indemnification agreement, as set forth in.this.Section. •
10
b. Worker's Compensation and Employers Liability, as required pursuant
r to Florida Statutes.
c. Automobile and vehicle coverage shall be required when the use of
• automobiles and other vehicles•are involved in any• way in the
performance of the Agreement. Limits for such coverage shall be in
the amount of$500,000.
The City of Miami Beach, Florida shall be named as an additional insured under
all required insurance policies. The insurance must be furnished by insurance
companies authorized to do business in the State of Florida, and approved by the
City's Risk Manager. The companies must be rated no less than "B+" as to
management, and not less than "Class VI" as to strength, by the latest edition of
Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey,
or its equivalent. Original certificates of insurance for any required coverage
must be submitted to the City's Risk Manager for approval prior to any work
commencing, and will be kept on file in the Office of the Risk Manager, Third
Floor, Miami Beach City Hall.
Each required certificate or policy shall carry the provision that the insurance
shall not terminate, lapse or otherwise expire, prior to thirty (30) days written
notice to that effect, given by the insurance carrier to the City, and that the
insurance carrier will not invoke the defense of performance of a governmental
function by the Developer in performing this contract.
The City shall have the right to obtain from the Developer specimen copies of the
insurance policies in the event that submitted certificates of insurance are
inadequate to ascertain compliance with required coverage. All of Developer's
certificates shall contain endorsements providing that written notice shall be
given to the City at least thirty (30) days prior to termination, cancellation, or
reduction in coverage of the policy.
In the event evidence of any required insurance is not forwarded to the
City's Risk Manager within thirty (30) days after the Execution Date, this
Agreement shall automatically terminate, without further action required by
the City; and therefore, the City shall have no obligation and/or liability
under the terms hereof.
Compliance with the foregoing requirements shall not relieve the Developer of
any liabilities and obligations under this Agreement (including, without limitation,
Developer's obligation to indemnify and hold the City harmless, as required in
this Section 21).
Section 22. Conflict of Interest: The Developer covenants that no person under its employ
who presently exercises any functions or responsibilities in connection with HUD
or DCA funded activities has any personal financial interests, direct or indirect, in
this Agreement. The Developer covenants that in the performance of this
Agreement, no person having such conflicting interest shall be employed. The
Developer covenants that it will comply with all provisions of 24 CFR 570.611
"Conflict of Interest", and the respective, .State, County and City of Miami Beach
laws governing conflicts of interest. The Developer shall disclose, in writing, to
the City any possible conflicting interest that is covered by the above provisions.
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This disclosure shall occur immediately upon knowledge of such possible
conflict. The City will then render an-opinion, which shall be binding on both
parties.
Section 23. Venue:This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Florida, both substantive and remedial, without regard to
principles of conflict of laws. The exclusive venue for any litigation arising out of
this 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 AGREEMENT, CITY AND DEVELOPER EXPRESSLY
WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF
ANY CIVIL . LITIGATION RELATED TO, OR ARISING OUT OF, THIS
AGREEMENT.
Section 24. Notices: All notices required under this Agreement shall be sent to the parties at
the following address:
City: Anna Parekh, Director
Office of Real Estate, Housing and Community Development
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139
Developer: Roberto Datorre, President
Miami Beach Community Development Corporation
945 Pennsylvania Avenue
Miami Beach, FL 33139
Section 25. Limitation of Liability: The City desires to enter into this Agreement only if in
so doing the City can place a limit on City's liability for any cause of action for
money damages due to an alleged breach by the City of this Agreement, so that
its liability for any such breach never exceeds the sum of $100,000. Developer
hereby expresses its willingness to enter into this Agreement with Developer's
recovery from the City for any damage action for breach of contract to be limited
to a maximum amount of$100,000.
Accordingly, Developer hereby agrees that the City shall not be liable to
Developer for damages in an amount in excess of $100,000, for any action or
claim for breach of contract arising out of the performance or nonperformance of
any obligations imposed upon the City by this Agreement. Nothing contained in
this subparagraph or elsewhere in this Agreement is in any way intended to be a
waiver of the limitation placed upon City's liability as set forth in Florida Statutes,
Section 768.28.
Section 26. On.or before the Execution Date, and as a condition precedent to the City's
release of any portion of the Funds, Developer shall execute a Mortgage and
Promissory Note in favor of the City, in an amount equal to the Funds used for •
acquisition of the Crespi Project. The same procedure shall be followed for any
additional properties purchased as part of the Secondary Objective Project. The
Mortgage shall.contain.a covenant, restricting use of the .Crespi Project for a. .
minimum of the prescribed fifteen (15) year retention period for affordability (as
defined by NSP1 requirements). Any Mortgage and Note given for any
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Secondary Objective Project properties shall also contain the same restriction.
All Mortgages and Notes, and any and all documents contemplated in this
Section 26, shall be prepared and/or approved by the City (through the City
Manager and City Attorney's Office). All Mortgages and Notes shall be recorded
in the Public Records in Miami-Dade County.
Section 27: This Agreement shall be binding upon all parties hereto and their respective
heirs, executors, administrators, successors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officials on the day and date first above
indicated.
CITY OF MIAMI BEACH
a Florida Municipal corporation
ATTEST:
Xtzi-c-A-'E ka-,tt-e-i ---7 , ,./lifige4
City Clerk M or Signatur
hI ni- 7',Jp
114 ��4- C • 2. Matti Herrera Bower, Mayor
Print Name Print Name and Title
MIAMI BEACH COMMUNITY DEVELOPMENT CORPORATION, INC.
a Florida not-for-profit corporation
ATTES dit6._,..- jw
S7 retary Pre11:11"7-? -ture
...17�',,Jfs ,/ex.r . Roberto Datorre, President
• Print Name Print Name and Title •
��AS TO APPROVED AS TO . -
F:IRHCD'$ALL\HSG-#01 . ' � 2z cue FORM&LANGUAGE
;• , � &FOR EXECUTION
:.,. ,:.�i=art:>'a: G:: .
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Ca City A :7 ey Date City Attometk5\ Date
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