Loan Agreement 2001 Washington AvenueLOAN AGREEMENT
THIS LOAN AGREEMENT (the "Loan" or the "Agreement") executed this ~~day of
rl ~ 2007, by MBCDC: TIIE ALLEN LLC, a Florida limited liability company (the
"Borrower"), whose address is 945 Pennsylvania Avenue, Miami Beach, Florida 33139, and the
MIAMI BEACH REDEVELOPMENT AGENCY, a public body corporate and politic (the
"RDA's (which terms as used. in every instance shall include the RDA's successors and assigns),
whose address is 1700 Convention Center Drive, Miami Beach, Florida 33139.
WHEREAS, Borrower is a Florida limited liability company whose sole member is "
Miami Beach Community Development Corporation (MBCDC) Inc., a Florida not-for-profit .
housing corporation which is also the City of Miami Beach, Plorida's designated Community "
Housing Development Organization (CHDO); and
WHEREAS, Borrower is undertaking a project to acquire and construct, improve,
renovate, rehabilitate, and equip that certain historically designated real property located at 2001
Washington Avenue, Miami Beach, Florida (and hereinafter referred to as the "Premises", as
defined herein) for the purpose of providing affordable rental housing for low to moderate
income individuals and families (the "Projecf~; and
WHEREAS, the Premises and Project aze/is located within the City Center/Historic
Convention Village Redevelopment Area, a community redevelopment area in the City of Miami
Beach; Florida, designated and created pursuant to Sections 163.330 - 163.463, Florida Statutes
{the "Community Redevelopment Act of 1969") (hereinafter referred to as the "City Center
RDA"); and
WHEREAS, the Project is consistent with the City CenterlHistoric Convention Village: - .
Redevelopment and Revitalization Area Plan, as adopted by the City of Miami. Beach
Commission and the Miami Beach Redevelopment Agency, respectively, and as approved by the
Miami-Dade County Board of County Commissioners (hereinafter referred to as the
"Redevelopment Plan"); and
WHEREAS, the Project will promote the Redevelopment Plan objectives by (i) restoring
and preserving historically contributing properties within the City Center RDA; and (ii) creating
new affordable housing opportunities within said RDA for low and moderate income individuals
and families; and
WHEREAS, pursuant to Miami Beach Redevelopment Agency Resolution No. 540-
2007, passed and adopted on January l7, 2007, and Miami Beach Redevelopment Agency
Resolution No. 545-2007, passed and adopted on March 14, 2007, and subject further to the
terms and conditions hereinafter contained, the RDA has agreed to loan Borrower the funds for
Borrower's acquisition of the Premises.
WITNESSETli:
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
Borrower in favor of the RDA, in the original principal amount of $3,469,347.50 (the "Principal
Amount" or the "Loan"), and attached and incorporated as Exhibit ``A" hereto, the Borrower
does gtarrt, bargain, sell, alien, remise, release, convey and confirm unto the RDA, a lien.upon
and security interest in that certain parcel of real property located in Miami-Dade County,.
Plorida, which is described in Exhibit "B", attached hereto and made a part hereof. Hereinafter
said real estate, buildings, improvements {including any and all improvements ao be made
hereafter), and fixtares herein below described and located on said real estate are collectively
referred to as the "Premises".
The Borrower covenants with the RDA as follows:
ARTICLE I.
A Remoras Covararns and Wane<riies of the Mimni Beach Redeveloornerrt Aeencv (RDAl. The
RDA represads, covenants and warrants that;
(i) The RDA is a public body corporate and politic, created pursuant to the Community
Redevelopment Act 1969.
{ri) The RDA has been duly authorized to execute and deliver this Agreement, and is authorized
to enter' into the tmnsactian(s) contemplated by this Agi'eement end to cany out ita obligations
hereunder.
B Re~resenta6ons. Covenants and Warranties of the'Borrower. The Bo~werrepresarts, covarairts and
wanarrtstlrah
(i) The Bonower is a limited liability tympany validly organized and existing under the laws of
the StateofFlodda,whosasolemelr:baisIvliatniBeachCommunityDeveloptnentCorporation,Inc„ anokfor-
profithousingwrporationvalidlyorga<rizedandexistingunderthelawsofthe StateofPlorida
(a) The Bonrnver is not in violation of any provision of its Articles of Organization, has the
carporate power to aster into Oils Agteernerrt and the Note, or arty ageement or inslnunent to which the
Borower~ is a party, used or contemplated for use in the consummation of fire transactidn{s) contemplated
hereby, and has duly authorized the execution and delivery of this Agreement and the Note, and has or shall
authorizetheexecudorrofar~y agreement orinstnrmentto which theBorroweris aparly, usedor contemplated
foruseintheconsummation ofthetruuaction{s) contanplatedhereby.
(iii) The Borrower agrees that during the teen of the AffordabilityPedod, as hereinafter' defined, it
will maintain its existence as a limited liability company, will have as its sole member Miami Beach
CommunityDevelopment Corporation, fnc„ will not dissolve or otherwise dispose of all or substantially aIl of
its assets, andwillnot consolidatewith ormergeinto another legal entityorpemrit oneorrnore otherlepal entities
to consolidatewithormergeinto ir, withoutthepriorwrittenconsent oftheRDA, which consent, if given at all,
shallbe atthe RDA's solejudgment anddiscretion,
{iv) Neither the execution and delivery ofthis Agreement and theNote, nor the wnsrunmation of
the transaction(s) contemplated hereby, nor the fu1511ment of or compliance with the terms and conditions.
hereof and thereof; conflicts with or results in abreach of the temrs, conditions, orprovisions ofany agreement .
or instrument to which die Borrower is now apaify or bywhich the Bonnwer is bound, or constitutes a detisult
under anyofthcforegoirrg,orresultsinthecreationorirnpositionofanylien,chargeorencrunbrancewhatsoever .
upon anyofthepropedyorassetsoftheBonnwerundexthetemrsnfanysuchinstnunent orag[~enent.
(v) There is no action, suit, proceeding, inquiry or investigation, at law or in equity,
before or by any court, public board or body, known to be pending or threatened against or
ai£ecting the Borrower ar any of its officeas, nor to the best knowledge of the Boaower, is there' any
basis therefore, wherein an unfavorable decision, ruling, or finding would materially adversely affect the
transactions contemplated by this Agreement and the Note orwhich would adversely affect, in any way,
the Premises and/or the Project; or any agreement or instnuent to which the Borrower is a party, used or
contemplated foruse in the consummation of the transaction(s) contemplated hereby.
(vi) The Principal Amount will be used only to fund the cost(s) of acquisition for the
Premises. '
{vii) Borrower will use due diligence to cause the Premises and the Project to be operated
in accordance with the laws, rulings, regulations and onlarances of the State ofFiorida and the departments,
agencies and political subdivisions thereof. Botrowea has obtained ar wr11 cause to be obtained all requisite
approvals of the State of Florida end of other federal, State, regional and local governmental bodies, for
the acquisition, construction, improvement, renovation, rehabilitation, and equipping of the
Premises and the Proj cct. -
(viii] Borrower agrees that it shall use, maintain and operate, or caused to be used,
maintained or operated, the Premises and the Project far the welfare and benefit of the general public, -
without regard to race, creed, color, sex, age or national origin. Borrower agrees that it shall nat use,
main~in or operate, or cause to be used, maintained or operated the Premises and the Project, or any
part thereof; in a manner which is pmhr'bited by (i) the Establishmerit of Religion Clause of the First
Amendment to the Constitution of the United States of America and the decisions of the United States
Suprome Court interpreting the same, or (h7 any comparable provision of the Constitution of the State of
Florida andthe decisions ofthe Florida Supremo Court interpreting the same.
(i~ Reasonable Expectations. Based on current facts, estimates and circumstances, it
is expected that:
(a) The Principal Amount is needed fox the purpose of paying for the cost of
acquisition of the Premises which, together with other funds to be secured by Borrower
from other sources, are sufficient to complete the Project; and
(b) WorkontheProjectwillproceedwithduediligencetocompletion,
{c) ThecompletiondateoftheProjectwilloccuronorpriortoMay1;2012:
(x) Changes in Use.. No substantial changes will be made in the facilities comprising the
Premises ar in the use of the Project without the prior written consent of the Miami Beach
Redevelopment Agency, which consent, if given at all, shall be at the RDA's sole discretion and,
judgment.
(xi} Corn_pliance with Uther Contracts. The Bonower has received or will receive certain
grants, loans, contributions or other forms of funds for rehabilitation, renovation, construction;
improvement-and equipping of the Project,- and. shall use. such funds as required pursuant to the.;
.respective grant; loan, carhrbu(ion or other document providing temms and conditions for the use. of such.:
funds,
A.
ARTICLE II.
(i) The RDA agrees, upon the temrs and conditions containedin this Agreement,
to lend to the Borrower the Principal Amount, which shall bepayable to Borrower out
ofmonies from the City Center RDA.
{ii) Amounts Payable.
{a) The Borrower hereby, covenants and agrees that, provided
Borrower is in good standing, in compliance with, and free from default under :the
terms and conditions of this Agreement and complioa with the Declaration of
Covenants and Restrictions (the "Covenanf~ executed by Borrower in favor of
the RDA and the City of Miami Beach, Florida, which Covenant is attached and .
incorporated as Exhibit "C" hereto, then Borrower shall not be required and shall .
have no obligation to make any payments on the Principal Amount during the
Term hereof; provided however that Borrower shall continue to be obligated to
perform under all other terms and conditions of this Agreement.
Loan of Proceeds.
(b) Notwithstanding the provisions of Article lI (A)(ii)(a) above, and
as additional valuable consideration for the' RDA's agreement to defer any
repayment obligation of the Principal Amotlnt during the Tenn of this Agreement,
Borrower shall satisfy its repayment of the Loan to the RDA as follows: At the
end of the Tenn of this Agreement, or the conclusion of the Affordability Period
(as said term is defined herein), whichever is later, Borrower shall immediately,
upon written demand from the RDA, convey good and marketable fee simple title
to the Premises to the RDA, by execution and delivery of a Special Warranty
Deed {subject to no liens and encumbrances). Borrower shalt be responsible for
the cost of documentary stamps and/or other tax(es) imposed as a result of the
conveyance contemplated by this subsection.
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(c) Obligations of Borrower Unconditional. The obligations of the
Borrower required in Article II {A)(ii)(b) above, and to perform and observe the
other terms and conditions of the Agreement and of the Covenant, shall be absolute
and unconditional and shall not be subject to any defense or any right of setoff,
counterclaim or reconpment arising out of any breach by the City of any obligation
to the Borrower, whether hereunder or otherwise, or out of any indebtedness or
liability at any time owing to the Borrower by the City, and, until such time as
Borrower's obligation has been discharged and Borrower has conveyed the Premises
to the RDA, the Borrower will continue to perform and observe all other agreements
contained in this Agreement and the Covenant and will not terminate the Agreement .
or the Covenant for any cause including,. without limiting the generality of the
foregoing, failure of the Borrdw.er to complete the construction, renovation,
rehabilitation, improvement and equipping of the Premises and of the Project, the
occurrence of any acts or circumstances that may constitute failure of consideration,
- evictiom or conshvctive eviction, deshuction of or damage to the Premises, she
taking by eminent domain of title to or temporary use of any or all of the Premises,
commercial frustration ofpurpose, any change in the tax or other laws of the United ,
States of America or of the State or any political subdivision of either thereof, or any
failure of the RDA to perform and observe any agreement, whether express or
implied; of any duty, liability or obligation arising out of or connected with this
Agreement,
B.
Taxes. Liens and Other Charges.
(a) Tn 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
the Agreement or the manner of collecting taxes so as to affect advorsely'tha RDA, the
Bonower will promptly pay any such tax; if the Borrower fails to make such prompt.
" paymerit or if any sncli'State, federal, mtrni~ipal or other governmental law, order, rule or
regulation prohibits the Borrower from making such payment or would penalize the RDA
• from making such payment or would penalize tho RDA if the Borrower makes such ,
payment, then, at the sole option and discretion of the RDA, either (i) the entire balance
of the Principal Amount secured by this Agreement and all interest accrued thereon shall,
without notice, immediately become due and payable, or (ii) the Premises shall be .
conveyed to the RDA in the marmer provided in Article II A (ii)(b).
(b) The Borrower 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 RDA receipted bills
evidencing such payment.
(c) The Borrower 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 Agreement liens of this Agreement to b e created or to remain outstanding upon any:
part of the Premises.
C. No Subordination of RDA's Interest in Promises. Tho RDA's interest in the Premises, in
accordance with the provisions of this Agreement, the Note, and the Covenant, and as same may
be modified, amended or reviewed in accordance.with the,provisions thereof, shall not be subject
or subordinate to (i) any agreement now or hereafter existing, or (ii) any other liens or
encumbrances now or hereafter affecting the Premises without the written consent of the Miami
Beach,Redevelopment Agency which consent, if given at all, shall be at the. RDA's sole and
absolute discretiorl:. Borrower shall provide written notice to, the RDA prior to applying for-any,. ;:,
mortgage, Joan,. grant, :contribution, contract, agreement, and/or other funding,. application: - .
(hereunder individually,•. a ."funding .application" or collectively, the "funding applications';
which -may potentially affect or encumber the Premises; such written notice shall. provide. the . .
RDA adequate lead time (and, in any event, shall be given no less than thirty (30) Business. days .
prior to the submittal of Borrower's application} for review of a proposed funding applicatoon, - :
and ahall in no event be deemed by Borrower to constitute approval, whether express or implied,...,
of a particular funding application;
D, Iusurance.
(i) The Borrower will keep all buildings and improvements now or hereafter
on the Pr~nises continuously insured against loss or damage by fire, extended coverage,.
and other perils; in such amounts and with such deducdhle provisions as are satisfactory
to the RDA and at least as are customary in eonneedon with the operation of facilities of
the type and size comparable to the Premises and of the Project, and agrees to deliver said.
policy or policies. to the RDA when issued .with the receipts for the payment of the.
pramitim therefore. In the event. any sum of money becomes payable under such policy .
or policies, the RDA shall permit the Borrower to receive and use it, or any part thereof, '
forrepair or restoration of the Premises, subject.to teens reasonably acceptable•to RDA,: ..: r, . .
without thereby waiving or impairing any-equity; lien or right under or by virtue-of-this-- : -- -.---:-: ---
Agreement; and the RDA. if it deems necessary may place and pay for such insurance, or : ..
•• any part thereof, without losing, waiving or affecting RDA's option to default Borrower ,
for breach of this covenant, or any part thereof, or any other right or option under this
Agreement, and every such payment shall bear interest from the 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, Borrower shall notify
RDA 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 RDA shall have the rights
herein given for all defaults.
(ii) The insurance policy or poIIcies obtained in satisfaction of the requirements of
subsection (i) above:
(a) shall be by such insurer (or insurers) as shall be financiallynsponsble,quolified
to dobusiness inthe State of FIorida, and of recognized standing;
6
(b) shall be in such form and shall have such provisions (including, without
]imitation, the loss payable clauses, the waiver of subrogation clause, the deductible
amount, if any, and the standani agreeanrnt endorsemerrt clause), as are satisfactory to the
RDA and as aze generally considered standarl provisions for the type of insurance
involved;
(c) shall prohibit cancellation or modification by the insurer without at least thirty
(30) days'ptiorwrittennoticeto the RDA;
"~ -- (d) shall provide tliat losses thereunder shall be adjusted with the insurerby the
Borrower at its expense on behalf of the insured parties, and the decision of the
Borrower as to any adjustment shall, with the prior written consent of the RDA, which. .
consent shall not be unreasonably or untimely withheld, be final and conclusive;
(e) shall provide that the RDA shall not be liable for payment of any premiums -
and assessments;
(f) without limiting the generality of the foregoing, such 9na„anre policy or
policies sbaall game both the Ivfiazru Beach Redevelopment Agency and the City of Ivliazni
Beach, Florida, vely, as additional insureds.
(iii) At least thirty (30) days prior to the expiration of any such policy or policies, the
Borrower shall famish the RDA with evidence satisfactory to the RDA that the policy ar
policies has/have been renewed ar repIaced At least ten (10) days priar to the due date. of any.
pi'etniumpayment(s)forariysuchpolicyarpolicaes,Borrowers~allfumishtheRDAwifhpmofofsuch .
payment(s).
E. Care of Premises. '
`- " " "' (i)" ' "The Borrower.wll keep the improvements now or hereafter erected`ori the
' Premises in good condition and repair, will not commit or suffer any waste, and
'' will not door suffer to be done anything which will increase the risk of fire. or
other hazard to the Premises or any part thereof.
{ii) The Borrower will not remove or demolish nor alter the design or
structural character of aay 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 RDA.
(iii) If the Premises or any part thereof is damaged by fire or any other cause,
the Borrower will immediately give written notice of the same to the RDA.
(iv) The RDA, or its duly authorized representative(s), shall have the right,
but shall not be required, to enter upon and inspect the Premises at all reasonable
times (including, without limitation, at any time during normal business hours).
7
(v} The Borrower will promptly comply with all present and future laws,
ordinances, rules and regulations of any governmental authority affecting the
Premises and/or the Project, or any part thereof.
(vi) If all or any part of the Premises shall be damaged by fire or other
casualty, the Borrower will, upon request of the RDA, 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 Borrower
will, upon request of RDA, promptly restore, repair or alter the remaining part of
-the Frernises in a meaner reasonably satisfactory to the RDA,
(vii) Maintenance and ~ Modifications of Premises/Praject by Borrower. The .
RDA shallnotbe underany obligatronto operate, maintain or repair all or any part of.
the Premises and/or the Project. Borrower will at its sole cost and expense (i) keep
the Pretnisea/Projectin~afe operating condition; (ri) keep the Prernises/Projeet ingoodrepair
and in good condition; and ('iii) make finrn time to time all necessary repairs thereto and
renewals and replacements thereof. Borrower shall not pexxnit or suffer others to.
commit a nuisance in or about the Premises and/or Project or itself commit a
nuisance in connection with its use, operdtion, mahrtenance, and repair of the Premises
and/or Project, Borrower shall duly observe and conform to all present and future
requiranents of law and requirements of govemmental authorifies relative to the use,
operation, maintenance, and repair of the Premises and/or the Project.
(viii} No warranty by the RDA and/or CitYof Miami Beach. Borrower recognizes
that since all cornponente of the Pranises and of the Project have been and are to be
selected by it, and that the Premises and the Project are to be conshucted, renovated,..:
rehabilitated; improved, equipped, operated, maintained, and repaired solely by Borrower
(including without litrritation, any officers, directors, members, agents, contractors, servants,
employee's, and/or licencees of Borrower), neither the RDA rwr the City of Mierrri Beach;
_ Florida (Cityj melees arry wananty or iapreseritatioii; express or implied or otherwise, with
respect to the same, or to the location, use, description, design, merohantabr'lity, fifness
for use for anyparticular pui7iose,'condition or durabilityof the Premises and/or the Pmjcst .
it being agreed that all risks incident thereto era to be home by the Borrows: Tn the event of
any defect or deficiency of any nature in the Premises or any building, improvement,
fixture or other item constitutiirg a portion thereof, neither the RDA nor the City shall
have any responsibility ar liability with respect thereto. The provisions of this
subsection (viii) have been negotiated and are intended to be a complete exclusion and
negation of any warranties or rgiresentations by the RDA and/orthe City, express or implied,
withrespect tothe Prerrdsesand/or thel'roject, ar anybuilding, improvement, 8xttrre or other
item constituting a portiontherwi; whetlrer arisingpursuant to theUnifomr Commercial Code
of Florida, or any other law now or hereafter in effect or otherwise.
F. Further Assurances: Modifications, At any tirrre, and from time to time, upon the
reasonable request by the RDA, the Borrower will make, execute and deliver or cause to be
made, executed and delivered, to the RDA, any and all other further instruments, certificates and
other documents as may, in the opinion of the RDA, be necessary or desirable in order to
8
effectuate, complete, or perfect or to continue and preserve the obligations of the Borrower under
the Agreement, the Note, and/or the Covenant.
G. E~x enses. The Borrower will pay or reimburse the RDA for all reasonable attorney's
fees,, costs and expenses, of any action, legal proceeding or dispute of any Itind in which the
RDA is victorious, affecting the indebtedness secured hereby, this Agreement or the interest
created herein, or the Premises, including.but not limited to the RDA's prosecution to enforce
any term and/or condition, and/or default, of this .Agreement add/or the Covenant, any
condemnation action involving the Premises, or any action to protect the security hereof; and any
• such amounts paid by the RDA shall be secured by this Agreement.
(i) Bstonnel Affidavits. The Borrower, upon ten (IO) days prior written
notice, shall furnish the RDA with a writtenstatement, duly acloiowledged, which
maybe relied on by the RDA, certifying 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 RDA shall provide a similar estoppel.
affidavit to Borrower, upon ten (10) days prior written notice to RDA.
H, Performance by_RDA of Defaults by Borrower. - .ff the Borrower shall default in the
payment of any tax, lien;•assessment orcharge levied or assessed against the Premises and/or the
Project; in the payment of any utility charge, whether public or private; in the payment of any.
insurance gremium; 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 teen of this Agreement; then the RDA, at its option, may perform or: observe the.
same, and all payments made or costs incurred by the RDA in connection therewith, shall be
secured hereby and shall be, without demand, immediately repaid by the Borrower to the RDA.
The RDA is hereby empowered to~enter and to authorize others to enter upon the Premises or
any part thereof for the purpose of perfomring or observing any such defaulted covenant;
condition or term, without thereby becoming liable to the Borrower or any other person in
possession holding under the Borrower.
I. Restrictive Covenants; Borrower shall be subject to the following covenants and
restrictions:
(i) It is aclrnowledged by the parties hereto that the Borrower must use the
Premises as an affordable rental property for a thirty (30) year period,
commencing from the date of issuance by the City of Miami Beach Building
Department of a Final Certificate of Completion for the rehabilitation/renovation
of the Premises (the "Affordability Period"), and 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 at CFR Part 92, as same
may be amended from time to time, Terms defined in 24 CFR Part 92, and any
amendments thereto, not otherwise defined in this Agreement, shall have the
meaning set forth therein. In order to further ensure the enforcement of this
subsection (i), Borrower hereby recognizes, agrees, authorizes, and covenants that
the Premises shall not be sold, transferred, disposed of or otherwise conveyed,
except to the RDA as provided herein,
(ii) If, at anytime during the Affordability Period, the Premises are no longer
used as an affordable rental property by the Bon•ower, then the Miami Beach
Redevelopment Agency, at its sole option and discretion, may elect one of the
fallowing options:
(a) . Require Borrower.to.re-pay the Principal Amount, in full, together _ .
with all interest thereon, and any and all other amounts secured by this
Agreement; or
{b) ':Require Borrower, .automatically, and without further action
,. ,
required. by:.the. RDA,' to . promptly, on written demand by the RDA,
-- convey°fee simple marketable-title-to the Premises, by execution and - ~-
-delivery.: of a.Special Warranty Deed (subject to no liens or encumbrances ,.
created .by through or under Borrower) to the RDA. Bonrower ahall be
responsible for the cost of documentary stamps and/or other tax(es) , .
.imposed as a result of the conveyance contemplated by this subsection (ii) . .
ro):
(iii) Upon the conclusion of the Term of this Agreement or the Affordability
Period, whichever is later, the Miami Beach Redevelopment Agency may, at its
sole option and discretion, elect on of the following options:
(a) Extend .this Agreement and the Affordability Period for an
additional term, with such term to be.determined in the sole judgment and
discretion of the RDA; or
- (b) 'Require Borrower;,- automatically, and without further action
required by the RDA, to promptly, on written demand by the RDA,
convey fee simple marketable title to the .Premises, by execution and
delivery of a Special Warranty Deed (subject to no liens or encumbrances
created by through or under Borrower) to the RDA, Borrower shall be
responsible for the cost of documentary stamps and/or other tax(es)
imposed as a result of the conveyance contemplated by this subsection (iii)
ro)•
{iv) .The Principal Amount, together with all interest thereon, and any and all
other amounts secured by this Agreement, shall remain a lien superior in dignity
to all other liens, titles,. claims, Agreements, and/or other encumbrances, until
satisfied in the manner provided herein.
(v) Borrower further recognizes, agrees, acknowledges and herein covenants
that, in order to ensure the enforcement of this Article II (I.), Borrower shall,
concurrent with its execution and delivery of this Agreement and the Note,
t0
execute and deliver to the RDA the Declaration of Covenants and Restrictions
(the "Covenant', which Covenant is attached and incorporated as Exhibit "C"
hereto.
(vi) The foregoing covenants and restrictions (as also set forth in the Covenant
attached and incorporated as Exhibit. G°C" hereto) shall be considered and
construed as covenants and restrictions running with the ]and and recorded against
the Premises, and the same shall bind all persons and/or entities claiming
• <ownership of all or any portion of the Premises. The Borrower hereby
acknowledges and agrees that the RDA and the City of Miami Beach, Florida ere .
beneficiaries of the restricflve covenants contained herein and in the Covenant,. '
and that the Covenant shall not be released and/or amended without the prior
written consent of the RDA. '
(vii) Invalidation of any of these covenants by a Court of competent
jurisdicfion shall in no way affect any of the other covenants which shall remain,
in fultforce and effect. ~.
J, Condemnation. If all or any material part of the Premises shall be:damaged oraaken.,:..
through condemnation (which term when used in this Ageement shall include any damage or ..: .
taking by any governmental authority, and any transfer by private sale in lieu thereof), either.-
temporarily or permanently, the er7tire indebtedness secured hereby shall, at the sole option of the
RDA, become immediately due and payable. Tha RDA shall be entitled to all aompensation
awards, and other payments or ielief therefore and is hereby authorized, at .its option; to
commence, appear in and prosecute, in its own or the Borrower's name, any action or proceeding
relating to any condemnation; and to settle or compromise any claim in connection therewith. .
A"11 such compensation; awards, damagae, claims, rights of action and proceeds and the right
thereto are heroby assigned by the Borrower to the RDA, who, after deducting therefrom all its
expenses, including attorney's fees, may, at its sole option, release any moneysso received by it
to Borrower without affecting the lien of thi's' Agreement or iriay apply the same to the-reduction - -." -'
ofthe sums secured hereby, and to any prepayment charge herein provided, and'any balance of
such moneys then remaining shall'be paid to the Borrower. The Borrower agrees to execute such -
'further assignmbnts of any compensations, awards, damages, alaima, rights of action and
proceeds as the RDA may reasonably require. Notwithstanding the foregoing, RDA 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
the RDA. I ;
K. Hazardous Waste Storaee. The Borrower covenants with the RDA that the Premises
have not been used and will not ba used in whole or in part for the storage of hazardous waste
other than in accordance with all applicable governmental requirements,
L. Reports,
(i) Pm ess Reports. During the construction for the improvement, rehabilitation
and renovation of the Premises (as contemplated by the Project herein), Borrower agrees to
I1
subnut monthly progress reports 'to the RDA, describing the status of the Project and
achievement of objectives as provided herein, The progress reports shall be submitted no later
than 10 days after the end of each month until such time as the Project is issued a Final
Certificate of Completion from the City of Miami Beach Building Department and is fully.
occupied,
(ii) Tenant and Rent Schedule Certification.
(a). Borrower shall submit to the RDA for its review and written approval the
proposed rents foi the units and; if applicable; the monthly allowances for utilities
and services to be paid by tenants}. The •RDA shall approve submitted rents if
such rents comply with the applicable rules and regulations promulgated by the
United States Department of Housing and Urban Development at CFR Part 92; as
same may be amended from time to time.
- (b) Borrower shall provide the RDA with the initial tenant list, and any and all
subsequent updates, amendments and modifications thereto, with documentation
for all tenants confirming family size, income, financial classification, ethnicity,
rents charged;-and other information the RDA may reasonably require to ensure
that the objectives of the Project are being met This report will continue to be
required far the duration of the Term of this Agreement or the Affordability
Period, whichever is later. The initial report shall be due within thirty (30) days .
ofProj~ctleas~-up. '
(c). Annually, Borrower shall deliver to the RDA, by October 31st of each
calendar year; its signed report in form and substance acceptable to the RDA,.to
. include names of tenants, unit type; family size and income, rents charged, and
occupancy/vacancy factor- of each unit~for the prior fiscal year (October lst
through September 30th). The report will continued to be required throughout the
Term of this Agreeineut or the Affordability Period; whichever is later, beginning
on the date of issuance of a Final Certificate of Completion for the Project.
(iii) Borrower shall submit such. other reports as may be reasonably required by .the
RDA to demonstrate compliance with any of the terms of this Agreement and/or the Covenant,
M, Audit and Ids ectiori. At any time during normal business hours, and as often as
the RDA may deem necessary, there shall be made available to the RDA to audit, examine and
make audits of all conhacta, invoices, materials, payrolls, records of personnel, conditions of
employment, and other data relating to all matters covered by this Agreement. Borrower must
maintain records necessary to document compliance with the provisions of this Agreement
and/or the Covenant
N. Access to Records. Borrower, agrees to allow access during normal business hours to
all fmancial records to authorized RDA representatives and agrees to provide such assistance as
may be necessary to facilitate financial audit by such xepreseirtatives when deemed necessary to
insure compliance with the provisions of this Agreement and/or the Covenant. Borrower shall
t2
allow access. during normal business hours to all other records, forms, files; 'and documents
which have been generated in performance of this Agreement and to those personnel as maybe
designated by the RDA.
0. ProiectMarketin Pg lan: In order to ensure that the Project is, and continues to,
provide the target affordable rental housing benefits to low and moderate income individuals and
families, Borrower shall submit, prior to commencement of any leasing acfivities :for the
Premises/Project, for the RDA's review, comment, and approval, its initial "mazketing plan" for
the Project which shall,;without limitation, set forth and demonstrate Borrower's objectives-and
.strategies for Teasing of.the Project, in accordance with. the stated purposes. contained_herein.
Following the RDA's initial approval ,of Borrower's marketing plan, Borrower shall,: upon
reasbnable periodic requests by the RDA, update and revise said plan (or prepare a nerv. plan) in
order to continue to ensure that.the Project objectives are being met.
P. RDA Review ofProiect Income. With one (I) yeaz from the Effective Date of this
'Agreement (as said term is ,defined herein), the RDA and Borrower shall mutually agree upon the < .
(i) methodology and (ii);policies and procedures under which Bonower shall submit,:£or.RDA's ...
review, comment, and written recommendation, ,the appropriation, allocation and/or• expenditure
by Borrower of any,excess net Project revenues remaimrtg after Borrower's payment of annual. .
Project operating expenses .{hereinafter, the `Project. Income"). Said policies, at a minimum; .
shall provide for Borrower's timely submittal of proposed Project Income, on an annual basis, in
order to allow adequate,fime for review and comment by the RDA in conjunction vyith. its annual
fiscal year budget process.
ARTICLE III.
A. De ault, A default shall have occurred hereunder if:.
(i) ., : - : Bonrowershall.fail to duly observe on time any covenant, condition or agreement . - ., --
of .this- Agreeurerit. or 'of any other. instrument .evidencing, securing or exgeuted in -
connection.with the indebtedness secured hereby (hereinafter this Agreement, the Note,..
the Covenant, and said other instruments may sometimes be collectively referred to as the
"Loan Documents"} and such failure remains uncured for a period of thirty (30) days
after notice thereof shall have been given by the RDA to the Borrower (or for an ~
extended period approved by RDA, in ita sole discrefion, if such default stated. in such
notice can.be co¢ected, but not within such thirty (30) day period, and if the Borrower
commences such correction within such thirty {30) day period and thereafter diligently
pursues the same to completion within such extended period); or
(ii) Failure by Borrower to comply with the restrictive covenants set forth in Article, II
(I.) and/or the Covenant attached and incorporated as Exhibit "C" hereto; or
(iii) Any warranties or representations made or agreed to be modern any of the Loan
Documents shall be breached by the Borrower or shall prove to be false or misleading in
any material respect; or
13
(iv) Any lien for labor or material or otherwise shall be filed against the Prenuses; and
such lien is not canceled, removed, transferred, or bonded off within thirty (30) days; or
(v) A levy shall be made under any process on, or a receiver ba appointed for, the
Premises or any other property of the Borrower; or
{vi) The Borrower 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 Borrower under any present or future
federal, state or other statute, law orregulation slating to bankruptcy, insolvency or other
relief for debtor; or -
(vii) The Borrower shall seek or consent to or acquiesce in the appointment of any
trustee, receiver or liquidator of the Borrower 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
(viii) The Borrower shall make any general assignment for the benefit of creditors; or
(ix) In any legal proceeding the Borrower shall.be adjudged to be insolvent or unable..
to,pay the Bonower's debts as they become-due; or: ,
(x) The Borrower shall do, or shall omit to do, any act, or any event shall occur, as a
result of which any obligation of the Borrower, not arising hereunder, may be declared.,
immediately due and payable by the holder thereof.
(xi). An Event of Default occurs under the terms of the documents executed in
connection with the Note.
B. Remedies on Default; If a default shall have, occurred the RDA may take one,or any ~.
combination ofthefollosving remedial steps hereunder: -- - - -
(i) by written notice to Borrower, declare the whole debt andlor other obligated secured
hereby with interest accrued thereon, at the option of the RDA, to become immediately
due and payable, time being of the essence of this Agreement and of the Note secured
hereby, and no omission on the part of the RDA to exercise such option when entitled so . .
to do shall be considered as a waiver of such right.
(ii) Ri¢ht of RDA to Enter and Take Posseasion.
{a) If any default shall have occurred and be continuing beyond any
applicable grace period, the RDA may, upon written demand, exercise its rights
pursuant to Article II (A.)(ii)(b) herein and, in such event, the Borrower, upon
demand of the RDA, shall convey the Premises to the RDA (in the manner
provided in 1 {A)(ii)(b)) and shall forthwith surrender to the RDA the actual
possession of the Premises and, the RDA may enter and take possession of the
14
Premises, and may exclude the $orrower and the Borrower's agents and
employees wholly therefrom:
(b) For the purpose of carrying out the provisions of this paragaph, the
Borrower hereby constitutes and appoints the RDA the true and lawful attorney in
fact of the Borrower 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) • Borrower shall deliver to RDA; upon demand of the RDA, all agreements '.r ..
for deed, contracts, ]eases, abstracts, title insurance policies, muniment of title,
surveys and other papers relating to the Premises.
(iii) enforce any remedy provided under the Agreement, the Nota, and/or the Covenant,
g~ g Y granted thereunder; or _ . _ _ ......... . .......: . .
includin without limitation enforcin an liens
(iv) - talce~whatever action at.law or in equity may appeaz necessary or desirable to collect::::: ... .
the amounts then due and there-after to become due, or to enforce perfonmance< and . ' :...
observance of any obligation, ageement or covenant of the Borrower under this Ageement, . I
the Note, and/or the Covenant. ~
(v) Remedies Cumulative. No right; power or remedy conferred upon or reserved by .
the RDA by. this Agreement 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,
(vt7 A~'eenrent to Pav Attomeys' Fees and Bxpenses In the event the Borrower should
` default under anq of the provisions of this Agreementand/or the Covenant and the RDA should.
-employ aftomey's or incur other expenses for the collection of payments required hereunder or '
the enforcement of performance or observance of any obligation or ageement on the part ofthe
Borrower herein contained` the Borrower agrees that it wilt on demand therefore pay to the
RDA the reasonable fees of such attorneys and such other expenses so incurred by the RDA. .
(vii) ' No Additional Waiver Implied by One Waiver. In the event any agreement.;
contained in this Agreement should be breached by either party and thereafter waived by the i
other party, such waiver shall be limited to the particular breach so waived and shall not be
deemed to waive any other breach hereunder.
ARTICLE IV.
A. Successors and Assigns Included in Parties. Whenever in this Agreement 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 ageements contained in this indenture by or
on behalf of the Borrower and by or on behalf of the RDA shall bind and inure to the benefit of
15
their respective heirs, legal representatives, successors and assigns; whether so expressed or not.
Provided, however, that the Borrower shall have no right to assign its obligations hereunder
without the prior written consent of the RDA, which consent shall be at the RDA's sole
judgment, if.given at all, and discretion.
B. Hea 'n s. The headings of the sections, paragraphs and subdivisions of this Agreement
aze for the convenience of reference only, are not to be considered a part hereof and shall not
limit or otherwise affect any of the terms hereof.
C. Invalid Provisions to Affect No Others. If fulfillment of any provision hereof or any
transaction related Hereto onto 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 Agreement in whole or is
part; then such clause oi'provision only shall be held for naught, as though not herein contained,
and the remainder of this Agreement shall remain_ogerative and in full -force and effe9t.
Notwithstanding any provision contained herein, the total'liabi&ty of Borrower for gaymant: of;_ .
interest, including service chazges, penalties or any other fees pursuant to the Loan Documents„ .
shall not 8xaeed the maximum amount of such interest: peunitted by applicable law to .be
charged, and if any payments by Bormwer include interest in excess of the maximum allowable.. .
amount then said exaess 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.
ARTICLE V.
A, once, Any aotide 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'thepnrties being given such notice at the following addresses::
BORROWER: MBCDC: The Allen, LLC
945 Pennsylvania Avenue '
Miami Beach, FL 33139
Attention: Roberto Datorre, President
With copies to: Miami Beach Community Development
Corporation, Inc.
945 Pennsylvania Avenue
Miami Beach, FL 33139
Attention: Roberto Datorre, President
RDA; MIAMI BEACH REDEVEOPMENT AGENCY
1700 Convention Center Drive
16
Miami Beach, Florida 33139
Attention: Executive Director
With copies to: CITY OF MIAMI BEACH
City Manager's Office
1700 Convention Center Drive
Miami Beach, Florida 33139
and
.. CITY OF MIAMI BEACH
:.Office of the City Attorney
.1700 ConventionCenter Drive
" .Miami Beach, Florida 33139
Any partymay changesaid address by giving the other parties hereto notice of such change of
address:. Notice given' asp Iieieinabove provided shall be deemed given on the dato of its deposit
in the United States Mail'and;~unless sooner received, shall be deemed received by the party tc.
whom it is addressed.on-'tire 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.
ARTICLE VI.
INDEMNIFICATION
A. Borrower shall and hereby agrees to indemnify and save the Miami Beach Redevelopment
Agency (RDA), and the City of Miami Beach, Florida (City), respectively, harmless against and from
all cleans by or on behalf of any person, firm, corporation or other legal entity arising from the
conduct or management of; or frorir any work or tliing:done bn, the Premises ancVor the Project,
including without ]imitation, (i) any cgndition ofthe Pnanvses and/or tbeYroject; (u) anybreach ordefault on
the part of the Borrower in the performance'of any of its obligations under this Agreement, the Note;
and/or the Covenant; (in) any act or negligence ofthe Borrower or of any ofits agents, epnhactors, servants,
employees or licensees; or (iv) any act ax negligence of any assignee or lessee of the Borrower, or of any
agents, contractors, servants; employees or liea~sees of any assignee or lessee ofthe Borrower. Borrower shall
indemnify and save the RDA and/or the City harmless frorn any such claim arising as aforesaid, or.in
connection with any action or proceeding brought theceon, and upon notice firm the RDA and/or the Qty,
Borrows shall deiiard it in any such action or proceeding.
B. Notwithstanding the fact that it is the intention of the parties hereto that the RDA and/or the City
shall not incur arty pecuniary liability by reason of the temrs of this Agreement ,the Note, and/or the
Covenant; nevertheless, if the RDA and/or the Qty should incur any such pecuniary liability, then in such
event the Borrower shall indemnify and hold the RDA and/or the City hazrless against all claims,
demands or causes of action whatsoever, by or on behalf of any person, firm or corporation or other legal
entity arising out of the same and all costs and expenses incurred in connection with any such claim or in
17
connection with any action or proceeding brought thereon, and upon notice from the RDA and/or the
City, the Bonowet shall defend the RDA anrUor the City in arty such attion orproceeding.
C. Borrower agrees to indemnify the RDA and/or the City, against all claims arising out ofthe
acquisition, construction, improvement, renovation, rehabilitation, equipping, operation and/or manageinart
of the Premises and~or the Project, and to pay or bond or discharge and. indemnify and hold hamiless the . .
RDA and/or the City, limn and against ~ any lien or charge upon payments by the Borrower, to or.for the
account of the RDA andlor the City hereunder, and (ii} any taxes, assessments, impositions and other
chazges of any federal, State or other governmental agency orpolidcal body in n~pect ofthe Premises and/or
the Pmjeet R any such claim is asserted, or any such lien or charge upon payments .or any such taxes,
assessments; impositions or.other charges are sought to be imposed, the RDA and/or the City will give
prompt notice to Borrower, and Borrower shall pay the same or bond and assume the defense, ,
thereof with fuIlpowerbc contest, litigate, compromise or settle the same in its sole discretion.,
D. Bon-owcr shall at all times protect and hold the RDA and/or the City, hamiless against any -~
claims oi• liability resulting from any loss or damage to properiyor anyinjury to or death of anyperson flat
,: . may be occasioned by any.cause whatsoever pertaining.to the Premises and/or the Projector tlie, use• .
..
thereof, such indemnification to include reasonable expenses and aitomays' fees incurred by the RDA ,
and~orthe Cit35 in connection therewith.
E. For purposes of the Indemnification provisions contained in this Article VI, al[ references
to the RDA and/or the City shall be deemed to include their respective commissioners, members,
officials, employees, agents, and contractors.
F. The indemnification provisions in this Article VI are intended to survive beyond .
satisfaction, termination and/or other expiration of this Agreement, the Note, and/or the
Covenant.
- ARTICLE VI~.-
` A. Assimment of Renta' and Leases, As further security for payment of principal, .interest .
and other arrrounts due'the RDA now, or hereafter secured hereby, Borrower hereby transfers,
assigns and sets over unto RDA all leases, if any, now or hereafter entered into by Borrower with
respectto 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 therefrom.
B. Security A erg ement. 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 RDA under the Florida Unifomr Commercial Code to secure payment of principal, interest
and other amounts due RDA now or hereafter secured hereby, and RDA 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 RDA by
this Agreement, pursuant to the common law or any other laws of the State of Florida or any
18
other jurisdiction, it being understood that the rights and remedies of RDA under the Florida
Uniform Commercial Code shalt be cumulative and in addition to all other rights and remedies
of RDA arising under the common law or any other laws of the State of Florida or any other
jurisdiction.
C. Choice of Law. This Agreement is to be construed in all respects and enforced according
to the laws of the State of Florida. 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 azising out of this
Agreement shall be Ivliami~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,
THE RDA AND BORROWER EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY
HAVE TO A TRIAL BY IiJRI' OF :4NY CIVII. LITIGATION RELATED T0, OR.ARISING .. -
OUT OF, THIS AGREEMENT,
D. Binding Effect. This Agrecmentahall be.binding.upon and inure to the benefit of the;.
Borrower and RDA hereto; and their >:espective hairs,. successors and assigns. ; ,
E. Term of Agreement.. This Agreement shall commence upon execution by the parties
hereto (which date, hazeinafter the "Effective Date", shall be the date written on page I of the
. Agreement), and shall continua in full force and effect for a term of thirty (30) years from such
Effx6ve Date, or from the last date of the term. of the Affordability Period, as said date is
defined in Article II (L) of the Agreement and the Covenant, whichever is later.
F:tnnoV+OURV,OREBMNTMBCDC (77te A11en, LLC Closn~ - Lom Agreemant(Finel 4-27-07}doc
[REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK]
19
IN WITNESS WIIEREOF, Borrower has caused this Agreement to' be executed on the date
first above written,
WITNESSES: BORROWER:
MBCDC: The .Allen, LLC, a Florida limited
liability company
By: Miami Beach Community .Development
Corporation, A Florida non-profit corporation, its . .
sole member
By: -
Name: o e o atorre
Titlo: President - -- - -- --
STATE OF FLORIDA,- ) . -
COUNTY OF IYIIAMi-DADE )
The fore omg Agreement and Security Agreement was acknowledged before me this -. '
~~ay o~ 2Q07, by Roberto Datorre, as President of Miami Beach Gommnn4(y
evelopmen orporat[on, a Florida non-profit corporation, the sole member of MBCDC: The
Allen, LLC, a Florida linuted liability company, on behalf of the corporation.. He is p~zsonally
laiown to me or has produced Florida Driver's License No. as.
identification.
- _ Nam • 1 ,
Notary Public
State of Florida at Large
My corrunission expires:
~vo~~ I Pineda
My Commission DD28572'e
?or~ Expires FeWuary 0e, 2008
20
E7~iIBIT "A"
NOTE
21
PROMISSORY NOTE
$3,469,347.50 April 30, 2007
Miami Beach, Florida
FOR VALUE RECEIVED the undersigned, MBCDC: THE ALLEN LLC, a Florida limited
liability company ("Maker"), promises to pay to the order of the MIAMI BEACH
REDEVELOPMENT AGENCY, a public body corporate and politic, together with any other holder of
this Note ("the "RDA" and/or Holder"), at 1700 Convention Center Drive, Miami Beach, Florida 33139,
Attention: Executive Director or such other place as Holder may from time to time designate in writing,
the principal sum of THREE MILLION FOUR FIUNDRED SD{TY NINE THOUSAND THREE,
HUNDRED FORTY SEVEN DOLLARS AND .50/100 ($3,469,347.50) (the "Principal Amount");~ to be
paid in ]awful money of the United States of America in accordance with the terms of this Note,
This Note is secured by a Loan Agreement of even date herewith between Maker and Holder (the
"Loan Agreemenf~ encumbering that certain real property located in Miami-Dade County, Florida,?001
Washington Avenue; -Miami Beach, Florida attached end described as Exhibit "A" hereto (the...
"property"). The foregoing and all other exhibits, agreements, instruments and documents; delivered in
connection with the Loan' Agreement and with this Note are collectively referred to'as the "Loan
Documents" (as said term is also defined in ffie Loan Agreement).
This Note shall not bear interest. Notwithstanding anything to the contrary herein, the entire
Principal Amount shall be due and payable as follows: At the end of the Term of the Loan, Agreement, or .
the conclusion of the Affordability Period (as said term is defined in the Loan Agreement) (hereiriaftcr the
"Maturity Date'; whichever is later, Maker shall immediately, upon written demand from,tkb Holder;
convey good and marketable fee simple title to the Property to the RDA, by exeeutiori -and delivery of a
Special Warranty Deed (subject to no liens and encumbrances). Borrower shall be responsible for the
cost of documentary stamps and/or other tax(es) imposed as a result of the conveyance contemplated by
this subsection.
In the event of a default by the Maker under this Note, the Holder's sole remedy shall be limited
to exercising its rights under the Loan Documents.
This Note has been executed and delivered in, and is to be governed by and construed under the
laws of, the State of Florida, as amended, except as modified by the laws and regulations of the United
States of America.
The "Default Interest Rate" and, in the event no specific Maximum Rate is applicable, the
Maximum Rate shall be twelve percent (12%) per annum,
Holder aha]1 have the right, at its sole option and discretion, to declare the total unpaid balance
and/or obligation hereof to be immediately due and payable in advance of the Maturity Date or require
Maker to convey the Property to Holder, in the manner set forth above and in the Loan Documents, upon
the failure of Maker to comply with the terms of the Loan Documents (including without limitation, that
certain Restrictive Covenant attached and incorporated thereto); or upon the occun•ence of an event of
default pursuant to any one of the Loan Documents now or hereafter evidencing, securing or guaranteeing
payment of the indebtedness evidenced by this Note. Exercise of this right shall be without notice to
Maker or to any other person liable for payment of this Note, notice of such exercise is expressly waived.
Any payment and/or obligation under this Note not paid and/or satisfied when due (at maturity,
upon acceleration or otherwise) taking into account applicable grace periods shall bear interest at the
Default httereat Rate from the due date until paid.
Time is of the essence. In the event that this Note is collected by law or through attorneys at law,
or under their advice therefrom, Maker agrees, to pay al] costs of collection, including reasonable
attorneys' fees, whether or not suit is brought, and.whetlrer incurred in connection with collection, trial,
appeal, bankruptcy or other creditors proceediugs or otherwise:..
Acceptance of partial payments or payments ?narked: "payment in full" or "in satisfaction" or
words to similar effect shall not affect the duty of Maker to pay all obligations due under this Note, and
. shall not affect the right of Holder to pursue all remedies available to it under the Loan Documents.
The remedies of Holder shall be cumulative and concurrent, and may be pursued singularly,
successively or together, at the sale discretion of Holder, and may be exercised as often as occasion
therefore shall arise. No action or omission of Holder, including specifically any failure to exercise or
forbearance in the exercise of any remedy, shall be deemed to be a waiver or release of the same, such
waiver or release to be effected only. to the extent specifically recited in a written dot;ument executed by
• 'Holder. A waiver or release with reference to any one event shall not be construed as continuing or as
constituting a cause of dealing, nor shall it be construed as a bar to, or as a waiver or release of, any
subsequent remedy as to a subsequent event.
Any notice to be given or to be served upon the Maker or the Holder in connection with this Note,
whether required or otherwise, may be given in any manner permitted under the Loan Documents:
The term "other person liable for payment hereof' shell include any endorser, guazantor, surety or
other person now of hereafter primarily or secondarily liable for the payment of this Note, whether by
signing this br another instmmerit.
Whenever the context so requires, the neuter gender includes the feminine and/or masculine, as
the case maybe, and the singular number includes the plural, and the plural number includes the singular.
Maker and any other person liable for the payment. hereof respectively, hereby (a} expressly
waive any valuation and. appraisal, presentment, demand for payment, notice of dishonor, protest, notice
of nonpayment or protest, all other forms of notice whatsoever, and diligence. in collection; and (b)
consents that Bolder may, from time to time and without notice to any of them or demand, (i) extend,
rearrange, renew or postpone any or all payments, (ii) release, exchange, add to or substitute all ctr any
part of the collateral for this Note, and/or (iii) release Maker (or any co-maker) or any other person liable
for payment hereof, without in any way modifying, altering, releasing, affecting or limiting their
respective liability or the lien of any security instntment.
BY EXECUTING TIIIS NOTE, MAKER KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WANES ITS RIGHTS OR THE RIGHTS OF ITS I-IEIItS, ASSIGNS,
SUCCESSORS OR PERSONAL REPRESENTATIVES TO A TRIAL BY 7URY, IF ANY, IN ANY
ACTION, PROCEEDING OR SUIT, WHETHER ARISING 1N CONTRACT, TORT OR OTHERWISE,
AND WHETIIER ASSERTED BY WAY OP COMPLAINT, ANSWER, CROSSCLAIM,
COUNTERCLAIM, AFFIRMATNE DEFENSE OR OTHERWISE, BASED ON, ARISING OUT OF,
UNDER OR IN CONNECTION WITH, THIS NOTE OR ANY OTHER INSTRUMENT, DOCUMENT
OR AGREEMENT TO BE EXECUTED IN CONNECTION I-IEREWITH OR WITH THE
INDEBTEDNESS OR TIIE RENEWAL, MODIFICATION OR EXTENSION OF ANY OF THE
FOREGOING OR ANY FUTURE ADVANCE THEREUNDER. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR HOLDER'S EXTENDING CREDIT TO A BORROWER AND NO WAIVER OR
LIMITATION OF HOLDER'S RIGHTS HEREUNDER SHALL BE EFFECTIVE UNLESS IN
WRITING AND MANUALLY SIGNED ON HOLDER'S BEHALF.
Maker acknowledges that the above paragraph has been expressly bargained for by Holder as part
of the transaction with Maker and that, but for Maker's agreement to such paragraph, Holder would not
have loaned the Principal Amount to the Maker pursuant to the terms of this Note.
THE PROPER FLORIDA DOCUMENTARY STAMP TAX HAS BEEN PAID ON THIS NOTE
AND EVIDENCE OF SUCH PAYMENT' APPEARS ON TFIE LOAN DOCUMENTS SECURING .
THIS NOTE. ' ,,
IN WITNESS WIiERfiOF, Maker has executed this Note on the day and year first above written.
MBCDC: ,THE ALLEN LLC, a Florida limited
Witnesses:
Signature
,(AAfLr D ~L4~ ~
Print Name
Signature ((pp r
lJ~l(Yl~- f~U~c.~
Print Name -
liability company
By: Miami Beach Community ..Development.
Corporation, A Florida non-profit corporation; its
sole member
Name: Roberto Datorre
Title: President
F:~attoV+GURWGREBMNTMBCIJC (The AIIen, LLCCIosing)-Note (Finsl4-27~07).doc
)CXIIII3IT acAvo
LEGAL D;CSCRIPTION
The Premises shall be defined as the real property {the Land) located at 2001 Washington Avenue, Miami
Beacly Miami-Dade County, Florida, and legally described us follows:
Commencing at the NE corner of Block G as shown on the Plat of the resubdivisiotr of
'Blocks G, H, J and Triangular Tract as recorded in Plat Book 6, Page 102, of the Public
Records of Dade County, Florida, run Northwesterly along the Southerly line of 2.1 s1
street 225 feet to a point; thence run in a Southwesterly direction along a line parallel to
an 225 feet distant Westerly from the Westerly line of Sheridan (now park) Avenue
124.91 feet at the point of beginning of the Tract of land herein described; thence
continue along the last mentioned course a distance of 124.91 feet to the Northerly line of
20 street; thence run a Northwesterly direction along the Northerly line of 20th Street a
distance of 31.29. feet of the point of curvature, P.C. of a circular curve; thence run along
the arc of a circular curve deflecting to the right and having for its elements a central
' angle of 68.04 degrees and a radius of 30 feet a distance. of, 35.64 feet to the point of
tangency P.T. of said circular curve, said P.T. being on the )easterly line of Washington.
Avenue; thence run tangent to the last mentioned circular curve along the Easterly line of
Washington Avenue a distance of 114.4 feet to a point; thence run in a Southeasterly
direction along:a line parallel to and 124.91 feet distant Northerly from the Northerly line
of 20th Street a distance of 101.85 feet to the point of beginning of the tract of land
herein described
and shall include the Land thereof together with any buildings (including footings and foundations};
equipment, fixtures, and other improvements and appurtenances of every kind and description now or
hereafter executed, constructed or placed upon the Land and any and all alterations and replacements ,
thereof, additions thereto and substitutions therefor.
EXHIBIT "B"
LEGAL DESCRIPTION
The Premises shall be defined as the real property (the Land) located at 2001 Washington
Avenue, Miami Beach, Miami-Dade County, Florida, and legally described as follows: - '
Commencing ' at the- NE comer of Block G as shown on the Plat of the
resubdivision of Blocks G, H, J and' Triangular Tract as recorded in Plat Book 6,
Page 102, of the `Public Records of Dade County, Florida, run Northwesterly
along the Southerly line'of 21st street 225 feet to a point; thence run in a.
Southwesterly direction along a line parallel to an 225 feet distant Westerly from
the Westerly line' of Sheridan (now park) Avenue 124.91 feet at the point of
.beginning of the Tract of land. herein described; thence continue along.the,last _.,
mentioned course a distance of 124.9] feet to the Northerly line of 20 street;
thence run a Northwesterly directign along the Northerly line of 20th Street a
distance of 31.29 feet~of the point gf,curvature, P.C. of a circular curve; thence '
.run along the arc of a gixcular curve deflecting to the right and having for its
elements a central angle of 68.04 degrees and a radius of 30 feet a distance of
35.64 feet to the point.of tangency P.T. of said. circular curve, said P.T, being on
the Easterly line of Washington Avenue; thence run tangent to the last mentioned
circular curve along the Easterly line of Washington Avenue. a distance of 114.4
feet to a point; thence run in a Southeasterly direction along a line parallel to and
124.91 feet distant Northerly from the Northerly line of 20th Street a distance of -
101.85 feet to the point ofbeginning of the tract of land herein described
and shall include the Land thereof together with any buildings {including footings and
foundations), equipment, fixtures, and other improvements and appurtenances of every kind and
description now or hereafter executed, constructed or placed upon the Land and any. and all
alterations and replacements thereof, additions thereto and substitutions therefor.
22
EXIiIBIT "C"
RESTRICTIVE COVENANT
23
This instrument prepared by:
Raul J. Aguila
Office of the City Attorney
City of Miami Beach
1700 Convention Center Drive
Miami Beach Florida 33139 (Space reserved for Clerk otCoun)
DECLARATION OF RESTRICTIVE COVENANTS
This Declaration of Restrictive Covenants (hereinafter the "Covenant"), is made this day of 2007
by MBCDC: The Allen LLC, a Florida limited liability company whose address is 945 Pennsylvania Avenue, Miami
Beach, Florida, 33139'(hereinafler the "Owner").
RECITALS:
WHEREAS, Owner is a Florida limited liability company whose sole member is Miami Beath Community
Development Corporation, Inc., a Florida not-for-profit housing corporation which is also the City of Miami Beach, . .
Florida's designated Community Housing Development Organization (CHDO); and
WHEREAS, Owner is undertaking.a project to acquire and renovatelrehabilitate that certain historically
designated real property located at 2001 Washington Avenue, Miami Beach, Florida (and hereinafter referred to as the . .. .
"Premises", as defined herein and in Exhibft "A" attached and incorporated hereto) for the purpose of providing
affordable rental housing for low to moderate income individuals and families (the "Project"); and
WHEREAS, the Preniiaes and Project are/is located within the City Center/fiistoric Convention Village .
Redevelopment Area, a community redevelopment area in the City of Miami Beach, Florida, designated and created
pursuant to Sections 163.330 - 163.463, Florida Statutes (the "Community Redevelopment Act of 1969" or the "Act")
(hewinafter referred to as the "City Center RDA"); and
WHEREAS, the Project is consistent with the City CenterlHistoric Convention Village Redevelopment and
Revitalization Area Plen, as adopted by the City of Miami Beach Commission and the Miami Beach Redevelopment
Agency, respectively, and es approved by the Miami-Dade County Board of County Cormnissioners (hereinaRerreferred .
to es the "Redevelopment Plan"); and
WHEREAS,'the Project wil[ promote the Redevelopment Plan objectives by (i) restoring and preserving
historically contributing properties within the City Center RDA; and (ii) creating new affordable housing opportunities
within said RDA for ]ow and moderate income individuals and families; and
WHEREAS, pursua~ to Miami Beach Redevelopment Agency Resolution No:540-2007, passed and adapted
on January 17, 2007, and Miami Beach Redevelopment Agency ResolutionNo.545-2007, passed and adopted on March
14, 2007, and subject further to the terms and conditions hereinafter contained, the RDA has agreed to loan Owner the
funds for Owner's acquisition of the Premises.
WHEREAS, Owner and the Miami Beach Redevelopment Agency, a public body corporate and politic (the
"RDA") have entered into a Loan Agreement, dated April 30, 2007 (the "Loan Agreement'7, which principal amount was
utilized by Owner in the purchase of the Premises to accomplish the stated purposes of the Project; and
WHEREAS, dte RDA desires, and Owner hereby acknowledges and agrees, to impose certain provisions of the
Loan Agreement as covenants and restrictions upon the Premises and any improvements located orhereinafter to be made
thereon.
NO W, THEREFORE, Owner voluntarily covenants and agrees that the following Premises located in the City
of Miami Beach, Miami-Dade County, Florida, and legally described in Exhibit "A"attached and incorporated hereto
(hereinafter the "Premises"), shall be subject to the following restrictions that are intended end shall be deemed to be
,.
covenants nroning with the land and binding upon Owner, and its successors in interest and assigns, as follows:
I, ThefmdingssetforthinthaRecitaleofthisCavenantareherebyadoptedbyraferenceandincorporated
herein as iffully set forth in this Section.
2. Miami Beach Redevelopment Agency (RDA) funds, in the amount of Three Mtllion Four Hundred
Sixty Nine Thousand Three HuadredForly Seven Dollars and ,50/100 ($3,469,347,50) (the "Principal Amount"), were
utilized in Ore purchase of the )?remises, 'in order to provide affordabIa housing for tenants in accordance with and
consistent with the powers granted to the RDA pursuant to the Act, and the rents charged and the tenants thereof ahal]
qualify under the Hiles. and regulations promulgated by the United States Aeparmtont oP Honeing and- Urban
Development, as same maybe amended fromtime to time, In consideration oftheae funds, the Premises shall be aubjact .
to the following raetrlctiona for a period of thirty (30) years (Affordability Period), which perlad shall commenceupon
rho date of issuance by the City of Miami Beach Building Department of a Final Certificate of Completion for the .
renovation and rehabilitation of th'e Premises for the stated use and purposes contemplated by the Project.
3, Restrictive Covenants. Owner shall be subject to the following covenants and restrictions:
(i) Owner must use the Premises as an affordable rental property for n thirty (30) year period, .
' commencing from the date of ieauanee by the City oPMiami Beach Building Department of a Final
Certifoate of Completion for the rehabititation/renovation .of the Premises (the !'Affordability
Period"), and the rents charged and the tenants fhoraof must qualify under the roles and regulatiots
prom6lgatedbythaUnited5tatesDepatbnentofHousiugandUrbanDevelopmentatCFRPart92,as
same may be amended from time to Limo, Terms defined in 24 CFR Part 92, and any amendments
tberoto, not otharwiea defined in this Covenant, shall have the meaning set forth theroin. In order to .
fiuthor ensure the cnfarcement ofthia Soctlon (3), Owner hereby recogniue, agrees, suthorius, end:
oovenatifathatthoPremiaesahailriotbeaold,tranafarred,diaposedof,orotherwlsaconveyed,except
to ttie RDA, ae provided herein
(ii) If at auy rime during the Affordability Period, the Premises aro no longer used as an
affardablaxentalpropartybythaOwnegthantheRDA,atitsaoleoptIonanddiscmtlon,mayelectone .
of the following options;
(a) Require Owner to repay rho Pnhtoipal Amount, in Rill, together with all interest
thereon, and any end a1] other amounts as tray then be orbecome due pursuant to the Loan
Agreement; or
(b) Require Owner, automatically and without further actionxequired by the RDA, to
.promptly, on written demand, execute and deliver a Special Waaanty Deed (subject to no
liens or encumbrances oreatad bythmughorunder Owner), convoying good and marketablo
fee simple title 1n the Premises to the RDA. Owner shall ba rasponeible for the coat of
documentary stamps and/or other tax(es) imposed as a result ofthecameyance contemplated
by this subsection (ii)(b).
(iii) Upon rho conclusion of the Affordability Period, the RDA may, at its sole opttan and
discretion, elect one of the following options;
(a} Bxtend the Loan Agreement and the AfFordability Period for an additional term,
with such term to ba deterntlned in the Bole judgment and discretion of the RDA; or
(b) Require Owner, automatically and without further action required by the RDA, to
promptly, on written demand, execute and deliver a Specie) Warranty Deed (subject to no
liens or encumbrances cteatod by through orunder Owner), conveying good and marketable
fee simple title in the Premises to the RDA. Owner shall ba responsible for the cost of
2
documentary stamps and/or other tax(es) imposed as a result of the conveyance contemplated
by this subsection (ii)(b).
(iv) The Principal Amount, together with all interest thereon, and any and all other amounts which
may become due and payable to the RDA under the Loan Agreement, shall remain a lien superior in
dignity to all other liens, titles, claims, Agreements, and/or other encumbrances, until satisfied in the
manner provided in this Covenant, or in the Loan Agreement.
4. IT IS SPECIFICALLY ACKNOWLEDGED BY THE PARTIES HERETO THAT THE
PREMISES ARE TO BE USED, OPERATED, AND MAINTAINED ONLY AS AN AFFORDABLE E~OUSING
RESIDENTIAL RENTAL PROPERTY, AND FOR NO OTHER PURPOSE. USE OF THE PREMISES FOR
PURPOSES OTHER THAN AS AN AFFORDABLEHOUSING RESIDENTIAL RENTAL PROPERTY SHALL
BE DEEMED A DEFAULT UNDER SECTION 3.IIEREOF, .
5. The foregoing covenants and restrictions shall be considered and construed as covenants and
restrictions running with tha ]and; and the same shall bind all persons claiming ownership of all, or any portion of, the
Premises. The Owner hereby acknowledges and agrees that the RDA and the City of Miami Beach, Florida ("City"),
respectively; ate intended to be the sole beneficiaries of this"Covenant,.and nothing in this Covenant shall confer upon
. any person or entity, other than the RDA and/or the City,: any rights or remedies under of by reason of this Covenant:
6. The Owner shall not release tir amend this Covenant,withouirhe prior written consent.of the RDA.
7. Invalidation of 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.
g. This Covenant shall be recorded in the Public Records of Miami•Dade County, Florida, at the cost of
the Owner_
9. It is understood and agreed that eny official of the Miami Beach Redevelopment Agency (RDAj may
have the right at any time during normal working hours of entering and investigating the use ofthe Prendses, to determine . .
whether the conditions of this Covenant and the requirements set forth herein, are being complied with.
]0. An action to enforce the terms and conditions of ibis Covenant may be brought by the RDA and/or the
City and mey be by action at law or in equity against any party or person violating or attempting to violate eny provision
of this Covenan4 either to restrain violations or to recover damages. The prevailing party in the action or suit shall be
entitled to recover costs and reasonable attorneys' fees, at all levels of trial and appeal. This enforcementprovisionshall
be in addifion to any other remedies available under the law:
11. This Covenant is to be construed in all respects and enforced according to the laws of the State of '
Florida, This Covenant shall be gavemed by, and construed in.accordance with, the laws of the Slate of Florida, both
substantive and remedial, without regard to the principles of conflict of laws. The exclusive venue for any litigation
arising out of this Covenant shall beMiami-Dade County, Florida, if in State court, on the U.S. District Court, Southern
District of Florida, if in federal court.
F:vnttoV.OURV+ORED•MNTMBCDC (The Allen, LLC Closing) -Restrictive Covenant (Final4-27A7).doc
[REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK]
IN WITNESS WHEREOF, the Owner has hereunto caused these presents to be signed and, attested by the
respective witnesses on this _ day of , 2007. •
WITNHSSES: OWNER:
MHCDC: The Allen, LLC, a Florida limited liability company
By: Miami Beach Community Development Corporation, A
Florida non-profit corporation, its sole member
Print Name;
By:
' Name: Roberto Datorre
;,,
Print Name:. Title: President
,,.,., . .
STATE OF.FLORIDA r .)
COUNTY OF MIAMI-DADS )
The foregoing Restrictive Covenant was aclmowledged before me this _ day of .2007, by .
RobertaDatorre;asPresidentofMiamiAeachCommunityDeyelopmentCotporation,aFloridanonprofiteorporation;u ..: .:.- .
the sole member of MBCDCi The Allen, LLC,. a Florida limited liability company, on behalf of the corporation. He'ia
personally lmown to me or has produced Florida Driver's License No. - as identification. - .
Name:
Notary Public
State of Florida at Large
My commission expires:
9
EXHIBIT "A"
LEGAL DESCRIPTION
The Premises shall be defined as the real property (the Land) located ut 2001 W ashington Avenue, Miami Beach, Miami-
Dade County, Florida, and legally described as follows:
Commencing at the NE comer ofBlock G as shown on the Plat of the resubdivision of Blocks G, H, J
and Triangular Tract as recorded in Plat Book 6, Page 102, of the Public Records of Dade County;
Florida, run Northwesterly along tiu; Sotitherly line of 21st street 225 feet to a point; thence run in a '
Southwesterly direction along a line parallel to an 225 feet distant W esterly from the Westerly line of
Sheridan (now park) Avenue 124.91 feet at the point of beginning of the Tract of land herein
described; thenco- continue along the last mentioned course a distance of 124,91 feet to the Northerly
line of 20 street; thence mn aNorthwesterly direction along the Northerly line of20th Street a distance
of 31.24 feet of the point of curvature, P.C. of a circular curve; thence run along the arc of a circular
curve deflecting to the right and having far its elements a-central angle of 68.04 degrees end a radius ~ - " '
of 30 feet a distance of 35.64 feet to the point of tangency P.T. of said circular curve, said P,T~ being
on the Easterly line of Washington Avenue; thence run tangent to the last mentioned circular curve
.along the Easterly line of Washington Avenue a distPnae,pf 114.4 feet to a point; thence run:in a
Southeasterly direction along a line parallel to and 1,24.91 feet distant Northerly from the Northerly
line of 20th Street a distance of 101.85 feet to the point of beginning of the tract of land hereirv
described
and shall include the Land thereof together with any buildings (including footings and foundations), equipment, fixtures,
and other improvements and appurtenances of every kind and description now ar hereafter executed, constmcted or
placed upon the Land and any and all alterations and replacements thereof, additions thereto and substitutions therefor.
5