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Prepared by and return to:
Arnold A. Brown, Esq.
2665 South Bayshore Drive, Suite 1200
Coconut Grove, FL 33133
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NARVE`f RUWIh~, CLERM, OF l".OURT
MIAMI-QAGE ~_OUfiIT'r, FLORILtiA
RECOGNITION AGREEMENT
This Recognition Agreement ("Agreement") is entered into as of this --~-- day of ~?~~ 2007,
by METROPOLITAN LIFE INSURANCE COMPANY, a New York corporation (`Lender") in favor of the CITY
OF MIAMI BEACH, FLORIDA, a municipal corporation duly organized and existing under the laws of the State of
Florida ("City"). For purposes of this Agreement, Lender and City may also be referred to, individually, as a
"party," or collectively, as the "parties."
WHEREAS, the City and AR&J Sobe, LLC, a Florida limited liability company ("Developer"), entered
into a Development Agreement dated as of May 18, 2005, which was recorded in Official Records Book 23610,
Page 2119, of the Public Records of Miami-Dade County, Florida, ass pplemented by unrecorded First Amendment
dated March 14, 2007 and by unrecorded Amendment No. 2 dated ~, 2007 (collectively, the "Development
Agreement"); and
WHEREAS, Lender is about to extend a construction loan to Developer (the "Loan"), secured by the
Property (less and except the Transit Facility Dedication Area), as such terms are defined in the Development
Agreement (the legal description of the Property is attached hereto as Exhibit "A"); and
WHEREAS, Section 2.6(d)(i), (ii) and (iii) of the Development Agreement requires
Lender to commit to certain matters as therein provided, and Lender desires to do so;
Now, therefore, for valuable consideration, the receipt and adequacy of which are hereby acknowledged,
Lender agrees as follows:
1. Recitals. Capitalized terms used herein and not otherwise defined herein shall have the meanings
ascribed to them in the Development Agreement.
2. Conveyance of City Spaces City Elevator and Transit Elements and Repayment of Transit
Facility Contributions.
A. Lender hereby confirms its commitment to, and agrees to, the fee simple conveyance to
the City of the condominium unit(s) comprising the City Spaces, the City Elevator and the other Transit Elements
(excluding the Transit Facility Dedication Area, which is being conveyed to the City in connection with the Loan
but is not part of the security for the Loan), subject only to the Permitted Exceptions (including, without limitation,
free and clear of Lender's Loan, including the mortgage and other security interests existing as a result thereof),
upon Substantial Completion (provided the Development Agreement has not previously been terminated and
payment has been made to the City to repay the City's Transit Facility Contribution and any other amount owed to it
as a result of such termination as provided in the Development Agreement).
B. Lender recognizes and agrees that its rights are subject and subordinate to the
Development Agreement and Lender agrees (which agreement runs with the Property and shall be binding on
successors in title) that prior to commencement of foreclosure proceedings of the Property or prior to the acceptance
of a deed in lieu thereof, Lender shall elect by written notice to City (provided the Development Agreement has not
previously been terminated and payment has been made to the City to repay the City's Transit Facility Contribution
and any other amount owed to it as a result of such termination as provided in the Development Agreement) either
(i) to irrevocably and unconditionally cause the Project to be completed in accordance with the Development
Agreement and fulfill Developer's remaining obligations under the Development Agreement (which obligation shall
be joint and several with Developer and Guarantors) with reasonable dispatch upon the conclusion of foreclosure or
MIAMI 699472.21 7 l 98217084
the acceptance of a deed in lieu thereof (provided the City shall honor the Development Agreement as a direct
agreement between it and Lender at foreclosure or deed in lieu in such case, as provided for in the Development
Agreement) or (ii) to repay to the City (which repayment shall be secured by lien rights that are not subject to being
foreclosed in connection with a foreclosure by Lender of its security for its Loan), no later than thirty (30) days after
conclusion of foreclosure or the acceptance of a deed in lieu of foreclosure, the full amount of the City's Transit
Facility Contribution actually disbursed by the City (less the portion thereof allocated to the Transit Facility
Dedication Area and the Transit Facility Dedication Area Finishes) together with interest thereon at the lesser of (A)
the average yield on an annualized basis generated by investments actually made by the City in accordance with the
City's Investment Policy and Procedure (designed to assure the preservation of principal, a copy of which has been
furnished to Lender) during the like period of time or (B) simple interest at the rate of 4% per annum, in each case
from the date of disbursement until the date repaid, provided that (contemporaneously with receipt of which) City
shall relinquish all interests in the Project other than the Transit Facility Dedication Area and the Development
Agreement shall terminate as provided in the Development Agreement (any failure by Lender to provide written
notice of its election prior to the institution of foreclosure proceedings or the acceptance of a deed in lieu of
foreclosure shall be deemed the election of item B(ii) unless otherwise mutually agreed to by the City and Lender.
C. Lender agrees (provided the Development Agreement has not previously been terminated
as provided in the Development Agreement) to the filing of the Declaration upon Substantial Completion (either as
the developer thereunder, if Lender has acquired title, or through a mortgagee joinder), and agrees, promptly upon
the filing of the Declaration to convey (if Lender is then the owner) and release from the lien of its mortgage (if
Lender is then a mortgagee) the condominium unit(s) comprising the City Spaces, the City Elevator and the other
Transit Elements (excluding the Transit Facility Dedication Area, which will have been conveyed as aforestated).
Miscellaneous.
A. This Agreement shall be governed by, and construed in accordance with, the laws of the
State of Florida.
B. The provisions of this Recognition Agreement and the obligations of the parties
hereunder shall constitute a covenant running with the land and will run with the Property and be superior to the lien
of all mortgages, including the mortgage given in connection with the Loan. This Agreement shall be recorded, at
Borrower's expense, in the Public Records of Miami-Dade County, Florida, within ten (10) days of the execution
date hereof and shall remain in full force and effect and be binding upon and enforceable against, and shall inure to
the benefit of, the parties and their respective heirs, executors, administrators, successors and assigns.
C. Any provision of this Agreement which may be unenforceable or invalid under any law
shall be ineffective to the extent of such unenforceability or invalidity without affecting the enforceability or
invalidity of any other provision hereof.
D. Section headings are inserted for convenience of reference only and shall be disregarded
in the interpretation of this Agreement. The provisions of this Agreement shall be construed without regard to the
party responsible for the drafting and preparation hereof.
E. Time is of the essence of this Agreement and the performance of each of the covenants
and agreements contained herein.
F. No modification, amendment, waiver or release of any provision of this Agreement or of
any right, obligation, claim or cause of action arising hereunder shall be valid or binding for any purpose whatsoever
unless in writing and duly executed bythe parties hereto.
G. This Agreement may be executed in any number of counterparts bearing the original
signatures of one or more of the parties hereto, each of which shall constitute an original, but all of which, taken
together, shall evidence but one and the same agreement.
MIAMI 699472.21 7198217084 2
H. THE PARTIES HERETO HEREBY MUTUALLY WAIVE ANY RIGHT TO A TRIAL
BY JURY ON ANY CLAIM, COUNTERCLAIM, SETOFF, DEMAND, ACTION OR CAUSE OF ACTION
ARISING OUT OF OR IN ANY WAY PERTAINING OR RELATING TO THIS AGREEMENT, ANY
DEALINGS OF THE PARTIES HERETO WITH RESPECT TO THIS AGREEMENT, OR IN CONNECTION
WITH ANY OF THE TRANSACTIONS RELATED HERETO OR CONTEMPLATED HEREBY, OR THE
EXERCISE OF ANY PARTY'S RIGHTS OR REMEDIES HEREUNDER, IN ALL OF THE FOREGOING
CASES WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN
CONTRACT, TORT OR OTHERWISE. A COPY OF THIS PARAGRAPH MAY BE FILED WITH ANY COURT
AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED AGREEMENT
BETWEEN THE PARTIES IRREVOCABLY TO WAIVE TRIAL BY JURY, AND THAT ANY DISPUTE OR
CONTROVERSY WHATSOEVER BETWEEN THEM SHALL INSTEAD BE TRIED IN A COURT OF
COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY. NONE OF THE PARTIES
HERETO HAVE REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THEY WOULD NOT, IN THE
EVENT OF SUCH DISPUTE OR CONTROVERSY, SEEK TO ENFORCE THE PROVISIONS OF THIS
PARAGRAPH.
Executed on the date of acknowledgment, to be effective as of the date first written
above.
Wherefore, Lender has caused this Recognition Agreement to be executed as of the day and date first above
written.
STATE OF FLORIDA
COUNTY OF HILLSBOROUGH
LENDER:
Metropolitan Life Insurance Company,
a New York orporat' n
By:
Name: William L. Miller
Title: Director
The foregoing instrument was acknowledged before me this 11TH day of September, 2007, by William L. Miller, as
Director of Metropolitan Life Insurance Company, a New York corporation, on behalf of such corporation. S
person is personally known to me. ~
i
~ ~-
tary Public
,;~,~~ PY"-., CATHERINE REYNOLDS THORNHILL
*; ~. MY Cu:b1M1SSION # DD 353674
~'o EXPIRcL': SeN~ember8 2008
RP~~'p~~, Ponded Thru Notary Public Underwriters
# 4597720 v4
Catherine Reynolds Thornhill
Type, Print or Stamp Name
My Commission Expires: 9-8-2008
M ! AM 1699472.21 719 8217084
LAST P't~GIE
Lot 1 through 16 in Block 104, of OCEAN BEACH FLORIDA, ADDITION NO. 3,
according to the plat thereof as recorded in Plat Book 2, Page 81, of the Public Records
of Miami -Dade County, Florida less the South 10 feet of the East 50 feet of Lot 8 and
less the South 10 feet of the West 50 feet of the East 100 feet of Lot 8 and less the Sotlth
10 feet of Lot 9 in Block 104 of Ocean Beach;
AND
That certain 20 foot wide alley, bounded on the east by the west boundary of Lots 1
through 8, Block 104, Ocean Beach Florida Addition No. 3 according to the plat thereof
as recorded in Plat Book 2, Page 81 of the Public Records of Miami-Dade County,
Florida; bounded on the west by the east line of Lots 9 through 16, of said Block 104;
bounded on the north by the north line of Lot 1 of said Block 104 projected westerly; and
bounded on the south by the north line of the south 10 feet of Lot 8 of said Block 104
projected westerly
LESS AND EXCEPT the following described "bus stop" property:
A PORTION OF LOTS 14 THROUGH 16, BLOCK 104, OCEAN BEACH FLORIDA
ADDITION No. 3, ACCORDING TO THE PLAT THEREOF, AS RECORDED IN
PLAT BOOK 2 AT PAGE 81 OF THE Pi~JBL~IC DEO~RIBfiD AS O ROWS:
COUNTY, FLORIDA, MORE PARTIC
COMMENCE AT THE N.W. CORNER OF SAID LOT 16; THENCE RUN SOUTH O1
DEGREES 57 MINiJTES 11 SECONDS EAST, ALONG THE EAST RIGHT OF WAY
LINE OF ALTON ROAD, FOR 25.03 FEET TO THE POINT OF BEGINNING;
THENCE SOUTH 46 DEGREES 57 MINUTES 38 SECONDS EAST FOR 9.19 FEET;
THENCE SOUTH O1 DEGREES 57 MINUTES 11 SECONDS EAST, ALONG A LINE
PARALLEL WITH AND 6.50 FEET EASTERLY OF, AS MEASURED AT RIGHT
ANGLES TO, THE EAST RIGHT OF WAY LINE OF ALTON ROAD, FOR 80.60
FEET; THENCE SOUTH 43 DEGREES 02 MINUTES 22 SECONDS WEST FAOLRONG
FEET; THENCE NORTH O1 DEGREES 57 MINUTES 11 SECONDS WEST,
THE EAST RIGHT OF WAY LINE OF ALTON ROAD, FOR 93.60 FEET TO THE
POINT OF BEGINNTNG; ALL LYING BETWEEN THE HORIZONTAL PLANES OF
ELEVATION 3.00 FEET AND ELEVATION 15.67 FEET, NATIONAL GEODETIC:
VERTICAL DATUM OF 1929.
LYING AND BEING IN SECTION 03, TOWNSHIP 54 SOUTH, RANGE 42 EAST,
CITY OF MIAMI BEACH, MIAMI- DARE COUNTY, FLORIDA.
Together with the easements reserved in Special Warranty Deed from AR & J Sobe, LLC to the
City of Miami Beach recorded on or about the date hereof in the Public Records of Miami-Dade
County, Florida
Exhibit "A"
MIAMI 1400379.1 7198217084