HomeMy WebLinkAboutNote AgreementThis Instrument Prepared By
and Return To:
Ilene Temchin, Esq.
City of Miami
Office of the City Attorney
444 S.W. 2"d Avenue
Miami, Florida 33130-1910
NOTE AND MORTGAGE MODIFICATION AGREEMENT
The attached Note and Mortgage Modification Agreement dated as of August 20, 2008,
by and between Madison Housing, Ltd., a Florida limited partnership ("Madison P'), and
Madison Housing P, Ltd., a Florida limited partnership (Madison Il"), both with offices at c/o
The Gatehouse Group, Inc., Cabot Business Park, 120 Forbes Boulevard, Mansfield, MA 02048
("jointly referred to as "Madison") and the City of Miami, a municipal corporation of the State of
Florida (hereinafter referred to as the "City"), with an address at 444 S.W. 2nd Avenue, Miami,
FL 33130 modifies the following Mortgage (the "Mortgage"):
Mortgage and Security Agreement given by BAME Development
Corporation of South Florida, Inc., a Florida not-for-profit corporation, as
Mortgagor, to the City, as Mortgagee, dated September 3, 2003, recorded in
Official Records Book 22006, Page 235 of the Public Records of Miami -Dade
County, Florida.
This Instrument Prepared By
And Return To:
Ilene Temchin, Esq.
City of Miami
Office of the City Attorney
444 S.W. 2 I Avenue
Miami, Florida 33130-1910
NOTE AND MORTGAGE MODIFICATION AGREEMENT
THIS NOTE AND MORTGAGE MODIFICATION AGREEMENT (the "Modification
Agreement") is made and entered into as of this 20th day of August, 2008, by and between
Madison Housing, Ltd., a Florida limited partnership ("Madison I"), and Madison Housing II,
Ltd., a Florida limited partnership (Madison Ir'), both with offices at c/o The Gatehouse Group,
Inc., Cabot Business Park, 120 Forbes Boulevard, Mansfield, MA 02048 ("jointly referred to as
"Madison") and the City of Miami, a municipal corporation of the State of Florida (hereinafter
referred to as the "City"), with an address at 444 S.W. 2nd Avenue, Miami, FL 33130.
WHEREAS, on March 22, 2007, the City of Miami City Commission adopted Resolution
Nos. 07-0173 and 07-0174, authorizing the conveyance, with parcel reverter provisions, of
certain City owned parcels to Madison (the "Property", as legally described on " A") for the
development of affordable housing for eligible low income persons; and
WHEREAS, Madison intends to build an affordable rental housing project consisting of
not less than one hundred and fifteen (115) apartments on the Property (the "Project"); and
WHEREAS, the land to be conveyed to Madison secures mortgage loans from the City to
BAME Development Corporation of South Florida, Inc., a Florida not-for-profit corporation
('GAME"), pursuant to the following documents: (a) that certain HOME Investments Partnership
Program Loan Agreement, (b) that certain Promissory Note, in the principal face amount of One
Million Four Hundred Sixty Two Thousand Four Hundred and Forty Five Dollars and 57/100
($1,462,445.57; the "Note"), and (c) that certain Mortgage and Security Agreement given by
BAMS, as Mortgagor, to the City, as Mortgagee, recorded in Official Records Book 22006, Page
235 of the Public Records of Miami -Dade County, Florida, (the "Mortgage"), all dated
September 3, 2003 and executed and delivered by BAME in favor of City. (The Note and the
Mortgage may hereinafter jointly be referred to as the "Loan Documents"); and
WHEREAS, in consideration for the conveyance of the Property to Madison, and by
virtue of those certain Assumption Agreements executed simultaneously herewith, Madison has
assumed all obligations and agreed to perform all covenants, conditions, duties and obligations
of the Mortgagor under the Note and the Mortgage, and has agreed to assume the City's
additional investment in the Property; and
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WHEREAS, to effectuate the foregoing, Madison and the City have agreed to modify the
Note and the Mortgage as hereinafter set forth and have agreed to the additional terms and
conditions hereinafter provided;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, Madison and the City hereby agree as follows:
Each and every of the above recitals is true and correct.
2. Madison acknowledges that the outstanding principal balance on the Note is One
Million Four Hundred Sixty Two Thousand Four Hundred and Forty Five Dollars and 57/100
($1,462,445.57).
3. Madison I agrees that construction of seventy five (75) rental apartments shall
commence on that portion of the Property known as Tracts B and D within twelve (12) months
from the date of this Modification Agreement, and shall be completed, as evidenced by the
issuance of all required certificates of occupancy for all such apartments, no later than twenty
four (24) months from the date hereof.
4. Madison II agrees that construction of forty (40) rental apartments shall
commence shall commence on that portion of the Property known as Tracts A and C within
twelve (12) months from the date of this Modification Agreement, and shall be completed, as
evidenced by the issuance of all required certificates of occupancy for all such apartments, no
later than twenty four (24) months from the date hereof.
5. Madison agrees to each and all of the following:
(a) All such apartments shall be rented to persons earning no greater
than eighty percent (80%) of the area median income for Miami -
Dade County, Florida.
(b) For thirty (30) years (the "Affordability Period"), the Project will
be used exclusively for the purpose of providing affordable rental
housing for Low Income households.
(c) Throughout the Affordability Period, Madison shall furnish
signage identifying the Project and shall acknowledge the
contribution of the City by incorporating the seal of the City and
the names of the City commissioners and officials in all Project
documents, literature, pamphlets, advertisements, and signage,
permanent or otherwise. All such acknowledgments shall be in a
form acceptable to the City, as provided on Exhibit `B" hereto.
All publicity and advertisements prepared and released by
Madison related to the Project, such as pamphlets and news
releases, and all events carried out to publicize the Project, shall
recognize the City as one of the Project's contributing sources.
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(d) Madison shall report to the City annually on all actions taken to
comply with the affirmative marketing requirements provided in
Exhibit "C" hereto.
(e) Until completion of the Project, as evidenced by the issuance of all
required certificates of occupancy, Madison shall obtain and furnish
evidence of such insurance coverage the City may require relating to the
Project and/or the Property, including, but not limited to, that described on
" D" hereto. All such policies shall provide the City with mandatory
written notice of cancellation or material change from the insurer not less
than thirty (30) days prior to any such cancellation or material change. All
such policies shall be written by insurance companies satisfactory to the
City. All such insurance shall insure the City as an additional insured, with
a loss payable clause in favor of the City.
(f) Madison shall allow City inspectors, agents and/or representatives
the ability to monitor its compliance with safety precautions as required by
federal, state or local laws, rules, regulations and ordinances. By
performing these inspections the City, and its agents, and/or
representatives shall not assume any liability by virtue of such laws, rules,
regulations and ordinances. Madison shall have no recourse against the
City, its agents, and/or representatives for the occurrence, non-occurrence
or result of such inspection(s).
(g) Prior to the commencement of Project construction, Madison shall
contact the City's Risk Management Department Safety Unit in writing to
coordinate such inspection(s).
(h) Madison shall affirmatively comply with all applicable provisions
of the Americans with Disabilities Act ("ADA"), including Titles I and H
of the ADA (regarding nondiscrimination on the basis of disability) and all
other applicable ADA regulations, guidelines and standards. Additionally,
Madison shall take affirmative steps to ensure nondiscrimination in the
employment of disabled persons.
(i) Madison shall comply with the applicable requirements of Section
3 of the Housing and Urban Development Act of 1968, as amended.
6. The City agrees that, upon the request of Madison, the Mortgage shall be
subordinated, to a third lien position, to construction financing reasonably required by
Madison to develop the Project. To that end, the City agrees to execute its standard form
of subordination agreement to further effectuate the provisions of this paragraph.
The Note is hereby amended:
A. To provide that sums due are payable as follows:
The outstanding principal balance and all interest accrued thereon
shall become due and payable on August 20, 2040, provided,
however, that in the event that Madison shall: (i) meet all of its
obligations under the Loan Documents, this Modification
Agreement, and any other documents executed in connection
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herewith, (ii) within twelve (12) months from the date of this
Modification Agreement, commence construction, to the
satisfaction of the City in its sole judgment, of one hundred fifteen
(115) Project apartments, (iii) within twenty four (24) months from
the date hereof, obtain all required certificates of occupancy for the
Project, (iv) until August 20, 2040, rent all Project units to persons
earning no greater than eighty percent (80%) of the area median
income for Miami -Dade County, Florida, then, in such event, the
City shall assign the Note and the Mortgage to Madison Housing,
LLC, a Florida limited liability company.
B. By modifying any and all references to the Mortgage to refer to the Mortgage as
amended by this Modification Agreement.
8. The Mortgage is hereby amended by modifying any and all references to the Note
to refer to the Note as amended by this Modification Agreement.
9. Madison individually and collectively represents, warrants and confirms to the
City that: (i) the Note as modified hereby is a valid obligation enforceable in accordance with its
terms and is binding upon Madison, and its successors, assigns and administrators without any
claim, defense of off -set or other sum due, pending or existing; (ii) except as modified hereby, all
of the terms, covenants, conditions, representations, warranties and agreements contained in the
Note are hereby ratified and confirmed in all respects; (iii) the Note shall continue to be secured
by the Mortgage without novation or interruption; (iv) the Mortgage as modified hereby is a valid
obligation of Madison enforceable in accordance with its terms and is binding upon Madison, and
its successors, assigns and administrators without any claim, defense of off -set or other sum due,
pending or existing; and (v) all of the terms, covenants, conditions, representations, warranties and
agreements contained in the Mortgage are hereby ratified and confirmed in all respects.
10. In the event an unresolved dispute exists between any of the parties hereto with
regard any matter arising pursuant to this Modification Agreement or relating to the Note and/or
the Mortgage, the City shall refer the issue, including the views of all interested parties and the
recommendation of the City, to the City Manager, his designee, or such other official of the City
who shall be authorized to exercise the authority of the City Manager in this regard (the "City
Manager") for determination. The City Manager will issue a determination within thirty (30)
calendar days of receipt of a written request for resolution of the dispute and so advise the parties
hereto. In the event additional time is necessary, the City Manager will notify the parties within
the thirty (30) day period that additional time is necessary. The parties hereto agree that the City
Manager's determination shall be final and binding on all parties, subject only to judicial review.
11. This Modification Agreement shall be effective the date on which the City Clerk
affixes her attestation.
12. All notices under this Modification Agreement shall be in writing and addressed
as follows:
TO THE CITY: City of Miami
Department of Community Development
444 Southwest 2nd Avenue, Suite 239
Miami, Florida 33130
Attention: George Mensah, Director
WITH COPY TO: City Attorney's Office
444 Southwest 2nd Avenue, Suite 945
Miami, Florida 33130
Attention: Ilene Temchin, Esq.
TO MADISON: Madison Housing H, Ltd.
Madison Housing, Ltd.
c/o The Gatehouse Group, Inc
Cabot Business Park
120 Forbes Boulevard
Mansfield, MA 02048
Attention: Marc Plonskier
WITH COPY TO: Brian McDonough, Esq.
Stearns Weaver Miller
150 West Flagler Street, Suite 2200
Miami, FL 33130
Notice shall be deemed given upon hand delivery or five (5) business days after
depositing the same with the U.S. Postal Service. The address or designated representative of the
parties may be changed by notice given in accordance with this section.
13. Except as modified herein, all terms and conditions of the Note and the Mortgage
shall remain in full force and effect.
14. This Modification Agreement shall be recorded in the Public Records of Miami -
Dade County, Florida.
15. If any provision of this Modification Agreement conflicts with any applicable law
or regulation, only the conflicting provision shall be deemed by the parties hereto to be modified,
or to be deleted if modification is inappropriate, to cause the provision to be consistent with the
law or regulation. However, the obligations under this Modification Agreement shall continue
and all other provisions of this Modification Agreement shall remain in full force and effect.
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16. This Modification Agreement shall be construed, interpreted, enforced and
governed by and in accordance with the laws of the State of Florida.
17. This Modification Agreement sets forth the entire agreement between the parties
and supersedes all prior and contemporaneous negotiations, understandings and agreements,
written or oral between the parties relating to the subject matter herein.
18. All capitalized terms not defined herein shall have the meanings provided in the
24 C.F.R. Part 92.
19. Waiver of Jury Trial. The parties hereto shall not seek a jury trial in any lawsuit,
proceeding, counterclaim or any other litigation procedure based upon or arising out of the Note,
the Mortgage and/or this Modification Agreement, or the dealings or the relationship between or
among such persons or entities, or any of them, or seek to consolidate any such action in which a
jury trial has been waived with any other action. The provisions of this paragraph have been fully
discussed by the parties hereto, and the provisions hereof shall be subject to no exceptions. No
party to this Modification Agreement has in any manner agreed with or represented to any other
party that the provisions of this paragraph will not be fully enforced in all instances.
IN WITNESS WHEREOF, the parties have hereunto signed and sealed these presents the
day and year first above written.
Witne7��
Print Name
Madison Housing II, Ltd., a Florida limited
partnership
By: Madison Housing II LLC, a Florida limited
liability company, its managing general partner
By: The Gatehouse Group, Inc., a Massachusetts
corporation, its sole Manager
By:%
Nikul Inamdar, Vice President
Date: - ae", e-CV8
7
Print Name
AT S
riscilla A. Thompson, City Clerk
Date:
Approved As To Form And
Correctness:
Julie O. Bru
City Attorney
rT- Madison Modification Agreement -08-18-08
Madison Housing, Ltd., a Florida limited
partnership
By: Madison Housing LLC, a Florida limited
liability company, its managing general partner
By: The Gatehouse Group, Inc., a Massachusetts
corporation, its sole Manager
By: All
Nikul Inamdar, Vice President
Date:z 2do$
City of Mi , a municipal corporation of
the State of Elorida
By:
Pedro G. ndez, City Manager
Date:
Approved As To Insurance
Requirements:
'�ZZ'4�
LeeAnn Brehm
Risk Management Administrator
STATE OF }
COUNTY OF )
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in and who executed the foregoing instrument and who acknowledged to and before me that
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PRINTED, STAMPED OR TYPED SIGNATURE OF NOTARY PUBLIC
NAME OF NOTARY PUBLIC STATE OF FLORIDA
Did Take An Oath
Did Not Take An Oath
Personally Known
Produced I.D.
Type of I.D. Produced:
My Commission Expires:
STATE OF
COUNTY OF
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Notary Public State Of iandaTerry M LovellMy Commissm DD642166
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Before me, the undersigned authority, personally appeared ly "r �'r� , as
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PRINTED, STAMPED OR TYPED
NAME OF NOTARY PUBLIC
Did Take An Oath
---Did Not Take An Oath
Personally Known
Produced I.D.
Type of I.D. Produced:
My Commission Expires:
SIGNATURE OF N TARY PUBLIC
STATE OF FLORIDA
�. no No'ary Public State of Florida
r° �. Terry• M Lovell
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STATE OF FLORIDA)
COUNTY OF MIAMI-DADE )
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in and who executed the foregoing instrument and who acknowledged to and before me that
he/she executed said instrument under oath, and for the purposes therein expressed.
Witness my hand and official seal in the County and State last aforesaid this 60 day of
2008.
PRINTED, STAMPED OR TYPED SIGNATURE OF N ARY PUBLIC
NAME OF NOTARY PUBLIC STATE OF FLORIDA
Did Take An Oath
Did Not Take An Oath REGINAJONES
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MY COMMISSION k DD 541552
Produced I.D. EXPIRES:ApHI18,2010
Bonded thra Notary Public Underwriters
Type of I.D. Produced:
My Commission Expires:
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IMMOUJI 1
Legal Description of the Property to be Conveyed to Madison Housing, Ltd.
Tracts B and D, New Hope Overtown, according to the Plat
thereof, as recorded in Plat Book 157, at Page 14, of the Public
Records of Miami -Dade County, Florida
Legal Description of the Property to be Conveyed to Madison Housing H, Ltd.
Tracts A and C, New Hope Overtown, according to the Plat
thereof, as recorded in Plat Book 157, at Page 14, of the Public
Records of Miami -Dade County, Florida