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HomeMy WebLinkAboutCRA-R-11-0014 03-10-2011 Legislation (Attachment)FIRST AMENDMENT TO GRANT AGREEMENT THIS AMENDMENT TO GRANT AGREEMENT ("First Amendment") is entered into as of the day of February, 2011 by and between SOUTHEAST OVERTOWN/PARK WEST COMMUNITY REDEVELOPMENT AGENCY, a public agency and body corporate created pursuant to Section 163.356, Florida Statutes ("CRA") and CAMILLUS HOUSE, INC., a Florida not -for -profit corporation ("GRANTEE"). RECITALS A. The CRA and Grantee entered into that certain Grant Agreement as of May 13, 2010 ("Grant Agreement"); and B. The CRA and Grantee desire to amend the Grant Agreement, as hereinafter provided. NOW, THEREFORE, in consideration of the promises and the mutual covenants contained herein, the parties agree to as follows: 1. Recitals. The Recitals are true and correct and are hereby incorporated into this First Amendment by reference and made a part hereof. 2. Defined Terms. All capitalized terms not defined in this First Amendment shall have the same meanings ascribed to said terms in the Grant Agreement. 3. Effect of First Amendment. This First Amendment shall be deemed a part of the Grant Agreement, but shall take precedence over and supersede any provisions to the contrary contained in the Grant Agreement. Except as modified hereby, all of the provisions of the Grant Agreement, are hereby ratified and reaffirmed in all respects. 4. Defined Terms. A. Section 2 of the Grant Agreement is hereby amended to add the following additional defined terms: "Building B" means Building B as identified on the Site Plan. "Building B Lender" means the lender providing funds to GRANTEE to be utilized for the construction of Building B. "Completion" means that a temporary or final certificate of occupancy has been issued for the New Facility and the Existing Facility has been closed and demolished, to the extent the landlord under the 99 Year Lease has consented to the demolition of the improvements on Parcel 2 and if the consent has not been obtained, the improvements on Parcel 1 have been demolished. To evidence Completion, GRANTEE shall provide the following to the Executive Director: i. Copies of the temporary or final certificates of occupancy, or its equivalent, for Building B, D and F. ii. A certificate executed by an officer of Charity Unlimited and Good Shepherd acknowledging that (a) the Existing Facility has been permanently closed; and (b) to the extent the landlord under the 99 Year Lease has consent to the demolition of the improvements on Parcel 2, the Existing Facility has been demolished, and if the consent has not been obtained, the improvements on Parcel 1 have been demolished, which shall have attached as an exhibit pictures confirming the demolition. 5. Grant. Section 3 of the Grant Agreement is hereby replaced in its entirety with the following: Grant. The CRA hereby agrees to make the Grant to GRANTEE in the amount of Ten Million and No/100 Dollars ($10,000,000.00) subject to the terms of this Agreement. Provided all of the Initial Funding Conditions, as hereinafter defined, are satisfied or waived by the Board of Commissioners of the CRA (the "Board"), the CRA, subject to Section 16, shall fund Two Million and No/100 Dollars ($2,000,000.00) per year on or before March 15 of each year for five (5) consecutive years starting on March 15, 2011 until a total of Ten Million and No/100 Dollars ($10,000,000.00) in accordance with the terms and conditions of this Agreement. 6. Section 4(a) Replacement: Section 4(a) shall be replaced in its entirety with the following: 1. Disbursement of the Grant. The Grant shall be disbursed as follows: "a. Prior to the execution of the Funding Agreement the CRA shall fund Two Million and No/100 Dollars ($2,000,000.00) to GRANTEE. GRANTEE shall utilize the Two Million and No/100 Dollars ($2,000,000.00) to reimburse GRANTEE for hard construction costs associated with the New Facility. The CRA acknowledges that GRANTEE has provided to the Executive Director documentation in the form customarily provided to construction lenders doing business in Miami -Dade County, Florida evidencing that GRANTEE has expended more than Two Million and No/100 Dollars ($2,000,000.00) subsequent to December 1, 2010 on hard construction costs associated with the New Facility. GRANTEE, Charity Unlimited and Good Shepherd shall guaranty (the "Guaranty") the repayment of the Two Million and No/100 Dollars ($2,000,000.00) in the event the Initial Funding Conditions have not been satisfied or waived by February 28, 2012 and Charity Unlimited and Good Shepherd shall grant a mortgage (the "Mortgage") to the CRA securing the Guaranty, which Mortgage shall encumber Parcel 1 and the 99 Year Lease with respect to Parcel 2 which Mortgage shall be junior to the existing first mortgage having an outstanding principal balance of approximately One Million and No/100 Dollars ($1,000,000.00). The Guaranty and the Mortgage shall be in form and substance acceptable to the Executive Director. The CRA agrees to subordinate the Mortgage to the mortgage in favor of Building B Lender and release the Mortgage and Guaranty upon Completion. 2 7. Section 4(b) and 4(c) Replacement: Section 4(b) and 4(c) shall be replaced in their entirety with the following: "b. Notwithstanding the fact that Completion has not been achieved the CRA authorizes up to Four Million and No/100 Dollars ($4,000,000.00) of the Grant, in addition to the Two Million and No/100 Dollars ($2,000,000.00) to be disbursed in accordance with Section 4(a) above, to be disbursed prior to Completion upon satisfaction of all of the following requirements: i. GRANTEE has provided the Executive Director of the CRA (the "Executive Director") a detailed statement of sources and uses of funds required to achieve Completion which reflects that with the use of up to Four Million and No/100 Dollars ($4,000,000.00) of the Grant, GRANTEE shall have sufficient funds available to achieve Completion. The preliminary sources and uses of funds for Building B is attached hereto as Exhibit "E". ii. An independent third party inspector (the "Third Party Inspector") retained by GRANTEE or the Lead Lender confirms the estimated cost to complete Building B and based upon such estimate and the availability of funds reflected in the sources and uses of funds provided by GRANTEE to the Executive Director is reasonably satisfied that sufficient funds are available with the use of up to Four Million and No/100 Dollars ($4,000,000.00) of the Grant to achieve Completion. iii. All of the parties providing funds for completion of construction of Building B as reflected on the sources and uses of funds shall enter into an agreement (the "Funding Agreement") which shall govern the disbursement of the funds necessary to complete the construction of Building B. The Funding Agreement shall include the following provisions: a. The Building B Lender shall serve as the lead under the Funding Agreement (the "Lead Lender"). If there is neither a Building B Lender nor a New Market Tax Credit Purchaser, the CRA shall act as Lead Lender. b. Each party providing funds to complete Building B shall be irrevocably committed to make the funds available to complete construction of Building B, subject to the terms of the Funding Agreement. c. The parties providing the funds to complete construction of Building B shall be obligated to fund their proportionate amount monthly based upon the draw requests approved by the Lead Lender. 3 d. Each draw request shall be submitted by the Contractor and approved by the Architect, the Third Party Inspector and GRANTEE. e. If there are insufficient funds to complete Building B as a result of change orders or any other reason, as determined by the Lead Lender, GRANTEE shall provide additional funds to bring the transaction "in balance" so that sufficient funds will be available to complete Building B before further funds will be disbursed. f. GRANTEE shall be required to provide documentation for each monthly draw request consistent with the documentation customarily provided to construction lenders doing business in Miami -Dade County, Florida. g. The terms of the Funding Agreement shall be subject to the approval of the Executive Director, which approval shall not be unreasonably withheld provided the terms of the Funding Agreement are consistent with this Agreement. c. After Completion, all future annual payments of the Grant shall be made directly to GRANTEE or as provided in the Funding Agreement except if Completion is not achieved within three (3) years from May 18, 2010, as said three (3) year period may be extended as a result of Unavoidable Delays, in which event GRANTEE shall not be entitled to any further funds pursuant to the terms of this Agreement until Completion is achieved." 8. Section 11(a) Replacement: Section 11(a) shall be replaced in its entirety with the following: "a. The CRA must exercise the Option by written notice to GRANTEE on or before February 1, 2012." 9. Section 14(m) Replacement: Section 14(m) shall be replaced in its entirety with the following: "m. Evidence that GRANTEE has obtained and accepted a commitment letter from a financial institution to provide approximately Seven Million and No/100 Dollars ($7,000,000.00) in financing for Building B (the "Building B Loan"), or evidence that GRANTEE has sufficient funds available from all sources to complete construction of Building B." 10. Replacement of Section Following Section 14(m): The section following Section 14(m) shall be replaced in its entirety with the following: 4 "In the event any of the foregoing Initial Conditions Precedent to the Grant have not been satisfied or waived by February 28, 2012, then in such event the CRA shall have the option of (i) waiving the applicable conditions and proceeding in accordance with this Agreement; or (ii) extending the time period for complying with the Initial Conditions Precedent from February 28, 2012 until August 30, 2012, or (iii) terminating this Agreement. If the time frame for satisfaction of the Initial Conditions Precedent has been extended and all of the Initial Conditions have not been satisfied by August 30, 2012, then the CRA shall have the option of (i) waiving the applicable conditions and proceeding in accordance with this Agreement or (ii) terminating this Agreement in which event this Agreement shall be of no further force and effect." 11. Sources and Uses of Funds. Exhibit E to the Grant Agreement is hereby deleted and replaced by Exhibit E attached hereto which is the proposed sources and uses of funds for Building B. 12. CRA Budget Approval. The CRA shall support GRANTEE in seeking approval from Miami -Dade County to confirm that no additional budgetary approvals will be required from Miami -Dade County on an annual basis regarding the disbursement of the Grant. 13. Default. Section The first sentence of Section 22 of the Grant Agreement shall be replaced in its entirety with the following: "22. Default. If GRANTEE fails to comply with any term or condition of this Agreement, or fails to perform any of its obligations hereunder which is not cured within thirty (30) days of written notice, then GRANTEE shall be in default. Upon the occurrence of a default hereunder the CRA, in addition to all remedies available to them by law, may immediately, upon written notice to GRANTEE, terminate this Agreement whereupon all payments, advances, or other compensation paid by the CRA to GRANTEE shall be immediately returned to the CRA. GRANTEE understands and agrees that termination of this Agreement under this section shall not release GRANTEE from any obligation accruing prior to the effective date of termination. The CRA agrees to simultaneously provide to the Lender, if any, copies of all default notice(s) sent GRANTEE. Provided Lender provides within notice to the CRA in accordance with Section 33 of this Agreement within the thirty (30) day cure period that Lender intends to cure the default, Lender shall have an additional thirty (30) day period to cure the default, provided further, that Lender shall have no obligation to cure any default and that Lender shall not be liable to any manner for failure to cure same." IN WITNESS WHEREOF, in consideration of the mutual entry into this Agreement, for other good and valuable consideration, and intending to be legally bound, the CRA and GRANTEE have executed this First Amendment. WITNESSES: GRANTEE: 5 By: CAMILLUS HOUSE, INC., a Florida not -for - profit corporation Print: By: Print: ATTEST: By: Priscilla A. Thompson Clerk of the Board APPROVED AS TO FORM AND CORRECTNESS By: William R. Bloom, Esq. Special Counsel By: Name: Title: CRA: SOUTHEAST OVERTOWN/PARK WEST COMMUNITY REDEVELOPMENT AGENCY, a public agency and body corporate created pursuant to Section 163.356, Florida Statutes By: Pieter Bockweg Executive Director 6 JOINDER Charity Unlimited, Good Shepherd, Camillus Health, Labre Place, Inc., Emmaus Place, Inc., Charity Unlimited Holding, Inc., Charity Unlimited Leasing, Inc., Charity Unlimited Foundation, Inc., Somerville Residence, Inc., Good Shepherd Villas, Inc., Brother Keily Place, Inc., Brownsville Housing, Inc., Matt Talbot House, Inc., Shepherd's Court Investor, LLC and Shepherd's Court Development, LLC, join in the execution of this First Amendment for the purpose of being bound by the provisions of the Sections 5 and 6 of the Grant Agreement, as amended, and Charity Unlimited and Good Shepherd also join in this First Amendment to agree to be bound to execute the Guaranty and Mortgage as contemplated by this First Amendment. CHARITY UNLIMITED OF FLORIDA, INC., a not -for -profit Florida corporation By: Name: Title: BROTHERS OF THE GOOD SHEPHERD OF FLORIDA, INC., a not -for -profit Florida corporation By: Name: Title: CAMILLUS HEALTH CONCERN, INC., a not -for -profit Florida corporation By: Name: Title: LABRE PLACE, INC., a a not -for -profit Florida corporation By: Name: Title: 7 EMMAUS PLACE, INC., a not -for -profit Florida corporation By: Name: Title: CHARITY UNLIMITED HOLDING, INC., a not -for - profit Florida corporation By: Name: Title: CHARITY UNLIMITED LEASING, INC., a not -for -profit Florida corporation By: Name: Title: CHARITY UNLIMITED FOUNDATION, INC., a not -for - profit Florida corporation By: Name: Title: SOMERVILLE RESIDENCE, INC., a not -for -profit Florida corporation By: Name: Title: 8 GOOD SHEPHERD VILLAS, INC., a not -for -profit Florida corporation By: Name: Title: BROTHER KEILY PLACE, INC., a not -for -profit Florida corporation By: Name: Title: BROWNSVILLE HOUSING, INC., a not -for -profit Florida corporation By: Name: Title: MATT TALBOT HOUSE, INC., a not -for -profit Florida corporation By: Name: Title: SHEPHERD'S COURT INVESTOR, LLC, a Florida limited liability company By: Name: Title: SHEPHERD'S COURT DEVELOPMENT, LLC, a Florida limited liability company By: Name: Title: 9 Exhibit E Sources and Uses of Funds Building B Camillus House, Inc. New Camillus House Campus Building B: Kitchen, dining hall, wellness center, program offices Sources and Uses SOURCES Loan by Lead Lender 6,000,000 TOTAL SOURCES $ 6,000,000 USES Costs, per Coastal's contract Site work 18,415 Concrete Work 1,178,709 Masonry 33,400 Metals 63,537 Wood and Plastics 25,000 Thermal and Moisture Prot 139,090 Doors and Windows 233,802 Finishes 660,940 Specialties 80,742 Equipment 559,115 Furnishings 32,300 Special Construction 76,112 Conveying Systems 93,612 Mechanical Systems 771,350 Electrical Systems 583,506 General Conditions 253,102 CM Fee allocated to Building B 192,109 Site Security 28,172 CM Payment and Performance Bonds 32,548 General Liability Insurance 52,252 Negotiated reductions in fees and other items (238,304) Subtotal Coastal's costs, per executed contract 4,869,509 Contingency 913,491 Furniture, fixtures and equipment, by owner 217,000 TOTAL USES $ 6,000,000 #10155002 v2