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HomeMy WebLinkAboutCRA-R-15-0036 ExhibitThis Instrument Prepared By: David E. Todd Atlanta Regional Counsel U.S. Department of Commerce Economic Development Administration 401 West Peachtree Street, NW Suite 1820 Atlanta, Georgia 30308-3510 AGREEMENT AND MORTGAGE THIS AGREEMENT AND MORTGAGE (the "Agreement and Mortgage") is made as of the day of , 2015 by the Southeast Overtown/Park West Conununity Redevelopment Agency, a public body corporate created pursuant to Section 163.356, Florida Statutes (hereinafter the "Mortgagor"), whose address is 819 NW 2nd Avenue, Third Floor, Miaini, Florida 33136, Attention: Executive Director, in favor of the United States Department of Commerce Economic Development Administration (hereinafter, "EDA") whose address is 401 West Peachtree Street, N.W., Suite 1820, Atlanta, GA 30308-3510 and 1401 Constitution Avenue, N.W., Washington, D.C. 20320, RECITALS WHEREAS, Mortgagor, together with the City of Miami, Florida, a municipal corporation (the "City") and Miami -Dade Community College (the "College") have applied to, received and accepted from the EDA, a financial assistance grant in the amount of Nine Hundred Thousand and No/100 Dollars ($900,000.00) (hereinafter "Award Amount") pursuant to a Financial Assistance Award No. 04-79-06827 (hereinafter "Award") dated September 25, 2013; and WHEREAS, pursuant to the application filed by Mortgagor, the City and the College requesting said financial assistance and pursuant to the Award, the Award Amount is to be used for the purpose of making improvements consisting of rehabilitation of an historic former church building to accommodate an expanded Hospitality and Culinary Institute (the "Project") on the real property described as follows: The North fifty (50) feet of Lots 1 and 2 of Block 14, North City of Miami, according to the Plat thereof recorded in Plat book B at Page 41 of the Public Records of Miami -Dade County, Florida (the "Property"); and WHEREAS, the total Project is initially estimated to cost $1,969,427.00; and WHEREAS, any transfer or conveyance of a Project by an EDA Recipient must have the prior written approval of EDA. However, EDA under authority of the Public Works and Economic Development Act of 1965, as amended, 42 U.B.C. § 3121, is not authorized to permit transfer or conveyance of a Project to parties which are not eligible to receive EDA Awards unless EDA is repaid its share of the fair market value of the Project or unless the authorized purpose of the EDA Award is to develop land in order to lease it for a specific use, in which case EDA may authorize a lease of the Project if certain conditions are met; and WHEREAS, the aforesaid Award from EDA provides the purposes for which the Award Amount may be used and provides, inter cilia, that Mortgagor will not sell, lease, mortgage, or otherwise use or alienate any right to, or interest in the Property, or use the Property for purposes other than and different from those purposes set forth in the Award and the application made by Mortgagor therefor, such alienation or used being prohibited by 13 C.F.R. Part 314 and 2 C.F.R. Part 200, as applicable, and WHEREAS, at this time, Mortgagor and EDA desire to establish a value for EDA's share of the Project in the event that the Property is used, transferred or alienated in violation of the Award, the provisions of 13 C.F.R. Part 314 or the provisions 2 C.F.R. Part 200, as applicable. NOW THEREFORE, Mortgagor does hereby grant and convey unto EDA, its successors and assigns, a mortgage on said Property to secure a debt that shall become due and payable by Mortgagor to EDA upon the use, transfer or alienation of the Property in violation of the Award, in violation of the regulations set forth in 13 C.F.R. Part 314 or in violation of the regulations set forth in 2 C.F.R. Part 200, as applicable, as such Award or regulations may be amended from time to time; provided, however, that the lien and encumbrance of this Agreement and Mortgage shall terminate and be of no further force or effect twenty (20) years from the date hereof, which period of years has been established as the useful life of the improvements to the Property. The amount of the lien, encumbrance and debt created by this Agreement and Mortgage shall be the amount of the Award Amount actually disbursed or an amount determined pursuant to 13 C.F.R. Part 314, as applicable. Mortgagor does hereby acknowledge that said debt shall be due and payable upon any use, transfer or alienation prohibited by the Award, in violation of the regulations set forth in 13 C.F.R. Part 314 or in violation of the regulations set forth in 2 C.F.R. Part 200, as applicable, within twenty (20) years from the date hereof, and does, moreover, agree that upon any use, transfer or alienation prohibited by the Award or in violation of the regulations set forth in 13 C.F.R. Part 314 or in 2 C.F.R. Part 200, as applicable, such debt shall be extinguished only through full payment thereof of to the United States. If Mortgagor complies with the terms of the Award and complies with the applicable requirements of 13 C.F.R. Part 314 and 2 C.F.R. Part 200, as applicable, within the applicable grace period, Mortgagor shall not be obligated to repay the Award Amount and twenty (20) years from the date hereof and EDA shall release this Agreement and Mortgage. Notwithstanding the foregoing, upon the termination of the existence of Mortgagor, the transfer of the Property by Mortgagor to the City, subject to this Agreement and Mortgage, shall be deemed to have been approved by EDA and EDA acknowledges that the City is eligible to receive EDA Awards and therefore the Award will not have to be repaid as a result of such transfer. Mortgagor further covenants and agrees as follows: 1.) Lease of Property: 2 #37192472 v1 If the Award authorizes Mortgagor to lease the Property, each lease arrangement shall be subject to prior written approval of EDA. Prior to EDA granting said approval, EDA must be satisfied inter alia, that said lease arrangement is consistent with the authorized general and special purpose of the Award; that said lease arrangement will provide adequate employment and economic benefits for the area in which the Property is located; that said lease arrangement is consistent with EDA policies concerning, but not limited to, non-diserimination, nonrelocation and excessive profits and that the proposed lessee is providing adequate compensation to Mortgagor for said lease. Any lease entered into by Mortgagor of the Property shall be subordinate, junior and inferior to this Agreement and Mortgage. Notwithstanding the foregoing, EDA acknowledges that its approval shall not be required with respect to the revocable license agreement between the Mortgagor and the College to enable the College to operate the Hospitality and Culinary Institute at the Property. 2.) Charges; Liens: Mortgagor shall protect the title and possession of the Property, pay when due all taxes, assessments, and other charges, fines and impositions now existing or hereafter levied or assessed upon the Property and preserve and maintain the priority of the lien hereby created on the Property including any improvements hereafter made a part of the realty. 3.) Hazard Insurance Mortgagor shall insure and keep insured all improvements now or hereafter created upon the Property against loss or damage by fire and windstorm and any other hazard or hazards included within the term "extended coverage". The amount of insurance shall be the full insurable, replacement value of said improvements. Any insurance proceeds received by Mortgagor due to loss shall be applied to restoration or repair of the Property damaged, provided such restoration or repair is economically feasible and the security of this Agreement and Mortgage is not thereby impaired. If such restoration or repair is not economically feasible or if the security of this Agreement and Mortgage would be unpaired, Mortgagor shall use said insurance proceeds to compensate EDA for EDA's Fair Share, as hereinafter defined. EDA's Fair Share of said insurance proceeds shall be equal to FDA's Fair Share multiplied by the insurance proceeds. 4.) Preservation and Maintenance of the Property: Mortgagor shall keep the Property in good condition and repair and shall not permit or commit any waste, impairment or deterioration of the Property. 5.) Inspection EDA inay make or cause to be made reasonable entries upon and inspection of the Property. 6.) Condemnation: 3 #3719247221 The proceeds of any award or claim for damages, direct or consequential, in comlection with any condemnation or other taking of the Property, or part thereof, or for any conveyance in lieu of condemnation shall be used by Mortgagor to compensate EDA for EDA's Fair Share. EDA's Fair Share shall be the condemnation proceeds multiplied by EDA's Fair Share. 7.) EDA's share of the Project. EDA's share of the Project (hereafter "EDA's Fair Share") shall be the total amount of the Award actually funded by EDA to Mortgagor divided by the total allowable costs incurred by Mortgagor in connection with completion of the Project, based upon the budget approved by EDA, as amended with EDA's approval, plus the costs not allowed for participation in the amount of $971,078.71, as agreed between Mortgagor and EDA. By way of example, based upon the initial budget approved by EDA, EDA's Fair Share would be as follows: EDA's Fair Share 900,000.00 = 30.6% 1,969,436.69 + 971,078.71 8.) Forbearance by EDA Not a Waiver Any forbearance by EDA in exercising any right or remedy under this Agreement and Mortgage, or otherwise afforded by applicable law, shall not be a waiver of or preclude the exercise of any right or remedy under this Agreement and Mortgage or otherwise affordable by applicable law. 9.) Recording of Mortgage — Mortgagor's Copy: Mortgagor shall record this Agreement and Mortgage in the County, or other applicable political subdivision of the State, where the Property is located, thereby securing to EDA an estate in the Property. Mortgagor shall be furnished a conformed copy of this Agreement and Mortgage at the time of execution or after recordation thereof. 10.) Remedies Cumulative: All remedies provided in this Agreement and Mortgage are distinct and cumulative to any other right or remedy under this Agreement and Mortgage or afforded by law or equity, and may be exercised concurrently, independently or successively. 11.) Notice: Any Notice from EDA to Mortgagor provided for in the Agreement and Mortgage or otherwise afforded by applicable law shall be hailed by certified mail to Mortgagor's last known address or at such address as Mortgagor may designate to EDA by certified mail to 4 437192472_v1 EDA's address, except for any Notice given to Mortgagor in the manner as may be prescribed by applicable law as provided hereinafter in this Agreement and Mortgage. Any Notice from Mortgagor to EDA provided for in the Agreement and Mortgage or otherwise afforded by applicable law shall be mailed by certified mail to EDA's last known address or at such other address as EDA may designate to Mortgagor by certified mail to Mortgagor's address, except for any Notice given to EDA in the manner as may be prescribed by applicable law as provided hereinafter in this Agreement and Mortgage. 12.) Upon Mortgagor's breach of any covenant or agreement of Mortgagor in this Agreement and Mortgage within twenty (20) years from the date hereof, which is not cured within thirty (30) days of written notice from EDA to Mortgagor or such longer period of time as is reasonably necessary to cure such breach, provided Mortgagor commits to such curative action within said thirty (30) day period and diligently pursues the curative action until completion, EDA, EDA's designees, successors or assigns may declare the entire Award Amount actually funded to Mortgagor immediately due, payable and collectible. This Agreement and Mortgage may be enforced by the Secretary of Commerce of the United States of America, the Assistant Secretary of Commerce for Economic Development of the United States or America or their designees, successors or assigns, by and through a foreclosure action brought either in a United States District Court, or in any State Court having jurisdiction, but such action shall not be deemed to be a waiver of the aforesaid debt or of any possible further or additional action to recover repayment thereof. After any breach on the part of Mortgagor not cured within the applicable grace period, EDA, EDA's successors, designees, successors or assigns, shall, upon bill filed or proper legal proceedings being commenced for the foreclosure of this Agreement and Mortgage, be entitled, as a matter of right, to the appointment by any competent court, without notice to any party, except as provided by applicable law, of a receiver of the rents, issues and profits of the Property, with power to lease and control the Property, and with such other power as may be deemed necessary. 13,) Governing Law; Severability: This Agreement and Mortgage shall be governed by applicable Federal law and nothing contained herein shall be construed to limit the rights of the EDA, EDA's designees, successors or assigns is entitled to under applicable Federal law. In the event that any provision or clause of this instrument conflicts with applicable law, such conflict shall not affect other provisions of this Agreement and Mortgage which can be given effect without the other conflicting provision, and to this end the provision of this Agreement and Mortgage are declared to be severable, -Remainder of page intentionally blank- 5 #37192472_vl IN WITNESS WHEREOF, Mortgagor has hereunto set Mortgagor's hand and seal by Mortgagor's duly authorized representative and/or officer on this the day of , 2015. ATTEST: By: (Name) Todd Hannon Clerk of the Board Approved for legal sufficiency by: Mortgagor's Counsel MORTGAGOR: Southeast Overtown/Park West Community Redevelopment Agency, a public body corporate created pursuant to Section 163.356, Florida Statutes BY: (Name) Clarence E. Woods, IIT Its: Executive Director 6 #37192472 v1 STATE OF FLORIDA COUNTY OF MIAMI-DADE I hereby certify that on this day before me a Notary Public authorized in the State and County aforesaid authorized to take acknowledgments , appeared Clarence E. Woods III, who is personally known to me or who has produced as identification, as Executive Director of, the Overtown/Park West Community Redevelopment Agency and acknowledged before me that he executed the same as such officer in name of and on behalf of said Agency. Witness my hand and seal in the County and State last aforesaid this day of , 2015 Notary Public My commission expires 7 #37192472_v1