HomeMy WebLinkAboutExhibit GPrepared by, and after recording return to:
Victoria Mendez, Esq.
City Attorney, City of Miami
444 S.W. 2nd Avenue
Miami, FL 33130-1910
Tel: (305) 416-1800
Property Address:
DECLARATION OF RESTRICTIVE COVENANTS FOR
This Declaration of Restrictive Covenants for (the "Covenant") made
this day of , 2019 by , a Florida (hereinafter
referred to as "Project Sponsor"), is in favor of the CITY OF MIAMI, a municipal corporation
of the State of Florida (hereinafter referred to as the "City").
RECITALS
WHEREAS, the Project Sponsor is the of the property legally
described in Exhibit A, attached and incorporated hereto; and
WHEREAS, the Project Sponsor hereby agrees and covenants that the following described
property shall be subject to the provisions, covenants, and restrictions contained herein; and
WHEREAS, this Covenant is made for the express benefit of the City of Miami, ("City")
a Florida municipal corporation. It shall remain in full force and effect until released by the City;
and
WHEREAS, the Project Sponsor is developing a project that will, among other things,
increase the supply of rental housing units for , , and
-Income Households in the community to be known as
(hereinafter referred to as the "Project"), which consists of the new construction of a -floor mix -
income, mid -rise residential building located at , Miami, Florida, (hereinafter
referred to as the "Property"), legally described in Exhibit "A". The Project consists of a total of
( ) residential apartment units. The Project will have ( )
units (the "HOME -Assisted Units") developed on that certain Property.
WHEREAS, the City's allocation of funds for the Project is subject to that certain HOME
Investment Partnerships Program Loan Agreement for (the "HOME Loan
Agreement") and other loan documents of even date herewith between the City and the Project
Sponsor (collectively the "Loan Documents"); and
WHEREAS, Project Sponsor desires to make a binding commitment to assure that the
HOME Assisted Units and the Property in general are maintained and operated in accordance with
the provisions of the Loan Documents and this Covenant.
WHEREAS, Project Sponsor, as a condition for receiving the Loan funds for the Property
is required to record in the Public Records this Covenant obligating the Project Sponsor, its
successors, and assigns to maintain and operate the Property in accordance with the Loan
Documents; and
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WHEREAS, the Project Sponsor hereby declares that this Covenant shall be and is a
covenant running with the Property and, unless released by the City, is binding on the Property for
the entire Affordability Period, and is not merely a personal covenant of the Project Sponsor; and
NOW THEREFORE, Project Sponsor voluntarily covenants and agrees that the HOME
Assisted Units and the Property in general shall be subject to the following restrictions that are
intended and shall be deemed to be covenants running with the land and binding upon Project
Sponsor, and its heirs, successors and assigns as follows:
Section 1. Recitals: The recitals and findings set forth in the preamble of this Covenant
are hereby adopted by reference thereto and incorporated herein as if fully set forth in this Section.
Section 2. Use of Property: The Project shall be developed on the Property and there shall
be a total of ( ) HOME Assisted Units in the Buildings that shall remain
Affordable. ( ) of the ( ) units shall remain affordable to
Income Households, ( ) of the ( ) units shall remain
affordable to Income Households, and ( ) of the
( ) units shall remain affordable to Income Households for
the period of time commencing on the date of the Close -Out of the Project and ending thirty (30)
years thereafter (the "Expiration of the Affordability Period"). The ( ) HOME
Assisted Units shall be comprised of ( ) one-bedroom/one-bathroom units.
" -Income Households" shall mean a household whose annual income does not
exceed percent ( %) of the median income for the area, as determined by the U.S.
Department of Housing and Urban Development, with adjustments and certain exceptions as
provided in 24 CFR Part 92. " Income Households" shall mean a household whose annual
income does not exceed percent ( %) of the median income for the area, as determined
by the U.S. Department of Housing and Urban Development, with adjustments and certain
exceptions as provided in 24 CFR Part 92. " Income Households" shall mean a
household whose annual income does not exceed percent ( %) of the median income
for the area, as determined by the U.S. Department of Housing and Urban Development, with
adjustments and certain exceptions as provided in 24 CFR Part 92.
Section 3. Term of Covenant: This Covenant is a covenant running with the land. This
Covenant shall remain in full force and effect and shall be binding upon the Project Sponsor, its
successors and assigns from the Close -Out of the Project until the Expiration of the Affordability
Period. Upon the Expiration of the Affordability Period, this Covenant shall immediately lapse
and be of no further force and effect without the necessity of any other written document or
instrument. Notwithstanding the foregoing, upon the Expiration of the Affordability Period, the
City shall prepare for recording an instrument evidencing the expiration of and other termination
of this Covenant in the Public Records of Miami -Dade County, Florida.
Section 4. Prohibited Conveyances: Except as provided in the Loan Documents, including
the Permitted Senior Financing described therein, the Project Sponsor covenants and agrees not to
encumber or convey its interest in the Project, Property, or any portion thereof, without prior
written consent as required by the Agreement. For the purposes of this Covenant, any change in
the ownership or control of the Project Sponsor, which is not permitted under the Loan Documents,
shall be deemed a conveyance of an interest in the Project.
Section 5. Repayment Upon Default: The Project Sponsor covenants and agrees that in the
event (i) of the sale or conveyance of any interest in the Project and/or the Property without prior
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written consent as required by the Loan Documents (except as otherwise provided in the Loan
Documents), or (ii) that the Project Sponsor ceases to exist as an organization, the Project Sponsor
shall immediately make payment to the City in an amount equal to the full amount of Loan funds
disbursed and outstanding, with interest thereon as provided in the Note, all Program Income (as
defined in 24 CFR Part 92) derived from or in connection with the Project, the Property and/or
the Loans, and all unpaid fees, charges and other obligations of the Project Sponsor due under any
of the HOME Loan Documents.
Section 6. Inspection and Enforcement: It is understood and agreed that any official
inspector of the City shall have the right any time during normal working hours to enter and
investigate the use of the Property to determine whether the conditions of this Covenant are in
compliance, subject to the rights of residential tenants under their leases.
Section 7. Amendment and Modification: This Covenant may be modified, amended, or
released as to any portion of the Property by a written instrument executed on behalf of the City
and the Project Sponsor. Should this instrument be modified, amended or released, the City
Manager shall execute a written instrument in recordable form to be recorded in the Public Records
of Miami -Dade County, Florida, effectuating and acknowledging such modification, amendment,
or release.
Section 8. Definitions: All capitalized terms not defined herein shall have the meanings
provided in the HOME Loan Agreement.
Section 9. Severability: Invalidation of one of the provisions of this Covenant by judgment
of Court shall not affect any of the other provisions of the Covenant, which shall remain in full
force and effect.
Section 10. Recordation: This Covenant shall be filed of record among the Public Records
of Miami -Dade County, Florida, at the sole cost and expense of the Project Sponsor.
Section 11. Deed Restriction/Covenant Running with the Land. Any and all requirements
of the laws of the State of Florida that must be satisfied in order for the provisions of this Covenant
to constitute a deed restriction and covenant running with the land shall be satisfied in full, and
any requirements or privileges of estate are intended to be satisfied, or in the alternate, an equitable
servitude has been created to insure that these restrictions run with the land. For the term of this
Covenant, each and every contract, deed, or other instrument hereafter executed conveying the
Property or portion thereof shall expressly provide that such conveyance is subject to this
Covenant, provided, however, that the covenants contained herein shall survive and be effective
regardless of whether such contract, deed, or other instrument hereafter executed conveying the
Property or portion thereof provides that such conveyance is subject to this Covenant.
Section 12. Governing Law and Venue. This Covenant shall be construed and enforced
pursuant to the laws of the State of Florida, excluding all principles of choice of laws, conflict of
laws and comity. Any action pursuant to a dispute under this Covenant must be brought in
Miami -Dade County and no other venue. All meetings to resolve said dispute, including
voluntary arbitration, mediation, or other alternative dispute resolution mechanism, will
take place in this venue. The parties both waive any defense that venue in Miami -Dade
County is not convenient.
Section 13. Floating Units. HOME -Assisted Units shall be handled as "Floating
Units," as described in 24 CFR 92.252(j). "In a project containing HOME -assisted and other units,
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the participating jurisdiction may designate fixed or floating HOME units. This designation must
be made at the time of project commitment. Fixed units remain the same throughout the period of
affordability. Floating units are changed to maintain conformity with the requirements of this
section during the period of affordability so that the total number of housing units meeting the
requirements of this section remains the same, and each substituted unit is comparable in terms of
size, features, and number of bedrooms to the originally designated HOME -assisted unit."
Section 14. Costs, Including Attorney's Fees. If In the event litigation, arbitration, or
mediation, between the parties hereto, arises out of the terms of this Covenant, each party shall be
responsible for its own attorney's fees.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Project Sponsor has caused this Declaration of Restrictive
Covenants to be executed by its duly authorized officers and the corporate seal to be affixed hereto
on the day and year first above -written.
WITNESSES: PROJECT SPONSOR:
Print Name:
By:
Print Name:
PROJECT SPONSOR'S ADDRESS:
OWLEDGMENT
STATE OF FLORIDA
COUNTY OF MIAMI-DADE )
THE FOREGOING INSTRUMENT was acknowledged before me on this day of
2019 by , as of
, who is personally known to me or who produced a
as identification.
My Commission Expires: Signature of Notary Public, State of Florida
Printed Name of Notary Public
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ATTESTED:
Todd B. Hannon
City Clerk
STATE OF FLORIDA
)
)SS:
COUNTY OF MIAMI-DADE )
CITY OF MIAMI, a municipal
corporation of the State of Florida
By:
Emilio T. Gonzalez
City Manager
Sworn to and subscribed before me this day of , 2018, by Emilio
T. Gonzalez, as City Manager of City of Miami, a municipal corporation of the State of Florida. He is
personally known to me or has produced as identification.
My Commission Expires:
Notary Public, State of Florida
Print or Stamp Name
Commission No.:
Approved by Community and Economic
Development Department:
George Mensah
Director
Approved as to legal form and correctness:
Victoria Mendez, Esq.
City Attorney
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Exhibit A
Legal Description Of The Property
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DISBURSEMENT AGREEMENT FOR
This Disbursement Agreement for HOME Investment Partnerships Program ("HOME")
funds ("Agreement") is made as of this day of , 2019 by and between THE
, a Florida (hereinafter the "Project Sponsor"), and the CITY
OF MIAMI, a municipal corporation of the State of Florida (hereinafter the "City").
RECITALS
WHEREAS, the Project Sponsor is developing a project known as (the "Project"),
that will increase the supply of rental housing units for , and -Income
Households in the community; and
WHEREAS, on , the City's Housing and Commercial Loan Committee
approved an allocation of HOME Investment Partnerships Program funds in the amount of
$ to the Project Sponsor for certain Project construction costs (the "HOME Funds");
and
WHEREAS, the funding commitment of the City to the Project Sponsor for the HOME
Funds is more fully described in that certain HOME Loan Agreement of even date herewith (the
"HOME Agreement"); and
WHEREAS, the Project Sponsor and the City desire to establish the mechanism whereby
the Project Sponsor will apply to receive the HOME Funds;
NOW, THEREFORE, for and in consideration of the Project Sponsor's construction and
development of the Project and the reciprocal agreements set forth herein, the Project Sponsor and
the City agree as follows:
ARTICLE I
DISBURSEMENT PROCEDURE
1.1 The HOME Agreement establishes the conditions to the City's obligation to loan
the HOME Funds to the Project Sponsor. The Project Sponsor may not request disbursement of
funds pursuant to this Agreement until such funds are needed for the reimbursement of eligible
costs.
Provided the City is obligated to disburse the HOME Funds pursuant to the HOME
Agreement, the City will disburse such funds in accordance with this Article I.
1.2 The Project Sponsor shall submit draw requests for the HOME Funds, which draw
requests will be submitted not more frequently than one (1) time per month. The Project Sponsor
will submit or cause to be submitted the following documentation to the City:
(a) Hard Costs:
(i) A Request for Disbursement, in a form acceptable to the City, setting forth
such details concerning construction of the Project as the City shall require, including: the amount
paid to date to the General Contractor constructing the Project (the "Contractor") and pursuant to
the contract for the construction of the Project between the Project Sponsor and the Contractor (the
"Construction Contract"); the amounts, if any, paid directly by the Project Sponsor to
subcontractors of the Contractor and material men; the amount then currently payable to the
Contractor, broken down by trades; the amounts paid on account of the Contractor's construction
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fee; and the balance of the construction costs which will remain unpaid after the payment of the
amount currently payable.
(ii) Any Request for Disbursement must be submitted to the City by no later
than the thirtieth (30th) day of each month. Each Request for Disbursement must be signed by the
Project Sponsor, the Architect for the Project and the Contractor.
(ii) Applications for receiving HOME Funds for reimbursement of hard costs
will include a Memorandum of Advance and such architectural documents as the City may require.
The City Inspector, as described in Section 1.3 hereof, shall be required to certify with each draw
request: the amount of work on the Project that has been completed; the good and acceptable
workmanship of the Contractor and its subcontractors; compliance with approved final plans and
specifications of the Project; and such other matters as the City may require. Lien waivers/releases
shall be submitted to the City Inspector for review and approval before each disbursement. If the
City requires that its title insurance policy be updated, the Project Sponsor shall also submit to the
title insurance company all lien waivers/releases in connection with each proposed draw. All costs
associated with the title insurance company updating the title insurance policy shall be paid by the
Project Sponsor.
(b) Soft Costs:
(i) A Request for Disbursement, in a form acceptable to the City, together
with: (a) original invoices of those costs for which the Project Sponsor is requesting disbursement
(If 50% or less of a soft cost is being requested from the City, a copy of the invoice can accompany
the Request for Disbursement.), and (b) copies of the Project Sponsor's checks in payment of each
soft cost for which disbursement is being requested.
(ii) Within sixty (60) days of the date of each Request for Disbursement,
the Project Sponsor shall submit to the City copies of its cancelled checks confirming final
payment of each cost included in such Request for Disbursement.
(iii) Each Request for Disbursement of soft costs must be signed by the
Project Sponsor.
(c) Such other information and documents as the City may require.
(d) Each Request for Disbursement shall constitute a representation and certification
by the Project Sponsor and the Contractor to the City that:
(i) The materials have been physically incorporated into the Project,
free of liens and security interests, and that the construction of the Project to date has been
performed substantially in accordance with the drawings and specifications and in a first-class
workmanlike manner;
(ii) All governmental licenses and permits required by the Project as
then completed have been obtained and are available for inspection by the City;
(iii) The Project as then completed does not violate any law, ordinance,
rule, regulation, or order or decree of any court or governmental authority; and
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(iv) No Event of Default has occurred and is continuing and there is no
continuing default under the Construction Contract.
(v) The Project Sponsor, the Contractor and each subcontractor has
complied with all Federal, state and local laws and regulations relating to labor standards and with
HUD Handbook 1344.1.
(vi) Such other information and documents as the City may reasonably
require.
1.3 The City Inspector will review the work that is incorporated into the Project and for
which each Request for Disbursement of the HOME Funds is submitted. The City Inspector will
review and approve the final plans and specifications for the Project and will review and approve
the draw requests based on the percentage of work completed. The City Inspector's reviews,
approvals, and conclusions shall be for the sole benefit of the City.
All construction change orders must receive the prior written approval of the City
Inspector. Change orders that have not received the prior written approval of the City Inspector
shall not be approved for payment/ reimbursement by the City.
1.4 Within ten (10) working days of its receipt of a Request for Disbursement delivered
pursuant to Section 1.2 hereof and without attempting to verify the completeness of same, the City
will notify the City Inspector of the need to inspect the progress of construction work at the Project
(the "Notification") and shall forward to the City Inspector the Request for Disbursement that has
been delivered by the Project Sponsor.
1.5 The City Inspector shall complete its inspection and submit its report to the City
within five (5) working days of receipt of the Notification.
1.6 If the City finds the materials submitted by the Project Sponsor and the report of
inspection by the City Inspector to be satisfactory to the City and in accordance with the HOME
Agreement, the City shall fund to the Project Sponsor the sum requested by the Project Sponsor or
such lower sum as the City deems appropriate.
1.7 The City shall fund disbursements of the HOME Funds by no later than fourteen
(14) working days after it has received both the Request For Disbursement, in the form required
by Section 1.2 hereof, and the inspection report of the City Inspector, in the form required by
Sections 1.2 and 1.3 hereof.
1.8 The City shall retain five percent (5%) of the HOME Funds allocated to the Project
Sponsor (the "Allocation Retainage") until it has received confirmation that the project has issued
a Certificate of Occupancy, and at the Project Sponsor's sole cost, a Final Cost Certification
prepared by an independent certified public accountant, both in form and substance acceptable to
the City.
1.9 The City reserves the right to refuse to fund any disbursement request(s) in the
event that the City determines that the Project and/or the Project Sponsor are not in compliance
with any local, state or federal law or requirement.
1.10 Disbursements for other than hard costs, if permitted pursuant to the HOME
Agreement, shall be made in accordance with the City of Miami Depaitinent of Community
Development Disbursement of Funds Checklist.
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1.11 The City shall not fund any draw request in an amount that exceeds the City's initial
contribution percentage of the entire development cost of the project.
ARTICLE II
MISCELLANEOUS
2.1 This Agreement may only be amended in writing by all the parties hereto.
2.2 This Agreement, the HOME Agreement and the other documents executed by the
parties in connection therewith constitute the entire agreement between the parties hereto and no
other agreements or representations, unless incorporated in this Agreement, shall be binding upon
any of the parties hereto.
2.3 All capitalized terms not defined herein shall have the meanings provided in the
HOME Agreement.
2.4 In the event litigation, arbitration, or mediation, between the parties hereto, arises
out of the terms of this Agreement, each party shall be responsible for its own attorney's fees.
[Signature Page Follows]
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IN WITNESS WHEREOF, this Agreement has been executed by the Project Sponsor and
the City on the date first above written.
WITNESSES: PROJECT SPONSOR:
Print Name:
Print Name:
PROJECT SPONSOR'S ADDRESS:
STATE OF FLORIDA
)
BY:
By:
FOWLEDGMENT
COUNTY OF MIAMI-DADE )
THE FOREGOING INSTRUMENT was acknowledged before me on this day of
, 2019 by , as of , who is personally known to
me or who produced a as identification.
My Commission Expires: Signature of Notary Public, State of Florida
Printed Name of Notary Public
Page 5 of 6
ATTEST: CITY:
CITY OF MIAMI, a municipal corporation
of the State of Florida
By: By:
Todd Hannon
City Clerk
Date:
APPROVED AS TO FORM
AND CORRECTNESS:
By:
Victoria Mendez
City Attorney
Emilio T. Gonzalez
City Manager
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Prepared by, and after recording return to:
Victoria Mendez, Esq.
City Attorney, City of Miami
444 S.W. 2nd Avenue
Miami, FL 33130-1910
Tel: (305) 416-1800
Property Address:
RENT REGULATORY AGREEMENT FOR
THIS RENT REGULATORY AGREEMENT ("Regulatory Agreement") is entered into
this day of , 2019, between , a Florida
(hereinafter referred to as `Borrower") and the CITY OF MIAMI (hereinafter referred to as the
"City").
The execution of this Regulatory Agreement by the Borrower is in connection with the
loan of HOME Investment Partnerships Program ("HOME") funds, (the "Loan"), secured by
certain loan documents to be executed in connection therewith (the "Loan Documents"), for the
construction of a total of ( ) residential apartment units. ( ) of the
residential apartment units will be HOME -assisted units (the "HOME -Assisted Units") of that
certain project known as (the "Project"). The Project will be an -floor mix -
income, mid -rise residential building located at , Miami (hereinafter referred to as
the "Property").
In accordance with the requirements set forth in (i) that certain HOME Loan Agreement to
be executed by the Borrower and the City for the HOME funds (the "Agreement"), and (ii) the
other Loan documents of even date therewith between the Borrower and the City, ( ) of
the total ( ) Project units are considered "HOME -Assisted" and all of the HOME -
Assisted Units are subject to the restrictions provided herein. The ( ) HOME -Assisted
Units shall be "floating" units, meaning that they are not specifically designated units, but that any
( ) of the total ( ) Project units shall be, at any one time, in compliance with
the HOME -Assisted requirements set forth herein.
Borrower hereby agrees to the following terms, conditions and covenants until the end of
the Affordability Period:
al Occupancy Requirements. The HOME -Assisted Units shall be made available to
tenants who qualify under the occupancy requirements of 24 CFR Part 92 (hereinafter
referred to as the "Regulation"). The HOME -Assisted Units are subject to the
restrictions provided therein and herein, including, but not limited to, the following:
of the HOME Assisted Units shall be occupied by -Income Households.
As defined in the Regulation, -Income Households have annual incomes that do
not exceed percent ( %) of area median income, as determined by the U.S.
Department of Housing and Urban Development ('HUD") and adjusted for family size.
( ) of the HOME Assisted Units shall be occupied by -Income
Households. As defined in the Regulation, -Income Households have
annual incomes that do not exceed percent ( %) of area median income, as
determined by the U.S. Department of Housing and Urban Development (HUD") and
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adjusted for family size. The remaining ( ) HOME -Assisted Units shall be
occupied by -Income Households. As defined in the Regulation, -Income
Households have annual incomes that do not exceed percent ( %) of the
median income for the area, as determined by HUD and adjusted for family size.
(2) Maximum Rent Levels. The rents charged on all of the HOME -Assisted Units shall
be subject to the Regulation. Gross monthly rent charged on HOME -Assisted Units
occupied by tenants identified as Income and Income are subject to the
maximum LOW HOME Rent published annually by HUD for each locality. Gross
monthly rent charged on HOME -Assisted Units occupied by tenants identified as Low -
Income are subject to the maximum HIGH HOME Rent published annually by HUD.
The HIGH and LOW HOME Rent maximums for leases signed in Miami, Florida
effective as of June, 2018 are as follows:
No. of
HOME-
No. of
Bedrooms
No. of
Bathrooms
High HOME
Rent
Maximum
Low HOME
Rent
Maximum
Assisted
Units
00
00
00
$ .00
$ .00
The foregoing maximum rents include tenant paid utilities. Maximum rents will be
reduced for the amount of the applicable HUD Utility Allowance for any utilities paid
by the tenant. In no event will the monthly rent on a HOME -Assisted Unit exceed thirty
percent ( %) of the applicable percentage of area median income set forth in
Paragraph 1 above. Rents shall not be adjusted for changes in income or HUD
published maximums until lease renewal.
(3) Income Re -certification. Tenant income for HOME -Assisted Units shall be certified
by the Borrower annually on the anniversary of each tenant's lease and maintained in
the tenant file, subject to inspection by the City, in accordance with this Regulatory
Agreement.
(4) Deposits and Pre -payments. Borrower shall not require, as a condition of occupancy
or leasing of any HOME -Assisted Unit, any other consideration or deposit from the
tenant, except for the prepayment of one month's rent and plus a security deposit not
to exceed one additional month's rent.
(5) Prohibited Lease Provisions. The Borrower's leases for HOME -Assisted Units shall
not contain any of the following provisions:
a. Agreement to be sued. A tenant lease may not contain a provision whereby
the tenant agrees to be sued, admits guilt or consents to judgment in favor
of the landlord in a lawsuit brought in connection with the lease.
b. Agreement regarding treatment of property. A tenant lease may not contain
a provision whereby the tenant agrees that the landlord may take, hold or
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sell personal property of the tenant household without notice and a court
decision. This prohibition does not apply to personal property remaining in
the HOME -Assisted Unit after the tenant has moved out.
c. Waiver of notice. A tenant lease may not contain a provision whereby the
tenant agrees that the landlord may institute a lawsuit without notice to the
tenant.
d. Waiver of legal proceedings. A tenant lease may not contain a provision
whereby the tenant agrees that the landlord may evict the tenant or a
household member without instituting a civil court proceeding in which the
tenant has the opportunity to present a defense or before a court decision on
the rights of the parties.
e. Waiver of a jury trial. A tenant lease may not contain a provision whereby
the tenant agrees to waive any right to a jury trial.
f. Waiver of right to appeal a court decision. A tenant lease may not contain a
provision whereby the tenant agrees to waive the tenant's right to appeal or
otherwise challenge in court a court decision in connection with the lease.
Agreement to pay legal costs, regardless of outcome. A tenant lease may
not contain a provision whereby the tenant agrees to pay attorney's fees or
other legal costs even if the tenant wins the court proceeding brought by the
landlord against the tenant. The tenant, however, may be obligated to pay
costs if the tenant loses.
g.
h. Excusing owner from responsibility. A tenant lease may not contain a
provision whereby the tenant agrees not to hold the landlord or the
landlord's agents legally responsible for any action or failure to act, whether
intentional or negligent.
(6) Annual Reporting. Each year, on the anniversary of the issuance of the certificate
of occupancy/certificate of completion for the Project, and at other times at the request
of the City, the Borrower shall furnish occupancy reports in a form approved by the
City, and shall provide the City with such other information as may be requested by the
City relative to income, expenses, assets, liabilities, contracts, operations, and condition
of the Project and/or the HOME -Assisted Units.
(7) Inspections. The Borrower agrees to submit the HOME -Assisted Units to an annual
re -inspection to insure continuing compliance with all applicable housing codes,
federal and local housing quality standards and regulatory requirements. The Borrower
will be furnished a copy of the results of each inspection within thirty (30) days of
completion, and will be given thirty (30) days thereafter to correct any deficiencies or
violations.
At any time other than an annual inspection, the City may, in its discretion,
inspect any HOME -Assisted Unit. The Borrower and the tenant will be provided with
the results of the inspection and the time and the method of compliance and corrective
action that must be taken.
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(8) Record -keeping. The Property, including the HOME -Assisted Units, equipment,
buildings, plans, offices, apparatus, devices, books, contracts, records, documents, and
other papers relating thereto shall at all times be maintained in reasonable condition for
proper audit and shall be subject to examination and inspection at any reasonable time
by the City. Borrower shall keep copies of all written contracts and other instruments
which affect the HOME -Assisted Units, all or any of which may be subject to
inspection and examination by the City. Specifically, the foregoing includes all records,
calculations and information necessary to support tenant occupancy eligibility and
monthly rental charges in addition to all leases and written notices to tenants with
respect to the terms of this Regulatory Agreement, as required by this Regulatory
Agreement.
(9) Default. Upon the occurrence of a violation of any provision of this Regulatory
Agreement, the City shall give written notice thereof to the Borrower, by registered or
certified mail, addressed to the Borrower's address as stated in this Regulatory
Agreement, or to such other address(es) as may subsequently, upon appropriate written
notice thereof to the City, be designated by the Borrower. In the case of a Borrower
which is a corporation or partnership, notices may also be sent by the City to the address
of the corporation's chief executive officer or to all general partners, as applicable, at
the City's discretion. If such violation is not corrected to the City's satisfaction, within
thirty (30) days after the date such notice is mailed, or within such further time as the
City reasonably determines is necessary to correct the violation, without further notice
the City may declare a default under this Regulatory Agreement and under the
Agreement and the Loan Documents executed in connection therewith, and may
proceed to initiate any or all remedies at law or in equity provided for in the event of a
default under such agreements and Loan Documents.
All notices under this Regulatory Agreement shall be in writing and addressed as
follows:
To Borrower:
With Copy to:
To City: City of Miami
Depaitinent of Community and
Economic Development
One Flagler Building
14 Northeast 1st Avenue, Second Floor
Miami, Florida 33132
Attn: George Mensah, Director
With Copy To: Victoria Mendez
Office of the City Attorney, City of Miami
444 S.W. 2nd Avenue
Miami, FL 33130-1910
(10) Fines. Upon the occurrence of a violation of any provision of this Regulatory
Agreement, and regardless of the nature of the violation, the City will assess a flat
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monthly fine in the amount of Fifty Dollars and no/cents ($50.00) per HOME -Assisted
Unit that is the subject of such violation up to a maximum of Five Thousand Dollars
and no/cents ($5,000.00) per month, for each month the violation is not corrected, and
pay same over to the City. The remedy for violation provided in this section of this
Regulatory Agreement is cumulative with any and all remedies at law or in equity
provided in the event of a default under this Regulatory Agreement and/or the Loan
Documents.
(11) Tenant Notice. Borrower agrees during the term of this Regulatory Agreement, to
furnish each tenant of a HOME -Assisted Unit, at the execution or renewal of any lease
or upon initial occupancy, if there is no lease, with a written notice in the following
form:
The rent charged for your apartment and the services included
in that rent are subject to a Rent Regulatory Agreement
between the landlord and the City of Miami, for the term of the
Affordability Period. A copy of the Rent Regulatory Agreement
will be made available by the landlord to each tenant upon
request.
If there is no lease for a HOME -Assisted Unit, Borrower shall maintain a file
copy of such notice delivered to the tenant, with a signed acknowledgement of receipt
by the tenant. All such notices to tenants will be made available for inspection upon
request by the City.
(12) No Conflict with Loan Documents. The provisions of this Regulatory Agreement
are in addition to, and do not amend, alter, modify, or supersede in any respect, the
provisions of the mortgage and/or any of the other Loan Documents executed in
connection with the Loan.
(13) Partial Invalidity. The invalidity of any paragraph or provision of this Regulatory
Agreement shall not affect the validity of the remaining paragraphs and provisions
hereof.
(14) Term. This Regulatory Agreement shall be effective until the expiration of the
Affordability Period. On the Expiration of such period, this Regulatory Agreement
shall immediately lapse and be of no further force and effect without the necessity of
any other written document or instrument. Notwithstanding the foregoing, upon such
Expiration, the Borrower shall be permitted to prepare and record an instrument
evidencing the expiration of and other termination of this Regulatory Agreement in the
Public Records of Miami -Dade County, Florida.
(15) Definitions. All capitalized terms used herein and not otherwise defined shall have
the meanings provided in the Regulation and/or in the Loan Documents.
(16) Exclusion of Commercial Spaces. Notwithstanding anything to the contrary in this
Regulatory Agreement or in the Agreement, it is expressly understood and agreed that
the Regulation and all other terms, conditions, restrictions, and requirements of this
Regulatory Agreement shall exclude, and shall not apply to, or otherwise restrict or
affect, the operation, maintenance, leasing, improvement, base rent and other additional
rent determination and collection, and all other aspects of the Borrower's management,
Page 5 of 9
leasing, and ownership of all or any portion of the commercial and retail spaces located
in the Project, if applicable.
(17) Severability. Invalidation of one of the provisions of this Regulatory Agreement
by judgment of Court shall not affect any of the other provisions of the Covenant, which
shall remain in full force and effect.
(18) Recordation. This Regulatory Agreement shall be filed of record among the
Public Records of Miami -Dade County, Florida, at the sole cost and expense of the
Owner.
(19) Governing Law and Venue. This Regulatory Agreement shall be construed and
enforced pursuant to the laws of the State of Florida, excluding all principles of choice
of laws, conflict of laws and comity. Any action pursuant to a dispute under this
Regulatory Agreement must be brought in Miami -Dade County and no other
venue. All meetings to resolve said dispute, including voluntary arbitration,
mediation, or other alternative dispute resolution mechanism, will take place
in this venue. The parties both waive any defense that venue in Miami -Dade
County is not convenient.
(20) Attorney's Fees. In the event litigation, arbitration, or mediation, between the
parties hereto, arises out of the terms of this Regulatory Agreement, each party shall be
responsible for its own attorney's fees.
(21) Counterparts. This Agreement may be executed in separate counterparts,
with each counterpart creating a binding agreement as if there was one
agreement signed by each party executing the counterpart.
[Signature Page Follows]
Page 6 of 9
THIS REGULATORY AGREEMENT has been executed and delivered as of the day and
year first above written.
WITNESSES:
Print Name:
Print Name:
PROJECT SPONSOR'S ADDRESS:
STATE OF FLORIDA
PROJECT SPONSOR:
BY:
By:
ACKNOWLEDGMENT
COUNTY OF MIAMI-DADE )
THE FOREGOING INSTRUMENT was acknowledged before me on this day of
, 2019 by , as of , who is personally
known to me or who produced a as identification.
My Commission Expires: Signature of Notary Public, State of Florida
Printed Name of Notary Public
Page 7 of 9
CITY:
ATTEST:
Todd B. Hannon
City Clerk
Date:
APPROVED AS TO FORM
AND CORRECTNESS:
Victoria Mendez
City Attorney
CITY OF MIAMI, a municipal corporation
of the State of Florida
By:
Emilio T. Gonzalez
City Manager
Page 8 of 9
Exhibit A
Legal Description Of The Property
Page 9 of 9
HOME LOAN AGREEMENT FOR
This HOME Investments Partnerships Program ("HOME Program") Loan Agreement
(this "Loan Agreement" or this "Agreement") dated as of the day of , 2019, is by
and between the CITY OF MIAMI, a municipal corporation of the State of Florida (hereinafter the
"City" or "Lender"), and , a Florida limited liability
company (hereinafter the "Project Sponsor" or "Borrower").
FUNDING SOURCE:
AMOUNT:
RESOLUTION:
PROJECT NAME:
PROJECT TYPE:
PROJECT SPONSOR:
LAND OWNER:
TERM OF THE AGREEMENT:
AFFORDABILITY PERIOD:
HOME ASSISTED UNITS:
PROPERTY ADDRESS:
IDIS NUMBER:
SCI NUMBER:
EXHIBITS ATTACHED:
HOME Program
$ in HOME Investment Partnership Funds
The City of Miami Housing and Commercial Loan
Committee approvals of
New Construction of a Rental Project
, a Florida
, a public body, corporate and politic duly
organized and existing under the laws of the State of
Florida
See Section 1.1
Thirty (30) years commencing from the Close -Out of the
Project
( ) of the Affordable Units shall be
HOME Assisted Units; ( ) of the HOME
Assisted Units shall be allocated for Income
Households; ( ) of the HOME Assisted Units shall
be allocated for -Income Households; and O of
the HOME Assisted Units shall be allocated for
Income Households
, Miami, Florida
Page 1 of 50
Exhibit "A"
Exhibit "B"
Exhibit "C"
Exhibit "D"
Exhibit "E"
Exhibit "F"
Exhibit "G"
Exhibit "H"
Exhibit "I"
Exhibit "J"
Schedule A
Legal Description
Scope of Work /Project Schedule
Budget
Form of Disbursement Agreement
Affirmative Marketing Procedures and Responsibilities
Form of Mortgage
Form of Covenant
Form of Rent Regulatory Agreement
Signage Requirements
Additional Insurance Requirements
Permitted Financing
RECITALS
WHEREAS, the Project Sponsor is the to the real property ("Property")
described in Exhibit "A." The Project Sponsor is constructing an affordable housing project that
will be known as (the "Project") that will increase the supply of rental housing
units for , Low, and Income Individuals and Households, by providing
additional affordable rental units.
WHEREAS, on , the City's Housing and Commercial Loan
Committee approved an allocation of HOME Investment Partnerships Program funds in the
amount of $ (the "HOME Funds") to Project Sponsor for Project's hard and soft
construction costs; and
WHEREAS, on , the City's HCLC approved a modification of Project
Sponsor's proposal which will result in benefitting lower income individuals and households; and
WHEREAS, the City and the Project Sponsor intend and agree that the HOME Funds be
subject to the terms and conditions of this Agreement.
NOW THEREFORE, in consideration of the mutual covenants and obligations
herein contained, and subject to the terms and conditions hereinafter stated, the parties hereto
understand and agree as follows:
ARTICLE I
DEFINITIONS
The City, and the Project Sponsor hereby agree that the capitalized terms used herein shall
have the meanings set forth below unless the context requires otherwise:
1.1 Affordability Period:
The period of time that the Assisted Units must
remain Affordable, in compliance with 24 CFR
§92.252 and 24 CFR §92.254. The Affordability
Page 2 of 50
Period for this Project will be thirty (30) years,
commencing on the Close -Out of the Project.
1.2 Affordable: A project or unit that satisfies the requirements set
forth in 24 CFR Part 92.
1.3 Close -Out of the Project: The date on which the Project has obtained all of the
required Certificate(s) of Occupancy.
1.4 Contract Records:
1.5 Effective Date:
Any and all books, records, documents, information,
data, papers, letters, materials, electronic storage
data and media, whether written, printed,
computerized, electronic or electrical, however
collected or preserved which is or was produced,
developed, maintained, completed, received or
compiled by or at the direction of the Project Sponsor
or any Project contractor or subcontractor relating to
the use of the HOME Funds in carrying out the duties
and obligations required by the terms of this
Agreement, including, but not limited to, financial
books and records, ledgers, drawings, maps,
pamphlets, designs, electronic tapes, computer
drives and diskettes or surveys.
The Date on which the Agreement has been signed
by the City Manager and attested to by the City
Clerk.
1.7 HUD: The U.S. Department of Housing and Urban
Development.
1.8 HOME Assisted Units,
or Assisted Units:
Of the Project's total ( ) units, there
will be ( ) HOME Assisted Units or
Affordable units. ( ) of the
Affordable units shall be allocated for Income
Households; (_) of the Affordable units shall
be allocated for -Income Households;
and ( ) of the Affordable units shall be
allocated for -Income Households.
The payable rents on the HOME Assisted Units are
subject to the Covenant and the Rent Regulatory
Agreement. Further restrictions apply to the HOME
Assisted Units as provided in and this Agreement,
the Covenant, the other HOME Loan Documents and
the Legal Requirements, as applicable. The HOME
Page 3 of 50
1.9 HOME Loan Documents, or
Loan Documents:
Assisted Units shall remain Affordable throughout
the Affordability Period.
This Agreement and all other documents that may
now or hereafter evidence or secure the CDBG Funds
together with other documents executed in
connection therewith or presented by the Project
Sponsor to the City in connection therewith or
herewith, including but not limited to Exhibits D, F,
G, H, and the Note, and all amendments, extensions
and renewals to any of the foregoing.
1.10 HOME Funds, or, the Loan: Shall have the meaning ascribed thereto in the
RECITALS to this Agreement.
1.11 HOME Program:
1.12 HOME Requirements:
1.13 Legal Requirements:
The program created by the National Affordable
Housing Act of 1990 to strengthen public/private
partnerships to provide more Affordable housing to
qualified persons.
The requirements contained in this Agreement, 24
CFR Part 92 and any other requirements imposed by
the City.
All federal, state and local laws, regulations and
requirements relating or pertaining to the HOME
Loan and/or the Project, and any requirements
imposed by the City.
1.14 -Income
Household: Annual income does not exceed percent
( %) of the median income for the area, as
determined by HUD with adjustments and certain
exceptions as provided in 24 CFR Part 570.
1.15 -Income
Household: Annual income does not exceed percent
( %) of the median income for the area, as
determined by HUD, with adjustments and certain
exceptions as provided in 24 CFR Part 570.
1.16 Project:
is new construction consisting of an
-floor mix -income, mid -rise residential building
located at , Miami, Florida. The
project will have a total of one hundred twelve (112)
units consisting of ( ) two -
Page 4 of 50
1.17 Property:
1.18 Permitted Senior Financing:
1.19 Term:
1.20 The Covenant:
1.21 Investor:
1.22
Households:
-Income
bedroom/one-bathroom and ( )
one-bedroom/one-bathroom units. The Affordable
HOME Assisted Units shall be comprised of
( ) one-bedroom/one-bathroom
units. The Building on the Property shall be
constructed in accordance with the Project
Schedule/Scope of Work and the plans and
specifications (attached hereto and incorporated
herein as Exhibit "B"), that will provide affordable
housing opportunities in accordance with HUD
income guidelines.
The real property located at , Miami,
FL, Miami, FL, in the County of Miami -Dade, State
of Florida, on which the Project is being constructed,
as legally described in Exhibit "A", attached hereto
and incorporated herein.
The period commencing on the Effective Date hereof
and ending at the expiration of the Affordability
Period, unless this Agreement is terminated sooner
as provided for herein.
A Declaration of Restrictive Covenants to be
recorded in the Public Records of Miami -Dade
County, Florida to ensure that the HOME Assisted
Units will qualify and remain Affordable during the
Affordability Period.
, N.A., a national banking
association, and its successors and assigns
Annual income does not exceed percent
( %) of the median income for the area, as
determined by HUD, with adjustments and certain
exceptions as provided in 24 CFR Part 570.
ARTICLE II
HOME FUNDS
Upon satisfaction of all conditions set forth herein, the City has disbursed or shall disburse
the HOME Funds to the Project Sponsor for the purposes herein set forth.
Page 5 of 50
2.1 Use of Funds.
mix -income, mid -rise residential building located at
consists of a total of ( ) units.
Units for -Income, -Income, and
is new construction consisting of an 8-floor
, Miami, Florida. The project
( ) units will be HOME Assisted
-Income Households for a period of thirty
(30) years, commencing at the Close -Out of the Project.
( ) of the units in the Building shall be HOME Assisted Units; the HOME Funds
shall be used for certain development costs and for construction hard costs of the Project, in
accordance with the Scope of Work/Project Schedule attached hereto and incorporated herein as
Exhibit "B" and the Budget attached hereto and incorporated herein as Exhibit "C".
2.2 Disbursement. The HOME Funds shall be disbursed in accordance with the
Budget attached hereto and incorporated herein as Exhibit "C" and in the manner set forth in that
certain Disbursement Agreement, of even date herewith, to be entered into by the City and the
Project Sponsor (the "Disbursement Agreement") a copy of which is attached hereto as Exhibit
"D". The Project Sponsor shall not request disbursement of such Funds until such Funds are
needed for payment of eligible costs. The amount of each request for disbursement must be limited
to the amount needed for the payment of eligible costs. The Project Sponsor agrees and affirms
that any expenditure of the HOME Funds will be in compliance with the requirements of 24 CFR
§92.206.
Project Sponsor acknowledges and affirms that Fifty Thousand and 00/100 Dollars
($50,000.00) of the HOME Funds was awarded to the Project for, and may be used by the City to
cover, certain costs incurred by the City in connection with the Project.
2.3 Repayment of HOME Funds. Repayment by the Project Sponsor of principal,
accrued interest, and other costs and charges set forth in the HOME Loan Documents shall be
deferred to the end of the Affordability Period, at which time the accrued interest and principal
shall be due and payable. Upon the expiration of the Affordability Period, the HOME Loan will
be repaid as follows:
A. This HOME Funds construction loan shall bear zero percent (0%) during the
construction of the project. Upon the Close -Out of the Project, the loan will be converted to a 30-
year permanent loan that shall bear interest at the rate of three percent (3%) per annum thereon.
The principal and any accrued interest will be deferred to the end of the thirty (30) year
Affordability Period, at which time the principal and all accrued interest are due and payable. At
the sole discretion of the City, the interest or principal payments, or both, may be waived.
B. The Project Sponsor shall not agree to any transaction or agreement that will create
additional mandatory superior payments without the City's prior written approval other than as
set forth on Schedule "A" attached hereto and made a part hereof.
C. Notwithstanding any provision herein to the contrary, in the event that the Project
Sponsor shall:
Page 6 of 50
(i) Meet all of its obligations hereunder and under all of the HOME Loan
Documents executed in connection herewith;
(ii) Commence construction of the Project within six (6) months from the
Effective Date of this Agreement;
(iii) Obtain all required certificates of occupancy for the Project, within eighteen
(18) months from the Effective Date;
(iv) Rent ( ) HOME Assisted Units to Low -Income, Very
Low -Income, and Extremely Low -Income Households in accordance with
the requirements of this Agreement, within twelve (12) months after the
issuance of certificates of occupancy for the Project, but in no event later
than thirty (30) months from the Effective Date
(v) Throughout the Affordability Period, rent the HOME Assisted Units to
-Income Households, Income Households, and -
Income Households in accordance with the requirements of this Agreement,
the Rent Regulatory Agreement and the other HOME Loan Documents; and
(vi) Throughout the Affordability Period, comply with all applicable HOME
Requirements and all applicable requirements hereof and in the other
HOME Loan Documents;
then, in such event, the City may, in its sole and absolute discretion, cancel all remaining
indebtedness on the Loan, cancel the HOME Note (and deliver, or cause to be delivered, the
cancelled original HOME Note to the Project Sponsor), and satisfy the Mortgage (and prepare and
record a satisfaction of the Mortgage in the Public Records of Miami -Dade County, Florida).
D. Notwithstanding any provision herein to the contrary, the amount of the HOME Funds
disbursed hereunder, together with all interest accrued thereon, shall become due and payable upon
the occurrence of an Event of Default as described in Article VII below and the continuance of
such Event of Default beyond the applicable cure period, if any.
ARTICLE III
DISBURSEMENT REQUIREMENTS
3.1 CONDITIONS OF DISBURSEMENT OF HOME FUNDS.
The City shall not be obligated to disburse the HOME Funds unless and until the City has
received the following:
3.1.1 Title Insurance. A title insurance commitment issued by a title insurance company
acceptable to the City identifying the City's insurable interest, the Project Sponsor's
Leasehold estate in the Property, together with copies of all instruments which
Page 7 of 50
appear as exceptions therein. The title commitment and policy shall be issued
without exceptions, except for those exceptions permitted by the City, and shall
include such affirmative coverage as the City shall require.
3.1.2 Survey. An original current survey of the Property made by a registered surveyor
satisfactory to the City and the title company and containing such certifications as
the City and the title company may require.
3.1.3 Zoning. Evidence that the Property and the proposed improvements comply with
all applicable zoning ordinances.
3.1.4 HOME Program. Evidence of the Project Sponsor's satisfactory compliance with
all of the applicable requirements of the HOME Program, pursuant to 24 CFR Part
92, as hereinafter detailed.
3.1.5 Corporate Documents.
(a) The operating agreement, or its equivalent, and a good standing certificate
for the Project Sponsor and its Manager, certified by the appropriate
governmental authority.
(b) Resolutions, and incumbency certificates, or, in the case of a partnership,
their equivalent, for the Project Sponsor and its Manager certified by the
Corporate Secretary or other authorized signer, authorizing the
consummation of the transactions contemplated hereby, all satisfactory to
the City.
(c) Evidence satisfactory to the City that Project Sponsor or any partner of such
entity, is qualified to receive funds under the HOME Program in accordance
with the accordance with the HOME Requirements.
3.1.6 Insurance Policies.
(a) Comprehensive General Liability and umbrella liability coverage in an
amount not less than $1,000,000.00 per occurrence and $2,000,000.00
annual aggregate, protecting the City and the Project Sponsor against
liability incidental to the use of, or resulting from an accident occurring on
or about, the Property, including coverage for: (i) fire, explosion, collapse
and underground hazards, completed operations and independent
contractors, and (ii) automobile liability for all owned vehicles as well as
coverage for non -owned and hired automobiles with a combined Single
Limit of at least $1,000,000.00.
(b) Workers' compensation insurance as required by the laws of the State of
Florida.
Page 8 of 50
(c) Employer's liability insurance protecting the Project Sponsor against
liability resulting from any accident or liability arising from or relating to
any construction on the Property.
(d) A builder's risk policy, using a completed value form in an amount not less
than one hundred percent (100%) of the full insurable replacement cost of
the Project, insuring the Project from such perils and other hazards as the
City may reasonably require, including without limitation, fire, extended
coverage, vandalism and malicious mischief, and collapse.
(e) If any portion of the Property is located in an area identified by the Federal
Emergency Management Agency as an area having special flood hazards,
Federal flood insurance in such an amount as is satisfactory to the City.
(f) A bid, payment and/or performance bond in such form as may be required
by the City
All such insurance shall insure the City, as an additional insured, with a loss payable clause
in favor of the City. The Project Sponsor shall be required to obtain and furnish evidence of any
other insurance coverage the City may require during the Term of this Agreement, including, but
not limited to that described on Exhibit "I" attached hereto and made a part hereof. 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,
and all such policies shall be written by insurance companies satisfactory to the City.
Failure of the Project Sponsor to submit all required evidence of the specified insurance
coverage, except for Comprehensive General Liability and umbrella liability coverage, three (3)
calendar days prior to the closing shall delay the disbursement of the HOME Funds.
3.1.7 Operative Documents. This Agreement, the Covenant, the other HOME Loan
Documents, and all other HOME Documents, duly and lawfully executed by the Project
Sponsor and in recordable form, where appropriate.
3.1.8 Appraisal. A current appraisal of the Property made by a member of the American
Institute of Real Estate Appraisers.
3.1.9 List of Subcontractors. A list of all of the Project Sponsor's subcontractors as of
the date of execution of this Agreement, and copies of all contracts in excess of
$10,000 for the performance of services or the supply of materials in connection
with the Project to be funded pursuant to this Agreement.
3.1.10 Compliance with HOME Requirements. All other documents required by the
HOME Program evidencing compliance with HOME Requirements.
Page 9 of 50
3.1.11 Firm Commitments for Construction Financing. Evidence of firm commitments
for a construction/permanent loan(s) as provided for in the Budget, attached hereto
as Exhibit "C" and made a part hereof.
3.1.12 Evaluation of Project Costs. The evaluation of the Project's costs as prepared by
an independent engineer/general contractor, engaged by the Project Sponsor, that
supports the total projected construction costs of the Project.
3.1.13 First Source Hiring Agreement. If applicable, an executed First Source Hiring
Agreement between the Project Sponsor and the City.
3.1.14 Historic Preservation Review. All applicable requirements of the State of Florida
Historic Preservation Department shall have been met prior to the disbursement of
any funds hereunder.
3.1.15 Environmental Report. The Project Sponsor shall submit all information requested
by the City with respect to the Project including, but not limited to, Phase I and
Phase II Environmental Assessment Reports, as applicable.
3.1.16 Audit Report. The Project Sponsor shall submit audit reports, as are required herein,
to the City.
3.1.17 Personnel Policies and Administrative Procedure Manuals. The Project Sponsor
shall submit detailed documents describing the Project Sponsor's internal
organizational structure, property management and procurement policies and
procedures, personnel management, accounting policies and procedures, etc. Such
information shall be submitted to the City within thirty (30) days of the execution
of this Agreement and prior to the disbursement of any funds hereunder.
3.1.18 Certificate Regarding Lobbying. Such Certificate Regarding Lobbying as may be
requested by the City.
3.1.19 Certificate Regarding Debarment, Suspension, and Other Responsibility Matters.
Such Certificate Regarding Debarment, Suspension and Other Responsibility
Matters as may be requested by the City.
3.1.20 Public Entity Crime Affidavit. Such Public Entity Crime Affidavit as may be
required by the City.
3.1.21 Environmental Clearance. Project construction must not commence, nor will any
HOME Funds be advanced, nor are any costs to be incurred, until satisfactory
completion of an environmental review and receipt by the City of a release of funds
from HUD under 24 CFR Part 58.
3.1.22 All other documents required by the City.
Page 10 of 50
ARTICLE IV
HOME PROGRAM REQUIREMENTS
The Project Sponsor shall comply with all applicable requirements of the HOME Program
as provided in 24 CFR Part 92 including, but not limited to, the following HOME Requirements:
4.1 GENERAL.
4.1.1 The Project Sponsor shall maintain current documentation that its activities
qualify under the HOME Requirements.
4.1.2 The Project Sponsor shall ensure that any expenditure of the HOME Funds
will be in compliance with the requirements of 24 CFR §92.206.
4.1.3 The Project Sponsor shall comply with all the non-discrimination
requirements of 24 CFR §92.350.
4.1.4 The Project Sponsor shall comply with the affirmative marketing
requirements specified in Exhibit "E" attached hereto and incorporated
herein; further the Project Sponsor shall annually report to the City on all
actions taken to comply with said requirements as same are specified in
Exhibit "E".
4.1.5 The Project Sponsor shall comply with all applicable provisions of 24 CFR
Part 92, including, but not limited to: (i) the displacement, relocation and
acquisition requirements of 24 CFR §92.353; (ii) the labor requirements of
24 CFR§92.354; (iii) the conflict of interest provisions prescribed in 24
CFR §92.356(f), in addition to the conflict of interest provisions specified
under Section 6.7 of this Agreement; and (iv) shall carry out each Project
activity in compliance with all other applicable Federal laws and
regulations.
4.1.6 The Project Sponsor shall ensure that, upon completion of the Project and
throughout the Affordability Period, the Project meets the property
standards contained in 24 CFR §92.251 and the lead -based paint
requirements of 24 CFR §92.355 and 24 CFR Part 35, subparts A, B, J, K,
M and R.
4.1.7 Throughout the Affordability Period the Project Sponsor shall comply with
all Project housing quality standards imposed by the City.
4.1.8 The Project Sponsor agrees that throughout the Affordability Period, Rents
and tenant incomes for the HOME Assisted Units shall be monitored by the
City.
Page 11 of 50
4.1.9 The Project Sponsor shall comply with the project requirements of 24 CFR
Part 92, subpart F, as applicable in accordance with the type of project
assisted.
4.1.10 Attendance at citizen participation committees/meetings, provided the
Project Sponsor is provided reasonable notice of such committees/meetings.
4.1.11 The Project Sponsor shall, to the greatest extent possible, give Low -Income
residents of the service community opportunities for training and
employment.
4.1.12 The Project Sponsor shall ensure and maintain documentation that
conclusively demonstrates that each activity assisted in whole or in part with
HOME Funds is an activity that benefits Low -Income Households.
4.2 REAL PROPERTY.
4.2.1 Any real property that was acquired or improved in whole or in part with
HOME Funds received from the City shall be either:
(a) Used to complete one of the HOME eligible activities as required
by and defined in 24 CFR Part 92 for such period of time as
determined by the City based on the eligible activity.
(b) Disposed of in a manner that results in the City being reimbursed for
the amount of the current fair market value of the Property as may
be determined by the City in its sole and absolute discretion, less
any proportionate portion of the value attributable to expenditures
of non -HOME funds for the acquisition, or improvement, of the
Property.
4.2.2 All real property purchased in whole or in part with funds for this
Agreement with the City, or transferred to the Project Sponsor after being
purchased in whole or in part with funds from the City, shall be listed in the
property records of the Project Sponsor and shall include: a legal
description; size; address and location; owner's name if different from the
Project Sponsor; information on the transfer or disposition of the property;
and a map indicating whether property is in parcels, lots, or blocks and
showing adjacent streets and roads. The property records shall describe the
programmatic purpose for which the property was acquired and identify the
HOME activity that will be completed. If the property was improved, the
records shall describe the programmatic purpose for which the
improvements were made and identify the HOME activity that will be
completed.
Page 12 of 50
4.3 PERSONAL PROPERTY.
4.3.1 Definitions.
(a) Personal Property. Personal Property of any kind except real property:
1) Tangible. All personal property having physical existence.
2) Intangible. All personal property having no physical existence such
as patents, inventions and copyrights.
(b) Non -expendable Personal Property. Tangible personal property of a non-
consumable nature, with a value of $500.00 or more per item, with a normal
expected life of one or more years, not fixed in place, and not an integral
part of a structure, facility, or another piece of equipment.
(c) Expendable Personal Property. All tangible personal property other than
non -expendable property.
4.3.2 Requirements. The Project Sponsor shall comply with the non -expendable
personal property requirements stated below:
(a) All non -expendable personal property purchased in whole or in part with
funds from this and previous contracts with the City shall be listed in the
property records of the Project Sponsor and shall include: a description of
the property; location; model number; manufacturer's serial number; date of
acquisition; funding source; unit cost; property inventory number;
information on its condition; and information on the transfer, replacement,
or disposition of the property.
(b) All non -expendable personal property purchased in whole or in part with
funds from this and previous contracts with the City shall be inventoried
annually by the Project Sponsor and an inventory report submitted to the
City when and as requested by the City. The inventory report shall include
the elements listed in Paragraph 4.3.2(a), above.
(c) Ownership of all non -expendable personal property purchased in whole or
in part with funds given to the Project Sponsor pursuant to the terms of this
Agreement shall vest in the City.
4.4 DISPOSITION. The Project Sponsor shall obtain the prior written approval of the City for
the disposition of real property, expendable personal property and non -expendable personal
property purchased in whole or in part with funds given to the Project Sponsor or its subcontractors
pursuant to the terms of this Agreement, and shall dispose of all such property in accordance with
instructions from the City. Those instructions may require the return of all such property to the
City.
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4.5 SUBCONTRACTS AND ASSIGNMENTS.
4.5.1 The Project Sponsor shall ensure that all subcontracts and assignments funded with
HOME Funds hereunder:
(a) Identify the full, correct, and legal name of all parties;
(b) Describe the activities to be performed;
(c) Present a complete and accurate breakdown of its price component;
(d) Incorporate a provision requiring compliance with all applicable regulatory
and other requirements of this Agreement, including but not limited to the
City's Minority Procurement Ordinance, and with any other conditions
and/or approvals that the City may deem necessary. The requirements of
this subparagraph apply to subcontracts and assignments in which parties
are engaged to carry out any eligible substantive programmatic service, as
may be defined by the City, set forth in this Agreement. The City shall in
its sole and absolute discretion determine when services are eligible
substantive programmatic services and subject to the audit and record -
keeping requirements described in this Agreement; and
(e) Incorporate the language of the Certificate Regarding Lobbying executed in
connection herewith.
4.5.2 The Project Sponsor shall incorporate in all consultant and other subcontracts
funded with HOME funds hereunder the following provision:
"[The Project Sponsor] is not responsible for any insurance or other fringe
benefits, e.g., social security, income tax withholding, retirement or leave benefits,
for [the Consultant] or employees of [the Consultant], that are normally available
to direct employees of [the Project Sponsor]. [The Consultant] assumes full
responsibility for the provision of all insurance and fringe benefits for
himself/herself/itself and employees retained by [the Consultant] in carrying out
the Scope of Services provided in this subcontract."
4.5.3 The Project Sponsor shall be responsible for monitoring the contractual
performance of all subcontracts.
4.5.4 The Project Sponsor shall submit to the City for its review and confirmation any
subcontract engaging any party who agrees to carry out any substantive
programmatic activities, to ensure its compliance with the requirements of this
Agreement. The City's review and confirmation shall be obtained prior to the
release of any funds for the Project Sponsor's subcontractor(s).
Page 14 of 50
4.5.5 The Project Sponsor shall receive written approval from the City prior to either
assigning or transferring any obligations or responsibility set forth in this
Agreement.
4.5.6 Approval by the City of any subcontract or assignment shall not under any
circumstances be deemed to be the City's agreement to incur any obligations in
excess of the total dollar amount agreed upon in this Agreement.
4.5.7 The Project Sponsor and its subcontractors shall comply with the Davis -Bacon Act,
if applicable, the Copeland Anti -Kick Back Act, the Contract Work Hours and
Safety -Standards Act, the Lead -Based Paint Poisoning Prevention Act, the
Residential Lead Based Paint Hazard Reduction Act of 1992 (and implementing
regulations at 24 C.F.R. Part 35) and any other applicable laws, ordinances and
regulations.
4.5.8 If the City requests it, the Project Sponsor shall submit to the City, for written prior
approval, all proposed Solicitation Notices, Invitations for Bids, and Requests for
Proposals.
4.6 REPORTING OBLIGATIONS.
4.6.1 The Project Sponsor shall submit the following as required by the City:
4.6.1.1 Progress Reports. The Project Sponsor shall submit status reports
and projected completion dates to describe the progress made by the
Project Sponsor in achieving each of the objectives identified in
Exhibit "B" attached hereto. The Project Sponsor shall also submit
an Earned Income Report in such form as may be required by the
City. Both the Progress Report and the Earned Income Report shall
be provided to the City on a quarterly basis.
4.6.1.2 Inventory Report. The Project Sponsor shall furnish such reports on
the Project real property, as specified in Paragraph 4.2 hereof, as
may be requested by the City.
4.6.13 Affirmative Action Plan. The Project Sponsor shall report to the
City such information relative to the equality of Project employment
opportunities as and when requested by the City.
4.6.1.4 Assurance of Compliance with Section 504 of the Rehabilitation
Act. The Project Sponsor shall report on its compliance with
Section 504 of the Rehabilitation Act, whenever requested by the
City.
4.6.1.5 Affirmative Marketing Plan and Report. The Project Sponsor shall
report to the City, annually, on all actions taken to comply with the
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affirmative marketing requirements provided in Exhibit "E"
attached hereto.
4.6.1.6 List of Subcontractors. The Project Sponsor shall provide a list of
all Project contractors and subcontractors, and copies of all contracts
in excess of $10,000 for the performance of services or the supply
of materials in connection with the Project and to be funded pursuant
to the terms and conditions of the Regulatory Agreement and this
Agreement.
4.6.1.7 Previously Funded City Projects. The Project Sponsor shall comply
with (i) all applicable reporting requirements relating to the Project
Sponsor's previously funded City projects which are under
construction or in the Affordability Period, including, without
limiting the foregoing, OMB A-133; and (ii) all applicable insurance
requirements relating to such other previously funded projects of the
Project Sponsor.
4.6.1.8. Audits, Other Information and Records.
(i)
The Project Sponsor shall submit to the City an audit
conducted by an independent certified public accountant or
firm of independent certified public accountants in
accordance with generally accepted auditing standards,
including audited financial statements and a report on
compliance with laws and regulations based on the audit of
financial statements. Two copies of each such audit must be
delivered to the City no later than six (6) months following
the end of each Project Sponsor fiscal year.
Each such audited financial statement is to be for the 12
months ended December 31 and shall include:
a. Comparative Balance Sheet with prior year and
current year balances;
b. Statement of revenue and expenses;
c. Statement of changes in fund balances or equity;
d. Statement of cash flows; and
e. Notes
The financial statements shall be accompanied by a
certification of the Project Sponsor as to the accuracy of
such financial statements.
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A late fee of $500.00 will be assessed by the City for failure
to submit any of the required audited financial statements
or the certification each year as required.
At the request of the City, the Project Sponsor shall also
furnish to the City unaudited financial statements of the
Project Sponsor, certified by the Project Sponsor's principal
financial or accounting officer, covering such financial
matters as the City may request, including without
limitation, monthly statements with respect to the Project.
(ii) The Project Sponsor shall maintain all Contract Records in
accordance with generally accepted accounting principles,
procedures, and practices, which records shall sufficiently
and properly reflect all revenues and expenditures of funds
provided directly or indirectly by the City pursuant to the
terms of this Agreement.
(iii) The Project Sponsor shall ensure that the Contract Records
shall be at all times subject to and available for full access
and review, inspection or audit by the City and federal
personnel and any other personnel duly authorized by the
City.
(iv) The Project Sponsor shall include in all Project subcontracts,
each of the record keeping and audit requirements detailed
in this Agreement. The City shall in its sole discretion
determine when services are subject to the audit and
recordkeeping requirements described above.
The Project Sponsor shall submit to the City all reports described in this Section 4.6, and
all other reports that the City may reasonably require, in such form, manner and frequency as the
City may require to monitor the progress of the Project and the Project Sponsor's performance and
compliance with this Agreement, the Regulatory Agreement, the other HOME Loan Documents
and all Legal Requirements.
4.6.2 Federal, State and County Laws and Regulations.
4.6.2.1 The Project Sponsor shall comply with all applicable provisions of
federal, state, county and City laws, regulations, rules and
administrative requirements, such as OMB Circular No. A-122,
OMB Circular No. A-110, OMB Circular No. A-21, and OMB
Circular No. A-133, which are incorporated herein by reference, as
they may be revised from time to time.
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4.6.2.2 The Project Sponsor shall comply with all applicable federal laws
and regulations such as: 24 CFR Part 92; 24 CFR Part 85, Section
504 of the Rehabilitation Act of 1973, as amended, which prohibits
discrimination on the basis of handicap; Title VI of the Civil Rights
Act of 1964, as amended, which prohibits discrimination on the
basis of race, color, or national origin; the Age Discrimination Act
of 1975, as amended, which prohibits discrimination on the basis of
age; Title VIII of the Civil Rights Act of 1968, as amended, and
Executive Order 11063 which prohibits discrimination in housing
on the basis of race, color, religion, sex, or national origin; Executive
Order 11246 which requires equal employment opportunity; and
with the Energy Policy and Conservation Act (Pub. L. 94-163)
which requires mandatory standards and policies relating to energy
efficiency.
4.6.2.3 If the amount payable to the Project Sponsor pursuant to the terms
of this Agreement is in excess of $100,000.00, the Project Sponsor
shall comply with all applicable standards, orders, or regulations
issued pursuant to the Clean Air Act of 1970 (42 U.S.C. 7401 et.
seq.), as amended; the Federal Water Pollution Control Act (33
U.S.C. 1251), as amended; Section 508 of the Clean Water Act (33
U.S.C. 1368); Environmental Protection Agency regulations (40
CFR Part 15); and Executive Order 11738.
4.7 ADDITIONAL HOME FUNDING. The Project Sponsor acknowledges that under the
HOME Program, additional HOME funds may be committed to the Project up to one (1)
year after "Project Completion", but the amount of HOME funds in the Project may not
exceed the per -unit subsidy amount established in 24 CFR Part 92. The City may, in its
sole discretion, de -obligate the HOME Funds from the Project, if by no later than six (6)
months from the date of approval of the HOME Funds, the Borrower has failed to obtain
all funding commitments represented to HCLC.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
OF THE PROJECT SPONSOR
The Project Sponsor represents and warrants to the City as follows:
5.1 Organization and Existence. The Project Sponsor is a Florida limited liability
company, duly organized, validly existing and in good standing under the laws of the State of
Florida, and has full power and authority to conduct its business as presently conducted, to receive
the HOME Funds, and to own, operate and develop the Project.
The Project shall comply with all applicable HOME Requirements. The Project Sponsor
has full power and authority to perform the provisions hereof and of its agreements and
undertakings with the City and to perform the transactions contemplated hereby, and such
Page 18 of 50
execution and performance have been duly authorized by all necessary corporate or other
approvals and actions.
5.2 Correctness of Documents. The cost estimates, Budget, schedules, and all other
documents furnished to the City in accordance with the HOME Program, this Agreement, and/or
the other HOME Loan Documents, are true and correct in all material respects and accurately set
forth the facts contained therein and neither misstate any material fact nor, separately or in the
aggregate, fail to state any material fact necessary to make the statements made therein not
misleading.
5.3 Absence of Proceedings, Actions and Judgments. There are no conditions,
circumstances, events, agreements, documents, instruments, restrictions, actions, suits or
proceedings pending or threatened against or affecting the Project Sponsor, the Project or the
Property which could adversely affect the Project Sponsor's ability to comply with the HOME
Program, complete or operate the Project or to perform its obligations hereunder or which would
constitute an Event of Default hereunder or under the other HOME Loan Documents regardless of
the giving of notice or the passage of time or both. There are no outstanding or unpaid judgments
or arbitration awards against the Project Sponsor.
5.4 Non -Default. The Project Sponsor is not in default or violation with respect to any
Legal Requirement, nor is it in default under or in material breach of any instrument or agreement
to which it is a party or by which it otherwise may be bound. The execution and delivery of this
Agreement and the other HOME Documents, the consummation of the other transactions
contemplated hereby, and the ownership and development of the Project as contemplated hereby
and by the other HOME Documents: (i) do not and will not conflict with or result in violation of
any Legal Requirement or in the breach or default under any indenture, contract, agreement or
other instrument to which the Project Sponsor is a party or by which it may be bound; and (ii) have
been duly authorized by all necessary actions and approvals, whether corporate or otherwise.
5.5 Valid Obligations. This Agreement and all of the other HOME Loan Documents,
when executed and delivered, shall constitute the duly authorized, legal, valid and binding
obligations of the Project Sponsor and will be enforceable in accordance with their respective
terms.
5.6 Marketable Title. The Project Sponsor has good and marketable leasehold title
to=the Property, subject only to: (a) the exceptions and other matters set forth in that certain Title
Insurance Commitment (Order Number ), issued by Title Insurance
Company, effective as of ,2019 at 8:00 pm, as endorsed. (collectively, the "Title
Commitment and Exceptions"); and (b) from time to time, the granting of utility and similar
easements on a non -material portion of the Property to utility and similar service providers for the
installation and maintenance of utility and similar service equipment and components.
5.7 Compliance. The completion and use of the Project in accordance with the Scope
of Work will comply fully with all Legal Requirements, and with all limitations on the use of the
Project, or any other condition, grant, easement, covenant, or restriction, whether recorded or not.
All necessary approvals, permits and licenses for the construction, operation, and use of the Project
Page 19 of 50
have been unconditionally obtained and are in full force and effect, or if the present state of
construction of the Project does not allow such issuance, then such approvals, permits and licenses
will be issued when the Project is completed.
5.8 Encroachments. When completed in accordance with the Scope of Work, the
Project will not encroach upon any building line, setback line, side yard line or other recorded or
visible easements or other easements of which the Project Sponsor is aware which exists (or which
the Project Sponsor has reason to believe may exist) with respect to the Project other than set forth
in the Title Commitment and Exceptions.
5.9 Scope of Work. The Scope of Work is complete in all respects, and contains all
details requisite for the Project which, when built and equipped in accordance therewith, shall be
ready for the intended use and occupancy thereof.
5.10 Leases. There are no leases, tenancies, licenses or agreements for use of any part
of the Property other than as specifically disclosed to and approved by the City, which, for
avoidance of doubt (and which the City hereby acknowledges and agrees), are limited to the leases
for the rental of each HOME Assisted Unit each which may be entered into from time to time.
5.11 Pending Assessments. The Project Sponsor has no knowledge of any pending or
proposed governmental action that would impair the operation or value of the Project or result in
a special assessment against the Project.
5.12
Project.
Waste. The Project Sponsor shall not commit or suffer waste or negligence on the
5.13 Fraud. No fraud by the Project Sponsor has occurred in the qualification of the
Project, the Project Sponsor and/or the Property under the HOME Program, the negotiation of this
Agreement and the other HOME Documents, nor in the transactions contemplated hereby.
5.14 No Casualty. No part of the Property and/or the Project has been damaged or has
been subjected to condemnation or other proceedings, and, to the best of the Project Sponsor's
knowledge and belief, no such proceedings have been threatened.
5.15 No Changes. There have been no material adverse changes in projected costs and
expenses of or from the Project or in the occupancy of the Property or any other features of the
transactions contemplated hereby as submitted to the City.
5.16 Compliance with Laws and Regulations. The Project Sponsor will comply at all
times with all Legal Requirements. The Project Sponsor will comply at all times with the HOME
Requirements affecting the ownership, use, construction, lease and operation of the Project.
5.17. Other Project Financing. The Project Sponsor has not applied for nor received, and
does not otherwise have available, in connection with the Project any other financing/funding,
except for those funds, loans and/or loan commitment previously identified in writing to, and
approved by, the City as set forth on the attached Schedule A the ("Permitted Senior Financing").
Page 20 of 50
5.18 Reaffirmation. Each of the representations and warranties set forth in this Article
shall be true at all times and the acceptance of the HOME Funds hereunder by the Project Sponsor
shall be deemed to be a reaffirmation of each of the representations and warranties given in this
Agreement.
ARTICLE VI
PROJECT SPONSOR'S AND OWNER'S OBLIGATIONS
6.1 Scope of Work. The Project Sponsor shall perform the Scope of Work as set forth
herein and on Exhibit "B" attached hereto.
Project Sponsor shall: (a) meet all of its obligations hereunder and under all of the HOME
Loan Documents executed in connection herewith, (b) commence construction within six (6)
months from the Effective Date of the contract, (c) within twelve (12) months after the issuance
of the certificates of occupancy for the Project, but in no event later than thirty (30) months from
the Effective Date, rent all ( ) HOME Assisted Units to -Income
Households, -Income Households, and -Income Households in
accordance with the requirements of this Agreement, (d) throughout the Affordability Period, rent
the HOME Assisted Units to -Income Households, Income Households, and
-Income Households in accordance with the requirements of this Agreement, the
Rent Regulatory Agreement, and the other HOME Loan Documents; and (f) throughout the
Affordability Period, comply with all applicable HOME Requirements and all applicable
requirements hereof and in the other HOME Loan Documents with regard to the HOME Assisted
Units.
6.2 Reporting Obligations. The Project Sponsor shall submit to the City all reports as
described in Section 4.6 hereof, and all other reports that the City may reasonably require, in such
form, manner, and frequency as the City may reasonably require to monitor the progress of the
Project and the Project Sponsor's performance and compliance with this Agreement and all Legal
Requirements.
6.3 Retention of Records. The Project Sponsor shall retain all Contract Records for
five (5) years after the expiration of the Affordability Period (hereinafter referred to as the
"Retention Period") subject to the limitations set forth below:
(a) If the City or the Project Sponsor has received or given notice of any kind
indicating any threatened or pending litigation, claim or audit arising out of
the activities relating to the Project or the Scope of Work or under the terms
of this Agreement, the Retention Period shall be extended until such time
as the threatened or pending litigation, claim or audit is, in the sole and
absolute discretion of the City, fully, completely and finally resolved.
(b) The Project Sponsor shall allow the City or any person authorized by the
City full access to and the right to examine any of the Contract Records
during the required Retention Period.
Page 21 of 50
(c) The Project Sponsor shall notify the City in writing, both during the
pendency of this Agreement and after its expiration termination, as part of
the final closeout procedure, of the address where all Contract Records will
be retained.
6.4 Provision of Records. All of the Contract Records are subject to the provisions of
Chapter 119, Florida Statutes, commonly referred to as the "Public Records Law". The Project
Sponsor shall provide to the City, upon request, all Contract Records. The requested Contract
Records shall become the property of the City without restriction, reservation, or limitation on
their use and shall be made available by the Project Sponsor at any time upon request by the City.
The City shall have the unlimited right to all books, articles, or other copyrightable materials
developed in the performance of this Agreement, including, but not limited to, the right of royalty -
free, non-exclusive, and irrevocable license to reproduce, publish, or otherwise use, and to
authorize others to use, the Contract Records for public purposes.
If the Project Sponsor receives funds from, or is under regulatory control of, other
governmental agencies and those agencies issue monitoring reports, regulatory examinations, or
other similar reports, the Project Sponsor shall provide a copy of each such report and any follow-
up communications and reports to the City immediately upon such issuance unless such disclosure
is a violation of those agencies' rules.
6.5 Prior Approval. Except for encumbering the Property as required to obtain the
permitted financing as set forth in Section 5.17 of this Agreement and Schedule A attached, the
Project Sponsor shall obtain the City's prior written approval prior to undertaking any of the
following with respect to the Project and/or the Property:
(a) the sale, assignment, pledge, transfer, hypothecation or other encumbrance
or disposition of any proprietary or beneficial interest in the Project
Sponsor, the Project or the Project Sponsor's estate in the Property, or any
change in the operating control of the Project Sponsor, which shall require
the prior approval of the City's HCLC or the City Commission, as
appropriate
(b) Except in the case of repair or replacement caused by normal wear and tear,
and otherwise due to casualty or condemnation in accordance with the terms
of this Agreement, the disposition of any real property or any expendable
personal property or non -expendable personal property as defined in
Paragraph 4.3.1.
(c) Any proposed Solicitation Notice, Invitation for Bids or Request for
Proposals.
(d) The disposal of any Contract Records during the Retention Period.
(e)
Notwithstanding the foregoing or any other provision of this Agreement or
any other Loan Documents, and subject to the requirements of the following
Page 22 of 50
provisions of this Section 6.5 (e), it shall not be an Event of Default under
this Agreement and the consent of the City is not required for (i) the transfer
of the interests in Project Sponsor owned by ., a national
banking association, its affiliates, successors and assigns (collectively,
"Investor") to an affiliate of Investor in accordance with the terms of Project
Sponsor's operating agreement, as such agreement may be amended from
time to time (the "Operating Agreement"), so long as affiliate has the same
managerial rights, authority, and obligations as the Investor, or (ii) the
transfer of the ownership interests in Investor, so long as the managing
member, general partner or controlling shareholder of Investor is an affiliate
of the Investor and has the same rights, authority, and obligations of Project
Sponsor, or (iii) the removal of the managing member interests in Project
Sponsor and transfer thereof to an affiliate of Investor or to
in accordance with the provisions of the Operating Agreement, so long as
affiliate has the same rights, authority, and obligations of the
Authorized Member.
Any transfer or removal/replacement described in the previous paragraph
hereto shall be subject to the following requirements: (A) the term
"affiliate" shall mean any entity of which a majority of the voting interests
is owned, directly or indirectly, by Investor Sponsor, (B) any such transfer
or removal/replacement shall be in compliance with all applicable conflict
of interest requirements, the Legal Requirements and any other applicable
requirements of this Agreement, and (C) the Project Sponsor shall provide,
or cause the Investor to provide the City with written notice of such transfer
or removal/replacement within 15 days of its occurrence.
6.5.1 Director of Community and Economic Development of the City of Miami shall have
the discretion to approve and authorize, by way of Memorandum to the City Manager, the execution
of necessary documents to further Project Close -Out, provided, however, that no material terms are
affected.
6.6 Monitoring. The Project Sponsor shall permit the City and other persons duly
authorized by the City to inspect all Contract Records, facilities, goods, and activities of the Project
Sponsor that are in any way connected to the activities undertaken pursuant to the terms of this
Agreement, and/or to interview any clients, employees, subcontractors, or assignees of the Project
Sponsor. Following such inspection or interviews, the City will deliver to the Project Sponsor a
report of its findings. The Project Sponsor will rectify all deficiencies cited by the City within the
period of time specified in the report, or provide the City with a reasonable justification for not
correcting the deficiencies. The City will determine, in its sole and absolute discretion, whether
or not the Project Sponsor's justification is acceptable.
6.7 Conflict of Interest.
A. The Project Sponsor is aware of the conflict of interest laws of the City of Miami
(Code of the City of Miami, Florida, Chapter 2, Article V), of Miami -Dade County, Florida (Code
of Miami -Dade County, Florida, Section 2-11.1), and of the State of Florida (as set forth in Florida
Page 23 of 50
Statutes), and with the HOME Program conflict of interest rules (24 C.F.R. §92.356), all as
amended, and agrees that it will fully comply in all respects with the terms thereof and any future
amendments.
B. The Project Sponsor covenants that no person or entity under its employ, presently
exercising any functions or responsibilities in connection with this Agreement, has any personal
financial interests, direct or indirect, with the City. The Project Sponsor further covenants that, in
the performance of this Agreement, no person or entity having such conflicting interest shall be
utilized in respect to the Scope of Work or services provided hereunder. Any such conflict of
interest(s) on the part of the Project Sponsor, its employees or associated persons or entities must
be disclosed to the City.
C. The Project Sponsor shall disclose any possible conflicts of interest or apparent
improprieties of any party under or in connection with the Legal Requirements, including the
standards for procurement.
D. The Project Sponsor shall make any such disclosure to the City in writing and
immediately upon the Project Sponsor's discovery of such possible conflict. The City's
determination regarding the possible conflict of interest shall be binding on all parties.
E. No employee, agent, consultant, elected official or appointed official of the City,
exercising any functions or responsibilities in connection with the City's HOME Program or this
Agreement, or who is in a position to participate in the decision -making process or gain inside
information regarding HOME -assisted activities, has any personal financial interest, direct or
indirect, in this Agreement, the proceeds hereunder, the Project or the Project Sponsor, either for
themselves or for those with whom they have family or business ties, during their tenure or for one
year thereafter.
6.8 Related Parties. The Project Sponsor shall report to the City the name, purpose for
and any other relevant information in connection with any related -party transaction. The term
"related party transaction" includes, but is not limited to, a transaction or relationship between the
Project Sponsor and a for -profit or nonprofit subsidiary or affiliate organization, an organization
with an overlapping board of directors, and an organization for which the Project Sponsor is
responsible for appointing memberships. The Project Sponsor shall report this information to the
City upon forming the relationship, or if already formed, shall report such relationship prior to or
simultaneously with the execution of this Agreement. Any supplemental information shall be
promptly reported to the City no later than in the next required Progress Report, as described above.
6.9 Publicity and Advertisements. The Project Sponsor shall ensure that all publicity
and advertisements prepared and released by the Project Sponsor, such as pamphlets and news
releases, related to activities funded by this Agreement, and all events carried out to publicize the
accomplishments of any activities funded by this Agreement, recognize the City as one of its
funding sources.
6.10 Procurement. The Project Sponsor shall make a positive effort to procure supplies,
equipment, construction, or services to fulfill this Agreement from minority and women owned
Page 24 of 50
businesses, and to provide these sources the maximum feasible opportunity to compete for
subcontracts to be performed pursuant to this Agreement. To the maximum extent feasible, these
businesses shall be located in or owned by residents of the community development areas
designated by the City.
6.11 Additional Funding. The Project Sponsor shall not procure any other financing in
connection with the Project or the Property without the prior written consent of the City, other than
those financings disclosed to the City in writing as of the date hereof, which, for avoidance of
doubt, are provided for in Section 5.17 of this Agreement.
6.12 Reversion of Assets. The Project Sponsor shall return to the City upon the
expiration or termination of this Agreement any HOME Funds on hand, any funds or accounts
receivable attributable to the HOME Funds, and any overpayments due to unearned funds or costs
disallowed pursuant to the terms of this Agreement that were disbursed to the Project Sponsor by
the City. Any funds not earned by the Project Sponsor prior to the expiration or termination of
this Agreement, as described and provided for in OMB Circular No. A-122, shall be retained by
the City.
6.13 Repayment of Funds Procedures. If, after notice and the expiration of any
applicable cure period, for any reason during the Affordability Period any HOME Assisted Unit
fails to comply with the Affordability requirements of 24 CFR Part 92, the Project Sponsor shall
repay to the City all funds received by the Project Sponsor pursuant to this Agreement, and interest
thereon as provided in the HOME Note.
6.14 Affirmative Marketing. The Project Sponsor shall comply with the affirmative
marketing requirements and procedures provided on Exhibit "E" attached hereto and made a part
hereof. Project Sponsor shall comply with the requirements of the affordable housing notice to
City Officials in City of Miami Ordinance #13491.
6.15 Section 3 Clause. The Project Sponsor shall comply with the requirements of
Section 3 of the Housing and Urban Development Act of 1968, as amended (12 U.S.C. 1701u):
(A) The work to be performed under this contract is subject to the
requirements of Section 3 of the Housing and Urban Development Act
of 1968, as amended, 12 U.S.C. 1701u (Section 3.) The purpose of
Section 3 is to ensure that employment and other economic
opportunities generated by HUD assistance or HUD -assisted projects
covered by Section 3, shall to the greatest extent feasible, be directed to
low income persons, particularly persons who are recipients of HUD
assistance for housing.
(B) The parties to this contract agree to comply with HUD's regulations in
24 CFR Part 135, which implement Section 3. As evidenced by their
execution of this contract, the parties to this contract certify that they are
under no contractual or other impediment that would prevent them from
complying with the Part 135 regulations.
Page 25 of 50
(C) The contractor agrees to send to each labor organization or
representative of workers with which the contractor has a collective
bargaining agreement or other understanding, if any, a notice advising
the labor organization or worker's representative of the contractor's
commitments under this Section 3 clause, and will post copies of the
notice in conspicuous places at the work site where both employees and
applicants for training and employment positions can see the notice.
The notice shall describe the Section 3 preference, shall set forth
minimum number and job titles subject to hire, availability of
apprenticeship and training positions, the qualifications for each; and
the name and location of the person(s) taking applications for each of
the positions; and the anticipated date the work shall begin.
(D) The contractor agrees to include this Section 3 clause in every
subcontract subject to compliance with regulations in 24 CFR Part 135,
and agrees to take appropriate action, as provided in an applicable
provision of the subcontract or in this Section 3 clause. The contractor
will not subcontract with any subcontractor where the contractor has
notice or knowledge that the subcontractor has been found in violation
of the regulations in 24 CFR Part 135.
The contractor will certify that any vacant employment positions,
including training positions, that are filled (1) after the contractor is
selected but before the contract is executed, and (2) with persons other
than those to whom the regulations of 24 CFR Part 135 require
employment opportunities to be directed, were not filed to circumvent
the contractor's obligations under 24 CFR Part 135.
(F) Noncompliance with HUD's regulations in 24 CFR Part 135 may result
in sanctions, termination of this contract for default, and debarment or
suspension from future HUD assisted contracts.
(G) With respect to work performed in connection with Section 3 covered
Indian housing assistance, Section 7(b) of the Indian Self -Determination
and Education Assistance Act (25 U.S.C. 450e) also applies to the work
to be performed under this contract. Section 7(b) requires that to the
greatest extent feasible (i) preference and opportunities for training and
employment shall be given to Indians, and (ii) preference in the award
of contracts and subcontracts shall be given to Indian organizations and
Indian -owned Economic Enterprises. Parties to this contract that are
subject to the provisions of Section 3 and Section 7(b) agree to comply
with Section 3 to the maximum extent feasible, but not in derogation of
compliance with Section 7(b).
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6.16 Signage, Acknowledgement, Publicity. During the Term of this Agreement, the
Project Sponsor 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 documents, literature, pamphlets, advertisements, and signage,
permanent or otherwise in accordance with Section 6.9 hereof. All such acknowledgments shall
be in a form acceptable to the City, as provided on Exhibit "I" attached hereto and made a part
hereof.
All publicity and advertisements prepared and released by the Project Sponsor 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 funding sources.
6.17 Costs Incurred By the City. Notwithstanding any other provision of this
Agreement, the Project Sponsor understands and agrees that $50,000.00 of the HOME Funds were
awarded to the Project for, and was used by the City to cover, costs incurred by the City on behalf
of the Project. Such costs may include, but are not limited to, environmental advertising costs,
recording fees, and project delivery.
6.18 Affirmative Action. The Project Sponsor shall not discriminate on the basis of race,
color, national origin, sex, religion, age, sexual orientation, marital or family status or
handicap/disability in connection with its performance under this Agreement or in connection with
the occupancy of any HOME Assisted Unit. Age discrimination and discrimination against minor
dependents are also not permitted.
6.19 Previously Funded City Projects. The Project Sponsor shall comply with: (1) all
applicable reporting requirements relating to previously funded City projects which are under
construction or in the affordability period, including OMB A-133, and (2) all applicable insurance
requirements relating to such projects.
6.20 Compliance with Safety Precautions. The Project Sponsor shall allow City
inspectors, agents 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, its agents, or representatives are not assuming any liability by virtue of such
laws, rules, regulations and ordinances. The Project Sponsor shall have no recourse against the
City, its agents, or representatives for the occurrence, non-occurrence or result of such
inspection(s), and shall obtain the affirmative acknowledgment of the Project Sponsor, for the
benefit of the City, that the Project Sponsor shall have no recourse against the City, its agents, or
representatives for the occurrence, non-occurrence or result of such inspection(s).
Simultaneously with the submission of the first draw request to the City, the Project
Sponsor shall contact the City's Risk Management Department Safety Unit in writing to coordinate
such inspection(s).
The Project Sponsor shall affirmatively comply with all applicable provisions of the
Americans with Disabilities Act ("ADA") in the course of providing any work, labor or services
funded by the City, including Titles I and II of the ADA (regarding nondiscrimination on the basis
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of disability) and all applicable regulations, guidelines and standards. Additionally, the Project
Sponsor shall take affirmative steps to ensure nondiscrimination in the employment of disabled
persons.
6.21 Draw Requests. Each Request for Disbursement of hard costs must be signed by
the Project Sponsor, the Architect for the Project and the Contractor, and each Request for
Disbursement of soft costs must be signed by the Project Sponsor, as more fully set forth in the
Disbursement Agreement. The City shall not fund any draw request in an amount that exceeds the
City's initial contribution percentage of the entire development cost of the project. Five percent
(5%) of each draw request will be retained until the City has received as part of the Close-out of
the Project, at the Project Sponsor's sole cost, a Final Cost Certification prepared by an
independent certified public accountant, which must be acceptable to the City in both form and
substance.
6.22 Insurance Proceeds. Notwithstanding anything to the contrary contained herein or
in the other HOME Loan Documents, the Project Sponsor may make insurance proceeds available
for the restoration and repair of the Property and the Project if all of the following conditions are
met: (i) the Project Sponsor is not in breach or default of any provision of the Mortgage or any
other loan document between the Project Sponsor and Lender; (ii) the Project Sponsor determines
that there will be sufficient funds, through insurance proceeds and contributions by the Project
Sponsor, to (a) restore and repair the Property and the Project to a condition as close as reasonably
possible to what previously existed, and (b) meet all operating costs and other expenses, payments
for reserves and loan repayment obligations relating to the Property and the Project until
completion of the restoration and repair of the Property and/or the Project to a condition as close
as reasonably possible to what previously existed; (iii) the Project Sponsor determines that the
rental income of the Project, after restoration and repair to a condition as close as reasonably
possible to what previously existed, will be sufficient to meet all operating costs and other
expenses, payments for reserves and loan repayment obligations relating to the Project, and (iv)
the Project Sponsor has received the City's written concurrence with such determination.
6.23 Condemnation Proceeds. Notwithstanding anything to the contrary contained
herein or in the other HOME Loan Documents, the Project Sponsor may make proceeds of
condemnation available for the restoration and repair of the Property and the Project if all of the
following conditions are met: (i) the Project Sponsor is not in breach or default of any provision
of the Mortgage or any other HOME Loan Document; (ii) the Project Sponsor determines that
there will be sufficient funds, through condemnation proceeds and contributions by the Project
Sponsor, to (a) restore and repair the Property and the Project to a condition as close as reasonably
possible to what previously existed, due consideration given to the portion of the Property and the
Project taken, and, (b) meet all operating costs and other expenses, payments for reserves and loan
repayment obligations relating to the Project until completion of the restoration and repair of the
Property and the Project to a condition as close as reasonably possible to what previously existed,
due consideration given to the portion of the Property and the Project taken; and (iii) the Project
Sponsor determines that the rental income of the Project, after restoration and repair of the Property
and the Project to a condition as close as reasonably possible to what previously existed, due
consideration given to the portion of the Property and the Project taken, will be sufficient to meet
all operating costs and other expenses, payments for reserves and loan repayment obligations
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relating to the Project, and (iv) the Project Sponsor has received the City's written concurrence
with such determination.
7.1
of Default:
ARTICLE VII
DEFAULT
The happening of any one or more of the following events shall constitute an Event
(a) Failure of any of the HOME Assisted Units to remain Affordable at any
time during the Affordability Period.
(b) If any term, condition or representation contained in this Agreement or any
of the other HOME Loan Documents is materially untrue, substantially
inaccurate or incomplete when made, or, if there is a material
misrepresentation of fact or fraud contained in any document(s) submitted
in support of this Agreement.
(c) The substantial discontinuance of the construction of the Project for a period
of fourteen (14) days which discontinuance is, in the sole determination of
the City, without satisfactory cause.
(d) Except as set forth in each of Sections 5.6, 5.17, and 6.5 of this Agreement,
the sale, assignment, pledge, transfer, hypothecation or other encumbrance
or disposition (except due to repair or replacement for normal wear and tear,
and as a result of casualty or condemnation in accordance with this
Agreement) of any proprietary or beneficial interest in the Project Sponsor's
estate in the Property, or any change in operating control of the Project
Sponsor, without the prior approval of the City's HCLC or the City
Commission, as appropriate.
(e) In the event that the City reasonably determines that the Project is not being
rehabilitated in a good and workmanlike manner in accordance with the
Scope of Work, or that the Project Sponsor is failing to comply promptly
with any requirement or notice of violation of law issued by or filed by the
City or any department of any governmental authority having jurisdiction
over the Project Sponsor or the Property.
(f) Failure by the Project Sponsor to comply with any material term or
provision of this Agreement or any of the HOME Loan Documents, or the
occurrence of an event of default under any of the other HOME Loan
Documents.
(g) Any change in zoning requirements or zoning classification of the Property
initiated by the Project Sponsor, which in the City's sole discretion would
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materially interfere with the completion of construction of the Project or the
ultimate operation of the Project as contemplated herein.
(h) In the event that the City reasonably determines that there exists an event of
default under and pursuant to the terms of any other agreement or obligation
of any kind or nature whatsoever of the Project Sponsor to the City, direct
or contingent, whether now or hereafter due, existing, created or arising.
ARTICLE VIII
REMEDIES
8.1 Upon the occurrence of any Event of Default, the City shall have the absolute right
to refuse to disburse any undisbursed portion of the Loan.
The City shall provide written notice of the occurrence of an Event of Default to the Project
Sponsor and Investor, after which the Project Sponsor shall have thirty (30) days to cure said
default (except for the events described in Section 7.1 (b) and (d) above for which the
aforementioned cure period shall not apply).
In the event a default which is permitted to be cured cannot practicably be cured within
thirty (30) days, the Project Sponsor shall have such additional time as may be required to effect a
cure, so long as (a) the cure is commenced within thirty (30) days and is diligently prosecuted and
(b) the lack of a cure during such continuing cure period has no material adverse effect on the
Project. The City agrees to accept a cure of any default committed by the Project Sponsor, which
cure is tendered or effected by the Investor, as if such sure had been tendered or effected by the
Project Sponsor.
If an Event of Default shall continue uncured for a period of thirty (30) consecutive days
following written notice thereof to the Project Sponsor (except for the events described in Section
7.1 (b) and (d) above for which the aforementioned cure period shall not apply and except for cures
which are continuing as provided in the preceding paragraph), and subject to the provisions of the
last paragraph of this Section, the City shall have the absolute right, at its option and election and
in its sole discretion to:
(a) Specific Performance. Institute appropriate proceedings to specifically
enforce performance of the terms and conditions of this Agreement;
(b) Recapture of HOME Funds. Demand that the Project Sponsor reimburse
the City for the HOME Funds disbursed to the Project Sponsor pursuant to
this Agreement. The Project Sponsor shall reimburse City in the amount of
the HOME Funds disbursed to the Project Sponsor pursuant to this
Agreement, subject to any limitations contained in the HOME Note and/or
Mortgage concerning Borrower's or Project Sponsor's liability for amounts
due under the HOME Loan Documents.
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(c) Other Remedies. Exercise any other right, privilege or remedy available to
the City as may be provided by applicable law, or in any of the other HOME
Documents.
It is understood and agreed that the occurrence of an event of default under Section 7.1 (b)
or (d) shall immediately entitle the City to exercise any of the above described remedies without
the need to give the Project Sponsor notice thereof or the opportunity to cure.
The rights and remedies of the City hereunder shall be cumulative and not mutually
exclusive, and the City may resort to any one or more or all of said remedies without exclusion of
any other. No party other than the City, whether the Project Sponsor or a material man, laborer,
subcontractor or supplier, shall have any interest in the HOME Funds withheld because of a default
hereunder, and shall not have any right to garnish or require or compel that payment thereof be
applied toward the discharge or satisfaction of any claim or lien which any of them may have.
8.2 In addition to any other remedies provided for herein or in any of the other Loan
Documents, upon the occurrence of an Event of Default:
(a) All sums outstanding under the Note shall bear interest at the highest rate allowable
by law from the date of disbursement, without notice to the Project Sponsor or any
guarantor or endorser of the Note and without any affirmative action or declaration
on the part of the City;
(b) The Restrictive Covenant shall remain as a restriction on the Property throughout
the Affordability Period; and
(c) The Project Sponsor, Borrower, Project developer, managing partner(s) of the
Project Sponsor, and/or other individuals, principals and/or other entities as
determined by the City, will be debarred from receiving any City funding for a
period of five (5) years.
ARTICLE IX
INDEMNIFICATION
9.1 The Project Sponsor shall indemnify, hold harmless, and defend the City, its officers,
agents, directors, and/or employees, from liabilities, damages, losses, judgments, and costs,
including, but not limited to reasonable attorney's fees, to the extent caused by the negligence,
recklessness, negligent act or omission, or intentional wrongful misconduct of Project Sponsor and
persons employed or utilized by Project Sponsor in the performance of this Contract. Project
Sponsor shall, further, hold the City, its officials and/or employees, harmless for, and defend the
City, its officials and/or employees against, any civil actions, statutory or similar claims, injuries
or damages arising or resulting from the permitted work, even if it is alleged that the City, its
officials and/or employees were negligent. These indemnifications shall survive the term of this
Contract. In the event that any action or proceeding is brought against the City by reason of any
such claim or demand, the Project Sponsor shall, upon written notice from the City, resist and
defend such action or proceeding by counsel satisfactory to the City. The Project Sponsor expressly
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understands and agrees that any insurance protection required by this Agreement or otherwise
provided by the Project Sponsor shall in no way limit the responsibility to indemnify, keep and
save harmless and defend the City or its officers, employees, agents and instrumentalities as herein
provided.
The indemnification provided above shall obligate the Project Sponsor to defend, at its own
expense, to and through appellate, supplemental or bankruptcy proceeding, or to provide for such
defense, at the City's option, any and all claims of liability and all suits and actions of every name
and description which may be brought against the City whether performed by the Project Sponsor,
or persons employed or utilized by Project Sponsor.
This indemnity will survive the cancellation or expiration of the Agreement. This
indemnity will be interpreted under the laws of the State of Florida, including without limitation
and interpretation, which conforms to the limitations of §725.06 and/or §725.08, Florida Statutes,
as applicable.
The Project Sponsor shall require all Sub -contractor agreements, if applicable, to include
a provision that they will indemnify the City.
The Project Sponsor agrees and recognizes that the City shall not be held liable or
responsible for any claims which may result from any actions or omissions of the Project Sponsor
in which the City participated either through review or concurrence of the Project Sponsor's
actions. In reviewing, approving or rejecting any submissions by the Project Sponsor or other acts
of the Project Sponsor, the City in no way assumes or shares any responsibility or liability of the
Project Sponsor or Sub -contractor under this Agreements.
ARTICLE X
TERMINATION
The Project Sponsor acknowledges that this Agreement may be terminated if the Project
Sponsor materially fails to comply with the terms contained herein.
10.1 Termination Because of Lack of Funds. In the event the City does not receive
from its funding source funds to finance this Agreement, or in the event that the City's funding
source de -obligates the funds allocated to finance this Agreement, the City may terminate this
Agreement upon not less than twenty-four (24) hours prior notice in writing to the Project Sponsor.
Said notice shall be delivered by certified mail, return receipt requested, or by in person delivery
with proof of delivery. The City shall determine, in its sole and absolute discretion, whether or
not funds are available.
10.2 Termination for Breach. The City may terminate this Agreement, in whole or in
part, in the event the City reasonably determines that the Project Sponsor is not making (or causing
to be made) sufficient progress with regard to the construction of the HOME Assisted Units
(thereby endangering its ultimate performance under this Agreement) or is not complying with any
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material term or provision of this Agreement, following notice and the expiration of the applicable
cure period.
The City may terminate this Agreement, in whole or in part, in the event that the City
reasonably determines that there exists an event of default under and pursuant to the terms of any
other agreement or obligation of any kind or nature whatsoever of the Project Sponsor to the City,
direct or contingent, whether now or hereafter due, existing, created or arising, which event of
default has continued beyond any applicable cure period.
10.3 Upon the occurrence of an Event of Default and the expiration of any cure period
(in those circumstances for which a cure period is otherwise provided in this Agreement), and
unless the Project Sponsor's breach is waived by the City in writing, the City may, by written
notice to the Project Sponsor, terminate this Agreement upon not less than twenty-four (24) hours
prior written notice. Said notice shall be delivered by certified mail, return receipt requested, or
by in person delivery with proof of delivery. Waiver of breach of any provision of this Agreement
shall not be deemed to be a waiver of any other breach and shall not be construed to be a
modification of the terms of this Agreement. The provisions hereof are not intended to be, and
shall not be, construed to limit the City's right to legal or equitable remedies.
ARTICLE XI
SUSPENSION
11.1 The City may, for reasonable cause, suspend the Project Sponsor's authority to
obligate funds under this Agreement or withhold payments to the Project Sponsor, pending
necessary corrective action by the Project Sponsor, and may include:
(a) Ineffective or improper use of the HOME Funds by the Project Sponsor;
(b) Failure of the Project Sponsor to comply with any material term or provision
of this Agreement;
(c) Failure of the Project Sponsor to submit any documents required by this
Agreement; or
(d) The Project Sponsor's submittal of incorrect or substantially incomplete
documents.
11.2 The determinations and actions described in paragraph 11.1 above may be applied
to all or any part of the activities funded pursuant to this Agreement.
11.3 The City will notify the Project Sponsor in writing of the type of action taken
pursuant to this Article, by certified mail, return receipt requested, or by in person delivery with
proof of delivery. The notification will include the reason(s) for such action, any conditions
relating to the action, and the necessary corrective action(s).
ARTICLE XII
NIISCELLANEOUS
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12.1 Enforcement Methods. As a means of enforcing compliance with the HOME
Program, the City may utilize any enforcement measures it deems necessary.
12.2 Renegotiation or Modification. Modification of provisions of this Agreement shall
be valid only when in writing and signed by the parties hereto. The parties agree to modify this
Agreement if the City determines, in its sole and absolute discretion, that federal, state, and/or
local governmental revisions of any applicable laws or regulations, or increases or decreases in
budget allocations, make changes to this Agreement necessary. The City shall be the final
authority in determining whether or not funds for this Agreement are available due to federal, state
and/or local governmental revisions of any applicable laws or regulations, or increases or decreases
in budget allocations.
12.3 Right to Waive. The City may, for good and sufficient cause, as determined by the
City in its sole and absolute discretion, waive provisions of this Agreement or seek to obtain such
waiver from an appropriate authority. Waiver requests from the Project Sponsor shall be in
writing. A waiver shall not be construed to be a modification of this Agreement.
12.4 Budget and HOME Eligibility Activity Title Revisions. Revisions to the Budget
shall be made in writing, and approved in writing by the City; however, such revisions shall not
necessitate an amendment hereto unless the amount of the HOME Loan to be granted hereunder
is changed, or unless otherwise required by the City.
A revision to the HOME eligibility activity titles under which this Agreement's objectives
are classified shall not require an amendment hereto.
12.5 Disputes. In the event an unresolved dispute exists between the Project Sponsor
and the City, 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 City
and the Project Sponsor. In the event additional time is necessary, the City Manager will notify the
interested parties within the thirty (30) day period that additional time is necessary. The Project
Sponsor agrees that the City Manager's determination shall be final and binding on all parties,
subject only to judicial review.
12.6 Headings. The article and paragraph headings in this Agreement are inserted for
convenience only and shall not affect in any way the meaning or interpretation of this Agreement.
12.7 Proceedings. The Agreement shall be construed in accordance with the laws of the
State of Florida and any proceedings arising between the parties in any manner pertaining or
relating to this Agreement shall, to the extent permitted by law, be held in Miami -Dade County,
Florida.
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12.8 Notices and Contact. All notices under this Agreement shall be in writing and
addressed as follows:
To City:
With Copy To:
To Project Sponsor:
With Copy to:
With Copy to:
With Copy to:
With Copy to:
City of Miami
Department of Community and
Economic Development
One Flagler Building
14 Northeast lst Avenue, Second Floor
Miami, Florida 33132
Attn: George Mensah, Director
Victoria Mendez
City Attorney
City of Miami
444 S.W. 2nd Avenue
Miami, FL 33130-1910
Except as otherwise provided in this Agreement, 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.
12.9 Conflicts with Applicable Laws. If any provision of this 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 Agreement, as
modified, shall continue and all other provisions of this Agreement shall remain in full force and
effect.
12.10 Entire Agreement. This Agreement and its Exhibits and Schedules described as
follows contain all the terms and conditions of the Agreement between the parties:
Exhibit "A" Legal Description
Exhibit "B" Scope of Work /Project Schedule
Exhibit "C" Budget
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Exhibit "D"
Exhibit "E"
Exhibit "F"
Exhibit "G"
Exhibit "H"
Exhibit "I"
Exhibit "J"
Schedule A
Form of Disbursement Agreement
Affirmative Marketing Procedures and Responsibilities
Form of Mortgage
Form of Covenant
Form of Rent Regulatory Agreement
Signage Requirements
Additional Insurance Requirements
Permitted Senior Financing
12.11 WAIVER OF JURY TRIAL. NEITHER THE PROJECT SPONSOR NOR ITS
SUBCONTRACTOR(S), NOR ANY OTHER PERSON LIABLE FOR THE
RESPONSIBILITIES, OBLIGATIONS, SERVICES AND REPRESENTATIONS HEREIN,
NOR ANY ASSIGNEE, SUCCESSOR, HEIR OR PERSONAL REPRESENTATIVE OF THE
PROJECT SPONSOR, ITS SUBCONTRACTORS OR ANY OTHER PERSON OR ENTITY
SHALL SEEK A JURY TRIAL IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM OR
ANY OTHER LITIGATION PROCEDURE BASED UPON OR ARISING OUT OF THIS
AGREEMENT, OR THE DEALINGS OR THE RELATIONSHIP BETWEEN OR AMONG
SUCH PERSONS OR ENTITIES, OR ANY OF THEM. NEITHER THE PROJECT SPONSOR
NOR ITS SUBCONTRACTORS, NOR ANY OTHER PERSON OR ENTITY WILL 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. NEITHER PARTY TO THIS 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.
12.12 HCLC Award Memoranda. The award memoranda and decisions of the HCLC
dated (collectively, "Award Memoranda") are hereby incorporated by
reference. To the extent of any conflict between the Award Memoranda and the HOME Loan
Documents and when interpreting the intent of the HOME Loan Documents, whichever
provision is strictest will control. To the extent of any conflict between the Award Memoranda,
the most recent Award Memorandum controls.
12.13 Governing Law and Venue. This Agreement shall be construed and enforced
pursuant to the laws of the State of Florida, excluding all principles of choice of laws, conflict of
laws and comity. Any action pursuant to a dispute under this Agreement must be brought
in Miami -Dade County and no other venue. All meetings to resolve said dispute,
including voluntary arbitration, mediation, or other alternative dispute resolution
mechanism, will take place in this venue. The parties both waive any defense that venue
in Miami -Dade County is not convenient.
12.14 Counterparts. This Agreement may be executed in separate counterparts, with
each counterpart creating a binding agreement as if there was one agreement signed by each
party executing the counterpart.
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12.15 Increase in Project Costs. In the event that the Project's costs increase by ten
percent (10%) or more of the Budget that is attached as Exhibit "C", and Project Sponsor is
unable to secure the requisite funding to cover the additional expense within 60 days before the
Project's construction commences, then the City is permitted to recommend to HCLC that the
HOME Funds should be de -obligated for this Project.
12.16 Tenant Lottery. The selection of eligible tenants to occupy the HOME Assisted
Units shall be from the results of a tenant lottery, which shall be conducted with a representative
of the City of Miami present. In addition, the project shall comply with the requirements of the
City of Miami Ordinance #13645 regarding Resident Preference.
12.17 Costs, Including Attorney's Fees. In the event litigation, arbitration, or mediation,
between the parties hereto, arises out of the terms of this Regulatory Agreement, each party shall
be responsible for its own attorney's fees.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by
their undersigned officials as duly authorized.
WITNESSES:
Print Name:
Print Name:
STATE OF FLORIDA
)
PROJECT SPONSOR:
By:
ACKNOWLEDGMENT
COUNTY OF MJAMI-DADE )
THE FOREGOING INSTRUMENT was acknowledged before me on this day of
, 2019 by , as of , manager of
, who is personally known to me or who produced a
as identification.
My Commission Expires: Signature of Notary Public, State of Florida
Printed Name of Notary Public
Page 38 of 50
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by
their undersigned officials as duly authorized.
CITY:
ATTEST: CITY OF MIAMI, a municipal corporation of the
State of Florida
By: By:
Todd Hannon, City Clerk Emilio T. Gonzalez, City Manager
Date:
APPROVED AS TO INSURANCE APPROVED AS TO FORM AND
REQUIREMENTS: CORRECTNESS:
By: By:
Ann -Marie Sharpe
Director of Risk Management
APPROVED AS TO
DEPARTMENTAL REQUIREMENTS:
By:
George Mensah
Director of the Department of Community
And Economic Development
Victoria Mendez
City Attorney
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EXHIBIT "A"
LEGAL DESCRIPTION OF THE PROPERTY
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EXHIBIT "B"
SCOPE OF WORK /PROJECT SCHEDULE
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EXHIBIT "C"
BUDGET
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EXHIBIT "D"
FORM OF DISBURSEMENT AGREEMENT
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EXHIBIT "E"
AFFIRMATIVE MARKETING PROCEDURES AND RESPONSIBILITIES
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EXHIBIT "F"
FORM OF MORTGAGE
Page 45 of 50
EXHIBIT "G"
FORM OF COVENANT
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EXHIBIT "H"
RENT REGULATORY AGREEMENT
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EXHIBIT "I"
SIGNAGE REQUIREMENTS
Page 48 of 50
EXHIBIT "J"
ADDITIONAL INSURANCE REQUIREMENTS
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SCHEDULE A
PERMITTED SENIOR FINANCING
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Prepared by, and after recording return to:
Victoria Mendez, Esq.
City Attorney, City of Miami
444 S.W. 2nd Avenue
Miami, FL 33130-1910
Tel: (305) 416-1800
Property Address:
LEASEHOLD MORTGAGE AND SECURITY AGREEMENT FOR
THIS MORTGAGE AND SECURITY AGREEMENT (hereinafter referred to as the
"Mortgage"), is executed and delivered the day of , 2019 by
, a Florida limited liability company whose address is
Miami, FL 33131 (hereinafter collectively called "Mortgagor"), to the CITY OF MIAMI, a
municipal corporation of the State of Florida, with offices at 444 S.W. 2nd Avenue, Miami, Florida
33130-1910 (hereinafter called "Mortgagee").
RECITALS
WHEREAS, on , the Mortgagee approved an allocation of
Dollars ($ ) in HOME Investment Partnerships Program ("HOME") funds for
construction of ( ) residential apartment units; and
WHEREAS, WHEREAS, Mortgagor has delivered to Mortgagee that certain HOME
Promissory Note for , of even date herewith, made by Mortgagor in favor of
Mortgagee (as the same may be amended, restated, replaced, supplemented or otherwise modified
from time to time, and together with any and all renewals, replacements, extensions, modifications,
substitutions, future advances and any other evidence of indebtedness evidenced by said Note) (the
"Note"), which Note evidences the Indebtedness in the amount of Dollars
(� ) (the "Loan").
NOW THEREFORE, in consideration of the making of the Loan by Mortgagee and the
covenants, agreements, representations and warranties set forth in this Mortgage:
WITNESSETH THAT:
FOR GOOD AND VALUABLE CONSIDERATION, as set forth in the above recitals
that are hereby incorporated by reference, the receipt and sufficiency of which are hereby
acknowledged, and also in consideration of the aggregate sum named in the promissory note or
notes from the Mortgagor in favor of the Mortgagee, in the original principal amount of
Dollars ($ ) (hereinafter referred to as the "Note"), the Mortgagor
does grant, bargain sell, alien, remise, release, convey and confirm unto the Mortgagee, in
leasehold interest, that certain tract of land which the Mortgagor is now seized and possessed and
in actual possession, situate in Miami -Dade County, State of Florida, located at
Miami, Florida, legally described as follows:
SEE EXHIBIT "A" ATTACHED HERETO
TOGETHER WITH all structures and improvements now and hereafter located thereon,
the rents, issues and profits thereof, all furniture, furnishings, fixtures and equipment now located
thereon, and also all gas and electric fixtures, heaters, air conditioning, equipment, machinery,
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motors, baths, tubs, sinks, water closets, faucets, pipes and other plumbing and heating fixtures,
refrigerators, blinds, and other window treatments, which are now or may hereafter pertain to or
be used with, in or on said premises, and which, even though they be detached or detachable, are
and shall be deemed to be fixtures and accessions to the freehold and a part of the realty, and all
additions thereto and replacements thereof, which real property, improvements and personalty
shall hereinafter collectively be referred to as the "Mortgaged Property".
TO HAVE AND TO HOLD the same, together with all tenements and hereditaments and
appurtenances, unto the Mortgagee in leasehold estate.
The Mortgagor does covenant with the Mortgagee that Mortgagor is indefeasibly seized of
a leasehold estate in the Mortgaged Property that the Mortgagor has full power and lawful right to
convey the leasehold estate in leasehold as aforesaid; that the Mortgaged Property is free from all
encumbrances except as specified on Exhibit "B" hereto; that the Mortgagor will make such further
assurances to perfect the fee simple title to the Mortgaged Property in the Mortgagee as may
reasonably be required; and that the Mortgagor does hereby fully warrant the title to the Mortgaged
Property, and will defend the same against the lawful claims of all persons whomsoever..
PROVIDED ALWAYS, that if the Mortgagor shall pay unto the Mortgagee or otherwise
perform and fulfill its obligations with respect to the indebtedness and obligations evidenced by
the Note, and shall perform, comply with and abide by each and every one of the stipulations,
agreements, conditions and covenants of the Note, this Mortgage and the Loan Agreement of even
date herewith (the "Agreement") and the other loan documents executed in connection herewith
and therewith (hereinafter jointly referred to as "the Loan Documents"), then this Mortgage and
the estate thereby created shall cease and be null and void.
AND THE MORTGAGOR HEREBY COVENANTS AND AGREES AS
FOLLOWS:
1. PERFORMANCE OF NOTE AND MORTGAGE. The Mortgagor shall
pay or otherwise fully perform its obligations with respect to the payment of all and singular the
principal, interest and other sums of money payable by virtue of the Note and this Mortgage, or
either, promptly on the days when the same severally become due and payable, and shall perform,
comply with and abide by each and every of the stipulations, agreements, conditions and covenants
set forth in the Note, this Mortgage and the Loan Documents.
2. TAXES AND OTHER CHARGES. The Mortgagor shall pay when due
and payable and before any interest, charge or penalty is due thereon, without any deduction,
defalcation or abatement, all taxes, assessments, levies, liabilities, obligations, encumbrances,
water and sewer rents and all other charges or claims of every nature and kind which may be
imposed, suffered, placed, assessed, levied, or filed at any time against this Mortgage, the
Mortgaged Property or any part thereof or against the interest of the Mortgagee therein, or which
by any present or future law may have priority over the indebtedness secured hereby either in lien
or in distribution out of the proceeds of any judicial sale, without regard to any law heretofore or
hereafter to be enacted imposing payment of the whole or of any part upon the Mortgagee; and
insofar as any such tax, assessment, levy, liability, obligation or encumbrance is of record, the
same shall be promptly satisfied and discharged of record and the original official document (such
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as, for instance, the tax receipt or the satisfaction paper officially endorsed or certified) shall be
placed in the hands of the Mortgagee no later than such dates; provided, however, that if, pursuant
to this Mortgage or otherwise, the Mortgagor shall have deposited with the Mortgagee before the
due date thereof sums sufficient to pay any such taxes, assessments, levies, water and sewer rents,
charges or claims, and the Mortgagor is not otherwise in default, they shall be paid by the
Mortgagee; and provided further, that if the Mortgagor in good faith and by appropriate legal action
shall contest the validity of any such items or the amount thereof, and shall have established on its
books or by deposit of cash with the Mortgagee, as the Mortgagee may elect, a reserve for the
payment thereof in such amount as the Mortgagee may require, then the Mortgagor shall not be
required to pay the item or to produce the required receipts: (a) while the reserve is maintained;
and (b) so long as the contest operates to prevent collection, is maintained and prosecuted with
diligence, and shall not have been terminated or discontinued adversely to the Mortgagor. The
Mortgagor shall furnish the Mortgagee with annual receipted tax bills evidencing payment within
ninety (90) days from their initial due date.
3. INSTALLMENTS FOR INSURANCE, TAXES AND OTHER CHARGES.
Without limiting the effect of Paragraphs 2 or 5 hereof, the Mortgagee may require the Mortgagor
to pay to the Mortgagee, monthly with the monthly installments of principal and interest, an
amount equal to one -twelfth (1/12) of the annual premiums for the insurance policies referred to
hereinabove and the annual real estate taxes, water and sewer rents, any special assessments,
charges or claims and any other item which at any time may be or become a lien upon the
Mortgaged Property prior to the lien of this Mortgage; and on demand from time to time the
Mortgagor shall pay to the Mortgagee any additional sums necessary to pay the premiums and
other items, all as estimated by the Mortgagee. The amounts so paid shall be used in payment
thereof if the Mortgagor is not otherwise in default hereunder. No amount so paid shall be deemed
to be trust funds but may be commingled with general funds of the Mortgagee, and no interest
shall be payable thereon. If, pursuant to any provision of this Mortgage, the whole amount of the
unpaid principal debt becomes due and payable, the Mortgagee shall have the right, at its election,
to apply any amount so held against the entire indebtedness secured hereby. At the Mortgagee's
option, the Mortgagee from time to time may waive, and after any such waiver may reinstate, the
provisions of this Paragraph requiring monthly payments.
4. ATTORNEYS' FEES AND COSTS. In the event litigation, arbitration, or
mediation, between the parties hereto, arises out of the terms of this Mortgage, each party shall be
responsible for its own attorney's fees.
5. INSURANCE. The Mortgagor shall keep the buildings and improvements
now or hereafter erected on the Mortgaged Property continuously insured under a policy or policies
providing coverage on an "all risk" basis, in a sum not less than full insurable value, including
flood insurance if requested by the Mortgagee, in a company or companies acceptable to the
Mortgagee. The policy or policies of insurance shall be held by and be payable to the Mortgagee.
In the event any sum of money becomes payable under such policy or policies, the Mortgagee shall
have the option to receive and apply the same on account of the indebtedness secured by this
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Mortgage or to permit the Mortgagor to receive and use it, or any part thereof, for other purposes,
without thereby waiving or impairing any equity lien or right under or by virtue of this Mortgage.
In the event the Mortgagor fails to procure and maintain the insurance coverage required hereby,
the Mortgagee may procure and pay for such insurance or any part thereof, without waiving or
affecting its option to foreclose this Mortgage, or any right thereunder. Each and every such
payment made by the Mortgagee shall be secured by this Mortgage; shall be due and payable on
demand; and, shall bear interest from the date each such payment is made at the maximum rate
permitted by law. Notwithstanding contained herein, Mortgagee will not exercise its option to
receive and apply the insurance funds to the indebtedness if there has not been an event of default
under the Loan Documents and Mortgagor demonstrates there are sufficient funds to rebuild, repair
or restore the improvements on the Mortgaged Property.
6. CARE OF THE MORTGAGED PROPERTY. The Mortgagor shall exercise
reasonable care in the maintenance of the Mortgaged Property, and shall not permit, commit or
suffer any waste, impairment or deterioration of the Mortgaged Property or any part thereof. In
the event the Mortgagor fails to keep the Mortgaged Property in good repair, the Mortgagee may
make such repairs as it may deem necessary in its sole discretion for the proper preservation
thereof, and the full amount of each such payment shall be due and payable with interest at the
maximum rate permitted by law on demand, and shall be secured by the lien of this Mortgage.
7. EXISTING/OTHER MORTGAGES AND OBLIGATIONS. Any default in
the payment or terms and conditions of any existing or other mortgage(s), or any modification of,
and/or acceptance of future advances from, any existing or other mortgage(s), other than in
connection with the Permitted Senior Financing without notice and prior written approval of
Mortgagee, shall constitute a default hereunder and the Mortgagee, at its option, may declare all
sums due and payable and accelerate the entire indebtedness.
The Mortgagee may, at its option, and without waiving its right to accelerate the
indebtedness hereby secured and to foreclose the same, pay either before or after delinquency any
or all of those certain obligations required by the terms hereof to be paid by the Mortgagor for the
protection of the Mortgage security or for the collection of the indebtedness hereby secured. All
sums so advanced or paid by Mortgagee shall be charged into the mortgage account, and every
payment so made shall bear interest from the date thereof at the delinquent rate specified in said
Mortgage Note, and become an integral part thereof, subject in all respects to the terms, conditions
and covenants of the aforesaid Promissory Note, and this Mortgage, as fully and to the same extent
as though a part of the original indebtedness evidenced by said Note and secured by this Mortgage,
excepting however, that said sums shall be repaid to the Mortgagee within fifteen (15) days after
demand by the Mortgagee to the Mortgagor for said payment.
8. INSPECTION. The Mortgagee, and any persons authorized by the
Mortgagee, shall have the right at any time, upon reasonable notice to the Mortgagor, to enter the
Mortgaged Property at a reasonable hour to inspect and photograph its condition and state of repair,
subject to the rights of tenants under the terms of their leases.
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9. ACCELERATION OF MATURITY. That (a) in the event of any breach of this
Mortgage or default on the part of the Mortgagor, which is not cured within thirty (30) days
following written notice from the Mortgagee, or if such default cannot practicably be cured within
thirty (30) days, then within such additional time as may be required to effect a cure, so long as (i)
the cure is commenced within thirty (30) days and is diligently prosecuted and (ii) the lack of a
cure during such continuing cure period has no material adverse effect on the Mortgaged Property,
or (b) in the event any of said sums of money herein referred to be not promptly and fully paid
within fifteen (15) days next after the same severally become due and payable, without demand or
notice; or (c) in the event each and every stipulation, agreement, condition and covenants of the
Note, this Mortgage, or any of the Loan Documents, are not duly, promptly and fully performed,
discharged, executed, effected, completed, complied with and abided by, following the applicable
notice and cure periods; or (d) in the event the Mortgagor shall fail, within ten (10) days written
notice by the Mortgagee to execute a Mortgagor's certificate in favor of any assignee or prospective
assignee of the Mortgagee's interest hereunder which certificate shall contain such
acknowledgments, affirmations, and covenants as may be reasonably required to enable the
Mortgagee to assign their interest hereunder, or (e) upon the rendering by any court of last resort
of a decision that an undertaking by the Mortgagor as herein provided to pay taxes, assessments,
levies liabilities, obligations and encumbrances is legally inoperative or cannot be enforced, or in
the event of the passage of any law changing in any way or respect the laws now in force for the
taxation of mortgages or debts secured thereby, or the manner of collection of any such taxes, so
as to materially adversely affect this Mortgage or the debt secured hereby; or (f) in the event there
exists an event of default under and pursuant to the terms of any other obligation of any kind or
nature whatsoever of the Mortgagor to the Mortgagee, direct or contingent, whether now existing
or hereafter due, existing, created or arising, then in either or any such event, the said aggregate
sum mentioned in said Note then remaining unpaid, with interest accrued, and all monies secured
hereby shall become due and payable forthwith, or thereafter, at the option of the Mortgagee, as
fully and completely as if all of the sums of money were originally stipulated to be paid on such
day, anything in the Note and/or in this Mortgage to the contrary notwithstanding; and thereupon
or thereafter, at the option of the Mortgagee, without notice or demand, suit at law or in equity,
therefore, or thereafter begun, may be prosecuted as if all money secured hereby had matured prior
to its institution.
10. NO ADDITIONAL FINANCING. The Mortgagor hereby covenants and agrees
that Mortgagor shall not procure any other financing in connection with the Mortgaged Property
without the prior written consent of the Mortgagee other than financings disclosed to the
Mortgagee in writing as of the date hereof.
11. DEFENSE OF MORTGAGED PROPERTY AND MORTGAGE. If any
action or proceeding shall be commenced by any person other than the Mortgagee, and the
Mortgagee is made a party, or in which it shall become necessary for the Mortgagee to defend or
take action to uphold or defend the lien of this Mortgage, all sums paid or incurred by the
Mortgagee for the expense of any litigation, including court costs and reasonable attorneys' fees
incurred in any trial, appellate, and bankruptcy proceedings, to prosecute or defend the rights and
liens created by this Mortgage shall be paid by the Mortgagor, together with interest thereon at the
maximum rate permitted by law from the date thereof, and any such sum and interest thereon shall
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be a claim upon the Mortgaged Property, attaching or accruing subsequent to the lien of this
Mortgage, and shall be secured by the lien of this Mortgage.
12. CONDEMNATION. In the event the Mortgaged Property or any part
thereof shall be condemned under the power of eminent domain, the Mortgagee shall have the
right to demand that all damages awarded for such taking be paid to the Mortgagee and shall be
entitled to receive same, up to the aggregate amount then remaining unpaid on the Note and this
Mortgage, and any such sums shall be applied to the payments last payable thereof.
13. SUBROGATION. To the extent of the indebtedness of the Mortgagor to the
Mortgagee as described in the Note, the Mortgagee shall be subrogated to the lien and the rights
of the owners and holders of each and every mortgage, lien or other encumbrance on the
Mortgaged Property which is paid or satisfied, in whole or in part, out of the proceeds of the Note.
The respective liens of such mortgages, liens or other encumbrances shall be and are hereby
security for the Note, as if they had been regularly assigned, transferred, and delivered unto the
Mortgagee, notwithstanding the fact that the same may be set aside and canceled of record. It is
the intention of the parties hereto that the prior mortgages, liens or other encumbrances will be
satisfied and canceled of record by the holders thereof at or about the time of the recording of this
Mortgage.
14. APPOINTMENT OF RECEIVER. At any time while a suit is pending to
foreclose or to reform this Mortgage or to enforce any claims arising hereunder, the Mortgagee
may apply to a court of appropriate jurisdiction for the appointment of a receiver, and such court
shall forthwith appoint a Receiver of the Mortgaged Property, including all and singular the
income, profits, rents, issues and revenues from whatever source derived. The Receiver shall have
all the broad and effective functions and powers in anywise entrusted by a court to a Receiver, and
such appointment shall be made by such court as an admitted equity and as a matter of absolute
right to the Mortgagee without reference to the adequacy or inadequacy of the value of the
Mortgaged Property, or to the solvency or insolvency of the Mortgagor or the Defendants. All
income, profits, rents, issues and revenues collected by the Receiver shall be applied by such
Receiver according to the lien of this Mortgage, and the practice of such court.
15. NO TRANSFER OF MORTGAGED PROPERTY. It is expressly agreed
that should the Mortgagor convey title to the Mortgaged Property, except as set forth in Section
6.5(e) of the Loan Agreement, or=any legal or equitable interest therein, to any person, firm or
corporation or shall permit or create any further encumbrances upon the Mortgaged Property
without the prior written approval of the Mortgagee to such conveyance or encumbrance, all sums
outstanding under the Note and secured by this Mortgage shall become immediately due and
payable, at the option of the Mortgagee.
16. LEASES AFFECTING MORTGAGED PROPERTY. The Mortgagor
shall comply with and observe its obligations as landlord under all leases affecting the Mortgaged
Property or any part thereof. Upon request, the Mortgagor shall furnish promptly to the Mortgagee
executed copies of all such leases now existing or hereafter created. The Mortgagor shall not
accept payment of rent more than one (1) month in advance without the prior written consent of
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the Mortgagee. Nothing contained in this Section or elsewhere in this Mortgage shall be construed
to make the Mortgagee a mortgagee in possession unless and until the Mortgagee actually takes
possession of the Mortgaged Property either in person or through an agent or receiver. To the
extent not provided by applicable law, each lease of the Mortgaged Property, shall provide that, in
the event of the enforcement by the Mortgagee of the remedies provided for by law or by this
Mortgage, the lessee thereunder will, if requested by the Mortgagee or by any person succeeding
to the interest of the Mortgagee as the result of said enforcement, automatically become the lessee
of any such successor in interest, without any change in the terms or other provisions of the
respective lease; provided, however, that said successor in interest shall not be bound by (i) any
payment of rent or additional rent for more than one (1) month in advance, except prepayments in
the nature of security for the performance by said lessee of its obligations under said lease not in
excess of an amount equal to one (1) month's rental, or (ii) any amendment or modification in the
lease made without the consent of the Mortgagee or any successor in interest. Each lease shall
also provide that, upon request by said successor in interest, the lessee shall execute and deliver
an instrument or instruments confirming its attornment.
17. ASSIGNMENT OF RENTS, ISSUES AND PROFITS. The Mortgagor does
hereby bargain, sell, transfer, assign, convey, set over and deliver unto the Mortgagee, as security
for the payment and performance of all the terms and conditions of the Note and this Mortgage,
and any and all amendments, extensions and renewals thereof, all Leases affecting the Mortgaged
Property or any part thereof now existing or which may be executed at any time in the future during
the life of this Mortgage, and all amendments, extensions and renewals of said leases and any of
them, and all rents and other income which may now or hereafter be or become due or owing under
the Leases, and any of them, on account of the use of the Mortgaged Property, it being intended
hereby to establish a complete transfer of the leases hereby assigned and all the rents and other
income arising thereunder and on account of the use of the Mortgaged Property unto the
Mortgagee, with the right, but without the obligation, to collect all of said rents and other income
which may become due during the life of the Note and this Mortgage. The Mortgagor agrees to
deposit with the Mortgagee upon demand such leases as may from time to time be designated by
the Mortgagee. Although it is the intention of the parties that this shall be a present assignment, it
is expressly understood and agreed, anything herein contained to the contrary notwithstanding,
that the Mortgagee shall not exercise any of the rights or powers herein conferred upon it until a
default shall occur under the terms and provisions of the Note and this Mortgage, but upon the
occurrence of any default the Mortgagee shall be entitled, upon notice to the tenants, to all rents
and other amounts then due under the leases and thereafter accruing, and this Mortgage shall
constitute a direction to and full authority to the tenants, lessees or other occupants of the premises
(hereinafter collectively referred to as the "Tenants") to pay all said amounts to the Mortgagee
without proof of the default relied upon. The Tenants are hereby irrevocably authorized to rely
upon and comply with any notice or demand by the Mortgagee for the payment to the Mortgagee
of any rental or other sums which may be or thereafter become due under the leases, or for the
performance of any of the Tenants undertakings under the leases and shall have no right or duty to
inquire as to whether any default under this Mortgage has actually occurred or is then existing.
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18. MORTGAGE CONSTITUTES SECURITY AGREEMENT. This Mortgage
also constitutes a security agreement as defined under the Uniform Commercial Code. The
Mortgagor hereby grants to the Mortgagee a security interest in and to all furniture, furnishings,
equipment, machinery, and personal property of every nature whatsoever now owned or hereafter
acquired by the Mortgagor located upon the Mortgaged Property together with all proceeds
therefrom and as further described in an exhibit to the Security Agreement of even date herewith,
if any. The Mortgagor shall execute any and all documents as the Mortgagee may request,
including, without limitation, financing statements pursuant to the Uniform Commercial Code as
adopted by the State of Florida, to preserve and maintain the priority of the lien created hereby on
property which may be deemed personal property or fixtures. The Mortgagor hereby authorizes
and empowers the Mortgagee to execute and file on behalf of the Mortgagor all financing
statements and refiling and continuations thereof as the Mortgagee deems necessary or advisable
to create, preserve or protect said lien. The Mortgagor and Mortgagee expressly agree that the
filing of a financing statement shall never be construed as in anywise derogating from or impairing
the express declaration and intention of the parties hereto that all such personality located on or
utilized in connection with the real property encumbered by this Mortgage shall at all times and
for all purposes, in all proceedings both legal and equitable, be deemed a part of the real property
encumbered by this Mortgage.
19. CARE OF PROPERTY.
(a) (a) The Mortgagor shall preserve and maintain the Mortgaged Property in good
condition and repair. Except for: (i) repairs or replacements for ordinary wear and tear or in the
ordinary course of management of the Mortgaged Property; (ii) tenant or similar improvements
and upgrades; and (iii) repairs, replacements, or other restorations in the event of a casualty or
condemnation that are performed in accordance with the Loan Agreement, the Mortgagor shall not
remove, demolish, alter or change the use of any building, structure or other improvement
presently or hereafter on the Land constituting any part of the Mortgaged Property without the
prior written consent of the Mortgagee. The Mortgagor shall not permit, commit or suffer any
waste, impairment or deterioration of the Mortgaged Property or of any part thereof, and will not
take any action which will increase the risk of fire or other hazard to the Mortgaged Property or to
any part thereof. The Mortgagor shall comply with all applicable local, state, and federal
regulations in regards to the Property.
(b) Except as otherwise provided in this Mortgage, no fixture, personal property or
other part of the Mortgaged Property shall be removed, demolished or altered, without the prior
written consent of the Mortgagee. The Mortgagor may sell or otherwise dispose of, free from the
lien of this Mortgage, furniture, furnishings, equipment, tools, appliances, machinery, fixtures or
appurtenances, subject to the lien hereof, which may become worn out, undesirable or obsolete,
only if they are replaced immediately with similar items of at least equal value which shall, without
further action, become subject to the lien of this Mortgage.
20. MORTGAGE SECURES INDEBTEDNESS. It is expressly agreed and
understood that this Mortgage secures the indebtedness and the obligation of the Mortgagor to the
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Mortgagee with respect to the Note, as the same is evidenced by the Note, and all renewals,
extensions and modifications thereof. This Mortgage shall not be deemed released, discharged or
satisfied until the entire indebtedness evidenced by the Note is paid in full.
21. MORTGAGEE'S REMEDIES CUMULATIVE. The Mortgagor agrees
that all rights of the Mortgagee hereunder shall be separate, distinct, and cumulative, and that none
shall be in exclusion of the other, and that no act of the Mortgagee shall be construed as an election
to proceed under any provision of covenant herein to the exclusion of any other, notwithstanding
anything herein to the contrary.
22. FUTURE ADVANCES. Pursuant to the laws of the State of Florida, this
Mortgage shall secure not only the existing indebtedness evidenced by the Note, but also such
future advances as may be made by the Mortgagee to the Mortgagor in accordance with the Note,
this Mortgage, or any other Loan Document executed in connection herewith, whether or not such
advances are obligatory or are to be made at the option of the Mortgagee, or otherwise, and as are
made within twenty (20) years from the date hereof, to the same extent as if such future advances
were made on the date of the execution of this Mortgage. The total amount of indebtedness that
may be so secured may decrease or increase from time to time, but the total unpaid balance so
secured at one time shall not exceed one and a half times the face amount of the Note, plus interest
thereon, and any disbursements made for the payment of taxes, levies or insurance on the
Mortgaged Property with interest on such disbursements at the rate designated in the Note to apply
following a default thereunder.
23. INDEMNIFICATION. The Mortgagor hereby protects, indemnifies and
saves harmless the Mortgagee, its officers, directors, agents and employees, from and against any
and all liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses
(including without limitation, reasonable attorneys' fees and expenses) imposed upon, incurred by
or asserted against the Mortgagee or any of such persons by reason of (a) ownership of any interest
in the Mortgaged Property or any part thereof, (b) any accident, injury to or death of persons or
loss of or damage to property occurring on or about the Mortgaged Property or any part thereof or
the adjoining sidewalks, curbs, vaults and vault space, if any, streets or ways, (c) any use, disuse
or condition of the Mortgaged Property or any part thereof, or the adjoining sidewalks, curbs,
vaults and vault space, if any, or any streets or ways, (d) any failure on the part of the Mortgagor
to perform or comply with any of the terms hereof or of any of the Loan documents executed in
connection herewith, or any inaccuracy in any representation or warranty made by the Mortgagor
herein or in any of the Loan Documents executed in connection herewith, (e) any necessity to
defend any of the right, title or interest conveyed by this Mortgage, (f) the performance of any
labor or services or the furnishing of any materials or other property in respect of the Mortgaged
Property or any part thereof, (g) any subsidence or erosion of any part of the surface of the
Mortgaged Property, including any shoreline or any bank of any river, stream, creek, lake, ocean
or other water source, or (h) the location or existence of asbestos or any toxic or hazardous waste,
chemicals, materials or substance on, at, in or under the Mortgaged Property or any part thereof.
If any action, suit or proceeding is brought against the Mortgagee, or any of its officers, directors,
Page 9 of 15
agents or employees, for any such reason, the Mortgagor, upon the request of such party, will, at
the Mortgagor's expense, cause such action, suit or proceeding to be resisted and defended by
counsel satisfactory to the Mortgagee or such person. Any amounts payable to an indemnified
party under this Section which are not paid within ten (10) days after written demand therefor shall
bear interest at the default rate of interest provided in the Note from the date of such demand, and
such amounts, together with such interest, shall be indebtedness secured by this Mortgage. The
obligations of the Mortgagor under this Section shall survive any defeasance of the Mortgage.
24. HAZARDOUS MATERIALS. The Mortgagor agrees that it will not use,
generate, store or dispose of Hazardous Materials on the Mortgaged Property. For purposes hereof,
"hazardous materials" include (but are not limited to) materials defined as "hazardous waste"
under the Federal Resource Conservation and Recovery Act and similar state laws, or as
"hazardous substances" under the Federal Comprehensive Environmental Response,
Compensation and Liability Act and similar state laws. Hazardous materials include (but are not
limited to) solid, semi -solid, liquid or gaseous substances which are toxic, ignitable, corrosive,
carcinogenic or otherwise dangerous to human, plant or animal health and well-being. Examples
of hazardous waste include paints, solvents, chemicals, petroleum products, batteries,
transformers, and other discarded man-made materials with hazardous characteristics. The
Mortgagee shall have all remedies at law and equity for failure of the Mortgagor to carry out the
foregoing obligation, including but not limited to specific performance, damages, reasonable
attorneys' fees and court costs. This provision shall survive payment of the Note and termination
of this Mortgage.
25. REPRESENTATIONS AND WARRANTIES. In order to induce the
Mortgagee to make the Loan evidenced by the Note, the Mortgagor represents and warrants that:
(a) there are no actions, suits or proceedings pending or threatened against or affecting the
Mortgagor or any portion of the Mortgaged Property, or involving the validity or enforceability of
this Mortgage or the priority of its lien, before any court of law or equity or any tribunal,
administrative board or governmental authority, and the Mortgagor is not in default under any
other indebtedness or with respect to any order, writ, injunction, decree, judgment or demand of
any court or any governmental authority; (b) the execution and delivery of the Note, this Mortgage
and all other Loan Documents do not and shall not (i) violate any provisions of any law, rule,
regulation, order, writ, judgment, injunction, decree, determination or award applicable to the
Mortgagor or any other person executing the Note, this Mortgage or other Loan Documents, nor
(ii) result in a breach of, or constitute a default under, any indenture, bond, mortgage, lease,
instrument, credit agreement, undertaking, contract or other agreement to which the Mortgagor or
such other person is a party or by which either or both of them or their respective properties may
be bound or affected; (c) the Note, this Mortgage and all other Loan Documents constitute valid
and binding obligations of the Mortgagor and any other person executing the same, enforceable
against the Mortgagor and such other person(s) in accordance with their respective terms; (d)
there is no fact that the Mortgagor and any guarantor(s) of the Loan have not disclosed to the
Mortgagee in writing that could materially adversely affect their respective properties, business or
financial conditions or the Mortgage Property or any other collateral for the Loan; (e) the
Page 10 of 15
Mortgagor and any guarantor(s) of the Loan have duly obtained all permits, licenses, approvals
and consents from, and made all filings with, any governmental authority (and the same have not
lapsed nor been rescinded or revoked) which are necessary in connection with the execution and
delivery of this Mortgage and any other Loan Document, the making of the Loan, the performance
of their respective obligations under any Loan Document, or the enforcement of any Loan
Document; and that all such representations and warranties shall survive the closing of the Loan
and any bankruptcy proceedings.
26. SEVERABILITY OF INVALID PROVISIONS. In the event any
provision of the Note and or this Mortgage should be held unconstitutional, illegal or
unenforceable for any reason, such provision shall not affect, alter, or otherwise impair any other
provision of the Note and or this Mortgage.
27. NO WAIVER. It is expressly agreed and understood that a waiver by the
Mortgagee of any right or rights conferred to it hereunder with regard to any one transaction or
occurrence shall not be deemed a waiver of such right or rights to any subsequent transaction or
occurrence. It is further agreed that any forbearance or delay by the Mortgagee in the enforcement
of any right or remedy hereunder shall not constitute or be deemed a waiver of such right or
remedy.
28. GOVERNING LAW AND VENUE. This Mortgage shall be construed and
enforced pursuant to the laws of the State of Florida, excluding all principles of choice of laws,
conflict of laws and comity. Any action pursuant to a dispute under this Mortgage must be
brought in Miami -Dade County and no other venue. All meetings to resolve said dispute,
including voluntary arbitration, mediation, or other alternative dispute resolution
mechanism, will take place in this venue. The parties both waive any defense that venue
in Miami -Dade County is not convenient.
29. HEADINGS. The headings of the articles, sections, paragraphs and
subdivisions of this Mortgage are for convenience and ease of reference only, and are not to be
considered a part hereof, and shall not limit or otherwise affect any of the terms or provisions
hereof.
30. GENDER AND NUMBER. In this Mortgage and the Note it secures, the
singular shall include the plural and the masculine shall include the feminine and neuter.
31. PARTIES BOUND; NO ORAL MODIFICATIONS. Each and every of the
terms, covenants and conditions contained herein shall be binding upon the parties hereto and their
successors, heirs, assigns and devisee. This Mortgage is not subject to modification other than by
a written document or instrument executed by the party or parties to be charged with such
modification.
32. CAPITALIZED TERMS. All capitalized terms not defined herein shall have the
meanings provided in the Loan Agreement and the Exhibits thereto.
33. WAIVER OF TRIAL BY JURY. THE MORTGAGOR HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT TO A
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TRIAL BY JURY WITH RESPECT TO ANY LITIGATION BASED HEREON OR ARISING
OUT OF, UNDER OR IN CONNECTION WITH, THIS MORTGAGE, OR ANY OF THE LOAN
DOCUMENTS OR THE FINANCING CONTEMPLATED HEREBY, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR
THE ACTIONS OF ANY PARTY HERETO. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE MORTGAGEE EXTENDING THE LOAN SECURED BY THIS
MORTGAGE.
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IN WITNESS WHEREOF, the Mortgagor has hereunto set its hand and seal the day and year
first above written.
WITNESSES: Mortgagor :
Print Name: By:
Print Name:
PROJECT SPONSOR'S ADDRESS:
STATE OF FLORIDA
ACKNOWLEDGMENT
COUNTY OF MIAMI-DADE )
THE FOREGOING INSTRUMENT was acknowledged before me on this day of
, 2019 by , as of , who is personally
known to me or who produced a as identification.
My Commission Expires: Signature of Notary Public, State of Florida
Printed Name of Notary Public
Page 13 of 15
Exhibit A
Legal Description Of The Property
Page 14 of 15
Exhibit B
Permitted Encumbrances on the Mortgaged Property
All permitted encumbrances on the Property are described in that certain Title Insurance
Commitment (Order Number ), issued by , effective as
of , as endorsed.
Page 15 of 15
PROMISSORY NOTE FOR
Miami, Florida
$ , 2019
FOR VALUE RECEIVED the undersigned, , a Florida
(hereinafter referred to as the "Maker") at , Miami, FL 33131, promises to pay to
the order of the CITY OF MIAMI (hereinafter referred to as the "Lender"), at 444 S.W. 2nd
Avenue, Miami, Florida 33130, or such other location or address as the Lender may direct from
time to time, the principal sum of Dollars ($ ), together with
interest thereon on funds outstanding as indicated on Attachment 1 hereto.
This Promissory Note evidences a Loan from the Lender to the Maker for development
costs for , a rental Project, as described more fully in that certain HOME Loan
Agreement between the Maker and the Lender of even date herewith (the "HOME Loan
Agreement"). All capitalized terms not defined herein shall have the meanings provided in the
HOME Loan Agreement and the Exhibits thereto.
This Promissory Note is secured by that certain Mortgage and Security Agreement (the
"HOME Mortgage") and the other Loan Documents of even date herewith executed in favor of the
Lender, relating to real property located at , Miami, Florida (the "Property").
All sums advanced hereunder together with accrued interest thereon and all other sums due
hereunder shall become immediately due and payable, without notice or demand, upon the
occurrence of any one or more of the following Events of Default, subject to any applicable cure
period as provided in the Loan Documents: (a) the Maker's failure to promptly pay in full any
payment of principal or interest due under this Promissory Note; (b) the Maker's failure to pay any
insurance premium when due; (c) the dissolution, termination of existence, insolvency of, business
failure, appointment of a receiver for any part of the property or assignment for the benefit of
creditors by, or the commencement of any proceedings under any bankruptcy or insolvency laws,
by or against any maker hereof which shall continue beyond any applicable cure period set forth
in the HOME Loan Agreement; (d) any uncured breach, following notice of breach and the
expiration of applicable cure period(s), by the Maker of any of the terms, covenants or conditions
set forth in the HOME Loan Agreement, the HOME Mortgage, the Declaration of Restrictive
Covenants, or any of the other Loan Documents executed in connection therewith, or any other
instrument, document or agreement which secures, collateralizes or otherwise pertains to the Loan
evidenced by this Promissory Note; or (e) upon the occurrence of an Event of Default as provided
in the HOME Loan Agreement. Upon the occurrence of any of the foregoing events, and in
addition to any other remedies provided in the Home Loan Agreement, the amount of the Funds
disbursed, together with interest accrued thereon at the rate provided herein, all Program Income and
all unpaid fees, charges and other obligations of the Maker due under any of the Loan Documents,
shall, at Lender's option, be immediately due and payable.
Any property of any maker or guarantor hereof now or hereafter in the possession of the
Lender, may at all times be held and treated as collateral and security for the payment of this
Promissory Note and all other indebtedness or liability, direct or indirect, joint or several, absolute
or contingent, now existing or hereafter created, acquired or contracted, of the Maker to the Lender.
Page 1 of 5
The Lender may apply or set-off any funds or other sums against said liabilities at any time in the
case of the Maker(s), but only with respect to matured liabilities in the case of guarantors.
No delay or omission on the part of the Lender in the exercise of any right hereunder shall
operate as a waiver of such right or of any other right under this Promissory Note. A waiver by
the Lender of any right or remedy conferred to it hereunder on any one occasion shall not be
construed as a bar to, or waiver of, any such right and/or remedy as to any future occasion.
The Maker agrees that in the event each and every of the terms and conditions of this
Promissory Note or any instrument which secures or collateralizes the payment of the sums
hereunder is not duly performed, complied with, or abided by, subject to applicable notice and
cure period(s) set forth in the HOME Loan Agreement, the whole of said indebtedness then
outstanding shall thereupon, at the option of the Lender, become immediately due and payable, as
provided in the HOME Loan Agreement. If this Promissory Note becomes in default and is placed
in the hands of an attorney for collection, the Maker agrees to pay all and singular the costs,
charges, and expenses incurred by the Lender in the enforcement of its rights hereunder, including,
but not limited to reasonable attorneys' fees and costs, including the attorneys' fees and costs for
appellate proceedings.
The indebtedness evidenced by this Promissory Note is and shall be subordinate in right of
payment to the prior payment in full of the indebtedness evidenced by the Note in
the original principal amount of $ dated as of issued by Maker
and payable to the (and together with its successors and assigns,
including without limitation, , (the "Senior Lender"); to the extent and in the manner
provided in that certain Mortgage Subordination Agreement dated on or about the date hereof,
between the Senior Lender and the Maker (collectively, the "Subordination Agreement"). The
Mortgage and other documents securing this Promissory Note are and shall be subject and
subordinate in all respects to the liens, terms, covenants and conditions as more fully set forth in
the Subordination Agreement, if any. The rights and remedies of the lender and each subsequent
holder of this Promissory Note under the Mortgage securing this Promissory Note are subject to
the restrictions and limitations set forth in the Subordination Agreement. Each subsequent holder
of this Promissory Note shall be deemed, by virtue of such holder's acquisition of this Promissory
Note, to have agreed to perform and observe all of the terms, covenants and conditions to be
performed or observed by the Subordinate Lender under the Subordination Agreement.
The Maker and all persons now or hereafter becoming obligated or liable for the payment
hereof, do jointly and severally waive demand, notice of non-payment, protest, notice of dishonor
and presentment.
The Maker does not intend or expect to pay, nor does the Lender intend or expect to charge,
collect or accept, any interest greater than the highest legal rate of interest which may be charged
under any applicable law. Should the acceleration hereof or any charges made hereunder result in
the computation or earning of interest in excess of such legal rate, any and all such excess shall be
and the same is hereby waived by the Lender, and any such excess shall be credited by the Lender
to the balance hereof.
Each Maker, endorser, or any other person, firm or corporation now or hereafter becoming
liable for the payment of the Loan evidenced by this Promissory Note, hereby consents to any
renewals, extensions, modifications, releases of security or any indulgence shown to or any
dealings between the Lender and any party now or hereafter obligated hereunder, without notice,
Page 2 of 5
and jointly and severally agree that they shall remain liable hereunder notwithstanding any such
renewals, extensions, modifications or indulgences, until the debt evidenced hereby is fully paid.
The Maker agrees to pay a late charge equal to ten percent (10.0%) of each payment of
principal and/or interest which is not paid within five (5) days of the date on which it is due. In
the event that any payment is returned on account of insufficient or uncollected funds, the Maker
shall additionally be liable for a return check charge of five percent (5%) of the amount of the
check and Lender may require that all future payments be made by cashier's check.
Any payment of principal and/or interest due under this Promissory Note which is not
promptly paid on the date such payment becomes due, shall bear interest at the highest rate
allowable by law commencing on the date immediately following the day upon which the payment
was due. Upon the occurrence of any event of default as defined herein or an Event of Default as
defined in the Agreement, all sums outstanding under this Promissory Note shall thereon
immediately bear interest at the highest rate allowable by law from the date of disbursement,
without notice to the Maker or endorser of this Promissory Note, and without any affirmative
action or declaration on the part of the Lender.
In the event of the sale of Project or the Property in violation of the requirements set forth
in the Agreement, all sums outstanding under this Promissory Note shall bear interest at the highest
rate allowable by law from the date of disbursement, without notice to the Maker or endorser of
this Promissory Note, and without any affirmative action or declaration on the part of the Lender.
This Promissory Note shall be construed and enforced according to the laws of the State of
Florida, excluding all principles of choice of laws, conflict of laws or comity. Any action
pursuant to a dispute under this Promissory Note must be brought in Miami -Dade County
and no other venue. All meetings to resolve said dispute, including voluntary arbitration,
mediation, or other alternative dispute resolution mechanism, will take place in this
venue. The parties both waive any defense that venue in Miami -Dade County is not
convenient.
The terms of this Promissory Note may not be changed orally.
Notwithstanding anything to the contrary in the Loan Documents, this Promissory Note is
a non -recourse obligation of the Maker and its members and neither Maker nor its members have
personal liability for repayment of the Loan.
THE MAKER OF THIS PROMISSORY NOTE HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT TO A TRIAL BY JURY
WITH RESPECT TO ANY LITIGATION BASED HEREON OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH THIS PROMISSORY NOTE OR ANY LOAN
DOCUMENT(S) EXECUTED IN CONNECTION HEREWITH, OR THE FINANCING
CONTEMPLATED HEREBY, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR THE ACTIONS OF
ANY PARTY HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE
LENDER EXTENDING THE LOAN EVIDENCED BY THIS PROMISSORY NOTE.
[Signature Page Follows]
Page 3 of 5
WITNESSES: PROJECT SPONSOR:
By:
Print Name:
Print Name:
PROJECT SPONSOR'S ADDRESS:
ACKNOWLEDGMENT
STATE OF FLORIDA
COUNTY OF MIAMI-DADE )
THE FOREGOING INSTRUMENT was acknowledged before me on this day of
, 2019 by , as of , who is personally
known to me or who produced a as identification.
My Commission Expires: Signature of Notary Public, State of Florida
Printed Name of Notary Public
Page 4 of 5
Attachment 1
located at , Miami, Florida
Payment of principal, interest, and all other charges, expenses, and fees set forth in the
Loan Documents shall be deferred and no payments of principal and interest shall be due for thirty
(30) years commencing on the Effective Date (such period is the "Affordability Period"). Interest
on funds outstanding shall accrue as follows:
The construction loan shall bear zero percent (0%) during the construction of the project.
Upon the Close -Out of the Project, the loan will be converted to a 30-year permanent loan that
shall bear interest at the rate of three percent (3%) per annum simple interest only, with the entire
principal balance and any accrued and unpaid interest and other charges due at maturity. The City
may, at its sole discretion, forgive all remaining indebtedness and other sums due on the Loan and
release all documents given as collateral security for no additional consideration at its maturity.
If during the Affordability Period any HOME Assisted Unit fails to comply, beyond any
applicable cure period, with the affordability requirements of the applicable funding source, the
Agreement and/or the other Loan Documents, the Maker shall repay to the Lender all funds
received by the Maker pursuant to this Agreement, all unpaid interest accrued thereon, all
Program Income derived therefrom or in connection therewith, and all unpaid fees, charges and
other obligations of the Maker due under any of the Loan Documents
Page 5 of 5
PROMISSORY NOTE
Miami, Florida
FOR VALUE RECEIVED the undersigned hereinafter referred to as the "Maker") promises to pay to
the order of the CITY OF MIAMI (hereinafter referred to as "Lender"), at 444 SW 2 Avenue, Miami, Fl
33130, or such other location or address as the Lender may direct from time to time, the principal sum
of: together with interest thereon at the initial rate of Zero percent (0.00%) per
annum upon the principal balance outstanding from time to time, said principal and interest being payable as
follows:
The outstanding principal balance and all interest accrued thereon shall become due and payable in full
immediately on the tenth (10) year anniversary date, provided however that in the event that the Maker
shall: own and occupy the premises located at (the "Premises") from that date
hereof until the Maturity Date, then, in such event, the Lender shall cancel all indebtedness hereunder, consider
funds drawn hereunder a grant and cancel this Note, further provided however, that the Maker shall remain
obligated to repay the full amount of the Promissory Note to the Lender upon the occurrence of the following
event: The Maker ceases to own and occupy the Premises. Upon the occurrence of the foregoing event, the full
outstanding balance of funds disbursed under this Promissory Note, together with interest at the rate provided
above, shall be immediately due and payable, except in the case of the death of the Maker where the heirs to the
maker can assume the indebtedness, provided they have been certified as income eligible by the City, and that
they reside in the house as their primary residence. In the event of sale or transfer of the unit within the
affordability period, the City of Miami will share in the gain in accordance with the City's approved housing
policies.
This Promissory Note is secured by that certain Mortgage of even date herewith executed by the Maker,
encumbering real property located in Miami -Dade County, Florida.
At the option of the Lender, all sums advanced hereunder together with accrued interest thereon shall
become immediately due and payable, without notice or demand, upon the occurrence of any one or more of the
following events of default: (a) the Maker's failure to promptly pay in full any payment of principal or interest
due under this Promissory Note; (b) the failure to pay when due any premium of homeowner's or flood
insurance; (c) the death, dissolution, termination of existence, insolvency of, business failure, appointment of a
Receiver of any part of the property or assignment for the benefit of creditors by, or the commencement of any
proceedings under any bankruptcy or insolvency laws, by or against any maker or guarantor hereof; (d) any
breach by the Maker of the terms, covenants or conditions set forth in the Mortgage, or any loan documents
executed in connection therewith, or any other instrument, document or agreement which secures, collateralize
or otherwise pertains to the loan evidenced by this Promissory Note.
Any deposits credited by the Lender or other property of any maker or guarantor hereof now or
hereafter in the possession of the Lender, may at all times be held and treated as collateral and security for the
payment of this Promissory Note and all other indebtedness or liability, direct or indirect, joint or several,
absolute or contingent, now existing or hereafter created, acquired or contracted, of the Maker to the Lender.
The Lender may apply or set-off such deposits or other sums against said liabilities at any time in the case of
makers, but only with respect to matured liabilities in the case of guarantors.
No delay or omission on the part of the Lender in the exercise of any right hereunder shall operate as a
waiver of such right or of any other right under this Promissory Note. A waiver by the Lender of any right or
remedy conferred to it hereunder on any one occasion shall not be construed as a bar to, or waiver of, any such
right and/ or remedy as to any future occasion.
The Maker agrees that in the event of a default in the payment of any installment of principal or interest
or, if each and every of the terms and conditions of this Promissory Note or any instrument which secures or
collateralizes the payment of the sums hereunder are not duly performed, complied with, or abided by, the whole
of said indebtedness then outstanding shall thereupon, at the option of the Lender, become immediately due and
payable. If this Promissory Note becomes in default and is placed in the hands of an attorney for collection, the
Maker agrees to pay all and singular the costs, charges, and expenses incurred by the Lender in the enforcement
of its rights hereunder, including, but not limited to reasonable attorneys' fees and costs, including the attorneys'
fees and costs for appellate proceedings.
The Maker and all persons now or hereafter becoming obligated or liable for the payment, do jointly and
severally waive demand, notice of non-payment, protest, notice of dishonor and presentment.
The Maker does not intend or expect to pay, nor does the Lender intend or expect to charge, collect or
accept, any interest greater than the highest legal rate of interest which may be charged under any applicable
law. Should the acceleration hereof or any charges made hereunder result in the computation or earning of
interest in excess of such legal rate, any and all such excess shall be and the same is hereby waived by the
Lender, and any such excess shall be credited by the Lender to the balance hereof.
Each Maker, endorser, or any other person, firm or corporation now or hereafter becoming liable for the
payment of the loan evidenced by this Promissory Note, hereby consents to any renewals, extensions,
modifications, release of security or any indulgence shown to or any dealings between the Lender and any party
now or hereafter obligated hereunder, without notice, and jointly and severally agree that they shall remain
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liable hereunder notwithstanding any such renewals, extensions, modifications or indulgences, until the debt
evidenced hereby is fully paid.
Any payment of principal and or interest due under this Promissory Note which is not promptly paid on
the date such payment becomes due, shall bear interest at the highest rate allowable by law commencing on the
date immediately following the day upon which the payment was due. Upon the occurrence of any event of
default as defined herein, all sums outstanding under this Promissory Note shall thereon immediately bear
interest at the highest rate allowable by law, without notice to the Maker or any guarantor or endorser of this
Promissory Note, and without any affirmative action or declaration on the part of the Lender.
This Promissory Note may be prepaid in full at any time.
This Promissory Note shall be construed and enforced according to the laws of the State of Florida,
excluding all principles of choice of laws, conflict of laws or comity. The terms of this Promissory Note may
not be changed orally.
THE MAKER AND EACH ENDORSER AND GUARANTOR OF THIS PROMISSORY NOTE
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT WHICH
HE, SHE OR IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION
BASED HEREON OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS
PROMISSORY NOTE, OR ANY LOAN DOCUMENTS EXECUTED IN CONNECTION HEREWITH,
OR THE FINANCING CONTEMPLATED HEREBY, OR ANY COURSE OF CONDUCT, COURSE
OF DEALINGS, STATEMENTS (WHETHER ORAL OR WRITTEN) OR THE ACTIONS OF ANY
PARTY HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE LENDER
EXTENDING THE LOAN EVIDENCED BY THIS PROMISSORY NOTE.
IN WITNESS WHEREOF, this Agreement has been executed by the Sponsor as of the Effective Date.
Attest Maker:
This Instrument Prepared By
and Return To:
Maria Gomez
CITY OF MIAMI
Sign Name:
Sign Name:
MORTGAGE DEED AND SECURITY AGREEMENT
THIS MORTGAGE DEED AND SECURITY AGREEMENT (hereinafter referred to as the
"Mortgage"), executed and delivered the day of , by (hereinafter individually or
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collectively referred to as the "Mortgagor"), whose mailing address is to the
City of Miami, a municipal corporation of the State of Florida, with offices at 444 S_W. 2 Avenue,
Miami, Florida 33142 (hereinafter individually or collectively called "the Mortgagee").
WITNESSETH THAT:
FOR DIVERS GOOD AND VALUABLE CONSIDERATIONS and also in consideration of the
aggregate sum named in the promissory note or notes of even date herewith from Mortgagor, as
borrower, in favor of the City of Miami, as Lender, in the original principal amount of
$3,100.00(hereinafter referred to as the "Note"), the Mortgagor does grant, bargain sell, alien, remise,
release, convey and confirm unto the Mortgagee, in fee simple, all of that certain tract of land which
the Mortgagor is now seized and possessed and in actual possession, situate in Miami -Dade County,
State of Florida, legally described as follows:
TOGETHER WITH all structures and improvements now and hereafter located thereon, the rents,
issues and profits thereof, fixtures now located thereon, which are now or may hereafter pertain to or
be used with, in or on said premises, and which even though they be detached or detachable, are and
shall be deemed to be fixtures and accession s to the freehold and a part of the realty, and all additions
thereto and replacements thereof, which real property, improvements and personality shall hereinafter
collectively be referred to as the "Mortgaged Property".
TO HAVE AND TO HOLD the same, together with all tenements and hereditaments and
appurtenances, unto the Mortgagee in fee simple, forever.
The Mortgagor does covenant with the Mortgagee that Mortgagor is indefeasibly seized of the
Mortgaged Property in fee simple; that the Mortgagor has full power and lawful right to convey the
Mortgaged Property in fee simple as aforesaid; that the Mortgaged Property is free from all
encumbrances except as specified on Exhibit A hereto; that the Mortgagor will make such further
assurances to perfect the fee simple title to the Mortgaged Property in the Mortgagee as may
reasonably be required; and that the Mortgagor does hereby fully warrant the title to the Mortgaged
Property, and will defend the same against the lawful claims of all persons whomsoever.
PROVIDED ALWAYS, that if the Mortgagor shall pay unto the Mortgagee or otherwise perform and
fulfill his obligations with respect to the indebtedness or obligation evidenced by the Note and shall
perform, comply with and abide by each and every one of the stipulations, agreements, conditions and
covenants of the Note, this Mortgage, and the other loan documents all of even date herewith and /or
executed in connection herewith ( hereinafter jointly referred to as "the Loan Documents"), then this
Mortgage and the estate thereby created shall cease and be null and void.
AND THE MORTGAGOR HEREBY COVENANTS AND AGREES AS FOLLOWS:
1. PERFORMANCE OF NOTE AND MORTGAGE. The Mortgagor shall pay or otherwise
fully perform his obligations with respect to the payment of all and singular the principal, interest and
other sums of money payable by virtue of the Note and this Mortgage, or either, promptly on the days
when the same severally become due and payable, and shall perform, comply with and abide by each
and every of the stipulations, agreements, conditions and covenants set forthin the Note, this Mortgage
and the Loan Documents.
2. TAXES AND OTHER CHARGES. The Mortgagor shall pay when due and payable and
before any interest, charge or penalty is due thereon, without any deduction, defalcation or abatement,
all taxes, assessments, levies, liabilities, obligations, encumbrances, water and sewer rents and all other
charges or claims of every nature and kind which may be imposed, suffered, placed, assessed, levied,
or filed at any time against this Mortgage, the Mortgaged Property or any part thereof or against the
interest of the Mortgagee therein, or which by any present or future law may have priority over the
indebtedness secured hereby either in lien or in distribution out of the proceeds of any judicial sale,
without regard to any law heretofore or hereafter to be enacted imposing payment of the whole or of
any part upon the Mortgagee; and insofar as any such tax, assessment, levy, liability, obligation or
encumbrance is of record, the same shall be promptly satisfied and discharged of record and the
original official document (such as, for instance, the tax receipt or the satisfaction paper officially
endorsed or certified) shall be placed in the hands of the Mortgagee no later than such dates; provided,
however, that if, pursuant to this Mortgage or otherwise, the Mortgagor shall have deposited with the
Mortgagee before the due date thereof sums sufficient to pay any such taxes, assessments, levies, water
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and sewer rents, charges or claims, and the Mortgagor is not otherwise in default, they shall be paid by
the Mortgagee; and provided further, that if the Mortgagor in good faith and by appropriate legal
action shall contest the validity of any such items or the amount thereof, and shall have established on
its books, a reserve for the payment thereof in such amount as the Mortgagee may require, then the
Mortgagor shall not be required to pay the item or to produce the required receipts: (a) while the
reserve is maintained; and (b) so long as the contest operates to prevent collection, is maintained and
prosecuted with diligence, and shall not have been terminated or discontinued adversely to the
Mortgagor. The Mortgagor shall furnish the Mortgagee with annual receipted tax bills evidencing
payment within ninety (90) days from their initial due date.
3. INSTALLMENTS FOR INSURANCE, TAXES AND OTHER CHARGES. Without
limiting the effect of Paragraphs 2 or 5 hereof, the Mortgagee may require the Mortgagor to pay to the
Mortgagee, monthly with the monthly installments of principal and interest, an amount equal to one -
twelfth (1/12) of the annual premiums for the insurance policies referred to hereinabove and the annual
real estate taxes, any special assessments, charges or claims and any other item which at any time may
be or become a lien upon the Mortgaged Property prior to the lien of this Mortgage; and on demand
from time to time the Mortgagor shall pay to the Mortgagee any additional sums necessary to pay the
premiums and other items, all as estimated by the Mortgagee. The amounts so paid shall be used in
payment thereof if the Mortgagor is not otherwise in default hereunder.
No amount so paid shall be deemed to be trust funds but may be commingled with general funds of the
Mortgagee, and no interest shall be payable thereon. If, pursuant to any provision of this Mortgage,
the whole amount of the unpaid principal debt becomes due and payable, the Mortgagee shall have the
right, at its election, to apply any amount so held against the entire indebtedness secured hereby. At
the Mortgagee's option, the Mortgagee from time to time may waive, and after any such waiver may
reinstate, the provisions of this Paragraph requiring monthly payments.
4. ATTORNEYS' FEES AND COSTS. The Mortgagee shall recover from the Mortgagor, and
this Mortgage shall secure payment of, all and singular the costs, charges and expenses, including but
not limited to, reasonable trial, appellate, and bankruptcy attorneys' fees, because of the failure on the
part of the Mortgagor to perform, comply with, and abide by, each and every of the stipulations,
agreements, conditions and covenants of the Note and this Mortgage, or either, whether or not suit is
brought, and every such payment made by the Mortgagee shall bear interest from the date thereof at
the maximum rate permitted by law.
5. INSURANCE. The Mortgagor shall keep the buildings and improvements now or hereafter
erected on the Mortgaged Property continuously insured under a policy or policies providing coverage
on an "all risk" basis, in a sum not less than full insurable value, including flood insurance if requested
by the Mortgagee, in a company or companies acceptable to the Mortgagee. The policy or policies of
insurance shall be held by and be payable to the Mortgagee. In the event
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any sum of money becomes payable under such policy or policies, the Mortgagee shall have the
option to receive and apply the same on account of the indebtedness secured by this Mortgage or to
permit the Mortgagor to receive and use it, or any part thereof, for other purposes, without thereby
waiving or impairing any equity lien or right under or by virtue of this Mortgage. In the event the
Mortgagor fails to procure and maintain the insurance coverage required hereby, the Mortgagee may
procure and pay for such insurance or any part thereof, without waiving or affecting its option to
foreclose this Mortgage, or any right thereunder. Each and every such payment made by the
Mortgagee shall be secured by this Mortgage; shall be due and payable on demand; and, shall bear
interest from the date each such payment is made at the maximum rate permitted by law.
6. CARE OF THE MORTGAGED PROPERTY. The Mortgagor shall exercise reasonable
care in the maintenance of the Mortgaged Property, and shall not permit, commit or suffer any waste,
impairment or deterioration of the Mortgaged Property or any part thereof. In the event the Mortgagor
fails to keep the Mortgaged Property in good repair, the Mortgagee may make such repairs as it may
deem necessary in its sole discretion for the proper preservation thereof, and the full amount of each
such payment shall be due and payable with interest at the maximum rate permitted by law on demand,
and shall be secured
by the lien of this Mortgage.
7. EXISTING/OTHER MORTGAGES AND OBLIGATIONS. Any default in the
payment or terms and conditions of any existing or other mortgage(s), or any modification and/or
acceptance of future advances from any existing or other mortgage(s) shall constitute a default
hereunder and the Mortgagee, at its option, may declare all sums due and payable and accelerate the
entire indebtedness. The Mortgagee may, at its option, and without waiving its right to accelerate the
indebtedness hereby secured and to foreclose the same, pay either before or after delinquency any or
all of those certain obligations required by the terms hereof to be paid by the Mortgagor for the
protection of the Mortgage security or for the collection of the indebtedness hereby secured. All sums
so advanced or paid by Mortgagee shall be charged into the mortgage account, and every payment so
made shall bear interest from the date thereof at the delinquent rate specified in said Mortgage Note,
and become an integral part thereof, subject in all respects to the terms, conditions and covenants of
the aforesaid Promissory Note, and this Mortgage, as fully and to the same extent as though a part of
the original indebtedness evidenced by said Note and secured by this Mortgage, excepting however,
that said sums shall be repaid to the Mortgagee within Fifteen (15) days after demand by the
Mortgagee to the Mortgagor for said payment.
8. INSPECTION. The Mortgagee, and any persons authorized by the Mortgagee, shall have
the right at any time, upon reasonable notice to the Mortgagor, to enter the Mortgaged Property at a
reasonable hour to inspect and photograph its condition and state of repair.
9. ACCELERATION OF MATURITY. That (a) in the event of any breach of this Mortgage
or default on the part of the Mortgagor, or; (b) in the event any of said sums of money herein referred
to be not promptly and fully paid within 15 days next after the same severally become due and
payable, without demand or notice; or (c) in the event each and every stipulation, agreement, condition
and covenants of the Note, this Mortgage, or any of the Loan Documents, are not duly, promptly and
fully performed, discharged, executed, effected, completed, complied with and abided by, or; (d) in the
event the Mortgagor shall fail, within five (5) days written notice by the Mortgagee to execute a
Mortgagor's certificate in favor of any assignee or prospective assignee of the Mortgagee's interest
hereunder which certificate shall contain such acknowledgments, affirmations, and covenants as may
be reasonably required to enable the Mortgagee to assign their interest hereunder, or (e) upon the
rendering by any court of last resort of a decision that an undertaking by the Mortgagor as herein
provided to pay taxes, assessments, levies liabilities, obligations and encumbrances is legally
inoperative or cannot be enforced, or in the event of the passage of any law changing in any way or
respect the laws now in force for the taxation of mortgages or debts secured thereby, or the manner of
collection of any such taxes, so as to affect this Mortgage or the debt secured hereby; or (f) in the event
there exists an event of default under and pursuant to the terms of any other obligation of any kind or
nature whatsoever of the Mortgagor to the Mortgagee, direct or
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contingent, whether now existing or hereafter due, existing, created or arising, then in either or any
such event, the said aggregate sum mentioned in said Note then remaining unpaid, with interest
accrued, and all monies secured hereby shall become due and payable forthwith, or thereafter, at the
option of the Mortgagee, as fully and completely as if all of the sums of money were originally
stipulated to be paid on such day, anything in the Note and/or in this Mortgage to the contrary
notwithstanding; and thereupon or thereafter, at the option of the Mortgagee, without notice or
demand, suit at law or in equity, therefore, or thereafter begun, may be prosecuted as if all money
secured hereby had matured prior to its institution.
10. NO ADDITIONAL FINANCING. Mortgagor hereby covenants and agrees that Mortgagor
shall not procure any other financing in connection with the Mortgaged Property without the prior
written consent of the Mortgagee.
11. DEFENSE OF MORTGAGED PROPERTY AND MORTGAGE. If any action or
proceeding shall be commenced by any person other than the Mortgagee, and the Mortgagee is made a
party, or in which it shall become necessary for the Mortgagee to defend or take action to uphold or
defend the lien of this Mortgage, all sums paid or incurred by the Mortgagee for the expense of any
litigation, including court costs and attorneys' fees incurred in any trial, appellate, and bankruptcy
proceedings, to prosecute or defend the rights and liens created by this Mortgage shall be paid by the
Mortgagor, together with interest thereon at the maximum rate permitted by law from the date thereof,
and any such sum and interest thereon shall be a claim upon the Mortgaged Property, attaching or
accruing subsequent to the lien of this Mortgage, and shall be secured by the lien of this Mortgage.
12. CONDEMNATION. In the event the Mortgaged Property or any part thereof shall be
condemned under the power of eminent domain, the Mortgagee shall have the right to demand that all
damages awarded for such taking be paid to the Mortgagee and shall be entitled to receive same, up to
the aggregate amount then remaining unpaid on the Note and this Mortgage, and any such sums shall
be applied to the payments last payable thereof.
13. SUBROGATION. To the extent of the indebtedness of the Mortgagor to the Mortgagee as
described in the Note, the Mortgagee shall be subrogated to the lien and the rights of the owners and
holders of each and every mortgage, lien or other encumbrance on the Mortgaged Property which is
paid or satisfied, in whole or in part, out of the proceeds of the Note. The respective liens of such
mortgages, liens or other encumbrances shall be and are hereby security for the Note, as if they had
been regularly assigned, transferred, and delivered unto the Mortgagee, notwithstanding the fact that
the same may be set aside and canceled of record. It is the intention of the parties hereto that the prior
mortgages, liens or other encumbrances will be satisfied and canceled of record by the holders thereof
at or about the time of the recording of this Mortgage.
14. APPOINTMENT OF RECEIVER. At any time while a suit is pending to foreclose or to
reform this Mortgage or to enforce any claims arising hereunder, the Mortgagee may apply to a court
of appropriate jurisdiction for the appointment of a Receiver, and such court shall forthwith appoint a
Receiver of the Mortgaged Property, including all and singular the income, profits, rents, issues and
revenues from whatever source derived. The Receiver shall have all the broad and effective functions
and powers in anywise entrusted by a court to a Receiver, and such appointment shall be made by such
court as an admitted equity and as a matter of absolute right to the Mortgagee without reference to the
adequacy or inadequacy of the value of the Mortgaged Property, or to the solvency or insolvency of the
Mortgagor or the Defendants. All income, profits, rents, issues and revenues collected by the Receiver
shall be applied by such Receiver according to the lien of this Mortgage, and the practice of such court.
15. NO TRANSFER OF MORTGAGED PROPERTY. It is expressly agreed that should the
Mortgagor convey title to the Mortgaged Property or any legal or equitable interest therein, to any
person, firm or corporation or shall permit or create any further encumbrances upon the Mortgaged
Property without the prior written approval of the Mortgagee to such conveyance or encumbrance,
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all sums outstanding under the Note and secured by this Mortgage shall become immediately due
and payable, at the option of the Mortgagee.
16. LEASES AFFECTING MORTGAGED PROPERTY. Leasing of the Mortgaged Property
is not permitted.
17. CARE OF PROPERTY.
(a) The Mortgagor shall preserve and maintain the Mortgaged Property in good condition and
repair. The Mortgagor shall not remove, demolish, alter or change the use of any building, structure or
other improvement presently or hereafter on the Land constituting any part of the Mortgaged Property
without the prior written consent of the Mortgagee. The Mortgagor shall not permit, commit or suffer
any waste, impairment or deterioration of the Mortgaged Property or of any part thereof, and will not
take any action which will increase the risk of fire or other hazard to the Mortgaged Property or to any
part thereof.
(b) Except as otherwise provided in this Mortgage, no fixture, personal property or other part of
the Mortgaged Property shall be removed, demolished or altered, without the prior written consent of
the Mortgagee. The Mortgagor may sell or otherwise dispose of, free from the lien of this Mortgage,
furniture, furnishings, equipment, tools, appliances, machinery, fixtures or appurtenances, subject to
the lien hereof, which may become worn out, undesirable or obsolete, only if they are replaced
immediately with similar items of at least equal value which shall, without further action, become
subject to the lien of this Mortgage.
18. MORTGAGE SECURES INDEBTEDNESS. It is expressly agreed and understood that
this Mortgage secures the indebtedness and the obligation of the Mortgagor to the Mortgagee with
respect to the Note, as the same is evidenced by the Note, and all renewals, extensions and
modifications thereof. This Mortgage shall be deemed released, discharged and satisfied as provided
in the Note.
19. MORTGAGEE'S REMEDIES CUMULATIVE. The Mortgagor agrees that all rights of
the Mortgagee hereunder shall be separate, distinct, and cumulative, and that none shall be in exclusion
of the other, and that no act of the Mortgagee shall be construed as an election to proceed under any
provision of covenant herein to the exclusion of any other, notwithstanding anything herein to the
contrary.
20. INDEMNIFICATION. The Mortgagor hereby protects, indemnifies and saves harmless
the Mortgagee, its officers, directors, agents and employees, from and against any and all liabilities,
obligations, claims, damages, penalties, causes of action, costs and expenses (including without
limitation, reasonable attorneys' fees and expenses) imposed upon, incurred by or asserted against the
Mortgagee or any of such persons by reason of (a) ownership of any interest in the Mortgaged Property
or any part thereof, (b) any accident, injury to or death of persons or loss of or damage to property
occurring on or about the Mortgaged Property or any part thereof or the adjoining sidewalks, curbs,
vaults and vault space, if any, streets or ways, (c) any use, disuse or condition of the Mortgaged
Property or any part thereof, or the adjoining sidewalks, curbs, vaults and vault space, if any, or any
streets or ways, (d) any failure on the part of the Mortgagor to perform or comply with any of the terms
hereof or of any of the Loan Documents executed in connection herewith, or any inaccuracy in any
representation or warranty made by the Mortgagor herein or in any of the Loan Documents executed in
connection herewith, (e) any necessity to defend any of the right, title or interest conveyed by this
Mortgage, (f) the performance of any labor or services or the furnishing of any materials or other
property in respect of the Mortgaged Property or any part thereof, (g) any subsidence or erosion of any
part of the surface of the Mortgaged Property, including any shoreline or any bank of any river, stream,
creek, lake, ocean or other water source, or (h) the location or existence of asbestos or any toxic or
hazardous waste, chemicals, materials or substance on, at, in or under the Mortgaged Property or any
part thereof. If any action, suit or proceeding is brought against the Mortgagee, or any of its officers,
directors, agents or employees,
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for any such reason, the Mortgagor, upon the request of such party, will, at the Mortgagor's
expense, cause such action, suit or proceeding to be resisted and defended by counsel satisfactory to
the Mortgagee or such person. Any amounts payable to an indemnified party under this Section which
are not paid within ten (10) days after written demand therefore shall bear interest at the default rate of
interest provided in the Note from the date of such demand, and such amounts, together with such
interest, shall be indebtedness secured by this Mortgage. The obligations of the Mortgagor under this
Section shall survive any defeasance of the Mortgage.
21. HAZARDOUS MATERIALS. The Mortgagor agrees that it will not use, generate, store or
dispose of Hazardous Materials on the Mortgaged Property. For purposes hereof, "hazardous
materials" include (but are not limited to) materials defined as "hazardous waste" under the Federal
Resource Conservation and Recovery Act and similar state laws, or as "hazardous substances" under
the Federal Comprehensive Environmental Response, Compensation and Liability Act and similar
state laws. Hazardous materials include (but are not limited to) solid, liquid or gaseous substances
which are toxic, ignitable, corrosive, carcinogenic or otherwise dangerous to human, plant or animal
health and well being. Examples of hazardous waste include paints, solvents, petroleum products,
batteries, and other discarded man-made materials with hazardous characteristics. The Mortgagee
shall have all remedies at law and equity for failure of the Mortgagor to carry out the foregoing
obligation, including but not limited to specific performance, damages, reasonable attorneys' fees and
court costs. This provision shall survive payment of the Note and termination of this Mortgage.
22. REPRESENTATIONS AND WARRANTIES. In order to induce the Mortgagee to make
the Loan evidenced by the Note, the Mortgagor represents and warrants that: (a) there are no actions,
suits or proceedings pending or threatened against or affecting the Mortgagor or any portion of the
Mortgaged Property, or involving the validity or enforceability of this Mortgage or the priority of its
lien, before any court of law or equity or any tribunal, administrative board or governmental authority,
and the Mortgagor is not in default under any other indebtedness or with respect to any order, writ,
injunction, decree, judgment or demand of any court or any governmental authority; (b) the execution
and delivery of the Note, this Mortgage and all other Loan Documents do not and shall not (i) violate
any provisions of any law, rule, regulation, order, writ, judgment, injunction, decree, determination or
award applicable to the Mortgagor or any other person executing the Note, this Mortgage or other
Loan Documents, nor (ii) result in a breach of, or constitute a default under, any indenture, bond,
mortgage, lease, instrument, credit agreement, undertaking, contract or other agreement to which the
Mortgagor or such other person is a party or by which either or both of them or their respective
properties may be bound or affected; (c) the Note, this Mortgage and all other Loan Documents
constitute valid and binding obligations of the Mortgagor and any other person executing the same,
enforceable against the Mortgagor and such other person(s) in accordance with their respective terms;
(d) there is no fact that the Mortgagor and any guarantor(s) of the Loan have not disclosed to the
Mortgagee in writing that could materially adversely affect their respective properties, business or
financial conditions or the Mortgage Property or any other collateral for the Loan; (e) the Mortgagor
and any guarantor(s) of the Loan have duly obtained all permits, licenses, approvals and consents from,
and made all filings with, any governmental authority (and the same have not lapsed nor been
rescinded or revoked) which are necessary in connection with the execution and delivery of this
Mortgage and any other Loan Document, the making of the Loan, the performance of their respective
obligations under any Loan Document, or the enforcement of any Loan Document; and that all such
representations and warranties shall survive the closing of the Loan and any bankruptcy proceedings.
23. SEVERABILITY OF INVALID PROVISIONS. In the event any provision of the Note
and or this Mortgage should be held unconstitutional, illegal or unenforceable for any reason, such
provision shall not affect, alter, or otherwise impair any other provision of the Note and or this
Mortgage.
24. NO WAIVER. It is expressly agreed and understood that a waiver by the Mortgagee of any
right or rights conferred to it hereunder with regard to any one transaction or occurrence shall not be
deemed a waiver of such right or rights to any subsequent transaction or occurrence. It is
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further agreed that any forbearance or delay by the Mortgagee in the enforcement of any right or
remedy hereunder shall not constitute or be deemed a waiver of such right or remedy.
25. GOVERNING LAW. This Mortgage shall be construed and enforced pursuant to the laws
of the State of Florida, excluding all principles of choice of laws, conflict of laws and comity.
26. HEADINGS. The headings of the articles, sections, paragraphs and subdivisions of this
Mortgage are for convenience and ease of reference only, and are not to be considered a part hereof,
and shall not limit or otherwise affect any of the terms or provisions hereof.
27. GENDER AND NUMBER. In this Mortgage and the Note it secures, the singular shall include
the plural and the masculine shall include the feminine and neuter.
28. PARTIES BOUND; NO ORAL MODIFICATIONS. Each and every of the terms,
covenants and conditions contained herein shall be binding upon the parties hereto, their successors,
heirs, assigns and devisee. This Mortgage is not subject to modification other than by a written
document or instrument executed by the party or parties to be charged with such modification.
29. WAIVER OF TRIAL BY JURY. THE MORTGAGOR HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT WHICH HE, SHE OR IT
MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION BASED
HEREON OR ARISING OUT OF, UNDER OR IN CONNECTION WITH, THIS
MORTGAGE, OR ANY OF THE LOAN DOCUMENTS OR THE FINANCING
CONTEMPLATED HEREBY, OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS,
STATEMENTS (WHETHER ORAL OR WRITTEN) OR THE ACTIONS OF ANY PARTY
HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE MORTGAGEE
EXTENDING THE LOAN SECURED BY THIS MORTGAGE.
IN WITNESS WHEREOF, the Mortgagor has hereunto set its hand and seal the day and year first
above written.
Signed, sealed and delivered
in our presence:
Sign Name:
Sign Name::
(Seal)
Sign Name:
(Seal)
Sign Name:
STATE OF FLORIDA )
COUNTY OF MIAMI-DADE)
THE FOREGOING INSTRUMENT was acknowledged before me on this day of
, 2019 by and who is/are
personally known to me or who produced and
as identification and did/did not take an oath.
Signature of Notary Public
Name of Notary Public, typed, printed or stamped
(Seal) NOTARY PUBLIC, STATE OF FLORIDA AT
LARGE
Serial number, if any:
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