HomeMy WebLinkAboutSubmittal-Grady, Muhammad-Letter PacketDate:
To:
From:
Subject:
Submitted into the public
record fop ite (s) ,
no 1 L'i I (. City Clerk
July 24, 2007
MIAMIDA►DE
Memorandum COUNTY
Honorable Chairman Bruno A. Barreiro
and Members, Board of County Commissioners
George M. Burgess
County Manager
Resolution approv
US HUD Amend
Agenda Item No. 12(A) (4)
rrn of tl5 City/County Joint Participation Agreement and the
Pledge Agreement for Parrot Jungle
Recommendation
It is recommended that the Board of County Commissioners (BCC) approve the attached resolution that: 1)
approves, in substantial form, the City/County Joint Participation Agreement (Attachment 1) and the US
Department of Housing and Urban Development (US HUD) Amended Pledge Agreement (Attachment 2)
required for the City of Miami to assume 80 percent of the US HUD Section 108 Loan; 2) approves
amendments to the Development Agreement among the City, the County and Parrot Jungle and Gardens
(PJG); and 3) modifies the $4.7 million loan to PJG approved by the BCC in July 2006.
Scope
PJG, now known as Jungle Island as of mid -June 2007, relocated from Pinecrest to Watson Island, in the
City of Miami. While the project is located in Commission District 3, the impact of this tourist attraction is
countywide. For purposes of this item, Jungle Island will be referred to as PJG.
Track Record/Monitor
The construction and relocation of PJG was complete in 2003. As of December 2006, PJG has created 444
jobs (321 full-time and 123 part-time), with the overwhelming number of the permanent positions going to low
to moderate income persons as defined by US HUD guidelines
Background
In the fall of 1997, Miami -Dade County was approached by the owner of PJG for the purpose of seeking
financial assistance through the US HUD Section 108 Loan Program. The assistance was being requested to
facilitate the relocation of Parrot Jungle from its long-time home in South Dade to a new location on Watson
Island, in the City of Miami. PJG had approached the City of Miami for Section 108 loan assistance and was
told that, due to the City's then financial crisis, the City was unable to provide such assistance.
In 1998, the Board of County Commissioners approved a loan application to US HUD for a Section 108 loan
in the amount of $25 million for the relocation and expansion of PJG. As a condition precedent to the
submission of the Section 108 loan guarantee application, the County required the City to enter into a Joint
Participation Agreement (JPA) requiring the City to assume 80 percent of the $25 million US HUD Section
108 loan, subject to certain conditions.
The initial JPA between the County and the City, which was executed on September 9, 1998, established
that upon certain pre -conditions the City would assume 80 percent of debt associated with the $25 million US
HUD Section 108 loan. Due to one of conditions in the initial JPA, the earliest that the City could have
assumed 80 percent of the loan was four years after US HUD's approval of the County's Section 108 loan
application (which would have been year 2003) due to there being an oversight board monitoring the City's
finances.
� l03 S q �5�, -{�v(- 8rAdcf 1 M uIro4m�►�.+o(- (�.-11� eft �-I-
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Honorable Chairman Bruno A. Barreiro
and Members, Board of County Commissioners
Page 2
Submitted into the pliblic
record f r ite (s) Y € r �\ i t.1 Z•
oil `Jit� 1. City Clerk
In the meantime, the County's application for the Section 108 loan was submitted to US HUD on October 6,
1998, and the notification of its approval was received on April 26, 1999. Because the County was the
applicant, it became the sole obligor to US HUD. As collateral for the loan, the County executed the original
Pledge Agreement with US HUD, which pledged our current and future Community Development Block Grant
(CDBG) allocation. Subsequently, a development agreement among the County, Parrot Jungle, and the City
was executed on April 20, 2000 and the $25 million US HUD Section 108 loan was closed with an initial
disbursement of funds on January 9, 2001.
On November 24, 2003, the City and County transmitted a letter requesting US HUD to proceed with the loan
guarantee substitution. A conference call involving County, City, and US HUD staff was convened on
January 30, 2004 to discuss the structure, process, procedures, required documentation, and timetable for
completing the requested loan guarantee substitution. As a result of that conference call, US HUD agreed to
assume the lead responsibility to draft an Amended Pledge Agreement (to pledge both the County and the
City's current and future CDBG allocations) and the County assumed the lead responsibility to develop a
revised and expanded JPA to dictate additional conditions. The revised JPA prepared by the County was
drafted in April, 2004; however, the US HUD drafted Amended Pledge Agreement was not received until
December 23, 2004 along with final review comments on the revised JPA. The documents were prepared in
final draft form and delivered to the City on January 21, 2005. The City staff expressed some concerns with
the loan guarantee substitution and County staff met with officials from the City on January 18, 2005 who
took the position that until the delinquent status of PJG was cured, the City had no contractual obligation to
proceed with the substitution. In this regard, a series of meetings have taken place involving the County, City,
and PJG for the purpose of developing recommendations for an interim loan restructure and a cash flow
strategy for PJG.
During this entire time, the County, as the obligor, was current in all its debt payments on the US HUD
Section 108 loan. In July 2006, the BCC adopted Resolution R-916-06 (see Attachment 3) which authorized
a new loan to PJG (loan #2) in the amount of approximately $4.702 million, representing all funds advanced
by the County to US HUD on PJG's behalf from August 1, 2004 through February 1, 2006 plus an
administrative fee (see table below).
Due Date
Amount Due to USHUD
Principal
Interest
Total
August 1, 2004
350,000.00
946,276.75
1,296,276.75
February 1, 2005
933,764.25
933,764.25
August 1, 2005
500,000.00
933,764.25
1,433,764.25
February 1, 2006
915,914.25
915,914.25
Subtotal
850,000.00
3,729,719.50
4,579,719.50
PJ Payment Due
Total
1,327,276.75
964,326.75
1,464,326.75
945,851.75
4,701,782.00
Note: PJG Payments Due to the County include Administrative Costs
Further, the Resolution R-916-06 adopted by the BCC deferred all payments by PJG on the $25 million
Section 108 loan (subject to •City approval) and payments on the new $4.702 million County loan (loan #2)
until 2Q12. This new loan resolved the non-payment by PJG. During the deferral period, both the City and
the County will be paying the debt service on the $25 million US HUD Section 108 loan at 80 percent and 20
percent, respectively.
Subsequently, the City remitted to the County 80 percent of the loan payment for the August 2006 and
February 2007 payments to US HUD. This is as a result of a Resolution adopted by the City of Miami
Commission that authorized the City Manager to make only those two payments. The City did not execute
the Amended Pledge Agreement or the revised JPA prior to making these payments.
Honorable Chairman Bruno A. Barreiro
and Members, Board of County Commissioners
Page 3
urrent Recommendations on the Loans
Submitted into () �u�ll , � � ' �
record for i em s n .
ou 117,5 I t' City Clerk
Subsequent to the approval of Resolution R-916-06, County and City staff continued discussions to: 1)
finalize the Amended Pledge Agreement and revised JPA; 2) restructure PJG's repayment schedules on the
Section 108 loan and the County's $4.702 million loan (loan #2); and 3) finalize PJG's repayment schedule
on the new County/City loan of $17.277 million loan (loan #3), as detailed further below.
County and City staffs have reviewed PJG's projected net cash flow after payment of operating expenses.
Based on that analysis, the following actions are recommended:
• Adjust the $4.702 million County loan (loan #2) repayment commencement date of 2012, approved by the
BCC in July 2006, to 2014 which will allow more time for PJG to strengthen its cash flow. This will avoid
any future monetary non-payment on the $25 million US HUD Section 108 loan.
• Defer payments from PJG on the $25 million US HUD Section 108 loan from August 2006 to July 2011. In
other words, beginning with the August 1, 2006 payment and all the way through the payment due to US
HUD on August 1, 2011, the County and City will be paying US HUD their respective share of the Section
108 debt payment. The total amount of the deferred payments will total approximately $17.277 million
(see table below). The $17.277 million County/City loan (loan #3) will be repaid monthly over ten years at
a five percent annual interest rate beginning in January 2020, after the $25 million US HUD Section 108
loan is paid off. The loan will continue to be secured by a leasehold mortgage on the property and be
personally guaranteed by Mr. Bern Levine, the majority owner of PJG.
• Waive the one -quarter percent administrative fee on the $25 million US HUD Section 108 loan during the
deferral period.
The County and City share of the $17.277 million advance to US HUD is as follows:
Payment
Date
Total
Payment
80 Percent
(City)
20 Percent
(County)
August 1, 2006
$1,665,914
$1,332,731
$333,183
February 1, 2007
889,177
711,341
177,835
August 1, 2007
1,889,177
1,511,341
377,835
February 1, 2008
853,077
682,461
170,615
August 1, 2008
2,103,077
1,682,461
420,615
February 1, 2009
807,964
646,371
161,593
August 1, 2009
2,307,964
1,846,371
461,593
February 1, 2010
753,979
603,183
150,796
August 1, 2010
2,698,979
2,159,183
539,796
February 1, 2011
681,547
545,238
136,309
August 1, 2011
2,626,547
2,101,238
525,309
TOTAL
$17,277,403
$13,821,922
f ,$3,455, 81
In addition to the repayments associated with the debt of the $25 million US HUD Section 108 loan for the
relocation of PJ, two additional obligations by PJG to the County are in non-payment status. The following
obligations and their recommended payment terms are as follows:
• First, in 2003 the County extended two loans totaling $2.5 million to address PJG's claim that the
way the County drew down the $25 million US HUD Section 108 loan funds increased the cost of
the loan. One loan was forgivable in the amount of $1.5 million, and the remaining $1 million loan
was to be repaid by PJG over ten years. It is recommended, that PJG be allowed to make a one-
time balloon payment to the County in 2013 rather than make monthly payments through 2013.
Honorable Chairman Bruno A. Barrairo
and Members, Board of County Commissioners
Page 4
Submitted into the publiC
record fpr it m s) E.'1 t 1'1G. )1,
ou I City Clerk
• Secondly, in the Development Agreement it was required of PJG to make annual payments to the
Aviary at Metro Zoo from 2006 through 2020 totaling $2 million. It is recommended that PJG be
allowed to make a one-time balloon payment to the County in 2020 rather than make annual
payments through 2020.
• PJG has the option to repay both obligations prior to the due date.
The commencement schedule of all PJG obligations is detailed below.
Parrot Jungle and Gardens Obligations ($'s In 1,000's)
Year
$25 million US
HUD Section 108
loan
$4.702 million
County loan
(loan #2)
$17.277 million
County/City loan
(loan #3)
$1 million County
obligation
$2 million
Aviary
obligation
2012
2,697
2013
3,162
1,000
2014
2,863
804
2015
2,712
804
2016
2,581
804
2017
2,408
804
2018
2,254
804
2019
2,099
804
2020
804
2,199
2,000
2021
2,199
2022
2,199
2023
2,199
2024
2,199
2025
2,199
2026
2,199
2027
2,199
2028
2,199
2029
2,199
TOTAL
$20,756
$5,628
$21,990
$1,000
$2,000
Notes:
1- The loans contain principal and ingest amounts in the annual payments
2 - Of the $21.99 million for loan tf3, the City will receive 80 percent payment, and the Canty will receive
20 percent.
PJG principals have already indicated that they should generate sufficient income by 2010 to support a new
first lender loan and repay the current first lender, the balance remaining on the $25 million Section 108 loan,
and the $4.702 million County loan (loan #2) in full. If PJG pays the entire $25 million US HUD Section 108
loan and the County's $4.7 million loan (loan #2) prior to 2011, the County will consider waiving the $2 million
obligation to the Aviary.
Current Recommendations on the Agreements
Both the revised JPA and the Amended Pledge Agreement are attached in substantial form as minor
revisions may be required by US HUD after BCC approval.
The JPA, which is between the City and County, is the instrument by which the City assumes 80 percent in
all of the benefits and obligations of the US HUD $25 million Section 108 loan. In other words, this document
will serve to commit the City to making 80 percent of all payments in the event that PJG is not able to make
the debt payment. The County will be responsible for 20 percent.
The Amended Pledge Agreement, which is among the City, County, and US HUD, will identify the City as the
obligor for 80 percent of the US HUD Section 108 loan. With this document, City will substitute the County
for 80 percent of the debt, and both the City and County pledge current and future CDBG funding in the event
Honorable Chairman Bruno A. Barreiro
and Members, Board of County Commissioners
Page 5
Submitted into the nubile
record or i m(s)E. �E,
ou City Clerk
f a non-payment. If a non-payment on the US HUD Section 108 loan were to occur, the City and County's.
CDBG allocation will be reduced by their share of the non-payment (80 and 20 percent, respectively). The
original Pledge Agreement was only between the County and US HUD, and identified the County as obligor
for 100 percent of the US HUD Section 108 loan.
In addition, other major points of the two agreements are as follows:
1. The revised JPA can be executed prior to the Amended Pledge Agreement. If the JPA is executed
prior to the Pledge Agreement, the City and the County both agree to pay their pro rata share of US
HUD debt service, 80 and 20 percent, respectively. In case of a breach by the City, the County's
remedy is to proceed with legal action against the City until the execution of the Amended Pledge
Agreement. After the execution of the Amended Pledge Agreement, the County's sole remedy for a
breach by the City will be the Pledge Agreement.
2. The City of Miami will have the option to purchase the County's 20 percent share after August 1,
2010. At such time, the US HUD Section 108 loan can be repaid without penalty.
3. In case of default by PJG, which leads to a foreclosure sale of the property, both the City and the
County again have the option of purchasing each party's pro rata share of the collateral.
4. The City will remit to the County their 80 percent share of the debt service payment on the US HUD
Section 108 loan, and the County will in retum submit one payment to US HUD for the entire amount
due.
The Development Agreement is among the County, City, and PJG and sets the terms and conditions for the
construction and relocation of PJG. In addition, it also 1) dictates the number of jobs that must be created, 2)
obligates PJG to make a payment to the Aviary, 3) sets forth the conditions by which Miami -Dade County
applied for the US HUD Section 108 Loan, and 4) appropriated the proceeds of the HUD Guaranteed Loan to
'PJG. The only amendment to the Development Agreement, if this item is approved, is the recommendation
that PJG be allowed to make a one-time balloon payment to the County in 2020 rather than make annual
payments through 2020, as mentioned in the previous section.
Fiscal Impact/Funding Source
The County has already advanced $4.58 million to US HUD to cover 100 percent of all the payments due
from August 1, 2004 through February 1, 2006. In addition, from August 1, 2006 through August 1, 2011, the
County will advance an additional $3.455 million from the countywide general fund as part of our 20 percent
share of the debt payment to US HUD. The total advanced by the County will be approximately $8.035
million.
PJG will begin to repay the County's loan (loan #2) worth $4.702 million in 2014, which is a two year
extension. For the remaining $3.455 million, PJG will begin to repay monthly over ten years at a five percent
annual interest rate beginning in January 2020. The fiscal impact of waiving the administrative fee and
deferring the Aviary payment will be minimal. The administrative fee will be reinstituted when the $25 million
US HUD Section 108 loan payments resume in 2012, and the lump sum Aviary payment ($2 million) will be
due no later than 2020.
Attachments
C thia . Curry
S for Advisor to the County Manager
Submitted into the Vic
record or i m s) E. A&
on � City Clerk
MEMORANDUM
(Revised)
TO: Honorable Chairman Bruno A. Barreiro DATE:
and Members, Board of County Commissioners
FROM: R.A. evas, Jr.
Acting County Attorney
July 24, 2007,
SUBJECT: Agenda Item No. 12(A) (4)
Please note any items checked.
"4-Day Rule" ("3-Day Rule" for committees) applicable if raised
6 weeks required between first reading and public hearing
4 weeks notification to municipal officials required prior to public
hearing
Decreases revenues or increases expenditures without balancing budget
Budget required .
Statement of fiscal impact required
Bid waiver requiring County Manager's written recommendation
Ordinance creating a new board requires detailed. County Manager's
report for public hearing.
Housekeeping item (no policy decision required)
No committee review
6
Approved
Veto
Override
RESOLUTION NO. R-886-07
Submitted into the ublic
record or' em(s)' ,.n k Skt. it
ou lI�Ls/ . City Clerk
Agenda Item No.
07-24-07
12(A)(4)
OFFICIAL FILE COPY
CLERK OF THE BOARD
OF COUNTY COMMISSIONERS
MIAMI-DADE COUNTY, FLORIDA
RESOLUTION APPROVING THE FORM OF THE
CITY/COUNTY JOINT PARTICIPATION AGREEMENT AND
THE US HUD AMENDED PLEDGE AGREEMENT
REQUIRED FOR THE CITY OF MIAMI TO ASSUME 80
PERCENT OF THE PARROT JUNGLE US HUD SECTION
108 LOAN; APPROVE AMENDMENTS TO THE
DEVELOPMENT AGREEMENT AMONG THE CITY, THE
COUNTY AND PARROT JUNGLE AND GARDENS; AND
MODIFY THE $4.7 MILLION LOAN, AND AUTHORIZE THE
COUNTY MAYOR OR HIS DESIGNEE TO EXECUTE ANY
REQUIRED DOCUMENTS, AGREEMENTS, AND
AMENDMENTS THAT MAY BE NECESSARY TO
IMPLEMENT THE RECOMMENDED MODIFICATIONS
WHEREAS, this Board desires to accomplish the purposes outlined in the
accompanying memorandum, a copy of which is incorporated herein by
reference,
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY
COMMISSIONERS OF MIAMI-DADE COUNTY, FLORIDA, that this Board: 1)
approves the form of the City/County Joint Participation Agreement and the US
HUD Amended Pledge Agreement required for the City of Miami to assume 80
percent of the Parrot Jungle US HUD Section 108 Loan; 2) approves
amendments to the Development Agreement among the City, the County and
Parrot Jungle and Gardens; and 3) modifies the $4.7 million loan, and authorizes
the County Mayor or his designee to execute any required documents,
agreements, and amendments that may be necessary to implement the
recommended modifications subject to the review of the County Attorney.
Submitted into the }public
record r item(s) 11\, 1\ k • It
00 ` / 1,51 . City Clerk
Agenda Item No. 12(A) (4)
Page No. 2 'h
The foregoing resolution was offered by Commissioner Jose "Pepe" Diaz
who moved its adoption. The motion was seconded by Commissioner Carlos A. Gimenez
and upon being put to a vote, the vote was as follows:
Bruno A. Barreiro, Chairman aye
Barbara J. Jordan, Vice -Chairwoman aye
Jose "Pepe" Diaz aye Audrey M. Edmonson aye
Carlos A. Gimenez aye Sally A. Heyman aye
Joe A. Martinez absent Dennis C. Moss aye
Dorrin D. Rolle aye Natacha Seijas aye
Katy Sorenson aye Rebeca Sosa aye
Sen. Javier D. Souto aye
The Chairperson thereupon declared the resolution duly passed and adopted
this 24th day of July, 2007. This resolution shall become effective ten (10) days after
the date of its adoption unless vetoed by the Mayor, and if vetoed, shall become
effective only upon an override by this Board.
MIAMI-DADE COUNTY, FLORIDA
BY ITS BOARD OF COUNTY
COMMISSIONERS
HARVEY RUVIN, CLERK
Deputy Clerk
Approved by County Attorney as
to form and legal sufficiency.
Shannon D. Summerset
Submitted into the Rublic
record for i m(s) .11 �, 1\ U .11,
ou ill 1:5 / Zy . City Clerk
PARTICIPATION AGREEMENT
Attachment 1
Page 1 of 21
(Draft of 6/28/07)
THIS PARTICIPATION AGREEMENT (the "Agreement") is made as of this
day of , 2007, by and between MIAMI-DADE COUNTY (the "
County"), and CITY OF MIAMI (the "City").
RECITALS
1. The County has made a loan to Parrot Jungle and Gardens of Watson Island, Inc., a
Florida corporation (the 'Borrower"), in the original principal amount of Twenty-five Million and
No/100 Dollars ($25,000,000.00) (the "Loan"). The Loan is evidenced by a promissory note dated
as of , 2000, in the face amount of $25,000,000.00 (the "Note").
2. The purpose of the Loan was to finance the development of a botanical garden
attraction located at Watson Island (the "Property").
3. The County funded the Loan to Borrower by virtue of a $25,000,000.00 loan
guaranteed by the United States Department of Housing and Urban Development ("USHUD")
which was advanced to the County pursuant to the Section 108 Loan Guarantee Program on June
14, 2000 (the "Section 108 Loan").
4. As security for the Section 108 Loan, the County pledged its present and future
Community Development Block Grant ("CDBG") allocations as a guarantee of repayment of the
principal and interest on the Section 108 Loan.
5. The County and the City entered into a Joint Participation Agreement ("JPA") dated
September 9, 1998, wherein; the City agreed to assume eighty percent (80%) of the outstanding
principal balance and future interest on the Section 108 Loan upon satisfaction of certain
conditions, all of which have been satisfied or waived by the parties hereto.
6. In accordance with the intent of the JPA, and subject to the terms and conditions set
forth herein, the City agrees to assume from the County, and County agrees to assign and transfer
to the City, an undivided eighty percent (80%) interest in all of the benefits and obligations of the
County, as lender of the Loan and under the Loan Documents.
NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and other good and
valuable consideration, the mutual receipt and legal sufficiency of which are hereby acknowledged,
the parties hereto do hereby agree as follows:
ARTICLE
I
DEFINITIONS
Section 1.1 Definitions As used herein, the following terms have the respective
meaning ascribed thereto below, which meanings shall be applicable equally to the singular and
plural forms of the terms defined:
Submitted into the p i lic
record or it ms)
on �� / 1 City Clerk Attachment 1
Page 2 of 21
"Agreement" shall mean this Agreement, together with all exhibits and schedules hereto, as
the same may be modified; amended or restated from time to time.
"Assumption and Pledge Agreement" shall mean an Assumption of Loan Guarantee
Assistance Liability and Pledge .Agreement under Section 108 of the Housing and Community
Development Act of 1974, as amended, 42 U.S.C. §5308, in the form attached hereto as Attachment
"2", to be entered into by the County, USHUD, and the City.
"Authority" shall mean any governmental or quasi -governmental authority, including,
without limitation, any federal, state, county, municipal or other governmental or quasi -governmental
agency, board, branch, bureau, commission, court department or other instrumentality or political
subdivision, whether domestic or foreign.
"Business Day" shall mean any day other than a Saturday, Sunday or a day on which banking
institutions in the State of Florida are authorized or obligated by law or executive order to be closed.
"City's Pro Rata Share" shall mean an amount equal to 80% of the outstanding principal
balance on the Section 108 Loan, as of the date Effective Date, plus accrued but unpaid interest as of
such date and future interest until the Section 108 Loan is paid in full.
"Collateral" shall mean all of the property pledged, mortgaged, hypothecated or assigned to,
or deposited with Lenders from time to time, pursuant to, or as security for, the Loan or any of the
indebtedness evidenced by the Loan Documents. .
"Contract for Loan Guarantee Assistance" means the Contract for Loan Guarantee Assistance
dated as of June 14, 2000, between the County and USIIUD with respect to the Section 108 Loan, as
amended by the Assumption and Pledge Agreement,
"Commitment Fee" shall mean the commitment fee paid by Borrower to the County in
connection with the making of the Loan by the County.
"Confirmation of Lenders' Shares" shall mean the form attached hereto as Exhibit "A" and
as referenced in Section 2.3 hereof.
"County's Pro Rata Share" shall mean an amount equal to 20% of the outstanding principal
balance on the Section 108 Loan as of the Effective Date plus accrued but unpaid interest as of such
date and future interest until the Section 108 Loan is paid in full.
"Deferred Amount" shall mean an amount equal to all payments due by Borrower under the
at _ µr:
Note ' commencing on J :;:; , 2006 through and including the payment due on
egg= £ 't 2012..
t��
"Effective Date" shall mean the date as of which this Agreement and the Assumption and
Pledge Agreement shall have been approved and executed by City and County.
/ ��
Submitted into the public
record r it m s) 111. 11 &
ou � ts. City Clerk
Attachment 1
Page 3 of 21
"Event of Default" shall mean any default under any of the Loan Documents which is not
cured within the applicable grace period, if any.
"Guarantors" shall mean Bern and Mary Levine.
"Herein", "hereof, "hereto", hereunder and other words of like import shall refer to any and
every section and provision of this Agreement.
"Lenders" shall mean County and City.
"Loan" shall have the meaning assigned to it in the Recitals.
"Loan Documents" shall mean the documents and instruments executed and delivered by
Borrower and/or Guarantors in favor of the County in connection with the Loan, which are identified
in Attachment "1" hereto, as they may be amended with the consent of the Lenders from time to
time.
"Note" shall have the meaning assigned to it in the Recitals, as the same may be modified,
amended, restated or renewed from time to time.
"Note Modification Agreement" shall mean the agreement to be entered into by Borrower
and Lenders to provide for the payment of the Deferred Amount on the maturity date, or, at
Borrower's request, over a period of 20 years commencing on the maturity date , in the form of
Attachment "5" hereto.
"Person" shall include, without limitation, any manner of association, authority, business
trust, company, corporation, estate, joint venture, natural person, partnership, trust or other entity.
"Pro Rata Share" shall mean the respective undivided participation interest in the Loan of the
County and the City set forth on Exhibit "A.".
Section 1.2 Capitalized Terns. Capitalized terms used herein and not defined herein shall
have the meanings given such terms in the Loan Agreement.
ARTICLE II
TERMS OF CITY'S PARTICIPATION
IN SECTION 108 LOAN
• Section 2.1 RESERVED
Section 2.2 Concurrent Obligations. Concurrently with the execution of this
Agreement and the Assumption and Pledge Agreement by the City and the County:
2.2.1 Borrower shall have satisfied or cured, or the County shall have waived, all Events of
Default under the Loan Documents, including specifically, but without limitation,
Submitted into the public
record for i em(s) IE.11 E a It
ou `1 t51 ti4 . City Clerk
Attachment 1
Page 4 of 21
Borrower's obligation to make the contribution to the Aviary, as provided in the
Development Agreement.
2.2.2 The County shall have executed and delivered to the City an estoppel certificate,
substantially in the form of Attachment 3, certifying, among other things, that the
Loan and the Section 108 Loan are current, that no event of default exists or remains
uncured, and that there is no occurrence or event or circumstance which, with notice or
lapse of time would become a default under any one of the Loan Documents or the
Section 108 Loan.
2.2.3 The County shall have executed and delivered to the City an estoppel certificate,
substantially in the form of Attachment 4, certifying, among other things, the
outstanding amounts and terms of payment of all outstanding loans from the County to
Borrower (the "County Outstanding Loans") and further certifying that all such loans
are current, that no event of default exists or remains uncured with respect thereto, and
that there is no occurrence or event or circumstance which, with notice or lapse of time
would become a default under any such County Outstanding Loans
2.2.4 The County shall have delivered to the City copies of all documents, including County
Commission resolutions and supporting documents, relating to the County
Outstanding Loans.
2.2.5 Borrower shall deliver to the County and the City a life insurance policy in the amount
fl �_,,' Loan,insuring
of $'�,� "�`=. ? ? �� :: ,for the term of the the life of Bern Levine, in favor of
the City and the County in proportion to the Lenders' respective Pro Rata Shares.
2.2.6 The Guarantors shall execute Guarantee in favor of the City and the County, securing
the parties' respective Pro Rata Shares.
2.2.7 The County shall certify to the City the amount of money received by the County as of
the date of this Agreement representing the County's administrative fee relating to the
Loan. The County further agrees that all payments by the City of the City's Pm Rata
shall exclude 80% of the administrative fee.
2.2.8 The County shall have delivered to the City copies of all Loan Documents, Related
Loan Documents (as defined in Section 3.1) and all other documents or instruments
relating to the County Outstanding Loans, certified by the County Manager to
represent complete, true and correct copies of all such documents.
2.2.9 The Borrower, the County and the City will have executed the Note Modification
Agreement
The City shall have the right to cause any or all of the above mentioned documents to be
recorded in the public records of Miami -Dade County, Florida Execution of this Agreement by the
City shall constitute evidence of compliance with the foregoing Concurrent Obligations, unless
otherwise specifically stated herein or in a separate document.
Submitted into the public
record for ijem(s) E, �� e �E. It
on ins / Z4 . City Clerk
Attachment 1
Page 5 of 21
Section 2.3. Purchase of Participation The City shall evidence its participation in the
Section 108 Loan, by executing the Assumption and Pledge Agreement, pursuant to which the City
will pledge to USHUD its future years' CDBG allocations, as security for the repayment of the
City's Pro Rata Share , as provided in the Contract for Loan Guarantee County and City hereby
agree to use their best efforts to cause USHUD to execute the Assumption and Pledge Agreement,
Concurrently with the execution of the Assumption and Pledge Agreement by all parties, USHUD
shall provide to the City and the County the Confirmation of Lenders' Shares. Upon USHUD's
execution of the Assumption and Pledge Agreement, both City and County's liability for repayment
of the Section 108 Loan shall be limited to the sources provided for in the Contract for Loan
Guarantee Assistance. It is understood and agreed that upon full execution of the Assumption and
Pledge Agreement the County shall have no recourse against the City for the City's failure to pay its
Pro Rata Share, it being understood and agreed that the City's liability for non payment of it's Pro
Rata Share under this Agreement and the Assumption and Pledge Agreement is limited to the
sources provided for in the Contract for Loan Guarantee Assistance, as if the City had been a party to
such contract as of the date such Contract was first executed by the County and USHUD.
ARTICLE III
DUTIES AND REPRESENTATIONS OF COUNTY
Section 3.1 Representation and Possession of Loan Documents The County represents
and warrants to the City, with full knowledge that the City is relying on such warranties and
representations in executing this Agreement, that it has delivered to the City all of the Loan
Documents, and all other documents or instruments delivered to or obtained by the County pursuant
to or in connection with the Loan, the Section 108 Loan, or the transactions contemplated thereby,
including, without limitation, resolutions, correspondence, schedules, credit information, appraisals
and such other instruments and documents pertaining to the transactions contemplated hereby (the
"Related Loan Documents"), which Loan Documents and Related Loan Documents are listed in
Attachment 1 hereto, and that (1) The Loan Documents are all of the documents evidencing or
securing the Loan, (2) to the best of the County's knowledge, after due investigation, the Related
Loan Documents are all of the documents delivered to, or obtained by, the County relating to the
Loan, the Section 108 Loan and the transactions contemplated herein, (3) Borrower and/or
Guarantor's obligations under the Loan Documents are current and in good standing, or performance
of such obligations has been properly waived or forgiven by the County and (4) there is no
occurrence or event or circumstance which, with notice or lapse of time, would become a default
under any one of the Loan Documents, or would result in, or permit the exercise of remedies or the
imposition or accrual of any default interest, penalties fees or charges as a result of such default. The
County further represents and warrants to the City that it shall hold in its possession, for the benefit
of both Lenders in accordance with the tenns of this Agreement, the originals (or original
.,counterparts) of each of the Loan Documents and Related Loan Documents.. The County shall also
keep in its files, for the benefit of both Lenders, all of the foregoing documents and such other
documents as the County may deem advisable. The City shall have the right to examine and
photocopy all documents described herein or relating to the transactions contemplated hereby
contained in County's files during normal business hours at the office of County, or at such other
place as County may designate from time to time, upon City's delivery of reasonable prior notice to
County.
Submitted into the public p
recordfor i em(s) ,E,\k
on 11/ lS /Z9 . '" City Clerk
Attachment 1
Page 6 of 21
Section 3.2 Furnishing of Information to City Immediately upon receipt of notice
thereof, the County shall furnish to the City notice of the following: (i) any change in the perfection
or priority of any lien securing the Loan, (ii) the occurrence of any Event of Default, (iii) any written
request by Borrower or any other obligor on the Loan to modify the terms of the Loan or substitute
or release any Collateral or any obligor on the Loan, and (iv) any loss, damage, destruction,
condemnation or other governmental taking of all or any material portion of the Collateral.
Section 3.3 Payments to City The County will comply with the Contract for Loan
Guarantee Assistance between County and USHUD, as amended by the Assumption and Pledge
Agreement, as long as any balance remains outstanding on the Section 108 Loan. Thereafter,
whenever the County collects or receives immediately available funds representing payments of
principal, interest, late charges, commitment fees, extension fees and other fees, recoverable
expenses or any other amounts payable to or for the benefit of one or both Lenders pursuant to any of
the Loan Documents or otherwise in connection with the Loan, including, without limitation, as a
result of the enforcement of any mortgage lien on or security interest in any Collateral (collectively,
"Payment?), but excluding proceeds of insurance or condemnation awards to be held pending
restoration, as provided in the Loan Documents, the County shall receive, hold and disburse the same
as follows: (i) shall retain for the account and the benefit of both Lenders expenses reimbursed by
Borrower pursuant to the teens of the Loan Documents and reimbursable to one or both Lenders
pursuant hereto and disburse to the City the eighty percent (80%) of such payment to the extent the
City made payments toward the payment of the expense; and (ii) disburse to the City eighty percent
(80%) of any Payments and retain for its own account the remaining portion thereof. County agrees
to disburse all sums due to the City hereunder by wire transfer not later than one (1) Business Day
after the funds have been collected by the County's financial institution , except as otherwise
provided by this Agreement. The County and the City shall each continue to receive their
respective Pro Rata Share of all Payments made by Borrower in connection with the Loan, except
as otherwise provided by this Agreement, until the Loan has been paid in full.
Section 3.4 Collateral The County shall hold in its name, for the benefit of itself and
the City, the Collateral and such other collateral pledged, mortgaged, hypothecated or assigned to, or
deposited with Lenders from time to time pursuant to or as security for the Loan or any of the
indebtedness evidenced by the Loan Documents.
Section 3.5 Loan Administration
A. The interest of the County and the City in the Loan shall be of equal priority. Except
as otherwise provided in the Contract for Loan Guarantee Assistance with respect to the rights of
USHUD, as long as any balance remains outstanding on the Section 108 Loan, the County shall have
the rights and duties with respect to the collection and administration of the Loan and the security
-therefore described in this Section 3.5. City agrees that the County shall administer the Loan, make
payments to USHUD, if any, as required under the Section 108 Loan, and enforce the Loan
Documents and collect and administer the Collateral, with the same degree of care, skill, caution and
prudence the County ordinarily exercises in its administration of loans which it holds entirely for its
own account (the "County Standard of Care"). Subject to the other provisions of this Agreement and
consistent with the foregoing standard, the County shall administer the Collateral so as to preserve its
value in the manner in which the County administers collateral under other loans. Notwithstanding
the foregoing, the County agrees that, at the City's request, upon the occurrence of an Event of
Submitted into the public
record or i em(s) 'E, \\ %\ . \1,
orr `7 3!Lkt City Clerk Attachment 1
Page 7 of 21
Default, or if the City feels itself insecure with respect to the Collateral or the Loan, it will, or will
authorize the City to, diligently and in good faith pursue such actions and remedies as may be
reasonably required to enforce the Loan Documents and/or collect or administer the Collateral in
accordance with the provisions of Section 6.1 hereof. Further, the County agrees that it shall not
have the power to grant releases, satisfactions, consents, joinders, assignments and reassignments
with respect to the Collateral without the consent of City, which the City agrees to grant to the extent
required by the terms of the Loan Documents. The County will maintain accurate books and records
with respect to the Loan and the costs and expenses related thereto in the same manner as the County
customarily maintains books and records for similar loans in which it acts exclusively for its own
account, and shall make such books and records available for inspection by a designated
representative of the City at such reasonable times as the City may request. In no event shall the
County , without the written consent, and the approval of the governing body of the City (i) change
the principal amount of the Loan; (ii) postpone the due date of any scheduled payment of principal or
interest or waive any such payment or any other claim against Borrower; (iii) reduce the interest rate
under the Note from the rate specified therein; (iv) release any Guarantor from his obligations under
his guarantee of the Loan; (v) release, substitute or exchange the Collateral or any part thereof from
any Loan Document; or (vi) pledge, assign, transfer or extend any of the Loan Documents.
B. The County agrees that, upon its receipt of any written notice from Borrower
claiming or asserting that County has breached its obligations to Borrower pursuant to any of the
Loan Documents or that County is in default of the observance or performance of any of its
obligations under any of the Loan Documents, it will promptly give the City notice thereof. The
County agrees to consult with the City regarding any alleged breach of the Loan Documents by the
County and to incorporate the City's comments or suggestions in any response or action to be taken
by County as a result thereof.
Section 3.6 Consultation with City The County shall seek and obtain the City's
approval with respect to any actions or approvals which, by the terms of this Agreement or the Loan
Documents, the County is permitted or required to take or to grant. Subject to the provisions of
Section 7.1_ hereof, City's failure to grant or deny a requested approval within 7 days after the
County's request shall be deemed to be approval of such action by the City, except as may be
otherwise provided in the Contract for Loan Guarantee Assistance with respect to the rights of
USHUD.
Section 3.7 No Partnership Neither the execution of this Agreement, nor the
sharing in the Loan or in any of the proceeds of the Collateral, nor any agreement to share in profits
or losses arising as a result of this transaction is intended to be, nor shall it be construed to be, the
formation of a partnership or joint venture between or among the parties hereto, and no party shall be
liable to any other Person for the liability of any other party hereto arising in connection with the
Loan or any transaction connected therewith.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1 Representations and Warranties of City The City, as a material
inducement to County to enter into this Agreement and to consummate all of the transactions
contemplated hereby, represents and warrants to County as follows:
Submitted into the public
record for itf m(s) E .1k 6, V,. It
on 1/t5 / 1,4 . City Clerk
Attachment 1
Page 8 of 21
A. City is a municipal corporation of the State of Florida and has the legal power and
authority to enter into and perform its obligations under this Agreement and to consummate the
transactions contemplated hereby.
B. The execution, delivery and performance of this Agreement, and the consummation
of the transactions contemplated hereby, have been duly authorized by all necessary action on the
part of City, do not and will not contravene its articles of incorporation or association or bylaws or
any agreement, law, governmental rule, regulation or order binding on City (including, without
limitation, legal lending limits applicable to it), and do not require the consent or approval of the
giving of notice to, the registration with, or the taking of any other action with respect to, any
Authority.
C. This Agreement constitutes the legal, valid and binding obligation of City, and is
enforceable in accordance with its terms.
D. Neither City nor any Person that City has authorized to act on its behalf has directly
or indirectly offered any interest or participation in this Agreement to any other Person.
E. City has made and will continue to make such independent evaluation of such
financial information and other data relating to Borrower, Guarantors and the Collateral as it deems
necessary and prudent..
Section 4.2 Representations and Warranties of County The County, as a material
inducement to the City to enter into this Agreement and to consummate all of the transactions
contemplated hereby, represents and warrants to City, in addition to the matters set forth in Article III
hereof and elsewhere in this Agreement, as follows:
A. County is a political subdivision of the State of Florida and has the legal power and
authority to enter into and perform its obligations under this Agreement and to consummate the
transactions contemplated hereby.
B. The execution, delivery and performance of this Agreement, and the consummation
of the transactions contemplated hereby, have been duly authorized by all necessary action on the
part of County, do not and will not contravene its charter, code, or any agreement, law, goverrunental
rule, regulation or order binding on Lender (including, without limitation, legal lending limits
applicable to it), and do not require the consent or approval of, the giving of notice to, the registration
with, or the taking of any other action with respect to, any Authority.
C. This Agreement constitutes the legal, valid and binding obligation of County, and is
enforceable in accordance with its terms.
D. Neither County nor any Person that County has authorized to act on its behalf has
directly or indirectly offered any interest or participation in this Agreement to any other Person.
D. The representations and warranties of County under this Agreement, specifically,
Section 3.1 hereof, are true and correct.
Submitted into the ublic
record or i m(s) Y1E.1t
ou City Clerk
Attachment 1
Page 9 of 21
Section 4.3 Survival of Representations. The representations contained herein shall
survive the perfon Wane of this Agreement and execution of the Assignment and Pledge Agreement.
ARTICLE V
COVENANTS OF LENDERS
Section 5.1 Other Payments. If Borrower fails to pay taxes, assessments, insurance
premiums or any other charges or sums required by the Loan Documents to be paid, as the same
become due and payable and County deems it necessary to, and in fact does, pay any such amounts,
the City will reimburse to the County the City's Pro Rata Share of same promptly upon demand of
County. Any such amounts, to the extent provided in the Loan Documents, shall be secured by the
Loan Documents and the Collateral. Additionally, City agrees to pay to County, to the extent County
is not reimbursed by Borrower, its Pro-Rata Share of any reasonable out-of-pocket expenses and
liabilities hereafter incurred by County in connection with the administration of the Loan provided,
however, that nothing contained herein shall diminish the County's obligation to use County
Standard of Care in the enforcement of the Loan Documents and the administration and collection of
the Collateral.
Section 5.2 Enforcement of County Outstanding Loans. The County covenants that,
without the prior written consent of the City, it will not enforce Borrower's obligation to make any
monetary payments to the County under the County Outstanding Loans or the Development
Agreement until the Loan has been paid in full.
Section 5.3 Declaration of Invalidation. City agrees that, to the extent any amounts
received in repayment of the Loan from Borrower or otherwise, whether by payment, realization of
Collateral or otherwise, are, through no fault of the County, subsequently invalidated , declared to be
fraudulent or prefezcitial, set aside or required by any Authority to be repaid to a trustee, receiver or
any other Person under any applicable law, order or judgment, including the Bankruptcy Code or any
similar state law or any other cause of action, and the County repays such amount to the Borrower,
a trustee, receiver, or other Person , then the City shall repay to the County, within (Business
Days after request by County, its Pro Rata Share of any such amount (with interest to the extent
required), so that County and City will be affected by any such invalidation, declaration, set aside or
repayment in accordance with its Pro Rata Share thereof.
Section 5.4 Excess Payments to City or County Should either City or County receive
or retain any payment in excess of its Pro Rata Share of all or any portion of the Loan in any form or
in any manner whatsoever, the receiving party shall forthwith pay over such excess payment to the
other party as to result in a proportional participation by both Lenders in such amount;
Section 5.5 Indemnification
A. County hereby agrees to indemnify and hold harmless the City (including its officers,
directors, attorneys, agents and employees) from all liabilities, obligations, damages, penalties,
claims, costs, charges and expenses including, without limitation, attorneys' fees and disbursements
at the trial and appellate levels (collectively, "Losses") which may be incurred by the City or which
may be imposed upon the City by Borrower or any third party, arising out of or resulting from, by
Submitted into the ublic
record fpr it m(s) It . \� k Q\ .11,
�1.11 City Clerk
Attachment 1
Page 10 of 21
reason of, or in connection with, any act or failure to act on the part of the County in accordance
with the terms of the Loan Documents or this Agreement, or any breach of zepiesentations contained
herein.
B. City hereby agrees to indemnify and hold harmless the County (including its officers,
directors, attorneys, agents and employees) from all Losses which may be incurred by the County or
which may be imposed upon the County by Borrower or any third party, arising out of or resulting
from, by reason of, or in connection with any act or failure to act on the part of the City in accordance
with the terms of the Loan Documents or this Agreement, or any breach of representations contained
herein. Notwithstanding the foregoing, upon USHUD's execution of the Assignment and Pledge
Agreement, the County shall have no recourse against the City for the City's failure to pay its Pro
Rata Share, it being understood and agreed that the City's liability for non payment of it's Pro Rata
Share under this Agreement and the Assumption and Pledge Agreement is limited to the sources
provided for in the Contract for Loan Guarantee Assistance, as if the City had been a party to such
contract as of the date such Contract was first executed by the County and USHUD.
ARTICLE VI
DEFAULT
Section 6.1 Default by Borrower Upon County or City acquiring knowledge of any
Event of Default under any of the Loan Documents or any event which with the passage of time or
giving of notice or both would constitute an Event of Default, or of any matter which in its judgment,
materially affects the respective interests of the parties hereunder, then the party having such
knowledge shall with reasonable promptness notify the other party in writing of such Event of
Default or matter. In the event of any Event of Default, the County shall within five (5) Business
Days thereafter notify the City of such Event of Default and of County's intended action. The
County shall act (or forebear from acting) as a result of such Event of Default as it shall be directed
by the City, which may request the County, in writing, to do everything necessary to protect the
lenders' interest in the Loan, including to institute and pursue legal action against the Borrower
and/or against the guarantors and/or commence foreclosure (or seek a relief from bankruptcy stay if
such then exists followed by the commencement and pursuit of foreclosure) (collectively, the
"Default Remedies"). The County shall commence and thereafter diligently pursue the Default
Remedy or Default Remedies specified by the City within ten (10) days of the date of the City's
written notice. If the County elects not to pursue the Default Remedies, as requested by the City, it
must immediately notify the City whereupon the City shall have the right to pursue the Default
Remedies and, at the City's request, the County shall take all action reasonably necessary to assist the
City in the pursuit of such remedies, consistent with the County Standard of Care, including, but not
limited to, assigning to. the City all of the County's rights to enforce the Loan Documents and /or the
Collateral.
Section 6.2 Default by County or City In the event that County does not commence
the requested Default Remedy or Default Remedies within the aforementioned ten (10) day period
and thereafter diligently pursue same, or fails to notify the City of its election not to pursue the
Default Remedies, or fails to assist the City as contemplated in Section 6.1 above, then the County
shall be deemed in default. In such event, the City may, in addition to all other remedies available to
it by law or in equity, seek injunctive relief against the County and the County hereby waives its right
Submitted into the pk blic
record or itpm(s) t At. It
ou rl 1.S 1 tl City Clerk
Attachment 1
Page 12 of 21
representations, except as to the ownership of the Pro Rata Share being sold and shall occur as
promptly as possible, but no later than fifteen (15) business days after the action is approved by the
party's governing board. The parties shall cooperate with each other and execute such documents as
are reasonably necessary to accomplish such sale as promptly as possible.
Section 6.5 Enforcement Costs. To the extent Borrower does not reimburse Lenders,
each party shall contribute its Pro Rata Share of the costs and expenses of enforcing the Default
Remedies.
Section 6.6 Application of Default Slums All amounts received by Lenders or with
respect to the Loan Documents following any Event of Default whether paid by Borrower, realized
from the Collateral or otherwise, shall be applied by Lenders as follows: (i) first, to the payment of
any and all reasonable costs and expenses, including, without limitation, all amounts outstanding on
the Section 108 Loan, reasonable trial and appellate attorneys' fees, costs and disbursements, incurred
by either Lender in connection with or incidental to its collection of any amount due and payable to
either Lender under the Loan Documents, the preparation for sale of the Collateral or any portion
thereof and the sale, transfer and delivery of the Collateral or any portion thereof, (ii) second, to the
satisfaction of all amounts, including principal, interest, fees and other amounts, due and payable to
Lenders pursuant to the Loan Documents (iii) third, to the payment of any other amounts required by
applicable law; and (iv) last, to the extent of the surplus, if any, of such proceeds, to Borrower (or
such other entity as may be entitled thereto).
Section 6.7 Losses. All losses incurred by Lenders as a result of any failure on the
part of Borrower to repay the Loan and any other sums due pursuant to the Loan Documents shall be
bome by Lenders in accordance with their respective Pro Rata Shares.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Approval by Governing Board of Parties Whenever this document
requires a party to take action which is in the opinion of the party's counsel subject to the approval of
the party's governing body, then performance by such party shall be automatically extended by a
period of time equal to the number of days normally required for an item to be presented to, and
considered by, such governing body, but in no event a period greater than ys from the date
notice requesting approval is submitted.
Section 7.2 Notice Except as otherwise indicated herein, any notice, request, demand
or other communication permitted or required to be given hereunder (collectively, a "Notice") shall
be in writing, shall be signed by the party giving it, and shall be deemed to have been properly
delivered if delivered by hand (with receipt acknowledged) to the party to whose attention it is
directed or if mailed by United States registered or certified mail, return receipt requested or if sent
by express courier service (with receipt adcnowledged) addressed to the following addresses:
Submitted into the Eublic
record for itpm(s) 14, .1' Q 01.
On 1 LS/ 14 City Clerk
If to County:
MIAMI-DADE COUNTY
111 N.W. 11 Street
29111 Floor
Miami, Florida .3 312 8
Attention: County Manager
With Copies to:
MIAMI-DADE COUNTY
111 N.W. 11 Street
Suite 2 810
Miami, Florida 3 312 8
Attention: County Attorney
If to City:
CITY OF MIAMI
444 SW 2nd Avenue
Miami, Florida 33130
Attention: City Manager
With Copies to:
City of Miami
Office of the City Attorney
444 SW 2nd Avenue, 9th Floor
Miami, Florida 33130
Attachment 1
Page 13 of 21
or to such other address as the party to be served with Notice may furnish in accordance with the
terms of this Section to the party seeking or desiring to serve Notice as a place for the service of
Notice. Notices shall be deemed effective (a) when delivered if delivered by hand, (b) two (2)
Business Days after mailing, and (c) the next Business Day after delivery to any express courier
service.
Section 7.3 Entire Agreement This Agreement, together with its Exhibits and
Attachments, contains the entire agreement of the parties and supersedes all other representations,
warranties, agreements and understandings, oral or otherwise, between the parties with respect to
the matters contained herein.
Section 7.4 Waiver of Jury. The parties hereto hereby severally, voluntarily, knowingly
and intentionally waive any and all rights to trial by jury in any legal action or proceeding arising
under or in connection with this Agreement, regardless of whether such action or proceeding
concerns any contractual or tortious or other claim. The parties hereto acknowledge that this waiver
of jury trial is a material inducement to the parties hereto in entering into this Agreement, that the
parties hereto would not have entered into this Agreement without this jury trial waiver, and that each
2��
Submitted into the p blic
record r i m(s) E. �� �` 9 i`t
on 1 Z City Clerk
Attachment 1
Page 11 of 21
to assert that the City has an adequate remedy at law. In the event the City undertakes to enforce the
Default Remedies, and thereafter fails to diligently pursue same, then the City shall be in default and
the County may, in addition to all other remedies available to it by law or in equity, seek injunctive
relief against the City and the City hereby waives its right to assent that the County has an adequate
remedy at law
Section 6.3 Foreclosure Subject to the rights of the USHUD pursuant to the Contract
for Loan Guarantee Assistance, the County shall hold the Loan Documents (together with any and all
other documents executed and delivered in connection therewith) and title to any of the Collateral
acquired by County after an Event of Default in its name as agent for both City and County (to the
extent of County's and City's Pro Rata Shares thereof). Accordingly, in the event of a foreclosure and
foreclosure sale of any Collateral, or any judicial sale of any of the collateral, the County shall bid at
such sale for the benefit of both Lenders and if such bid is successful, County shall, to the extent
permitted by law, cause all title instruments relating to such Collateral to be issued in the name of
each Lender in accordance with each Lenders' Pm Rata Share. If a successful bid is entered by a
third party, and is acceptable to the City, then, to the extent that the proceeds of the foreclosure sale
are, pursuant to law, the property of the holder of the Loan Documents, such proceeds shall be
received by Lender and shall thereupon be divided among Lenders in proportion to their respective
Pro Rata Shares.
Section 6.4 Default Administration. Subject to the rights of the USHUD pursuant
to the Contract for Loan Guarantee Assistance, upon the determination by County of a course of
action taken after an Event of Default in accordance with Section 6.1 hereof, and after consultation
with City, the County shall have the right to maintain, manage and operate the Collateral and sell all
or any part thereof in a manner consistent with such course of action or as County determines to be
prudent, respectively, and may employ an independent management company, sales agent or others
to maintain, manage, operate and sell the Collateral, all of which activity shall be part of County's
right to service and administer the Loan. If County determines, in its discretion, that a management
agreement is necessary, such management agreement will be negotiated in good faith by County,
subject to City's approval. . In the event of the appointment of a receiver for any of the Collateral
during the pendency of a foreclosure proceeding or otherwise, Lenders shall share in the profits and
expenses of the receivership in proportion to their respective Pro Rata Shares. Notwithstanding the
foregoing, any sale of the Collateral by County shall require the approval of the City. In such case
County shall promptly notify City of each written offer to purchase the Collateral received by
County, (the "Offer") advising City as to whether or not County wishes to accept the Offer. The City
Manager shall notify County, in writing, within five (5) business days after City's receipt of the
Offer, whether or not it wants to accept the Offer, which decision shall be subject to City
Commission approval. • If one party wishes to accept the Offer, but the City Manager of the other
party does not, the parties shall immediately consult. If, after such consultation, the parties still do not
agree, then the party not wanting to accept the Offer (the "Purchasing Party") shall submit to its
board of commissioners the Offer and the board shall then be obligated to either accept the offer to
sell, or shall purchase from the other party (the "Selling Party") the Selling Party's Pro Rata Share of
the Collateral at a price equal to the amount which the Selling Party would have received from a sale
pursuant to the Offer (including, without limitation, the payment of any expenses to be reimbursed to
the Selling Party under the terms of this Agreement). The purchase and sale of the Selling Party's Pro
Rata Share of the Collateral pursuant to this paragraph shall be without recourse, warranties or
Submitted into the Rublie
record fpr it n(s) Q\L,11,
on `l/ LS / l,y . City Clerk
Attachment 1
Page 14 of 21
of them has been represented by an attorney or has had an opportunity to consult with an attorney
regarding this Agreement and understands the legal effect of this jury trial waiver.
Section 7.5 Survival, etc. Notwithstanding the applicable statute of limitations, any
other law or any investigation made at any time by or on behalf of any party hereto, all
representations, warranties, covenants and other agreements (collectively, "Obligations") made by
any party herein shall survive the execution and delivery of this Agreement, and shall remain and
continue in full force and effect until both Lenders shall have fully performed and discharged all of
their respective Obligations hereunder, without regard to any modification, extension, renewal,
amendment or waiver of any provision of any Note or any of the other Loan Documents.
Section 7.6 Governing Law and Venue This Agreement shall be deemed negotiated
and entered into in Miami -Dade County, Florida, and shall be governed by and construed in
accordance with the laws of the State of Florida as an agreement entered into and to be performed
wholly within the State of Florida. The parties agree that venue for any lawsuit in connection with
this Agreement shall be in Miami -Dade County, Florida, unless an action to which any party hereto
is made a defendant or third party defendant is filed in a different jurisdiction by a plaintiff not a
party hereto.
Section 7.7 Benefit This Agreement shall inure to the benefit of and be binding
upon each party hereto and their permitted successors and assigns, subject to the provisions of
Section 5.5 hereof. All respective Obligations of Lenders shall inure to the benefit of the other and its
permitted successors and assigns, subject to the provisions of Section 5.5 hereof. Nothing in this
Agreement or in any transaction contemplated hereby, either expressed or implied, is intended to
confer upon any Person other than the parties hereto any rights, remedies, obligations, or liabilities
under or by reason of this Agreement.
Section 7.8 Counterparts This Agreement may be executed in one or more
counterparts, each of which may be executed by one or more of the parties hereto, but all of which,
when taken together, shall constitute but one agreement.
Section 7.9 No Waiver by Action Any waiver or consent respecting any Obligation or
other provision of this Agreement shall be effective only in the specific instance and for the specific
purpose for which given and shall not be deemed, regardless of the frequency given, to be a further
or continuing waiver or consent. The failure or delay of a party at any time or times to require
performance of, or to exercise its rights with respect to, any Obligation or other provision of this
Agreement, including any investigation by or on behalf of any party, in no manner shall affect such
party's right at a later time to enforce any such provision. All remedies, rights, powers and privileges
of the Lenders hereunder are cumulative and are in addition to and shall not limit any other remedy,
right, power or privilege of the Lenders hereunder or under applicable law.
Section 7.10 Modification Each and- every modification and amendment of this
Agreement shall be in writing and signed by all of the parties hereto, and each and every
waiver of, or consent to any departure from, any Obligation or other provision of this
Agreement, shall be in writing and signed by the party hereto against which such waiver or
consent is sought to be enforced. The County Manager, on behalf of the County, and the City
Manager, on behalf of the City, shall have the right to amend this Agreement unless in the
Submitted into the ublic
record fpr it (s) E.�\ k
on 1/ L5 /y . City Cleric
Attachment 1
Page 15 of 21
opinion of counsel for the party seeking to amend the Agreement, approval by the governing
body is required.
Section 7.11 Captions The sections, captions and other headings contained in this
Agreement are for convenient reference purposes only and shall not affect the meaning or
interpretation, or define, describe, extend or limit the scope or intent, of this Agreement or any
provision hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
COUNTY:
MIAMI-DADE COUNTY
By:
CITY:
Attest: CITY OF MIAMI
By: By:
Priscilla A. Thompson, City Clerk Pedro H. Hernandez, City Manager
Approved as to Form and Correctness: Approved as to Insurance Requirements:
Jorge L. Fernandez, City Attorney
Submitted into the p blic
record f r it m(s)t AAE. \l,
GO ` / 1,5 / L 1 . City Clerk Attachment 1
Page 16 of 21
ON USHUD'S LETTERHEAD)
EXHIBIT "A"
CONFIRMATION OF PARTICIPANT'S SHARES
MIAMI-DADE COUNTY
111 N.W. 1st Street
Miami, Florida 33128
CITY OF MIAMI
444 SW 2ND Ave
Miami, Fl. 33130
THIS IS TO CERTIFY THAT, pursuant to the PARTICIPATION AGREEMENT (the
"Agreement") dated as of , 2006 executed by MIAMI-DADE COUNTY (the
"County") and CITY OF MIAMI (the "City") relating to a $25,000,000.00 loan from Lender, the
County and the City are liable to the USHUD in accordance with each parry's pro rata share, as
follows: T
SCHEDULE"A" LENDERS' PRO RATA SHARES
Principal Amount Pro Rata Amount of Loan
LENDER:
MIAMI-DADE COUNTY: $5,000,000.00 20%
PARTICIPANT:
CITY OF MIAMI: $20,000,000.00 80%
TOTAL OUTSTANDING: $25,000,000.00 100%
Dated:
Submitted into the ublic
record r ite (s) ¥E.\� e
on t5 City Clerk
ATTACHMENT "1"
LOAN DOCUMENTS
Attachment 1
Page 17 of.21
Submitted into the public
record fp r ite (s) E.�\ lq„17,
on if tS / . City Clerk
Attachment 1
Page 18 of 21
ATTACHMENT "2"
Assumption of Loan Guarantee Assistance Liability and Pledge Agreement
Submitted into the Rublic
record f r itfm(s) ,M.�\ 6. 11,, l t
on 1 / LS 1 �y . City Clerk
Attachment 1
Page 19 of 21
ATTACHMENT "3"
Estoppel Certificate Regarding the parrot Jungle Loan and the Section 108 Loan
'Z'
Submitted into the ubllc
record rite (S) '��.►�6, 1�.1 `�1
,
on City Clerk
ATTACHMENT "4"
Estoppel Certificate Regarding the Other Loans
Attachment 1
Page 20 of 21
Submitted into the
record r it m(s)
°gt Z City Cleric
ATTACHMENT "5"
Note Modification Agreement
Attachment 1
Page 21 of 21
Submitted into the public nn
record or i m s) nE , It
on t L City Clerk
Attachment 2
Page 1 of 14
U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
ASSUMPTION OF LOAN GUARANTEE ASSISTANCE LIABILITY AND
PLEDGE AGREEMENT UNDER SECTION 108 OF THE HOUSING AND
COMMUNITY DEVELOPMENT ACT OF 1974, AS AMENDED, 42 U.S.C. 95308
Date of Agreement:
This Assumption of Loan Guarantee Assistance Liability and Pledge Agreement
("Agreement") is entered into by Miami -Dade County, Florida, as Borrower (the
"Borrower"), the City of Miami, Florida, as assumptor (the "Assumptor"), and the
Secretary of Housing and Urban Development ("Secretary"), as guarantor for the
Guarantee made pursuant to section 108 ("Section 108") of title I of the Housing and
Community Development Act of 1974, as amended (the "Act") and 24 CFR Part 570,
Subpart M, of the promissory note issued on June 14, 2000, and numbered B-98-UC-12-
0006, in the original Aggregate Principal Amount of $25,000,000, and any amended note
or note that may be issued in substitution for such note and having the same note number
(the "Note"). Such Aggregate Principal Amount was paid or credited to the account of the
Borrower as of June 14, 2000 (the "Public Offering Date"), and all amounts so paid or
credited are collectively referred to herein as the "Guaranteed Loan Funds." The Note
includes the Fiscal Agency Agreement and the Trust Agreement as defined in the Note.
Terms used in this Agreement with initial capital letters and not otherwise defined in the
text hereof shall have the respective meanings given thereto in the Note. The Fiscal Agency
Agreement and the Trust Agreement are sometimes collectively referred to herein as the
"Fiscal Agency/Trust Agreements," and the Fiscal Agent and the Trustee respectively are
sometimes collectively referred to as the "Fiscal Agent/Trustee."
RECITALS
A. The Note. On the Public Offering Date, trust certificates backed by the
Note and similar notes issued by other Section 108 borrowers, denominated "Section 108
Government Guaranteed Participation Certificates Series HUD 2000-A" (the
"Certificates"), were purchased for a purchase price of the full aggregate principal amounts
thereof at interest rates determined by the Secretary and the initial purchasers, which
purchasers were underwriters selected by the Secretary (the "Underwriters"). The Note is
payable to the Trustee as Registered Holder on behalf of the Beneficial Owners of the
Certificates. The interest rate at which the trust certificate of a specified maturity was sold
to the Underwriters was the interest rate inserted on the Public Offering Date in Schedule
P&I of the Note for the Principal Amount of corresponding maturity. After the Public
Offering Date, the Borrower has agreed and the Assumptor hereby acknowledges that the
Trustee pursuant to the Trust Agreement will maintain the books and records of all
payments on the Note and all Principal Amounts and interest rates on such Principal
Amounts. The Note and the Secretary's Note Guarantee as held by the Trustee and the
Secretary's Certificate Guarantees are not amended and are not affected by this Agreement.
Submitted into the ptiblic
record r it (s)YNE
OH '. City Clerk
Attachment 2
Page 2 of 14
B. The Contract. Effective as of the Public Offering Date, the Borrower and
the Secretary entered into a Contract for Loan Guarantee Assistance (the "Contract") with
respect to the temporary deposit and the use of the Guaranteed Loan Funds for eligible
activities, the terms of the Secretary's Guarantee, the security for the Secretary's Guarantee,
the establishment of a Loan Guarantee Repayment Account and any other matter covered
by the Contract.
C. The Participation Agreement. Contemporaneously herewith, the
Borrower and the Assumptor have entered into a Participation Agreement with respect to
the "Loan" as defined therein, which is the same loan described in paragraph 15(b) of the
Contract. Such loan was made with Guaranteed Loan Funds to the "Obligor," is evidenced
by the "Obligor Loan Agreement" and the "Obligor Note," and is secured by the
"Collateral", each as also described in paragraph 15 of the Contract. Such loan shall be
referred to herein as the "Obligor Loan." Pursuant to the Participation Agreement, the
Assumptor purchased eighty percent (80%) of the Borrower's interest in the Obligor Loan
and the Collateral therefore, and the Borrower retained a twenty percent (20%) interest in
the Obligor Loan and the Collateral therefore.
AGREEMENT
The Assumptor hereby agrees to assume eighty percent (80%) (the "Assumptor's
Pro Rata Share") of the Borrower's liability under the Contract for repayment of the
principal and interest of the Note, the Borrower agrees to remain liable to repay twenty
percent (20%) (the "Borrower's Pro Rata Share") of the principal and interest on the Note,
and the parties hereby agree to the more specific understandings, undertakings, and
amendments to the Contract set forth below. The paragraph numbers in this Agreement
correspond to the paragraph numbers in the Contract. This Agreement amends and
supersedes the corresponding provisions of the Contract, except as otherwise provided in
this Agreement.
1. Receipt, Deposit and Use of Guaranteed Loan Funds.
The Borrower has received and disbursed the entire proceeds of the Note to the Obligor for
the Obligor Loan and has submitted all reports to HUD as required under paragraph 1 of
the Contract. No funds remain in the Guaranteed Loan Funds or the Guaranteed Loan
Funds Investment Accounts, and these Accounts have been closed.
2. Payments Due on Note. Using any available funds in the Loan Repayment
Account under paragraph 6 of this Agreement, the Borrower shall continue to pay to the
Fiscal Agent/Trustee, as collection agent for the Note, all amounts due pursuant to the
terms of the Note. In accordance with the Note and the Fiscal Agency/Trust Agreements,
payment shall be made by 3:00 P.M. (Near York City time) on the seventh Business Day
(the "Note Payment Date") preceding the relevant Interest Due Date or Principal Due Date
(each as defined in the Note). If any Note Payment Date falls on a day that is not a Business
Day, then the required payment shall be made on the next Business Day. Payments to the
Fiscal Agent/Trustee may be made by check or wire transfer. In the event of a shortage in
Submitted into the ublic
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ou _. City Clerk
Attachment 2
Page 3 of 14
funds available in the Loan Repayment Account when payment is due to the Fiscal
Agent/Trustee under the Contract, the Borrower and the Assumptor hereby agree to pay the
Borrower's Pro Rata Share and Assumptor's Pro Rata Share, respectively, of the shortage
needed to make the payment. In such event, the Borrower will promptly notify the
Assumptor of the Assumptor's Pro Rata Share of the payment due, and the Assumptor
hereby agrees promptly to pay such amount to the Borrower by wire transfer to the Loan
Repayment Account maintained by the Borrower under paragraph 6 of the Contract and
this Agreement.
3. Selection of New Fiscal Agent or Trustee. The Secretary shall select a new
Fiscal Agent or Trustee if the Fiscal Agent or Trustee resigns or is removed by the
Secretary. The Borrower and the Assumptor hereby consent in advance to any such
selection and to any changes in the Fiscal Agency/Trust Agreements agreed to by any
Fiscal Agent or Trustee and the Secretary, subject to paragraph 4(d) of this Agreement.
4. Payments Due Fiscal Agent or Trustee; Documents to the Secretary.
(a) The Borrower agrees to pay the Borrower's Pro Rata Share and the Assumptor
agrees to pay the Assumptor's Pro Rata Share of the cost of reimbursement and/or
compensation of the Trustee pursuant to the Trust Agreement, including Sections 3.11 and
7.01 thereof, to the extent the Borrower is notified of any such costs after the date of this
Agreement. If the Borrower is so notified, the Borrower agrees to promptly notify the
Assumptor of the Assumptor's Pro Rata Share.
(b) The Assumptor shall submit to the Secretary, concurrently with execution and
delivery of this Agreement, an opinion acceptable to the Secretary from the Assumptor's
counsel to the effect that: (i) the governing body of the Assumptor has authorized by
resolution or ordinance, in accordance with applicable State and local law, the execution of
this Agreement; (ii) this Agreement is a valid, binding, and enforceable obligation of the
Borrower, (iii) the pledge of funds pursuant to 24 CFR §570.705(b)(2) and paragraph 5(a)
of this Agreement is valid and binding, and (iv) there is no outstanding litigation that will
affect the validity of this Agreement.
(c) The undertakings in paragraphs 3 and 4 of this Agreement are expressly subject
to the requirement that the Fiscal Agency/Trust Agreements shall in no event require
payment of fees or charges, reimbursement of expenses, or any indemnification by the
Borrower or the Assumptor from any source other than funds pledged pursuant to
paragraphs 5 or 15 of this Agreement.
5. Security. The Borrower and the Assumptor hereby pledge as security for
repayment of their respective pro rata share of the Note and such other charges as may
be authorized in the Contract or this Agreement, in their respective pro rata shares
hereunder, the following:
(a) All allocations or grants which have been made or for which the Borrower or
the Assumptor, as applicable, may become eligible under Section 106 of the Act.
Submitted into the blic
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ou 5 City Clerk
Attachment 2
Page 4 of 14
(b) Program income, as defined at 24 CFR 570.500(axor any successor regulation),
directly generated from the use of the Guaranteed Loan Funds.
(c) Other security as described in paragraph 15, et sm., of the Contract or this
Agreement.
(d) All proceeds (including insurance and condemnation proceeds) from any of the
foregoing.
(e) All funds or investments in the accounts established pursuant to paragraphs 1
and 6 of this Agreement.
6. Loan Repayment Account.
(a) All amounts pledged pursuant to paragraphs 5(b), 5(c), and 5(d) of this
Agreement, and all amounts required to be paid by the Borrower and the Assumptor under
Section 2 hereof, shall be deposited immediately upon receipt in a separate identifiable
custodial account maintained by the Borrower (the "Loan Repayment Account") with a
financial institution whose deposits or accounts are Federally insured. The Loan
Repayment Account has been established and designated the form document entitled
"Letter Agreement for Section 108 Loan Guarantee Program Custodial Account"
(Attachment 1 to the Contract), and such account shall be continuously maintained for
deposit of all such pledged funds. Borrower shall make withdrawals from said account only
for the purpose of paying interest and principal due on the Note (including the purchase of
Government Obligations for defeasance in accordance with paragraph 10 hereof), for
payment of any other obligation of the Borrower and the Assumptor under this Agreement
or the Fiscal Agency/Trust Agreements, in their respective pro rata shares hereunder, or for
the temporary investment of funds pursuant to this paragraph, until final payment and
discharge of the indebtedness evidenced by the Note, unless otherwise expressly authorized
by the Secretary in writing. Such temporary investment of funds shall be required within
three Business Days after the balance of deposited funds exceeds the amount of the Federal
deposit insurance on the Loan Repayment Account. At that time, any balance of funds in
the Loan Repayment Account exceeding such insurance coverage shall be fully (100%) and
continuously invested in Government obligations, as defined in paragraph 10 hereof.
All temporary investments, whether or not required as above, shall be limited to
Government Obligations having maturities that are consistent with cash requirements for
payment of principal and interest as required under the Note. In no event shall the
maturities of such investments exceed one year. All such investments shall be held in trust
for the benefit of the Secretary by the above financial institution in an account (the "Loan
Repayment Investment Account") that has been established and designated pursuant the
form document entitled "Letter Agreement for Section 108 Loan Guarantee Program
Custodial Investment Account" (Attachment 2 to the Contract), which account shall be
maintained for all Government Obligations purchased with funds from the Loan
Repayment Account. All proceeds and income derived from such investments shall be
returned to the Loan Repayment Account.
As of the date of this Agreement, the Borrower and the Assumptor shall be deemed
to share ownership of the Loan Repayment Account and the Loan Repayment Investment
Account, in accordance with their respective pro rata shares hereunder, although the
�3
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on S 1 ti Y City Clerk
Attachment 2
Page 5 of 14
Borrower shall continue to maintain such accounts in accordance with this Agreement and
with Borrower's obligations to Assumptor under the Participation Agreement..
(b) Borrower shall by the fifteenth day of each month, provide the Secretary and the
Assumptor with a written statement showing the balance of funds in the Loan Repayment
Account and the deposits and withdrawals of all funds in such account during the preceding
calendar month and a statement identifying the obligations and their assignments in the
Loan Repayment Investment Account.
(c) Upon the Secretary giving notice that the Borrower or the Assumptor, or bath of
them if applicable, is in Default under this Agreement or the Note, all right, title, and
interest of the Borrower or the Assumptor, or both of them, as applicable, in and to the
Loan Repayment and Loan Repayment Investment Accounts shall immediately vest in the
Secretary for use in making payment on the Note, purchase of Government obligations in
accordance with paragraph 10, or payment of any other obligation of the Borrower under
this Agreement or the Fiscal Agency/Trust Agreements.
7. Use of CDBG Funds for Repayment. Any funds available to the Borrower or the
Assumptor under Section 106 of the Act (including program income derived therefrom) are
authorized to be used by the Borrower or the Assumptor, in accordance with their
respective pm rata shares under this Agreement, for payments due on the Note, Optional
Redemption (as defined in the Note), payment of any other obligation of the Borrower
under this Agreement or the Fiscal Agency/Trust Agreements, or the purchase of
Government obligations in accordance with paragraph 10. Unless otherwise specifically
provided herein or unless otherwise expressly authorized by the Secretary in writing, the
Borrower shall substantially disburse funds available in the Loan Repayment or the Loan
Repayment Investment Accounts before funds from grants under Section 106 of the Act are
withdrawn from the U.S. Treasury for such purposes by either the Borrower or the
Assumptor.
8.Secretary's Right to Restrict Use of CDBG Funds to Repayment. Upon a
determination by the Secretary that payments required by paragraph 2 and/or paragraph 4
of this Agreement are unlikely to be made as required in accordance with their respective
pm rata shares hereunder by either the Borrower or the Assumptor, or both, the Secretary
may give the Borrower and/or the Assumptor, as applicable, notice that the availability to
the Borrower and/or the Assumptor, as specified in such notice, of funds pledged under
paragraph 5(a) of this Agreement for purposes other than satisfaction of the pledge is being
restricted. This restriction shall be in an amount estimated by the Secretary to be sufficient
to ensure that the payments referred to in paragraph 2 and/or paragraph 4 hereof are made
when due by the Borrower and/or the Assumptor, as applicable. With respect to the
Borrower and/or the Assumptor as applicable, this restriction may be given effect by
conditioning the restricted amounts to prohibit disbursement for purposes other than
satisfaction of the pledge at the time such restricted funds are approved as grants, by
limiting the restricted party's ability to draw down or expend the restricted funds for other
purposes, and by disapproving payment requests submitted with respect to such grants far
purposes other than satisfaction of the pledge.
Submitted into the *lie
record or i1em(s) 01 k E.I t
'11t5/ Z I City Clerk
Attachment 2
Page 6 of 14
9.Secretary's Right to Use Pledged Funds for Repayment. The Secretary may use funds
pledged under paragraph 5(a) of this Agreement or funds restricted under grants pursuant to
paragraph 8 of this Agreement to make any payment required of the Borrower or the
Assumptor under paragraph 2 and/or paragraph 4, if such payment has not been timely
made by the Borrower or the Assumptor, as applicable.
10Defeasance. For purposes of this Agreement, the Note shall be deemed to have been
paid (defeased) to the extent that there shall have been deposited with the Trustee either
moneys or Government Obligations (defined below), which in the sole determination of the
Secretary, mature and bear interest at times and in amounts sufficient, together with any
other moneys on deposit with the Trustee for such purpose, to pay when due the principal
and interest to become due on the Note. The Aggregate Principal Amount of the Note or
any unpaid Principal Amount may be so defeased, in whole or in part, as of any Interest
Due Date, or any other Business Day acceptable to HUD, the Borrower, and the
Assumptor. In accordance with the Note and the Trust Agreement, the Borrower shall give
timely notice and written. instructions to the Secretary and the Trustee concerning any
principal amounts proposed to be defeased, including any Optional Redemptions proposed,
which instructions shall be approved by the Secretary. If the unpaid Aggregate Principal
Amount of the Note guaranteed pursuant to this Contract shall be defeased and deemed to
have been paid in full, then the Borrower and the Assumptor shall be released from all
agreements, covenants, and further obligations under the Note.
"Government Obligation" means a direct obligation of, or any obligation for which
the full and timely payment of principal and interest is guaranteed by, the United States of
America, including but not limited to, United States Treasury Certificates of Indebtedness,
Notes and Bonds - State and Local Government Series or certificates of ownership of the
principal of or interest on direct obligations of, or obligations unconditionally guaranteed
by, the United States of America, which obligations are held in trust by a commercial
bank which is a member of the Federal Reserve System and has capital and surplus
(exclusive of undivided profits) in excess of $100,000,000.
11. Defaults.
(a) A Default under the Note and this Agreement shall occur upon the Borrower's
failure to:
(i) pay when due an installment of principal or interest on the Note; or (ii)
punctually and properly perform, observe, and comply with any covenant,
agreement, or condition of the Borrower contained in: (A) this Agreement, (B) any
security agreement, deed of trust, mortgage, assignment, Guarantee, or other
Agreement securing payment of indebtedness evidenced by the Note, or (C) any
future amendments, modifications, restatements, renewals, or extensions of any
such documents.
(b) The Borrower and the Assumptor each waive notice of Default and opportunity
for hearing with respect to a Default under paragraph 11(a).
(c) In addition to Defaults under paragraph 11(a), the Secretary may declare the
Note in Default if the Secretary makes a final decision in accordance with the provisions of
section 111 of the Act and 24 CFR §570.913 (or any successor provisions), including
Submitted into the aublic
record r it m(s) E . \\ 6, ' 1111,
ou City Clerk
Attachment 2
Page 7 of 14
requirements for reasonable notice and opportunity for hearing, that either the Borrower or
the Assumptor, or both have failed to comply substantially with title I of the Act.
Notwithstanding any other provision, following the giving of such reasonable notice to
either such party, or both, the Secretary may withhold the making of commitments to
guarantee or the guarantee of any or all obligations not yet guaranteed in accordance with
outstanding commitments on behalf of the Borrower or the Assumptor, or both, as
applicable. In addition, in the event that notice of Default has been given to the Borrower
under this paragraph 11(c), the Secretary may, in the Secretary's sole discretion pending the
Secretary's final decision, direct the Borrower's financial institution to: refuse to honor any
instruments drawn upon, or withdrawals from, the Loan Repayment Account initiated by
the Borrower, and/or refuse to release obligations and assignments by the Borrower from
the Loan Repayment Investment Account.
(d) A Default by the Borrower under paragraph 11(a) shall be deemed a default by
the Assumptor only if Assumptor has failed to pay when due any amount owing under
paragraph 2 or 4 of this Agreement or to punctually and properly perform, observe, and
comply with any covenant, agreement, or condition applicable to the Assumptor in this
Agreement. In such event, the Secretary shall be entitled to exercise remedial actions in
accordance with the respective pro rata shares of liability of Borrower and Assumptor
hereunder against funds respectively pledged by the Borrower and the Assumptor under
this Agreement.
(e) A Default limited to the Assumptor or to the Borrower under this Agreement
shall entitle the Secretary to exercise remedial actions only against funds pledged by the
Assumptor or the Borrower, as applicable, under this Agreement.
12.Remedial Actions. Upon a Default or declaration of Default under this Agreement, the
Secretary may, in the Secretary's sole discretion, take any or all of the following remedial
actions:
(a) With any funds or security pledged under this Agreement, the Secretary may (i)
continue to make payments due on the Note, (ii) make an acceleration payment with
respect to the principal amount of the Note subject to Optional Redemption as provided in
Section B of the Note, (iii) purchase Government Obligations in accordance with paragraph
10 of this Agreement, (iv) pay any interest due for late payment as provided in the Note,
this Agreement, or the Fiscal Agency/Trust Agreements, (v) pay any other obligation of the
Borrower and/or the Assumptor, as applicable, under this Agreement or the Fiscal
Agency/Trust Agreements, and/or (vi) pay any reasonable expenses incurred by the
Secretary or the Fiscal Agent/Trustee as result of the Default.
(b) The Secretary may withhold the guarantee of any or all obligations not yet
guaranteed or grants not yet disbursed under outstanding guarantee commitments or grant
approvals for the Borrower and/or the Assumptor, under Section 108 and/or Section 106 of
the Act.
(c) The Secretary may direct the Borrower's financial institution to: refuse to honor
any instruments drawn upon, or withdrawals from, the Guaranteed Loan Funds Account or
Submitted into the public
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ou Z City Clerk
Attachment 2
Page 8 of 14
the Loan Repayment Account by the Borrower, and/or refuse to release obligations and
assignments by the Borrower from the Guaranteed Loan Funds Investment Account or the
Loan Repayment Investment Account; and/or direct the Borrower and/or the Borrower's
financial institution to transfer remaining balances from the Guaranteed Loan Funds
Account to the Loan Repayment Account.
(d) With respect to amounts subject to Optional Redemption, the Secretary may
accelerate the Note.
(e) The Secretary may exercise any other appropriate remedies or sanctions
available by law or regulation applicable to the assistance provided under this Agreement,
or may institute any other action available under law to recover Guaranteed Loan Funds or
to reimburse the Secretary for any payment under the Secretary's Guarantee or any
reasonable expenses incurred by the Secretary as a result of the Default.
(0 All notices and submissions provided for hereunder shall be in writing
(including by telex, telecopier or any other form of telecommunication) and mailed or sent
or delivered, as to each party hereto, at its address set forth below or at such other address
as shall be designated by such party in a written notice to the other party hereto. All such
notices and other communications shall be effective when received as follows: (i) if
sent by hand delivery, upon delivery; (ii) if sent by mail, upon the earlier of the date of
receipt or five Business Days after deposit in the mail, postage prepaid; (iii) if sent by telex,
upon receipt by the sender of an answer back; and (iv) if sent by telecopier, upon receipt.
The Secretary:
U.S. Dept. of Housing and Urban Development
Attention: Paul Webster Director Financial Management Division
451 7th Street, SW, Room 7180
Washington, D.C. 20410
Borrower.
Miami -Dade County
111 NW Street, 29'h Floor
Miami, Florida 33128
Attention: County Manager
With Copies to:
Miami -Dade County
Office of Community and Economic Development
Attention: Director
140 W. Flagler
Miami, Florida 33130
Assumptor.
Submitted into the public
record for iyem(s) E .1\ YL - It
oa `l c,5I )1 City Clerk
City of Miami
With Copies to:
Attachment 2
Page 9 of 14
13. Limited Liability. Notwithstanding any other provision of this Agreement, the
Fiscal Agency/Trust Agreements or the Note, any recovery against the Borrower or
Assumptor for any liability for amounts due pursuant to this Agreement under the Note, the
Fiscal Agency/Trust Agreements and this Agreement shall be limited to the sources of
security pledged in paragraphs C., 5, or any Special conditions of this Agreement. Neither
the general credit nor the taxing power of the Borrower, the Assumptor or of the State in
which the Borrower and the Assumptor are located, is pledged for any payment due under
the Note, the Agreement, or the Fiscal Agency/Trust Agreements.
14. Incorporated Grant Agreement. The Agreement and the Note are hereby
incorporated in and made a part of the Grant Agreement authorized by the Secretary on
December 31, 1998, under the Funding Approval for grant number B-98-UC-12-0006 to
the Borrower. In carrying out activities with the Guaranteed Loan Funds hereunder, the
Borrower and the Assumptor agrees to comply with the Act and 24 CPR Part 570, as
provided in Subpart M thereof.
15. Special Conditions and Modifications:
(a) RESERVED
(b) Guaranteed Loan Funds were used by the Borrower to make a loan to Parrot Jungle &
Gardens, Inc. (the "Obligor"), which loan was evidenced by a promissory note (the
"Obligor Note") and a loan agreement (the "Obligor Loan Agreement"), which Obligor
Note and Obligor Loan Agreement were in a foam acceptable to the Secretary. The
amounts of principal and/or interest payable under the Obligor Note during the twelve
month period beginning July 1 of each year and ending on June 30 of the next succeeding
year are equal to or greater than the amounts of principal and/or interest payable under the
Notes for the corresponding period.
(i) In order to secure the payment and performance of the secured
obligations of the Obligor to the Borrower, the Borrower obtained the following collateral
(collectively, the "Collateral"):
(A) A lien on the Obligor's leasehold interest in the property described in
Attachment 3 hereof (the "Property"), established through an appropriate and
properly recorded leasehold mortgage (the "Obligor Leasehold Mortgage").
Obligor's leasehold interests that are the subject of that leasehold mortgage are
those interests identified in a Lease Agreement entered into between the Obligor
and the City of Miami, Florida. The Obligor Leasehold Mortgage contained such
provisions as the Secretary deemed necessary.
(B) Any and all rights, titles, and interests of the Obligor in and to any leases
covering the Property. Such rights, titles, and interests of the Obligor are the subject
Submitted into the ublic
record for i em(s) 'f .Q��,
ou 'j/ tS iZ I City Clerk
Attachment 2
Page 10ofl4
of a collateral assignment of leases and rents (the "Collateral Assignment of Leases
and Rents"). The Collateral Assignment of Leases and Rents is in a form,
acceptable to the Secretary.
(C) Any and all rights, titles, and interests of the Obligor in and to any licenses,
permits, and other agreements covering the Property. Such rights, titles, and
interests are the subject of a collateral assignment of interest in licenses, permits,
and other agreements (the "Collateral Assignment of Interest in Licenses, Permits,
and Agreements"). The Collateral Assignment of Interest in Licenses, Permits, and
Agreements is in a form acceptable to the Secretary.
(ii) The Borrower selected a financial institution acceptable to the Secretary (the
"Custodian") to act as custodian for the documents specified in (iii) below (hereinafter
referred to as the "Security Documents"). The Borrower and the Custodian entered into a
written agreement containing such provisions as the Secretary deemed necessary. A fully
executed copy of such agreement, with original signatures, was forwarded to the. Secretary
contemporaneously with the delivery of documents pursuant to (iii) below.
(iii) Not later than five business days after the initial disbursement of the
Guaranteed Loan Funds to the Obligor, the Borrower delivered to the Custodian the
following:
(A) The original Obligor Not; endorsed in blank and without recourse.
(B) The original Obligor Loan Agreement and an assignment thereof to the
Secretary, which assignment was in a form acceptable to the Secretary.
(C) The original recorded Obligor Leasehold Mortgage signed by the Obligor and
an assignment thereof to the Secretary, in a recordable form but unrecorded, which
assignment was in a form acceptable to the Secretary.
(D) The original recorded Collateral Assignment of Leases and Rents and an
assignment thereof to the Secretary, in a recordable form but unrecorded, which assignment
was in a form acceptable to the Secretary.
(E) The original Collateral Assignment of Interest in Licenses, Permits, and
Agreements and an assignment thereof to the Secretary, which assignment was in a form
acceptable to the Secretary.
(F) An opinion of the Borrower's counsel, addressed to the Secretary and on its
letterhead, that (as of the date of such opinion):
(1) the Obligor is a corporation duly organized, validly existing, and in
good standing under the laws of the State of Florida;
(2) the Obligor Note has been duly executed and delivered by a party
authorized by the Obligor to take such action and is a valid and binding obligation
of the Obligor, enforceable in accordance with its terms, except as limited by
bankruptcy and similar laws affecting creditors generally, and
(3) the security instruments specified in (B) through (E) above are valid
and legally binding obligations, enforceable in accordance with their respective
terms.
Submitted into the public
record r it m(s) t.17,
ou 1 City Clerk
Attachment 2
Page 11 of 14
(G) A mortgagee title policy, issued by a company and in a form acceptable to the
Secretary, naming the Borrower as the insured party. The policy either included in the
definition of the "insured" each successor in ownership of the indebtedness secured by
the Obligor Leasehold Mortgage or was accompanied by an endorsement of the policy to
the Secretary.
a A certified survey with a legal description conforming to the title policy and
the Obligor Leasehold Mortgage.
(I) An appraisal of the Obligor's Leasehold interest in the Property specifying an
estimate of fair market value of not less than $31.250,000. The appraisal was completed
by an appraiser who was certified by the state and has a professional designation (such as
"SRA" or "MAI"), and the appraisal conformed to the standards of the Financial
Institutions Reform, Recovery and Enforcement Act of 1989 ("FIRREA") when issued.
(iv) Concurrently with the execution of this Agreement, Borrower and Assumptor
executed a Participation Agreement pursuant to which Assumptor assumed eighty percent
(80%) of Borrower's interest in the Obligor Loan and the Collateral therefore.
(c) Paragraph 12 is amended by adding at the end thereof the following language:
"(f) The Secretary may complete the endorsement of the Obligor Note and record the
assignments referred to in paragraph 15(bXiii) and thereby effectuate the transfer
of the documents referenced and underlying indebtedness from the Borrower to
the Secretary or the Secretary's assignee.
The Assumptor hereby grants irrevocable consent to any such action by the
Secretary.
"(g) The Secretary may exercise or enforce any and all other rights or remedies
(including any and all rights and remedies available to a secured party under the
Uniform Commercial Code) available by law or agreement (including any of the
Security Documents, as defined in paragraph 15(b)) against the Collateral, against
the Borrower, against the Obligor, or against any other person or property. The
Assumptor hereby grants irrevocable consent to any such action by the
Secretary."
(d) The Borrower agrees that it shall promptly notify the Secretary and the Assumptor
in writing upon the occurrence of any event which constitutes a default (an "Event
of Default") under (and as defined in) any of the Security Documents, as defined
in paragraph 15(b). Notification of an Event of Default shall be delivered to the
Secretary, at 451 Seventh Street, SW, Washington, DC 20410, Attention:
Director, Financial Management Division, Office of the Assistant Secretary for
Community Planning and Development. Upon the occurrence of an Event of
Default, the Secretary may (without prior notice or hearing, which Borrower
hereby expressly waives), in addition to (and not in lieu of) exercising any and all
remedies that may be available under the Security Documents, declare the Notes
in Default and exercise any and all remedies available under paragraph 12, subject
to the provisions of paragraph 11 (e). This paragraph 15(d) shall not affect the
right of the Secretary to declare the Notes in Default pursuant to paragraph 11 and
to exercise in connection therewith any and all remedies available under
paragraph 12.
(e) As of the effective date of this Agreement, the Secretary shall treat the Borrower's
Submitted into the Rublic
record for itgm(s) E. 11 4 y,t. IZ
ou 1/ t S / by . City Clerk
Attachment 2
Page 12 of 14
Pro Rata Share and the Assumptor's Pro Rata Share, respectively, of the
outstanding principal balance due on the Note as the amounts, respectively, of the
Borrower's and the Assumptor's unpaid obligations under the Note for purposes
of 24 CFR 570.705(a)(2)(i).
[Rest of this page intentionally left blank]
�f r
Submitted into the ublic n
Q record f rite (s) t.‘‘ E.I1,,
oa City Clerk
Attachment 2
Page 13 of 14
IN WITNESS WHEREOF, the undersigned, as authorized officials on
behalf of the Borrower, the Assumptor or the Secretary, have executed this
Agreement, which shall be effective and shall be dated as of the date of execution
by the Secretary, after execution on behalf of the Borrower and the Assumptor.
MIAMI-DADE COUNTY FLORIDA
BORROWER
BY:
(Name)
(Title)
(Signature)
(Date)
CITY OF MIAMI FLORIDA
ASSUMPTOR
BY:
(Name)
(Title)
(Signature)
(Date)
SECRETARY OF HOUSING AND
URBAN DEVELOPMENT
BY:
(Name)
(Title)
(Signature)
(Date)
Submitted into the
record ,for a em(s)
on `lli,5�40
ublic
MAL
City Clerk
ATTACHMENT 3
Description of Real Property
Attachment 2
Page 14 of 14
The Borrower has inserted the legal description of the Property as defined
in paragraph 15(b)(i)(A) in Attachment 3 to the Contract. That legal description
has not changed.
[Rest of this page intentionally left blank]
11 Submitted into the 2ublic
record ,for item(s) E .1\ k V;(11,
OFFICIAL FILE COPY 02 '1! 1)6/ t4 City Cleric
CLERK OF THE BOARD
OF COUNTY COIMISSIONERS
MIAMMI-DADE COUNTY, FLORIDA
MEMORANDUM
Agenda Item No. 8(K) (1)
TO: Honorable Chairman Esteban L. Bovo, Jr. DATE: January 24, 2017
and Members, Board of County Commissioners
FROM: Abigail Price -Williams
County Attorney
SUBJECT; Resolution approving and
authorizing the County Mayor
to execute an Assumption of
Florida Leasehold Mortgage,
Assignment of Leases and Rents
and Security Agreement and
of Other Loan Documents and
Termination of Sublease by
and among Parrot Jungle and
Gardens of Watson Island, Inc,
PJG Watson, LLC, ESJ J.I.
Leasehold, LLC, Bernard M.
Levine, Mary Levine, and
Miami -Dade County, subject
to United States Department
of Housing and Urban
Development's approval; and
waiving the requirements of
Resolution No. R-130-06
Resolution No. R-44-17
The accompanying resolution was prepared by the Internal Services Department and placed on
the agenda at the request of Prime Sponsor Vice Chairwoman Audrey M. Edmonson.
Abiga r illiams
County Attu' ey
APW/smm
Date:
To:
From:
Subject:
Submitted into the ,ublic
record or i em(s)(_ 1\t,1�,
ou 1/ i,b t,4 City Cler' MUM
`Memorandum t4�Nr{
January 24, 2017
Honorable Chairman Esteban L. Bovo, Jr.
and Members, Board of County
Carlos A. Gimenez
Mayor,
Consent to Assumption o4011•1411f Fl� asehold Mortgage, Assignment of Leases and
Rents and Security Agreement an o vf- Other -Loan Documents and Termination of
Sublease Between Parrot Jungle an. Gardens of Watson Island, Inc., PJG Watson
LLC, ESJ J.I. Leasehold LLC, Bernard M. Levine, Mary Levine, and Miami -Dade
County
Recommendation
It is recommended that the Board of County Commissioners (Board) approve the attached resolution that
approves and authorizes the County Mayor or the County Mayor's designee to execute an Assumption of
Florida Leasehold Mortgage, Assignment of Leases and Rents and Security Agreement and of Other
Loan Documents and Termination of Sublease (Agreement) among Parrot Jungle and Gardens of
Watson Island, Inc. (Parrot Jungle), PJG Watson LLC (PJG) (together collectively referred to as Parrot
Jungle), ESJ J.I. Leasehold LLC (ESJ), Bernard M. Levine and Mary Levine, and Miami -Dade County
(County) whereby the County consents to the transaction. This assignment of obligations related to
Jungle Island, formerly known as Parrot Jungle (Attraction) -will permit the sale of the property's leasehold
interest to ESJ and will further release Mrs. Levine as guarantor. It is further recommended that the
Board approves the waiver of Resolution No. R-130-06, which requires all contracts to be fully negotiated
and executed by non -County parties prior to placing such contracts on the Board's agenda.
Scope
The Attraction is located in Commission District 3, represented by Commissioner Audrey M. Edmonson.
The operation of Jungle Island as a tourist attraction has countywide significance.
Fiscal Impact/Funding Source
The execution of the Agreement (Exhibit 1) has no direct fiscal impact to Miami -Dade County. ESJ will
assume all the obligations of the Parrot Jungle. Given the planned investment of capital into the property
of approximately $10 million upon sale, the obligations due the County should be better secured going
forward as the operation of the facility should generate more revenues.
Track Record/Monitor
There is a US Department of Housing and Urban Development (HUD) Section 108 loan outstanding on
the property which requires 603 jobs to be created and retained. To date, the job creation goal has not
been met. The Agreement will allow ESJ up to of five years to meet the original job creation goal of 603
full time equivalent jobs. Mr. Clarence Brown of the Miami -Dade Public Housing and Community
Development Department will monitor the Agreement.
Background
The Attraction sits on land that is leased by the City of Miami (City) to Parrot Jungle and which is
subleased to PJG, who manages the Attraction. The Board in 1998 in an effort to facilitate the relocation
of the Attraction from its long-term home in South Dade to a new location on Watson Island, approved a
$25 million HUD Section 108 Loan Program loan (HUD Loan) to Parrot Jungle. The County made the
loan to Parrot Jungle on January 9, 2001. Following the Board's approval of the HUD Loan, on
September 9, 1998, the City and the County entered into a Joint Participation Agreement pursuant to
which the City assumed 80 percent of the outstanding principal balance and future interest on the HUD
Loan and became lender as to 80 percent of the outstanding principal balance and future interest on the
HUD Loan. The County retains a 20 percent interest in the HUD Loan.
Honorable Chairman Esteban L. Bovo, Jr.
and Members, Board of County Commissioners
Page 2
Submitted into the ublic
record •r i m(s)1E.
City Clerk
Oil
However, due to various financial difficulties encountered by the Attraction, the Board pursuant to
Resolution Nos. R-475-03 and R-916-06, approved additional loans to Parrot Jungle in the amount of
$2.5 million and $4,701,782. The Board also pursuant to Resolution No R-886-07 approved Parrot
Jungle's request to defer payments on the HUD Loan until 2012 subject to the City's approval. As a
result of the agreement to defer payments, the County between 2004 and 2011, and the City between
2006 and 2011.made the required HUD Loan payments on behalf_of Parrot Jungle. As a condition of this
advancement of funds by the City and the County, Parrot Jungle has agreed to make a lump sum
payment in the amount of $2.0 million to ZooMiami by August 1, 2020.
The County has been advised of a contemplated sale of certain assets of Parrot Jungle to the ESJ, which
includes all right, title and interest of Parrot Jungle in the Lease and the Leasehold Estate, pursuant to
that Purchase Agreement dated as of December 4, 2015 between Parrot Jungle and ESJ. ESJ is an
affiliate by virtue of common management with ESJ Capital Partners, LLC., an Aventura based real
estate investment firm which is registered with and regulated by the Security and Exchange Commission
(SEC) and has over $500 million of real estate assets under management. The principals of ESJ Capital
Partners have been vetted by the City and have been found to be in good standing. The City and County
staff have also reviewed the financial capability and business plans of ESJ and have concluded that due
to additional investment capabilities, the entity should be a viable business partner once the sale of the
leasehold from Parrot Jungle to ESJ is complete. ESJ's proposal for improvements to the property is
summarized in Exhibit 2.
Parrot Jungle and ESJ desire to obtain the County's consent to (i) the transfer of all right, title and interest
in the Attraction and the ground lease between the City and Parrot Jungle, the leasehold interest secured
by the HUD Loan, (ii) the assumption by ESJ of Parrot Jungle's obligations under the HUD Loan,
including the payments for the aviary and. the additional loans approved pursuant to resolution Nos. R-
475.03, R-916-06 and R-886-7; (iii) the assumption by ESJ of Parrot Jungle's obligations and liabilities
pertaining to job creation and retention; and (vi) termination of the sublease and the subleasehold.
Additionally, the Agreement contemplates the release of Parrot Jungle from its obligations under the HUD
Loan after the effective date of the Agreement, but they will remain liable for their obligations that arose
prior to the effective date of the Agreement. The Agreement further contemplates that although Dr.
Levine will remain liable for all of his obligations as guarantor, Mrs. Levine will be released from her
obligations as guarantor. The release of Mrs. Levine as a guarantor is offset, in terms of credit quality, by
a $5.0 million indemnification to Dr. Levine by ESJ. As of September 30, 2016, all obligations due the
County were current under the provisions of the agreement and totaled $13,378,336. The obligation due
will be recalculated by the County to account for additional interest accrued from October 1, 2016 until
the date of dosing.
The City Commission, pursuant to Resolution No. R-16-0567, which is attached, has approved the
Agreement and should the Board adopt the attached resolution, the Agreement will be presented to HUD
for its approval, which is the final authorization necessary for the sale to be executed. Waiver of
Resolution No. R-130-06 is necessary because HUD approval is still required and because the amount of
the total obligation due must be recalculated closer to the time of closing.
Cif
Edward Marqu
Deputy Mayor
3
Submitted into the aublic r
record fpr itgjm(s) ii‘E,, 11r,
1.5/ t4 City Clerk
MEMORANDUM
(Revised)
TO: Honorable Chairman Esteban L. Bovo, Jr.
and Members, Board of County Commissioners
FROM: A'Yi gnee-
Coun � • ttorney
DATE:
January 24, 2017
SUBJECT: Agenda Item No. 8 (K) (1)
Please note any items checked.
"3-Day Rule" for committees applicable if raised
6 weeks required between first reading and public hearing
4 weeks notification to municipal officials required prior to public
hearing
Decreases revenues or increases expenditures without balancing budget
Budget required
Statement of fiscal impact required
Statement of social equity required
Ordinance creating a new board requires detailed County Mayor's
report for public hearing
No committee review
Applicable legislation requires more than a majority vote (Le., 2/3's
3/5's , unanimous ) to approve
Current information regarding funding source, index code and available
balance, and available capacity (if debt is contemplated) required
Approved
Veto
Override
RESOLUTION NO.
Mayor
Submitted into the ublic
record or i m(s) �E. kk Vt. k
on City Clerk
Agenda Item No. 8 (K) (1)
1-24-17
R-44-17
RESOLUTION APPROVING AND AUTHORIZING THE
COUNTY MAYOR OR THE COUNTY MAYOR'S DESIGNEE
TO EXECUTE AN ASSUMPTION OF FLORIDA LEASEHOLD
MORTGAGE, ASSIGNMENT OF LEASES AND RENTS AND
SECURITY AGREEMENT AND OF OTHER LOAN
DOCUMENTS AND TERMINATION OF SUBLEASE BY AND
AMONG PARROT JUNGLE AND GARDENS OF WATSON
ISLAND, INC, PJG WATSON, LLC, ESJ J.I. LEASEHOLD, LLC,
BERNARD M. LEVINE, MARY LEVINE, AND MIAMI-DADE
COUNTY, SUBJECT TO UNITED STATES DEPARTMENT OF
HOUSING AND URBAN DEVELOPMENT'S APPROVAL;
AND WAIVING THE REQUIREMENTS OF RESOLUTION NO.
R-130-06
WHEREAS, the Board desires to accomplish the purposes outlined in the accompanying
memorandum, a copy of which is incorporated herein by reference,
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY
COMMISSIONERS OF MIAMI-DADE COUNTY, FLORIDA, that:
Section 1. This Board ratifies and adopts the matters in the foregoing recital and in the
accompanying justification memorandum as if fully set forth herein.
Section 2. This Board hereby approves the Assumption of Florida Leasehold
Mortgage, Assignment of Leases and Rents and Security Agreement and of Other Loan
Documents and Termination of Sublease ("Agreement") and authorizes the County Mayor or the
County Mayor's designee to execute the Agreement in substantially the form attached hereto as
Exhibit A.
Section 3. This Board hereby waives the requirement of Resolution No. R-160-06 for
the reasons set forth in the County Mayor's memorandum.
Submitted into the bli
E.\\ A
record or it m(s) '1�C. ►L
ou `1j1.� I1.0 City Clerk
Agenda Item No. 8(K) (1)
Page No. 2
The foregoing resolution was offered by Commissioner Rebeca Sosa
who moved its adoption. The motion was seconded by Commissioner Audrey M. Edmonson
and upon being put to a vote, the vote was as follows:
Esteban L. Bovo, Jr., Chairman aye
Audrey M. Edmonson, Vice Chairwoman aye
Bruno A. Barreiro
Jose "Pepe" Diaz
Barbara J. Jordan
Jean Monestime
Rebeca Sosa
Xavier L. Suarez
aye
aye
absent
aye
aye
absent
Daniella Levine Cava
Sally A. Heyman
Joe A. Martinez
Dennis C. Moss
Sen. Javier D. Souto
aye
aye
aye
aye
absent
The Chairperson thereupon declared the resolution duly passed and adopted this 24t' day
of January, 2017. This resolution shall become effective upon the earlier of (1) 10 days after the
date of its adoption unless vetoed by the County Mayor, and if vetoed, shall become effective
only upon an override by this Board, or (2) approval by the County Mayor of this Resolution and
the filing of this approval with the Clerk of the Board.
MIAM1-DADE COUNTY, FLORIDA
BY ITS BOARD OF
COUNTY COMMISSIONERS
HARVEY RUVIN, CLERK
By:
Approved by County Attorney as
to form and legal sufficiency.
Shannon D. Summerset-Williams
Christopher Agrippa
Deputy Clerk
Submitted into the p blic
record for item(s) �F\\ g Y1��11,
op 1is 1 t . City Clerk
THIS INSTRUMENT PREPARED
BY AND RETURN TO:
Exhibit 1
SPACE ABOVE THIS LINE RESERVED FOR RECORDER'S USE ONLY
Note to Clerk of Circuit Court: This instrument evidences the assumption by Purchaser (defined below)
of the obligations of Seller (defined below) under the County HUD Note (defined below) and under the
County HUD Mortgage (defined below), which secures the County HUD Note. This instrument also
evidences the assumption by Purchaser of the obligations of Parrot Jungle (defined below) under the $1 M
County Note (defined below) and under the $4.7M County Note (defined below). The $1M County Note
and the $4.7M County Note are not secured by the County HUD Mortgage or by any other mortgage or
other lien on real property located in the State of Florida.
A. Documentary Stamp Tax Calculations. Pursuant to F.S. §§201.08(b) and 201.09(c), F.S.: (i) an
instrument pursuant to which the obligations under a promissory note and the mortgage securing
that note are assumed by a new obligor is a taxable renewal for Florida documentary stamp tax
purposes based on the outstanding principal balance of such promissory note as of the date of
such instrument and (ii) an instrument pursuant to which the obligations under a promissory note
not secured by a mortgage or other lien on real property located in the State of Florida are assumed
by a new obligor is a taxable renewal for Florida documentary stamp tax purposes based on the
outstanding principal balance of such promissory note as of the date of such instrument; provided,
that pursuant to F.S. §§201.08(1)(a), Florida documentary stamp tax on any such renewal shall not
exceed $2,450. The outstanding principal balance of the County HUD Note as of the date hereof
is $ . Accordingly, Florida documentary stamp tax in the amount of $
based on such outstanding principal amount is paid on this instrument with respect to the County
HUD Note and the County HUD Mortgage. The outstanding principal balance of the $1 M County
Note as of the date hereof is $ . Accordingly, Florida documentary stamp tax in the
amount of $2,450.00 is paid on this instrument with respect to the $1 M County Note. The
outstanding principal balance of the $4.7M County Note as of the date hereof is $
Accordingly, Florida documentary stamp tax in the amount of $2,450.00 is paid on this instrument
with respect to the $4.7M County Note.
B. Nonrecurring Intangible Tax Calculations. Because the County is a political subdivision of the State
of Florida, pursuant to F.S. §199.183 the intangible personal property owned by the County
constituting the County HUD Mortgage, as modified by this instrument, is exempt from Florida
nonrecurring intangible tax. Because neither the $1 M County Note nor the $4.7M County Note is
secured by the County HUD Mortgage, as modified by this instrument, nor by any other mortgage
or other lien on real property located in the State of Florida, no nonrecurring intangible tax is due
on this instrument with respect to the $1 M County Note or the $4.7M County Note.
MIADOCS 13297085-9 39988,0010
Submitted into the I ublic n
record f r it m(s) 11� . ,'\ e. �.
o '1!LS / t' . City C1er1;
ASSUMPTION OF FLORIDA LEASEHOLD MORTGAGE,
ASSIGNMENT OF LEASES AND RENTS AND SECURITY AGREEMENT
AND OF OTHER LOAN DOCUMENTS AND TERMINATION OF SUBLEASE
THIS ASSUMPTION OF FLORIDA LEASEHOLD MORTGAGE, ASSIGNMENT
OF LEASES AND RENTS AND SECURITY AGREEMENT AND OF OTHER LOAN
DOCUMENTS AND TERMINATION OF SUBLEASE (this "Agreement") is dated as of
, 2017 (the "Effective Date"), by and among PARROT JUNGLE AND
GARDENS OF WATSON ISLAND, INC., a Florida corporation ("Parrot Jungle"), PJG
WATSON, L.L.C., a Florida limited liability company ("PJG" and together with Parrot
Jungle, collectively the "Seller"), each with an address at 1111 Parrot Jungle Trail, Miami,
Florida 33132, ESJ J.I. LEASEHOLD, LLC, a Florida limited liability company (the
"Purchaser"), with an address at 19950 W. Country Club Drive, Suite 800, Aventura,
Florida 33180, BERNARD M. LEVINE ("Mr. Levine") and MARY LEVINE ("Mrs. Levine"
and together with Mr. Levine, collectively the "Guarantors"), each with an address at
1111 Parrot Jungle Trail, Miami, Florida 33132, and MIAMI-DADE COUNTY, a political
subdivision of the State of Florida (the "County"), with an address at 111 NW 1st Street,
29th Floor, Miami, FL 33128.
WITNESSETH:
WHEREAS, the City of Miami, a Florida municipal corporation (the "City"), as
landlord, and Parrot Jungle, as tenant, entered into that certain Lease and Development
Agreement dated September 2, 1997, as amended by that certain Modification to Lease
and Development Agreement dated April 14, 2000 by and between the City and Parrot
Jungle, as further amended by that certain Modification to Lease and Development
Agreement dated August 13, 2002 by and between the City and Parrot Jungle, as further
amended by that certain Third Modification to Lease and Development Agreement dated
October 29, 2008 by and between the City and Parrot Jungle, and as further amended by
that certain Fourth Modification to Lease and Development Agreement dated June 24,
2009 by and between the City and Parrot Jungle (the foregoing being collectively defined
in the County HUD Mortgage, defined below, as the "Ground Lease"), which Ground
Lease is memorialized by Memorandum of Lease recorded in Official Records Book
19946, Page 1, as modified by instrument recorded in Official Records Book 20602, Page
3487, each in the Public Records of Miami -Dade County, Florida, and which Lease, inter
alia, demises a leasehold estate in favor of Parrot Jungle in: (i) the real property described
in Exhibit A attached hereto and made a part hereof (defined in the County HUD Mortgage
as the "Property"), (ii) all buildings, structures and other improvements located on the
Land (the "Improvements"), and (iii) any and all fixtures attached to or incorporated
therein (the leasehold estate in the "Fixtures", together with the leasehold estate in the
Property and the leasehold estate in the Improvements, referred to collectively in the
County HUD Mortgage as the "Groundleasehold");
WHEREAS, Parrot Jungle, as sublandlord, and PJG, as subtenant, entered into
that certain Sublease dated October 1, 2000, as amended by that certain First
Modification of Sublease dated as of August 13, 2002 by and between Parrot Jungle and
PJG (defined in the County HUD Mortgage as the "Sublease"), which Sublease is
MIADOCS 13297085 9 39988.0010
Submitted into the public
record �°�r it m(s) �C ,\\ 6\ L
`�/
oia �' yam. City Clerk
memorialized by Memorandum of Sublease recorded in Official Records Book 19446,
Page 8, as modified by instrument recorded in Official Records Book 20602; Page 3495,
each in the Public Records of Miami -Dade County, Florida, which Sublease demises a
subleasehold estate in favor of PJG in: (i) the Property, (ii) the Improvements, and (iii) the
Fixtures (the subleaseholdestate in the Property, the Improvements and the Fixtures,
being collectively defined in the County HUD Mortgage as the "Subleasehold");
WHEREAS, on January 9, 2001, the County made a loan to Seller in the original
principal amount of Twenty -Five Million and No/100 Dollars ($25,000,000.00) (the
"County Loan") pursuant to that certain Development Agreement dated April 20, 2000,
by and among the County, Parrot Jungle and the City, as amended by (i) that certain
Amendatory Agreement dated August 25, 2003 and (ii) that certain Amendment to
Development Agreement dated August 3, 2007 (collectively, the "Development
Agreement"). The County Loan and Seller's obligations under the Development
Agreement are: (a) further evidenced by a Promissory Note, dated January 9, 2001 by
Seller in favor of the County (the "County HUD Note"), and (b) secured inter alia by a
Florida Leasehold Mortgage, Assignment of Leases and Rents and Security Agreement
by Seller in favor of the County, dated January 9, 2001 and recorded January 10, 2011
in Official Records Book 19446, Page 48, of the Public Records of Miami -Dade County,
Florida (the "County HUD Mortgage") and other related loan documents (the
Development Agreement, the County HUD Note, the County HUD Mortgage and such
other loan documents being collectively described on Exhibit B attached hereto and being
collectively referred to herein as the "County HUD Loan Documents"), [as set forth in
Resolution No. 916-06 adopted by the Board of County Commissioners on July 18,
2000]. The County HUD Loan was made in connection with the development of the
Property, the Improvements and the Fixtures, which collectively are commonly known as
Jungle Island (the "Development"). The County HUD Mortgage encumbers the right, title
and interest of Parrot Jungle and PJG in and to the "Premises", as that term is defined in
the County HUD Mortgage;
WHEREAS, pursuant to the provisions of the Development Agreement, Seller is
obligated to make certain payments with respect to the aviary located at the Development
(such payments being defined in the Development Agreement as the "Aviary
Payments");
WHEREAS, on August 21, 2003 the County made a loan to Parrot Jungle in the
original principal amount of One Million and No/100 Dollars ($1,000,000.00) (the "$1M
County Loan"), pursuant to that certain Loan Agreement dated in August, 2003 by and
between Parrot Jungle and the County (the 11M County Loan Agreement") and which
is evidenced by that certain Promissory Note dated August 21, 2003 made by Assignor
in favor of the County, as amended by Amendment to Promissory Note dated August 3,
2007 by and between Parrot Jungle and the County (collectively, the "$1M County Note",
together with the $1M County Loan Agreement, the "$1M County Loan Documents")
which pertain to the $1M County Loan;
WHEREAS, on August 3, 2007 the County made a loan to Parrot Jungle in the
original principal amount of Four Million Seven Hundred One Thousand Seven Hundred
MIADOCS 13297085 9 39988.0010