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HomeMy WebLinkAbout25648AGREEMENT INFORMATION AGREEMENT NUMBER 25648 NAME/TYPE OF AGREEMENT 5215 FLAGLER STREET, LLC DESCRIPTION 1ST AMENDMENT TO GROUND LEASE/FLAGLER VILLAS/FILE ID: 17237/R-25-0061/MATTER ID: 25-850/#90 EFFECTIVE DATE ATTESTED BY TODD B. HANNON ATTESTED DATE 6/30/2025 DATE RECEIVED FROM ISSUING DEPT. 7/9/2025 NOTE a 5u, 'As FIRST AMENDMENT TO GROUND LEASE THIS FIRST AMENDMENT TO GROUND LEASE ("Amendment"), made as of , 2025 by and between CITY OF MIAMI, a Florida . municipal corporation ("Landlord ") and 5215 FLAGLER STREET, LLC, a Florida limited liability company ("Tenant") (collectively, Landlord and Tenant are the "Parties"). WITNESSETH: WHEREAS, Landlord and Tenant entered into that certain Ground Lease dated as of December 10, 2024 (as amended, collectively, the "Lease" or "Ground Lease"), for premises located 5215 West Flagler Street, Miami, Miami -Dade County, Florida, on which Tenant will design, develop, construct and operate a multifamily development consisting of approximately 60 affordable housing units (the "Development", "Project" or the "Improvements"); and WHEREAS, the Parties desire to modify certain terms and provisions of the Lease, as more particularly described in this Amendment; NOW, THEREFORE, in consideration of the premises and the mutual obligations of the parties set forth herein, Landlord and Tenant do hereby covenant and agree as follows: 1. Recitals; Defined Terms. The recitals set forth above are true, accurate and fully incorporated by reference herein. All capitalized terms used herein but not otherwise defined shall have the meaning given to such terms in the Lease. 2. Restoration. Section 4.04 of the Lease is hereby deleted in its entirety and replaced with the following: 4.04 Restoration. (a) _If the Improvements shall be damaged or destroyed in whole or in part, Tenant shall give prompt notice thereof to Landlord. The net amount of all insurance proceeds received by Tenant with respect to such damage or destruction, after deduction of the reasonable costs and expenses incurred by Landlord in collecting the same (the "Net Proceeds"), shall, subject to the terms of any Permitted Leasehold Mortgage, be disbursed by Landlord in accordance with the terms and conditions set forth herein to pay for the costs and expenses of the Restoration (defined below), provided that (i) no Event of Default (defined below) has occurred and remains uncured under this Ground Lease, (ii) except as otherwise agreed to by Landlord and subject to the terms of any Permitted Leasehold Mortgage, Tenant proceeds promptly after the insurance claims are settled with the restoration, replacement, rebuilding or repair of the Improvements as nearly as possible to the condition the Improvements were in immediately prior thereto (the "Restoration"), (iii) the Restoration shall be done in compliance with all Applicable Laws, (iv) all costs and expenses incurred by Landlord in connection with making the Net Proceeds available for the Restoration, including, without limitation, reasonable counsel fees and inspecting engineer fees incurred by Landlord, shall be paid out of the Net Proceeds, (v) Landlord, in its reasonable discretion and subject to the terms of the loan documents of the Senior Leasehold Mortgagee (as defined below), shall have determined that the Restoration is in its best interest, provided that Landlord hereby acknowledges and agrees that Restoration of the Project is in Landlord's best interest from the date hereof through the end of the initial fifteen (15) years of the tax credit compliance period pursuant to Section 42 of the Code, and (vi) Tenant deposits sufficient additional funds which, when added to the Net Proceeds, will pay for the costs and expenses of the Restoration. Notwithstanding anything in the foregoing to the contrary, the Landlord and the Tenant acknowledge and agree that. said Restoration obligations hereunder shall be limited to the availability of insurance proceeds and all proceeds of any fire, hazard or other casualty insurance shall be paid to the Permitted Leasehold Mortgagee holding the most senior Permitted Leasehold Mortgage, or an independent trustee acceptable to such senior Permitted Leasehold Mortgagee (the "Senior Leasehold Mortgagee"), and shall, subject to the Senior Leasehold Mortgagee loan documents, be applied to rebuild, repair, or reconstruct the Improvements in accordance with the provisions of this Lease. If the insurance proceeds received are insufficient to complete the Restoration, Tenant shall nonetheless use reasonable best efforts to complete the Restoration, at Tenant's sole cost and expense, to the same condition as existed prior to the casualty. In the event that it is not lawful or feasible to restore the Improvements to substantially the same condition in which they existed prior to the occurrence of such casualty, and provided that all Permitted Leasehold Mortgages are repaid in full and all Permitted Leasehold Mortgagees consent in writing to the termination of this Lease, then Tenant may terminate this Lease (as to the entire Premises and the Improvements or only to the portion of the Premises and the Improvements affected by such casualty) by notice to Landlord, such termination to be effective as of a date that is not less than thirty (30) calendar days after the date of such notice to Landlord. In addition, Tenant and Landlord hereby agree that: (i) all Permitted Leasehold Mortgagees shall be allowed to participate in the insurer's adjustment of losses and resolution of any insurance claims, (ii) Landlord will receive no insurance proceeds until the Improvements are restored and all Permitted Leasehold Mortgagees have been repaid in full, and (c) all insurance proceeds remaining after Restoration is completed shall be applied in accordance with the Senior Leasehold Mortgagee loan documents. (b) Net Proceeds Held in Trust. Subject to the terms of any Permitted Leasehold Mortgagee loan documents as to the holding and disbursement of the Net Proceeds, the Net Proceeds shall be held in trust by Landlord and shall be paid by Landlord to, or as directed by, Tenant from time to time during the course of the Restoration upon the written request of Tenant if the work for which payment is requested has been done in a good and workmanlike manner and substantially in accordance with the , plans and specifications thereof, if any, and (i) either no mechanics' or other liens or encumbrances on the Premises arising out of the Restoration exist or any such liens or encumbrances have been stayed, discharged or bonded, and (ii) the balance of the Net Proceeds plus the balance of any deficiency deposits given by Tenant to Landlord pursuant to the provisions of this paragraph hereinafter set forth shall be sufficient to pay in full the balance of the cost of the Restoration. Notwithstanding anything contained in the foregoing, or otherwise in this Lease to the contrary, as long as the Tenant's leasehold interest is encumbered by any Permitted Leasehold Mortgage, all insurance proceeds from casualty insurance as provided herein shall be paid to and held by the Senior Leasehold Mortgagee, or an insurance trustee selected by the Senior Leasehold Mortgagee pursuant to the terms of the Senior Leasehold 2 Mortgagee loan documents. The Permitted Leasehold Mortgagees shall have the right to participate in adjustment of losses as to casualty insurance proceeds and any settlement discussion relating to casualty or condemnation, and to approve any such final adjustment or settlement. (c) Disbursement of Net Proceeds. Subject to the terms of any Permitted Leasehold Mortgage, notwithstanding anything to the contrary contained herein, if the Net Proceeds shall be less than $500,000.00, the Net Proceeds shall be disbursed directly to Tenant for payment of costs of Restoration, and the Landlord shall not be entitled to hold or disburse such Net Proceeds. Notwithstanding anything contained herein to the contrary, all insurance proceeds received with respect to any casualty shall be held by the Senior Leasehold Mortgagee and distributed in accordance with the Senior Leasehold Mortgagee loan documents (so long as any Senior Leasehold Mortgage is encumbering the Premises) or this Lease, as applicable. (d) Discretion of Landlord. Landlord shall not be entitled to share in the proceeds of any insurance policy except as specifically set forth herein and Landlord further acknowledges that any and all excess insurance proceeds after all disbursements for the Restoration have been completed shall belong to Tenant. 3. Permitted Leasehold Mortgages. Section 6.09 of the Lease is hereby deleted in its entirety and replaced with the following: 6.09 Permitted Leasehold Mortgages. Neither Tenant nor any permitted successor in interest to the Premises or any part thereof shall, without the prior written consent of Landlord in each instance, engage in any financing or any other transaction creating any mortgage or other encumbrance or lien upon the Premises, whether by express agreement or operation of law, or suffer any encumbrance or lien to be made on or attach to the Premises, except for the permitted encumbrances and leasehold mortgages securing construction, interim or permanent financing of Tenant's leasehold interest in the Premises (the "Permitted Leasehold Mortgages"). With respect to the Peiinitted Leasehold Mortgages, the following provisions shall apply: (a) When giving notice to Tenant with respect to any default (a "Default Notice"), the Landlord will also send a copy of such notice to (i) RJ MT 5215 Hagler Street Apartments L.L.C., a Florida limited liability company, and its respective successors and/or assigns (the "Investor ") at: c/o Raymond James Affordable Housing Investments, Inc., 880 Carillon Parkway, St. Petersburg, Florida 33716, Attention: Steven J. Kropf, President, provided that each such Investor or Permitted Leasehold Mortgagee shall have delivered to Landlord in writing a notice naming itself as an Investor or the holder of a Permitted Leasehold Mortgage and registering the name and post office address to which all notices and other communications to it may be addressed. Any Default Notice given hereunder shall specify the defaults which are the subject of the Default Notice. A Permitted Leasehold Mortgage shall include a leasehold mortgage that is assignedby a Permitted Leasehold Mortgagee to a lender (or to a trustee or fiscal agent for the benefit of such lender) as contemplated in the loan documents, as collateral to secure one or more 3 loans made by the lender to the assignor Permitted Leasehold Mortgagee, the proceeds of which were used by the assignor Permitted Leasehold Mortgagee to provide Project financing to Tenant (a "Collateralized Leasehold Mortgage"). The holder of a Collateralized Leasehold Mortgage shall be deemed a Permitted Leasehold Mortgagee and shall have all of the same rights conferred upon a Permitted Leasehold Mortgagee under this Lease. - (b) Each Permitted Leasehold Mortgagee and the Investor shall be permitted, but not obligated, to cure any default under this Ground Lease within the same period of time specified for Tenant to cure such default, or such longer time as is permitted in Section 6.09(d), below. No Default Notice or other written notice by Landlord to Tenant under this Ground Lease shall be effective unless Landlord has delivered a copy of the notice to each Investor and each Permitted Leasehold Mortgagee whose notice information has been provided to Landlord. Tenant authorizes the Investor and each Permitted Leasehold Mortgagee to take any such action at such party's option and does hereby authorize entry upon the Premises for such purpose. Additionally, Tenant may delegate irrevocably to any Permitted Leasehold Mortgagee the authority to exercise any or all of Tenant's rights hereunder, including, but not limited to the right of Permitted Leasehold Mortgagee to participate (in conjunction with or to the exclusion of Tenant) in any proceeding, arbitration or settlement involving a Casualty, condemnation or eminent domain affecting Tenant's leasehold interest in the Premises, but no such delegation shall be binding upon Landlord unless and until either Tenant or the Permitted Leasehold Mortgagee in question shall give to Landlord a true copy of a written instrument effecting such delegation. Any provision of this Ground Lease that gives a Permitted Leasehold Mortgagee the privilege of exercising a particular right of Tenant hereunder on condition that Tenant shall have failed to exercise such right shall not be deemed to diminish any privilege that Permitted Leasehold Mortgagee may have, by virtue of a delegation of authority from Tenant, to exercise such right without regard to whether or not Tenant shall have failed to exercise such right. (c) Landlord agrees to accept payment or performance by any Permitted Leasehold Mortgagee or the Investor as though the same had been done by Tenant. (d) In the case of a default other than in the payment of money, and provided that a Permitted Leasehold Mortgagee has commenced to cure the default and is proceeding with due diligence to cure the default, Landlord will refrain from terminating this Ground Lease for a reasonable period of time (not to exceed one hundred twenty (120) calendar days from the date of the notice of default) within which time the Permitted Leasehold Mortgagee may either (i) obtain possession of the Premises (including possession by receiver); (ii) institute foreclosure proceedings and complete such foreclosure; or (iii) otherwise acquire Tenant's interest under this Ground Lease. The Permitted Leasehold Mortgagee shall not be required to continue such possession or continue such foreclosure proceedings if the default which was the subject of the notice shall have been cured. In the case of a default by the Tenant of any monetary obligation, and provided that a Permitted Leasehold Mortgagee has commenced to cure the default and is proceeding with due 4 diligence to cure the default, the Landlord will refrain from terminating this Lease for a period of at least five (5) days from the end of any grace period applicable to Tenant. (e) Any Permitted Leasehold Mortgagee or other acquirer of Tenant's leasehold estate and interest in this Ground Lease pursuant to foreclosure, an assignment in lieu of foreclosure or other proceedings, any of which are permitted without Landlord's consent, may, upon acquiring Tenant's leasehold estate and interest in this Ground Lease, without further consent of Landlord, sell and assign the leasehold estate and interest in this Ground Lease on such terms and to such persons and organizations as are acceptable to such Permitted Leasehold Mortgagee or acquirer and thereafter be relieved of all obligations under this Ground Lease, provided such assignee has delivered to Landlord its written agreement to be bound by all of the provisions of this Ground Lease. (f) In the event of a termination of this Ground Lease prior to its stated expiration date, Landlord will enter into a new lease for the Premises with the Permitted Leasehold Mortgagee (or its nominee) ("Replacement Tenant"), for the remainder of the Lease Term, effective as of the date of such termination (the "New Lease"), at the same Base Rent and Additional Rent and subject to the same covenants and agreements, terms, provisions, and limitations herein contained, provided that: (i) Landlord receives the Permitted Leasehold Mortgagee's written request for such New Lease within thirty (30) calendar days from the date of such termination and notice thereof by Landlord to the Permitted Leasehold Mortgagee (including an itemization of amounts then due and owing to Landlord under this Ground Lease) (a "Termination Notice"), and such written request is accompanied by payment to Landlord of all itemized amounts then due and owing to Landlord under this Ground Lease described in the Termination Notice and, within ten (10) calendar days after the delivery of an accounting therefor by Landlord, pays any and all costs and expenses, including reasonable counsel fees, court costs, and disbursements made by Landlord in connection with any such default and termination as well as in connection with the execution and delivery of the New Lease, less the net income collected by Landlord from the Premises subsequent to the date of termination of this Ground Lease and prior to the execution arid delivery of the New Lease, any excess of such net income over the aforesaid sums and expenses to be applied in payment of the Base Rent and Additional Rent thereafter becoming due under the New Lease; (ii) Upon the execution and delivery of the New Lease at the time payment is made in (i) above, all subleases which thereafter may have been assigned and transferred to Landlord shall thereupon be assigned and transferred without recourse by Landlord to Replacement Tenant. (iii) If a Permitted Leasehold Mortgagee acquires the leasehold estate created hereunder or otherwise acquires possession of the Premises pursuant to available legal remedies, Landlord will look to such acquirer to perform the obligations of Tenant hereunder. Permitted Leasehold Mortgagee's liability shall be limited to the value of such 5 Permitted Leasehold Mortgagee's interest in this Lease and in the leasehold estate created hereby. (iv) Notwithstanding the foregoing, the New Lease shall be subject to the liens of the Permitted Leasehold Mortgages which existed immediately prior to the termination of this Ground Lease (other than that of Replacement Tenant) and, further, shall not impact the rights, priorities and interests of the Permitted Leasehold Mortgagees set forth therein. If at the time of termination of this Ground Lease prior to its stated expiration date there exists more than one Permitted Leasehold Mortgagee, then references to the "Permitted Leasehold Mortgagee" in this subsection (f) shall apply to the Senior Leasehold Mortgagee. (g) At no time shall Landlord's fee title in the Premises, or Landlord's interest in the Ground Lease be subordinated in any manner to the interests of any Permitted Mortgagee or any person claiming by or through Tenant. Landlord shall reasonably consider such amendments to this.Lease as may be reasonably requested by any Permitted Leasehold Mortgagee, provided that such amendments do not increase, or in the sole opinion of the Landlord, unreasonably alter the obligations of Landlord under this Lease. 4. Condemnation. Section 10.02 of the Lease is hereby deleted in its entirety and replaced with the following: 10.02 Condemnation. (a) Taking. If, by exercise of the right of eminent domain or by conveyance made in response to the threat of the exercise of such right (in either case a "Taking"), all of the Premises are taken, or if so much of the Premises are taken that Tenant believes the Premises cannot be used by Tenant for the purposes for which they were used immediately before the Taking, then this Ground Lease shall terminate on the earlier of the vesting of title to the Premises in the condemning authority, or the taking of possession of the Premises by the condemning authority. (b) Condemnation Award. Subject to the terms of the Senior Leasehold Mortgagee loan documents, Landlord and Tenant agree that, in the event of a Taking that does not result in the termination of this Ground Lease pursuant to subsection (a) above, this Ground Lease shall continue in effect as to the remainder of the Premises, and the net amounts owed or paid to Landlord or pursuant to any agreement with any condemning authority which has been made in settlement of any proceeding relating to a Taking, less any costs and expenses incurred by Landlord in collecting such award or payment (the "Award") will be disbursed in accordance with subsection (d) below to Landlord and/or Tenant. Tenant and, to the extent permitted by law, any Permitted Leasehold Mortgagee, shall have the right to participate in settlement negotiations with a condemning authority. Permitted Leasehold Mortgagees shall receive notice of any Taking (as defined herein), and, in order of their respective priority, shall at all times have the right to participate in the adjustment and resolution of any Taking claim. In the event of any Taking, the Senior Leasehold Mortgagee or an independent trustee acceptable to such senior. Permitted 6 Leasehold Mortgagee shall initially receive all condemnation proceeds respecting such Taking, shall hold and distribute the same in accordance with this Lease and the relevant Permitted Leasehold Mortgage and all Permitted Leasehold Mortgagees shall be allowed to participate in the Taking proceedings. (c) Total Taking. In the event of a permanent Taking of the fee simple interest or title of the Premises, or control of the entire leasehold estate hereunder (a "Total Taking"), this Lease shall thereupon terminate as of the effective date of such Total Taking, without liability or further recourse to the parties, provided that each party shall remain liable for any obligations required to be performed prior to the effective date of such termination and for any other obligations under this Lease which are expressly intended to survive termination. Notwithstanding any provision of this Lease or by operation of law that leasehold improvements may be or shall become the property of Landlord at the termination of this Lease, the loss of the building and other improvements paid for by Tenant, the loss of Tenant's leasehold estate and such additional relief as may be provided by law shall be the basis of Tenant's damages against the condemning authority if a separate claim therefore is allowable under applicable law, or the basis of Tenant's damages to a portion of the total award if only one award is made. (d) Partial Taking. In the event of a permanent Taking of less than all of the Premises (a "Partial Taking"), if Tenant reasonably determines that the continued development, use or occupancy of the remainder of the Premises by Tenant cannot reasonably be made to be economically viable, structurally sound, then Tenant may terminate this Lease, and the Tenant's portion of the Award shall be paid to Tenant, provided that any and all obligations of Tenant have been fully and completely complied with by Tenant as of the date of said Partial Taking. If Tenant shall not elect to terminate this Lease, Tenant shall be entitled to a reduction of rent of such amount as shall be just and equitable. Subject to the terms of the Permitted Leasehold Mortgages, if there is a Partial Taking and the Tenant does not terminate this Lease, the Tenant shall be entitled to receive and retain an equitable portion of the Award andshall apply such portion of the Award necessary to repair or restore the Premises or the Improvements as nearly as possible to the condition the Premises or the Improvements were in immediately prior to such Partial Taking. Subject to the terms of the Permitted Leasehold Mortgages, if there is a Partial Taking which affects the use of the Premises after the term hereof, the Award shall be apportioned between the Tenant and the Landlord based on the ratio of the remaining term hereof and the remaining expected useful life of the Premises following the term hereof. Subject to the terms of the Permitted Leasehold Mortgages, notwithstanding any provision herein to the contrary, the Landlord shall be entitled to receive and retain any portion of the Award` apportioned to the land upon which the Improvements are located. Should such award be insufficient to accomplish the restoration, such additional costs shall be paid by Tenant. Notwithstanding any provision of this Lease or by operation of law that leasehold improvements may be or shall become the property of Landlord at the termination of this Lease, the loss of the building and other improvements paid for by Tenant and such additional relief as may be provided by law shall be the basis of Tenant's damages against the condemning authority if a separate claim therefore is allowable under 7 applicable law, or the basis of Tenant's damages to a portion of the total award if only one award is made. (e) Resolution of Disagreements. Should Landlord and Tenant be unable to agree as to the division of any singular award or the amount of any reduction of rents and other. charges payable by Tenant under this Lease, such dispute shall be submitted for resolution to the court exercising jurisdiction of the condemnation proceedings, each party bearing its respective costs for such determination. Landlord shall not agree to any settlement in lieu of condemnation with the condemning authority without Tenant's consent. Notwithstanding the forgoing, so long as any Permitted Leasehold Mortgage is outstanding, any Award payable to the Tenant shall be paid to the Senior Leasehold Mortgagee, which Award must be at least the value of the total Award, minus the value of the land taken (considered as unimproved, but encumbered by this Lease). (f) No Existing Condemnation. Landlord represents and warrants that as of the Effective Date it has no actual or constructive knowledge of any proposed condemnation of any part of the Premises. In the event that subsequent to the Lease Date, but prior to the Commencement Date, a total or partial condemnation either permanent or temporary, is initiated by any competent authority, Tenant shall be under no obligation to commence or continue construction of the building and other improvements and rent and other charges, if any, payable by Tenant under this Lease shall abate until such time as it can be reasonably ascertained that the Premises shall not be so affected. In the event the Premises is so affected, Tenant shall be entitled to all rights, damages and awards pursuant to the appropriate provisions of this Lease. (g) Termination upon Non -Restoration. Following a Partial Taking, if a decision is made pursuant to this Section 10.02 that the remaining portion of the Premises is not to be restored, and Tenant shall have reasonably determined that the continued development, use or occupancy of the remainder of the Premises by Tenant cannot be made economically viable or structurally sound, Tenant shall surrender the entire remaining portion of the Premises to Landlord and this Lease shall thereupon be terminated without liability or further recourse to the parties hereto, provided that any Rent, impositions and other amounts payable or obligations hereunder owed by Tenant to Landlord as of the date of the Partial Taking shall be paid in full. 5. Amendment. Section 15.09 of the Lease is hereby deleted in its entirety and replaced with the following: 15.09 Amendment. This Ground Lease may be amended by mutual agreement of Landlord and Tenant, provided that all amendments must be in writing and signed by both parties and that no amendment shall impair the obligations of Tenant to develop and operate the Premises. Tenant and Landlord hereby expressly stipulate and agree that, they will not materially modify this Lease in any way nor cancel or terminate this Lease by mutual agreement nor will Tenant surrender its interest in this Ground Lease, including but not limited to pursuant to the provisions of Section 10.02, without the prior written consent of all Permitted Leasehold Mortgagees and, following the admission of the Investor, the 8 Tenant's Investor. No amendment to or termination of this Ground Lease shall become effective without all such required consents. "Tenant and Landlord further agree that they will not, respectively, take advantage of any provisions of the United States Bankruptcy Code that would result in a termination of this Lease or make it unenforceable. 6. Landlord Encumbrances. The Landlord hereby agrees that it shall not enter into any mortgage encumbering the fee estate in the Premises, during the Term of this Lease, unless the beneficiary of such mortgage grants and provides written subordination of the fee mortgage to the Permitted Leasehold Mortgagees. 7. HUD Rider. The HUD Rider attached hereto as Exhibit "A" is hereby incorporated into this Lease by this reference as if it were fully set forth herein. 8. Ratification; No Further Amendments. Except as provided herein, the Lease has not been and is not amended or modified in any way, is in full force and effect and is ratified by Landlord and Tenant. In the event of any conflict between the terms of the Lease and the terms of this Amendment, the terms of this Amendment shall control. 9. Counterparts. This Amendment may be executed in one or more counterparts, which, taken together, shall constitute a single document. [INTENTIONALLY LEFT BLANK] 9 [LANDLORD SIGNATURE PAGE TO FIRST AMENDMENT TO GROUND LEASE] IN WITNESS WHEREOF, the Parties hereto have made and executed this Amendment as of the date first above written. ATTEST: Todd B. Ikon, City Clerk Date: L O iaba.5 LANDLORD: CITY OF MIAMI, a . ' ida municipal corporation By: Arthur Noriega, City Manager APPROVED AS TO INSURANCE AND APPROVED AS TO FORM CORRECTNESS: REQUIREMENTS: By: David Ruiz Interim Director of isk Management APPROVED TO DEPARTMENTAL REQUIREMEN Victor er Director of the P epart ent of Housing and Communi Development By 10 Geor:'e K. Wys6ng.YII City Attorney [TENANT SIGNATURE PAGE TO FIRST AMENDMENT TO GROUND LEASE] TENANT: 5215 FLAGLER STREET, LLC, a Florida limited liability company By: 5215 Flagler Street Manager, LLC, a Florida limited liability, its mana r By: 11 AJkferto Milo, Jr., V. resident EXHIBIT "A" HUD RIDER Public Housing/RAD Provisions Rider The following modifications are made to the Ground Lease (the "Lease") that precedes this Public Housing/RAD Provisions Rider (this "Rider") Public Housing Required Provisions Definitions. The following terms shall have the following definitions in this Rider: (a) ACC shall mean the Consolidated Annual Contributions Contract between HUD and the Authority as amended by the Mixed Finance ACC Amendment, as the same may be further amended from time to time. (b) Act shall mean the United States Housing Act of 1937 (42 U.S.C. § 1437, et seq.), as amended from time to time, any successor legislation, and all implementing regulations issued thereunder or in furtherance thereof. (c) Applicable Public Housing Requirements shall mean all requirements applicable to public housing, including, but not limited to, the Act, HUD regulations thereunder (and, to the extent applicable, any HUD -approved waivers of regulatory requirements), the ACC, the Mixed Finance ACC Amendment, HUD notices, the HUD -approved Declaration of Restrictive Covenants in favor of HUD, the Authority's admissions and occupancy policies applicable to the Development, as set forth in the Authority's approved PHA Plan under 24 CFR part 903, and all applicable Federal statutory, regulatory and executive order requirements, as those requirements may be amended from time to time. (d) Housing Authority shall mean Miami Dade County . (e) Mixed Finance ACC Amendment shall mean the Mixed Finance Amendment to the ACC dated of approximately even date herewith. (f) Operating Fund(s) shall mean assistance provided under Section 9(e) of the Act for the operation of public housing. By the execution of this Rider, the undersigned Landlord acknowledges that sixty (60) of the dwelling units to be developed on the Premises (such units, the "Public Housing Units") will be assisted by funding provided through the Housing Authority and constitute a public housing project as defined in the Act. As such, the Public Housing Units are subject to (a) the Act, (b) the ACC, (c) the Mixed Finance ACC Amendment, (d) the Declaration of Trust/Restrictive Covenants, dated of substantially even date herewith between the Housing Authority and Tenant for the benefit of HUD (the "DORC'), (e) all Applicable Public Housing Requirements, and (f) a Regulatory and Operating Agreement ("R&O Agreement") between the Housing Authority and Tenant. If there is a conflict between a provision of this Ground Lease that affects the Public Housing Units and any Applicable Public Housing Requirement or the R&O Agreement, then the Applicable Public Housing Requirement and the R&O Agreement shall govern, except as such Applicable Public Housing Requirements or R&O Agreement provision may have been expressly waived in writing by HUD or the Housing Authority. The provisions of this Rider are intended to implement this paragraph without limitation of its general effect. Covenants Applicable to Public Housing Units. The Public Housing Units are subjected to, and benefitted by, the terms and conditions of the Applicable Public Housing Requirements. The provisions of the Applicable Public Housing Requirements and this Section are intended to create a covenant running with the land and, subject to the terms and benefits of the Applicable Public Housing Requirements, to encumber and benefit the Premises for the entire Term of this Lease. The Applicable Public Housing Requirements and this Section shall be binding upon Landlord and Tenant and each of their respective successors and assigns, including, without limitation, any entity which succeeds to Tenant's interest in the Premises by foreclosure or an instrument in lieu of foreclosure, and expressly include, but are not limited to, the following obligations: (a) Except as otherwise provided in the Act, the Public Housing Units shall be operated under the terms and conditions applicable to public housing, as set forth in the Applicable Public Housing Requirements, during the 40-year period that begins on the date on which the Development becomes available for occupancy, as required by section 9(d)(3)(A) of the Act (or any successor provision). (b) Except as otherwise provided in the Act, the Development shall be maintained and operated under the terms and conditions applicable to public housing, as set forth in the Applicable Public Housing Requirements, during the 20-year period that begins on the latest date on which modernization with public housing capital funds is completed, as required by section 9(d)(3)(B) of the Act (or any successor provision). (c) Except as otherwise provided in the Act, no portion of the Development may be disposed of before the expiration of the 10-year period beginning upon the conclusion of the fiscal year for which such amounts were provided, as required by section 9(e)(3) of the Act (or any successor provision). (d) Neither the Public Housing Units, nor any part thereof, may be demolished other than in accordance with the Applicable Public Housing Requirements. (e) Tenant agrees that, with the exception of: (A) the senior Permitted Leasehold Mortgage and any mortgage(s) that have been approved by HUD, or any other Permitted Encumbrances listed in Exhibit B; (B) dwelling leases with eligible families for the Public Housing Units; (C) normal uses associated with the operation of the Development, or (D) other transfers and encumbrances permitted under the DORC, neither the Development nor any portion thereof shall be encumbered in any way, nor the assets of the Development pledged as collateral for a loan, without the prior written approval of HUD. Amendments to Plans and Specifications. 2 Tenant shall take no action to effectuate any material amendments, modifications or any other alterations to the plans and specifications for the Project unless Landlord has approved such, in writing and in advance. Landlord's execution of this Lease also constitutes a certification to HUD under 24 CFR part 905 that prior to making any such amendments, modifications or alterations to the plans and specifications that such amendments, modifications or alterations are in accordance with its design and construction standards under the Applicable- Public Housing Requirements. Alterations. Tenant shall not make any alteration, improvement or addition to the Premises having a cost greater than two hundred fifty thousand dollars ($250,000), or demolish any portion thereof, without first presenting to Landlord complete plans and specifications therefor and obtaining Landlord's and HUD's written consent thereto (which consent shall not unreasonably be withheld so long as, in Landlord's and HUD's judgment such alteration, improvement, addition or demolition will not violate the Applicable Public Housing Requirements or this Lease, or impair the value of the Property). HUD's right under the preceding sentence shall be extinguished upon the release of the Declaration of Restrictive Covenants in favor of HUD encumbering the Leased Premises. Any improvements made to the Leased Premises by either party hereto shall be made only in good and workmanlike manner using new, materials of the same quality as the original improvements, and in accordance with all applicable building codes and the Applicable Public Housing Requirements. HUD's Rights on Event of Default. Upon the occurrence of an Event of Default that also constitutes a substantial default under the ACC, HUD may: (1) In the case of substantial default by the Housing Authority during the term of the R&O Agreement, and so long as the Tenant shall not be in default of its obligations thereunder, HUD may exercise any remedies or sanctions authorized under the ACC, including (a) taking possession of the Housing Authority's interest in the Project, if any, in such a manner as not to disturb the R&O Agreement or (b) requiring the Housing Authority to terminate the provision of future Operating Fund assistance on behalf of the Public Housing Units and requiring the Public Housing Units to be removed from the ACC. (2) In the case of a substantial default by the Tenant during the term of the R&O Agreement, HUD may take such actions, and pursue such remedies, against the Tenant as it deems necessary, including (but not limited to) requiring the Housing Authority to terminate the provision of future Operating Fund assistance on behalf of the Public Housing Units and requiring the Public Housing Unit to be removed from the ACC. (3) exercise any other right or remedy existing under applicable law, or available at equity. HUD's exercise or non -exercise of any right or remedy under the ACC shall not be construed as a waiver of HUD's right to exercise that or any other right or remedy at any time. (4) If HUD acquires title to, or possession of, the Project, HUD shall reconvey, or redeliver possession of, the Project to the Landlord and Tenant in accordance with their respective interests 3 in the Project: (i) upon a determination by HUD that the substantial default under the ACC has been cured and that the Project will thereafter be operated in accordance with the terms of the ACC; or (ii) after the termination of HUD's obligation to make annual contributions available, unless there are any obligations or covenants of the Landlord to HUD that are then in default. Transfers. Tenant shall not transfer or encumber the Premises or any interest therein except as permitted under the DORC. Restoration. In the event of any conflict between the terms of this Lease and the provisions of Section 11 of the ACC, the provisions of Section 11 of the ACC shall control. Notice. If Landlord gives notice of default to Tenant under the Lease, Landlord shall give a copy of such notice to the Housing Authority and to HUD in the same manner of notice as is provided for in the Lease; provided, however, that the failure of any such party to receive any such notice shall not be a defense against any action taken or to be taken by Landlord against Tenant under the Lease. Such notice shall be given at the addresses set forth below: If to Housing Authority: and a copy to: and a copy to: With a copy to: Miami -Dade County c/o Miami -Dade Public Housing and Community Development 701 N.W. 151 Court, 16th Floor Miami, Florida 33136 Attn: Director Miami -Dade County Attorney's Office 111 N.W. 1St Street, Suite 2810 Miami, Florida 33128 Attn: Terrence A. Smith, Esq. Assistant County Attorney Miami -Dade County Internal Services Department, Strategic Procurement Division Attention: Chief Procurement Officer 111 N.W. Pt Street, Suite 1375 Miami, FL 33128-1974 Phone: (305) 375-4900 E-mail: Namita.Uppal@miamidade.gov U.S. Department of Housing and Urban Development 451 Seventh St., S.W. Washington, DC 20410 Attn: Asst. Secretary of Public and Indian Housing Amendment. This Lease may be amended by mutual agreement of the Landlord and Tenant, subject to the prior written approval of HUD, and provided that a] 1 amendments must be in writing and signed by both parties and that no amendment shall impair the obligations of the 4 Tenant to develop and operate the Development in accordance with the Applicable Public Housing Requirements. Disclaimer of Partnership Status. Tenant and Landlord acknowledge that the proposed transfer to Tenant, or to any other participating party in the Development, of public housing funds for the development and operation of the Public Housing Units covered under this Lease shall not be deemed to be an assignment of such funds. Accordingly, neither Tenant, nor any other participating party, shall succeed to any rights or benefits of the Landlord under the ACC. Tenant further agrees to include this disclaimer in each of its agreements or contracts with any partner, participating party, or any other party involving the use of public housing funds for the Development. Nothing contained in the ACC, or in any agreement between Landlord and Tenant, nor any act of HUD or Landlord, shall be deemed or construed to create any relationship of third - party beneficiary, principal and agent, limited or general partnership, or joint venture involving HUD. Access. Tenant agrees to grant a right of access to the Landlord, HUD, the Comptroller General of the United States, or any of their authorized representatives, with respect to any books, documents, papers, or other records related to this Lease in order to make audits, examinations, excerpts, and transcript. Termination of Rider upon RAD Conversion. This Development is being developed under the Faircloth to the Rental Assistance Demonstration (RAD) program, which permits public housing agencies to leverage their existing public housing Faircloth authority to create new federally assisted housing through the RAD program. Pursuant to the Faircloth to RAD program, the Development will be developed as public housing using HUD's public housing mixed -finance program with a pre -approval to convert the property to a long-term housing assistance contract following the financial closing and construction of the mixed -finance public housing units. Upon completion of construction of the units and conversion to the RAD program, as evidenced by the recording of a RAD Use Agreement against the Development, the Development shall no longer be public housing and shall no longer be subject to public housing requirements, including the Applicable Public Housing Requirements and the terms of this Public Housing Provisions Rider, which shall terminate and no longer be of any force or effect with respect to the Development. RAD Required Provisions In addition to entering into this Lease, Landlord and Tenant also contemplate the provision of rental assistance to the Development pursuant to a Housing Assistance Payment Contract ("HAP Contract") upon conversion to the Rental Assistance Demonstration ("RAD"). If a HAP Contract is entered into pursuant to RAD, the U.S. Department of Housing and Urban Development ("HUD") will require Landlord and Tenant to enter into a RAD Use Agreement ("Use Agreement") in connection with the provision of rental assistance to the Development. Notwithstanding any other clause or provision in the Lease, upon execution of the Use Agreement and for so long as the Use Agreement is ineffect, the following provisions shall apply: 5 1. This Lease shall in all respects be subordinate to the Use Agreement. Subordination continues in effect with respect to any future amendment, extension, renewal, or any other modification of the Use Agreement or the Lease. 2..If any of the provisions of this Lease conflict with the terms of the Use Agreement, the provisions of the Use Agreement shall control. 3. The provisions in this RAD Required Provisions rider are required to be inserted into this Lease by HUD and may not be amended without HUD's prior written approval. 4. Violation of the Use Agreement constitutes a default of this Lease. 5. Notwithstanding any other contract, document or other arrangement, upon termination of this Lease, title to the real property leased herein shall remain vested in Landlord and title to the buildings, fixtures, improvements, trade fixtures and equipment that belong to Tenant shall vest in Tenant. 6. Neither the Tenant nor any of its members shall have any authority to: a. Take any action in violation of the Use Agreement; or b. Fail to renew the HAP Contract upon such terms and conditions applicable at the time of renewal when offered for renewal by Housing Authority or HUD. c. Except to the extent permitted by the HAP Contract or Use Agreement and the normal operation of the Development, , neither the Tenant nor any members shall have any authority without the consent of the Housing Authority to sell, transfer, convey, assign, mortgage, pledge, sublease or otherwise dispose of, at any time, the Development or any part thereof. [Signature page follows.] 6 IN WITNESS WHEREOF, the parties hereto have executed this Public Housing/RAD Provisions Rider to Ground Lease as of the date first written above. ATTEST: Todd B. I a morf, City Clerk Date: I Jd 1 a APPROVED REQUIRE By: / i David R LANDLORD: CITY OF MIAMI, a F1oj a municipal corporation By: Arthur Noriega V, City Manager APPROVED AS TO FORM CORRECTNESS: By )4) Georg-' K. Wyson II I$terim Director of Risk Management City Attorney 7 ge#ZS-Su TENANT: 5215 FLAGLER STREET, LLC, a Florida limited liability company By: 5215 Flagler Street Manager, LLC, a Florida limited liability company, its Manager 8 By: lberto Milo, Jr., Vi President #13492540 v3