HomeMy WebLinkAbout24224AGREEMENT INFORMATION
AGREEMENT NUMBER
24224
NAME/TYPE OF AGREEMENT
GALLERY AT WEST BRICKELL, LLC
DESCRIPTION
MORTGAGE SUBORDINATION AGREEMENT/PROVIDE
FUNDS TO FINANCE PORTION OF THE COSTS OF THE
CONSTRUCTION OF 29-STORY BUILDING CONTAINING 465
RESIDENTIAL UNITS
EFFECTIVE DATE
ATTESTED BY
TODDB.HANNON
ATTESTED DATE
9/7/2022
DATE RECEIVED FROM ISSUING
DEPT.
1/9/2023
NOTE
, CITY OF MIAMI
DOCUMENT ROUTING FORM
ORIGINATING DEPARTMENT: Housing and Community Development
DEPT. CONTACT PERSON: Maria T. Ason EXT. *Cell phone305-301-5148
NAME OF OTHER CONTRACTUAL PARTY/ENTITY: Gallery at West Brickell, LLC
IS THIS AGREEMENT A RESULT OF A COMPETITIVE PROCUREMENT PROCESS? ® YES ❑ NO
TOTAL CONTRACT AMOUNT: $3,000,000 FUNDING INVOLVED? 1/ YES ❑ NO
TYPE OF AGREEMENT:
❑ MANAGEMENT AGREEMENT
❑ PROFESSIONAL SERVICES AGREEMENT
❑ GRANT AGREEMENT
❑ EXPERT CONSULTANT AGREEMENT
❑ LICENSE AGREEMENT
❑ PUBLIC WORKS AGREEMENT
❑ MAINTENANCE AGREEMENT
❑ INTER -LOCAL AGREEMENT
❑ LEASE AGREEMENT
❑ PURCHASE OR SALE AGREEMENT
OTHER: (PLEASE SPECIFY) Loan Documents
PURPOSE OF ITEM (BRIEF SUMMARY): Execution of the HOME loan documents in connection with the Gallery at
Wet Brickell project. The executed documents will be held on escrow for the financing closing in order to retain the 3m lien
position subject to approval by the Housing & Commercial Loan Committee on Sept. 28, 2022.
COMMISSION APPROVAL DATE: / /
FILE ID: N/A ENACTMENT NO.:
IF THIS DOES NOT REQUIRE COMMISSION APPROVAL, PLEASE EXPLAIN: Funds approved by the Housing &
Commercial Loan Committee. Approvals attached.
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APPROVAL BY DEPARTMENTAL DIRECTOR
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SUBMITTED TO CITY ATTORNEY
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APPROVAL BY ASSISTANT CITY MANAGER
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RECEIVED BY CITY MANAGER
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1 ONE ORIGINAL TO CITY CLERK
2) ONE COPY TO CITYATTORNEY'S OFFICE,
3) REMAINING ORIGINAL(S) TO ORIGINATING
DEPARTMENT
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PLEASE ATTACH THIS ROUTING FORM TO ALL DOCUMENTS THAT REQUIRE
EXECUTION BY THE CITY MANAGER
Prepared by and
After recording, return to:
Victoria Mendez, Esq.
City Attorney
City of Miami
444 S.W. 2nd Avenue
Miami, FL 33130-1910
Tel: (305) 416-1800
Address: 1355 NW 7 Street Miami, FL 33125
MORTGAGE SUBORDINATION AGREEMENT
MIAMI-DADE COUNTY
CITY OF MIAMI
AND
THE GALLERY AT WEST BRICKELL, LLC
Dated as of: 1, 2022
Location: The Gallery at West Brickell
City of Miami
Miami -Dade County, Florida
Mortgage Subordination Agreement (RUDG Investor)
(The Gallery at West Brickell)
MORTGAGE SUBORDINATION AGREEMENT
THIS MORTGAGE SUBORDINATION AGREEMENT (this "Agreement") is
made as of the _ day of , 2022, among MIAMI-DADE COUNTY, a political
subdivision of the State of Florida, and its successors and/or assigns (collectively, the
"Subordinate Mortgagee"), CITY OF MIAMI, Florida municipal corporation (the "Senior
Mortgagee"), and THE GALLERY AT WEST BRICKELL, LLC, a Florida limited liability
company (the "Mortgagor").
RECITALS
WHEREAS, the Senior Mortgagee has agreed to make a loan to the Mortgagor in the
principal amount of up to [Three Million Dollars ($3,000,000)] (the "Senior Debt"), the proceeds of
which shall be used to provide funds to finance a portion of the costs of the construction of a 29-story
building containing 465 residential units plus commercial space, and a separate parking garage,
together with related site improvements (the "Project"), generally known as The Gallery at West
Brickell located in the City of Miami, Miami -Dade County, Florida and more particularly described
on Schedule A attached hereto (the "Premises"); and
WHEREAS, the Senior Debt shall be evidenced by an Amended and Restated Promissory
Note dated as of the date hereof in the principal sum of [Three Million Dollars ($3,000,000)] (as
may be modified, amended or replaced from time to time, the "Senior Note"), and secured by that
certain Amended and Restated Leasehold Mortgage and Security Agreement dated as of the date
hereof (as may be modified, amended or replaced from time to time, the "Senior Mortgage"); and
WHEREAS, the County made a loan to the Mortgagor in the aggregate principal amount
of up to $2,000,000 consisting of HOME Investment Partnership funds (the "HOME Debt")
which shall be evidenced by (i) a Promissory Note dated , 2022 in the original principal
amount of $2,000,000 (the "HOME Note"), and secured by that certain Leasehold Mortgage and
Security Agreement and Assignment of Leases, Rents and Profits dated , 2022 and
recorded on , 2022 in Official Records Book , Page , of the Public Records
of Miami -Dade County, Florida (the "HOME Mortgage"); and
WHEREAS, the County made a loan to the Mortgagor in the aggregate principal amount
of up to $1,500,000 consisting of documentary stamp Surtax funds (the "Surtax Debt" and
together with the HOME Debt, collectively, the "Subordinate Debt") which is evidenced by a
Promissory Note dated , 2022 in the original principal amount of $1,500,000 (the
"Surtax Note" and together with the HOME Note, collectively, the "Subordinate Note"), and
secured by that certain Leasehold Mortgage and Security Agreement and Assignment of Leases,
Rents and Profits dated , 2022 and recorded on , 2022 in Official Records
Book , Page , of the Public Records of Miami -Dade County, Florida (the "Surtax
Mortgage" and together with the HOME Mortgage, the "Subordinate Mortgages"); and
Mortgage Subordination Agreement (RUDG Investor)
(The Gallery at West Brickell)
WHEREAS, the Subordinate Mortgagee has agreed that the Subordinate Mortgages and
Subordinate Debt are and shall be junior to the rights of the Senior Mortgagee under the Senior
Mortgage and Senior Debt.
NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and other good and
valuable consideration each to the other in -hand paid, the receipt and sufficient of which are hereby
acknowledged, the parties hereby covenant and agree that:
1. The Subordinate Mortgages and all other documents executed and/or
delivered in connection therewith and the Subordinate Debt as now or hereafter held by
Subordinate Mortgagee shall be subject and subordinate in all respects to the lien of the Senior
Mortgage and all other documents executed and/or delivered in connection therewith (including,
without limitation, (i) that certain Rent Regulatory Agreement executed by Mortgagor and Senior
Mortgagee, to be recorded in the Public Records of Miami -Dade County, Florida and (ii) that
certain Declaration of Restrictive Covenants for Gallery at West Brickell executed by Mortgagor
and Senior Mortgagee and to be recorded in the Public Records of Miami -Dade County, Florida)
and to the Senior Debt, regardless of when funds may be advanced thereunder or in relation thereto,
and to any extensions, renewals, modifications, amendments and replacements thereof.
2. The Subordinate Mortgagee will not ask, demand, sue for, take or receive
from the Mortgagor, by set-off or in any other manner, the whole or any part of any monies,
principal or interest, now or hereafter owing under the Subordinate Debt, nor any security therefor,
unless and until all Senior Debt shall have been fully paid with interest. Provided, however, unless
and until a default or event of default shall have occurred under the Senior Debt, that the
Subordinate Mortgagee may receive and the Mortgagor may pay on the stated dates of payment
thereof (but not through acceleration, demand or prepayment) the regular payments due under the
Subordinate Debt if, at the time of making such payment and immediately after giving effect
thereof, no default or event of default shall have occurred and be continuing under the terms of the
Senior Mortgage.
3. The Mortgagor covenants not to pay .to the Subordinate Mortgagee the
whole or any part of any monies, principal or interest, now or hereafter owing under the
Subordinate Debt, nor any security therefor, in contravention of the terms of this Agreement.
4. In the event of any distribution, division or application, partial or complete,
voluntary or involuntary, by operation of law or otherwise, of all or any part of the assets of the
Mortgagor or the proceeds thereof, to creditors of the Mortgagor, or upon any indebtedness of the
Mortgagor, by reason of the liquidation, dissolution or other winding up of the Mortgagor or the
Mortgagor's business, or any sale, receivership, insolvency or bankruptcy proceeding, or
assignment for the benefit of creditors, or any proceeding by or against the Mortgagor for any
relief under any bankruptcy or insolvency law or laws relating to the relief of debtors, readjustment
of indebtedness, reorganizations, compositions or extensions, then and in any such event any
payment or distribution of any kind or character, either in cash, securities or other property, which
shall be payable or deliverable upon or with respect to any or all of the Subordinate Debt shall be
paid or delivered direct to the Senior Mortgagee for application on the Senior Debt, due or not due,
of the Mortgagor to the Senior Mortgagee until such Senior Debt shall have first been fully paid
2
Mortgage Subordination Agreement (City - County)
(The Gallery at West Brickell)
and satisfied and said satisfaction shall have been acknowledged in writing by the Senior
Mortgagee, after which time any such payment or distribution shall be applied to the Subordinate
Debt.
5. Except as permitted under paragraph 2 hereof, should any payment or
distribution or security or proceeds thereof be received by the Subordinate Mortgagee upon or with
respect to any Subordinate Debt prior to the satisfaction of all of the Senior Debt, the Subordinate
Mortgagee will forthwith deliver the same to the Senior Mortgagee in precisely the form received
(except for the endorsement or assignment of the Subordinate Mortgagee where necessary), for
application on any Senior Debt, due or not due, and until so delivered, the same shall be held in
trust by the Subordinate Mortgagee as property of the Senior Mortgagee. In the event of the failure
of the Subordinate Mortgagee to make any such endorsement or assignment, the Senior Mortgagee,
or any of its officers or employees, are hereby irrevocably authorized to do so.
6. The Subordinate Mortgagee will not assign or transfer to others any claim
the Subordinate Mortgagee has or may have against the Mortgagor while any Senior Debt remains
unpaid, unless such assignment or transfer is made expressly subject to this Agreement.
7. Any notice, request or demand given or made under this Agreement shall
be in writing and shall be hand delivered or sent by Federal Express or other reputable courier
service or by postage prepaid registered or certified mail, return receipt requested and shall be
deemed to have been given or refused (as indicated on the receipt) and addressed as follows:
If to the Mortgagor:
The Gallery at West Brickell, LLC
c/o The Related Group of Florida
2850 Tigertail Avenue, Suite 800
Miami, Florida 33133
Attention: Tony Del Pozzo
with copies to:
Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A.
Museum Tower
150 W. Flagler Street, Suite 2200
Miami, FL 33130
Attention: Brian J. McDonough, Esq.
Bilzin Sumberg Baena Price & Axelrod LLP
1450 Brickell Avenue, 23rd Floor
Miami, Florida 33131
Attention: Terry Lovell, Esq.
3
Mortgage Subordination Agreement (City - County)
(The Gallery at West Brickell)
If to the Subordinate Mortgagee:
Miami -Dade County
111 N.W. First Street, 29th Floor
Miami, Florida 33128
Attention: County Mayor
with copies to:
Miami -Dade County Attorney 's Office
111 N.W. First Street, Suite 2810
Miami, Florida 33128
Attention: Terrence A. Smith, Esq.
and
Miami -Dade County
Public Housing and Community Development Department
701 NW 1st Court, 14th Floor
Miami, Florida 33136
Attention: Director
If to the Senior Mortgagee:
City of Miami
Department of Housing and Community Development
One Flagler Building
14 Northeast 1st Avenue, Second Floor
Miami, Florida 33132
Attn: George Mensah, Director
with a copy to:
Victoria Mendez
City Attorney
City of Miami
444 S.W. 2nd Avenue
Miami, FL 33130-1910
It being understood and agreed that each party will use reasonable efforts to send copies of
any notices to the addresses marked "with a copy to" hereinabove set forth, provided, however,
that failure to deliver such copy or copies shall have no consequence whatsoever as to any notice
made to any of the parties hereto. Each party to this Agreement may designate a change of address
by notice given, as herein provided, to the other parties fifteen (15) days prior to the date such
change of address shall become effective.
4
Mortgage Subordination Agreement (City - County)
(The Gallery at West Brickell)
8. All obligations and liabilities of the Mortgagor to the Senior Mortgagee
under the Senior Debt shall be deemed to have been made or incurred in reliance upon this
Agreement, and the Subordinate Mortgagee expressly waives all notice of the acceptance by the
Senior Mortgagee of the subordination provisions of this Agreement, and the Subordinate
Mortgagee expressly waives reliance by the Senior Mortgagee upon the subordination herein
provided for.
9. No waiver shall be deemed to be made by the Senior Mortgagee of any of
its rights hereunder unless the same shall be in writing signed on behalf of the Senior Mortgagee,
and each waiver, if any, shall be a waiver only with respect to the specific instance involved and
shall not impair the rights of the Senior Mortgagee or the obligations of the Subordinate Mortgagee
to the Senior Mortgagee in any other respect at any other time.
10. This Agreement shall be immediately binding upon the parties hereto and
their respective heirs, personal representatives, executors, administrators, successors and assigns.
11. This Agreement may only be modified, amended or changed by an
agreement in writing signed by the parties hereto, and may only be released, discharged or satisfied
of record by an agreement signed by the Senior Mortgagee.
12. The Subordinate Mortgagee covenants and agrees that until such time as the
Senior Debt has been fully paid and satisfied, it will not materially modify or amend the
Subordinate Mortgage or Subordinate Debt without the prior written consent of the Senior
Mortgagee, nor commence any action or proceeding for the enforcement of the collection of the
Subordinate Debt or the foreclosure of the Subordinate Mortgages without providing at least sixty
(60) days prior written notice to Senior Mortgagee.
13. Nothing contained in this Agreement is intended, nor will it be construed,
to in any way restrict, limit or govern the rights of Subordinate Mortgagee under circumstances,
including but not limited to (i) when acting in its capacity as a sovereign, (ii) when exercising its
governmental powers (including police, regulatory and taxing powers), (iii) when exercising its
powers to take by eminent domain, or (iv) when acting in its capacity as an enforcement authority
with respect to Mortgagor or the Property to the same extent as if it were not a party to this
Agreement. Therefore, nothing contained herein shall affect Subordinate Mortgagee's ability to
lawfully (i) enforce any ordinances in the City of Miami, Florida, (ii) take property and give just
compensation for said taking, (iii) to be compensated if the Property is taken by a sovereign other
than the City of Miami, Florida or (iv) exercise any other rights and powers outside its role of
Subordinate Mortgagee.
14. This Agreement may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, and such counterparts shall together constitute
but one and the same Agreement. The parties shall be entitled to sign and transmit an electronic
signature of this Agreement (whether by facsimile, PDF or other email transmission), which
signature shall be binding on the party whose name is contained therein. Any party providing an
5
Mortgage Subordination Agreement (City - County)
(The Gallery at West Brickell)
electronic signature agrees to promptly execute and deliver to the other parties an original signed
Agreement upon request.
15. The undersigned hereby irrevocably and unconditionally waive any
and all right to trial by jury in any action, suit or counterclaim arising in connection with,
out of or otherwise relating to this Agreement.
16. This Agreement shall be construed, interpreted, enforced and governed by
and in accordance with the laws of the State of Florida. If any provision shall be held prohibited
or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition
or invalidity without invalidating any other provision of this Agreement. Any dispute arising under
or in connection with the Agreement or related to any matter which is the subject of the Agreement
shall be subject to the exclusive jurisdiction of the state and/or federal courts located in Miami -
Dade County, Florida.
[Signature Pages Follow]
6
Mortgage Subordination Agreement (City - County)
(The Gallery at West Brickell)
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
ATTESTED:
odd B. Hann
City Clerk
STATE OF FLORIDA
)SS:
COUNTY OF MIAMI-DADE
SENIOR MORTGAGEE:
CITY OF MIAMI, a Flo ' +
ARTHUR NORIE' A
By:
City Manager
a municipal corporation
Sworn to and subscribed before me by [check one] () means of physical presence or ( ) remote
audio-visual means, this 1 day of ,ll,►irCw14/ , 2022, by A R EGA V,
as City manager of City of Miami, a Florida municipal corporation. l s personally kno o me
or has produced as identification.
, •
Notary/ blic, State of Florida
Print s Stamp Name
Commission No.:
My Commission Expires:
ti*;gip OFELIA E. PEREZ
MY COMMISSION # GG 360880
• EXPIRES: August 2,2023
'°�' Bonded 7hru Notary Pudic Underwriters
APPROVED AS TO LEGAL FORM
AND CORRECTNESS:
Victol`ia Mendez, Esq.
City Attorney
Mortgage Subordination Agreement (City - County)
(The Gallery at West Brickell)
[Signature Page to Mortgage Subordination Agreement]
SUBORDINATE MORTGAGEE:
MIAMI-DADE COUNTY, a political subdivision
of the State of Florida
By:
Name: Morris Copeland
Title: Chief Community Services Officer
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
The foregoing instrument was acknowledged before me by means of ❑ physical presence or ❑
online notarization, this day of , 2022, by Morris Copeland, Chief
Community Services Officer, for Miami -Dade County, a political subdivision of the State of
Florida.
Signature
Printed Name
Notary Public, State of Florida
❑ Personally Known or ❑ Produced Identification
Type of Identification Produced
Approved for form and legal sufficiency
By:
Terrence A. Smith
Assistant County Attorney
Mortgage Subordination Agreement (City - County)
(The Gallery at West Brickell)
[Signature Page to Mortgage Subordination Agreement]
WITNESSES:
Print: 4k((;yrY\ 1ei3lci.,:t
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
MORTGAGOR:
THE GALLERY AT WEST BRICKELL, LLC
a Florida limited liability company
By: The Gallery at West Brickell Manager, LLC
a Florida limited liability company
its manager
By:
19uU1/
Tony Del Pozzo, Vice President
Address: 2850 Tigertail Avenue, Suite 800
Miami, Florida 33133
Attention: Tony Del Pozzo
ss.:
[SEAL]
The foregoing instrument was ac wled ed be ore me b means of f� physical
g g g
presence or ❑ online notarization, this 7)6 ay of , 2022 by Tony Del
Pozzo, as Vice President of The Gallery at West Brickell M nager, LLC, a Florida limited
liability company, the manager of The Gallery at West Brickell, LLC on behalf of the limited
liability company, who is personally known to me or has produced a valid driver's license as
identification.
[Notary Seal]
rftf
(Name typed, printed or stamped)
itle or rank)
erial number, if any)
VANESSA PILOTO
MY COMMISSION # HH 213353
EXPIRES: February 18, 2026
Mortgage Subordination Agreement (City - County)
(The Gallery at West Brickell)
[Signature Page to Mortgage Subordination Agreement]
SCHEDULE A
Parcel 1- Leasehold
2Lf22`t
Lots 13, 14, 15, 16, 17, 18, 19 and Lot 20, LESS the East 10 feet of Lot 20, and LESS the North
2.5 feet of Lots 17 and 18, all in Block 69 South, CITY OF MIAMI, according to the Plat thereof
as recorded in Plat Book B, Page 41, and also LESS that portion of Lot 20 conveyed by Miami -
Dade County to the City of Miami in County Deed recorded in Official Records Book 29283, Page
588, all of the Public Records of Miami -Dade County, Florida.
Parcel 2 - Non -Exclusive Easement
Non -Exclusive easements for the benefit of Parcel 1 created by that certain Easement Agreement
by and between Joe Moretti Preservation Phase One, LLC, a Florida limited liability company and
The Gallery at West Brickell, LLC, a Florida limited liability company, dated September 30, 2020,
recorded on October 14, 2020 in Official Records Book 32142, Page 4750, of the Public Records
of Miami -Dade County Florida, over, under and across the lands described as follows:
Lots 3 and 4, and the North 2.5 feet of Lots 17 and 18, all in Block 69 South, CITY OF MIAMI,
according to the Plat thereof recorded in Plat Book B, Page 41, of the Public Records of Miami -
Dade County, Florida.
Mortgage Subordination Agreement (City - County)
(The Gallery at West Brickell)
A- 1